State v. Dunagan
| Decision Date | 06 June 1989 |
| Docket Number | No. 15823,15823 |
| Citation | 772 S.W.2d 844 |
| Parties | STATE of Missouri, Respondent, v. Rhonda Susan DUNAGAN, Appellant. . Division One |
| Court | Missouri Court of Appeals |
Robert P. Baker, Sarcoxie, for appellant.
William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.
Appellant Rhonda Susan Dunagan was found guilty by a jury of selling marihuana, a controlled substance, in violation of § 195.020.1, RSMo 1986. The jury assessed punishment at five years' imprisonment, but added to the verdict a recommendation that appellant "be placed on supervised probation for the entire five year term." The trial court imposed the term of imprisonment assessed by the jury, but denied probation.
Appellant's brief presents seven assignments of error. As the sufficiency of the evidence to support the verdict is unchallenged we recount only the evidence pertinent to the issues on appeal.
Appellant's conviction hinged on the testimony of Stuart McHenry Cornell, who became employed as a Carthage police officer in September, 1985. A year later Cornell was engaged by Chief Ronald E. Hager of the Lamar police department "to work undercover in narcotics" in Lamar when Cornell was not on duty in Carthage. Cornell was commissioned a Lamar police officer.
In connection with his Lamar duties Cornell met Marion Eugene "Mick" Strong at Onstott's Tavern where Strong's wife, Joyce Marie Strong, was employed. Cornell and another undercover officer purchased marihuana from Mick Strong in September, 1986, and informed him they would be interested in purchasing a larger quantity at a later time.
Cornell testified that in early November, 1986, he made arrangements with Mick Strong for another marihuana purchase. On November 15, 1986, Cornell was furnished $250 by Chief Hager for such purpose. Two days later, around 6:30 or 7:00 p.m., Cornell went to Onstott's Tavern looking for Mick Strong. He was not there, so Cornell asked Joyce Strong where Mick was. Joyce said Mick "was at home at their trailer." Cornell drove to the trailer, "about six or seven blocks west of the Square ... in Lamar."
Mick Strong was at the trailer, alone, when Cornell arrived around "seven or seven-thirty." After conversing with him, Cornell returned to Onstott's Tavern where he told Joyce Strong "that Mick had asked her to call the party that they had talked about previously and tell them that I wanted to make a deal and see if we could work something out." Cornell's testimony continued:
[Cornell]: I heard at one point her use the name Susie on the telephone. She hung up the phone and indicated that the party she wanted to speak to wasn't there at that time.
Some time after the first phone call, according to Cornell, Joyce Strong made a second one. At this point in Cornell's testimony we find the following dialogue, about which appellant complains in her first point (discussed infra ):
"Q ... [D]id Joyce Strong have a conversation with someone, then, on the telephone this second call?
A Yes, she did.
Q And what was the substance of that conversation?
[Cornell]: Spoke with her about purchasing--spoke with the party on the other end of the phone about purchasing some marijuana; indicated to me that the person on the other end of the phone wanted three hundred dollars for the quantity that we discussed and I said I could only offer two hundred and fifty. She spoke back into the phone again and told me that that would be all right and hung up the phone after another, I don't recall, just a few brief seconds of conversation.
Q (By Mr. Ratzlaff 2) And did you remain in the bar then?
The trial court overruled the objection, whereupon Cornell's testimony continued:
Cornell explained that after some five or ten minutes Mick Strong appeared at Onstott's. A few minutes later appellant arrived and conversed with Mick Strong, after which the two of them departed in a pickup truck. Cornell, per instructions from Mick Strong, waited at Onstott's a few minutes, then drove to Mick Strong's trailer, arriving at "[e]ight o'clock."
Cornell, so he testified, knocked on the door and it was answered by a male "juvenile" whom Cornell did not know. Cornell entered and saw Mick Strong and appellant seated at the kitchen table, on which lay a brown paper grocery sack. Cornell went to the table and sat down. Cornell testified he wanted to confirm the price mentioned earlier so he asked, "Two hundred and fifty dollars?" Appellant, according to Cornell, responded, "Two hundred and fifty dollars, right."
Cornell picked up the paper sack, opened it, and saw a "plastic bread sack" containing what appeared to be marihuana. Cornell then laid $250 on the table. Mick Strong picked up the money. Asked what occurred next, Cornell testified appellant said, "Make sure that I get my half." Cornell added: "[Appellant] said, 'Make sure that I get my half,' she and Mick made eye contact and she said, 'My share.' " Cornell conceded on cross-examination that in his case report he had originally quoted appellant as saying, "Make sure I get my share--I mean, cut."
Cornell, after conversing with Mick Strong "another few moments," took the paper sack (which enveloped the plastic sack and its contents) and departed. He returned to his apartment in Carthage where he sealed the paper sack with tape, initialing and dating the tape and signing his name on the sack.
The next morning Corporal William Patrick Burton of the Lamar police department arrived at Cornell's apartment. Cornell turned the sealed paper sack over to Burton, who immediately took it to the Regional Crime Laboratory at Missouri Southern State College in Joplin. There Burton gave the paper sack, still sealed, to Phillip R. Whittle, director of the laboratory and professor of chemistry at the college. Whittle