State v. Dudley

• Decision Date: 25 November 1986
• Docket Number: No. 37596,37596
• Citation: 724 S.W.2d 517
• Parties: STATE of Missouri, Respondent, v. Gene E. DUDLEY, Appellant.
• Court: Missouri Court of Appeals

Page 517

724 S.W.2d 517

STATE of Missouri, Respondent, v. Gene E. DUDLEY, Appellant.

No. 37596.

Missouri Court of Appeals Western District.

Nov. 25, 1986.

As Modified Feb. 3, 1987.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Feb. 3, 1987.

Application to Transfer Denied March 17, 1987.

Sandra Davidson Scott, Columbia, for appellant.

Carrie Francke, Asst. Atty. Gen., Jefferson City, for respondent.

Before GAITAN, P.J., and DIXON and TURNAGE, JJ.

GAITAN, Presiding Judge.

Defendant-appellant, Gene E. Dudley, was convicted by a jury of the felony sale of cocaine, a Schedule II controlled substance, in violation of § 195.020 RSMo and sentenced as a prior offender to ten years. He appeals the judgment of the trial court alleging it erred as follows: (1) in admitting inadmissible hearsay testimony; (2) in overruling appellant's motion for acquittal because there was insufficient evidence that appellant knowingly sold cocaine; (3) failing to sua sponte reprimand the prosecutor, give a cautionary instruction, declare a mistrial or instruct the jury to disregard the prosecutor's comment on appellant's failure to testify; (4) in failing to sua sponte reprimand defense counsel, give a cautionary instruction, declare a mistrial or instruct the jury to disregard defense counsel's remark that appellant's co-actor, Mr. Balke, was "in the state penitentiary,"; (5) in failing to sua sponte strike evidence of the cocaine for failure of the State to show a chain of custody. The judgment of the trial court is affirmed.

Morris Howard Poe, Jr., working as an undercover narcotics agent for the Division of Drug and Crime Control of the Missouri State Highway Patrol, had been doing business regularly with a William Brad Balke. On May 10, 1984, Balke came to Poe's residence at 11:00 a.m. in Sedalia, Missouri. Balke and Poe picked up a man who was introduced to Poe as Jimmy Francis. The three men then drove to Kansas City.

After arriving in Kansas City, Francis made some phone calls and the three drove around looking for a woman named Miss Van Dyne. They eventually found Miss VanDyne and followed her to 2407 Jackson Street.

Around 3:00 p.m., defendant pulled into the driveway at 2407 Jackson Street. Poe waited near his car as Balke, Francis, VanDyne and defendant went inside the residence at 2407 Jackson for approximately five minutes and came back out. Defendant stood in the driveway, while Balke and Francis went over to talk to Poe. Poe gave $680 to Balke. Balke, Francis and defendant left together and were gone approximately one hour.

After 4:00 p.m., defendant, Balke, and Francis returned to 2407 Jackson and went inside the residence, accompanied by Miss VanDyne. Poe was still sitting in his car. A few minutes later, Francis appeared at the door and motioned for Poe to come inside. Once inside, Poe saw Balke and defendant removing a small amount of white powder from a blue paper envelope. They placed the powder onto a magazine cover. Balke put what was left in the blue envelope into a clear plastic bag. Balke gave the plastic bag to Poe, who put the bag inside his sock.

Balke and Francis then told Poe that defendant "wanted $70.00 for his trouble, for going after it." Poe took a $50 bill and a $20 bill from his wallet. Defendant did not take the money, but stood back and let Balke take it from Poe. Balke then gave the money to defendant, who placed it on the fireplace mantel.

Poe and Balke began the return trip to Sedalia. On the way Balke demanded that Poe give Balke some of the cocaine. Without saying anything, Poe removed the plastic bag from his sock and laid it on the seat of his car. Balke removed some of the white powder from the plastic bag, and Poe returned the plastic bag to the inside of his sock. Poe took Balke home and then returned to his trailer house.

Once at home, Poe marked the evidence and locked it in his briefcase. On May 12, he turned the plastic bag over to Sergeant Cox. Poe had placed a small card with information on it inside the plastic bag, and then placed the plastic bag inside another plastic bag.

Forensic Chemist Everett Markway, Jr. analyzed the white powder and formed the opinion that it contained cocaine. Defendant presented no evidence. The jury returned a verdict of guilty, and this appeal followed.

I.

Defendant objects to Poe's testimony that Balke and Francis told him that defendant "wanted $70 for his trouble, for going for it." He objects to this as hearsay within hearsay. We believe, however, that this comment was admissible as a declaration of co-conspirators made in furtherance of a conspiracy. United State v. Fuhr, 660 S.W.2d 443, 447 (Mo.App.1983). "In ruling on admissibility, the trial judge must first determine whether any evidence of conspiracy appears, (citations omitted) whether by direct and positive proof or by inference from the facts and circumstances in evidence." Id. While the general rule is that proof of conspiracy should come before the declaration of a fellow conspirator, this rule is flexible and the order of proof rests with the trial court's discretion. State v. Danforth, 654 S.W.2d 912, 921 (Mo.App.1983); State v. Yingst, 651 S.W.2d 641, 645 (Mo.App.1983).

A conspiracy need not be charged in the indictment or information. Fuhr, 660 S.W.2d at 488. Moreover, the evidence required to show the existence of a conspiracy for purposes of admitting into evidence the declaration of a co-conspirator differs from the evidence required to convict someone of conspiracy. Id. "The former requires only a showing of an agreement between defendant and declarant and a statement in furtherance of their scheme." Id. This showing can be by independent evidence indicating a defendant's extensive involvement in the conduct of a co-defendant. State v. Baldwin, 358 S.W.2d 18, 24 (Mo.1962). A conspiracy can be proven by circumstantial evidence. State v. Danforth, 654 S.W.2d 912, 920 (Mo.App.1983).

Poe's testimony was that defendant, Balke and Francis were together when the inculpatory statements were made. It is significant that defendant did not deny the statements at the time they were made. There was evidence that defendant, Balke, and Francis were involved in the sale. There was also evidence that defendant directed his actions through Balke and Francis. This evidence was sufficient to show that defendant conspired with Balke and Francis to sell the cocaine. Defendant's first point is denied.

II.

Defendant challenges the sufficiency of the evidence to support his conviction. Specifically, defendant alleges there was insufficient evidence to show that he knew that the white-powdered substance was cocaine.

In determining whether there is sufficient evidence to sustain a criminal conviction, an appellate court must accept as true all evidence, direct and circumstantial, and all reasonable inferences which are most favorable to the State and disregard the evidence and inferences contrary to a finding of guilt. State v. Ritterbach, 637 S.W.2d 820, 822 (Mo.App.1982); State v. Garrett, 627 S.W.2d 635, 642 (Mo. banc 1982), cert. denied, 459 U.S. 906, 103 S.Ct. 208, 74 L.Ed.2d 166 (1982). The appellate court's function is not to weigh the evidence, but rather, to determine whether there was substantial evidence to support the jury verdict. Ritterbach, 637 S.W.2d at 822. "Substantial evidence means evidence from which the trier of facts could find the issue in harmony therewith." Id.

The evidence in this case was that Trooper Poe, in his undercover work, had dealings with Balke. Poe, Balke and Francis drove from Sedalia to Kansas City and eventually met up with defendant. Balke and Francis met with defendant for about five minutes inside the house at 2407 Jackson and then had a conversation with Poe. Poe gave them $680 and Balke, Francis and defendant left for an hour. When they returned, everyone went inside and Balke and defendant packaged a "white substance" which they gave to Poe. Poe was told defendant wanted an additional $70 "for his trouble for going after it." This statement was made in defendant's presence. The substance later was determined to be cocaine. Although defendant avoided directly handling the money, there is no question that he was the principal operative in this sale.

Defendant's assertion that there was no evidence that he knew the substance was cocaine is without merit. In State v. Collins, 601 S.W.2d 640, 641 (Mo.App.1980), the court held "[t]here is no question but that the state must prove the defendant was knowingly engaged in the sale of heroin before a conviction will lie, but, absent a confession, such knowledge is often not susceptible of direct proof. Accordingly, it is well within the province of the jury to infer such knowledge from the ambient facts and circumstances." The State adduced adequate evidence to demonstrate that defendant was a participant in this sale, and was aware of the character of the substance sold. Defendant's challenge to the sufficiency of the evidence on this point is without merit.

III.

Defendant claims that the trial court erred by not declaring a mistrial, sua sponte, or otherwise remedying the prosecutor's alleged comment on defendant's failure to testify. Defendant failed to object to the prosecutor's comments at trial, nor did he raise the issue in his motion for new trial. Therefore, any review should be conducted under the plain error standard. See State v. Crawford, 719 S.W.2d 11 (Mo.App.1986); State v. McKinley, 689 S.W.2d 628, 631-32 (Mo.App.1984); Supreme Court Rule 29.12(b). Because review is for plain error, the court must find not only error, but also that manifest injustice has resulted from the error. Rule 29.12(b); Crawford, slip op. at 12.

Manifest injustice will not result from error in closing argument unless the court finds the error had a decisive effect on the jury deliberations. State v. Murphy, 592 S.W.2d 727, 732 (Mo. banc 1979). There must be a strong, clear showing that...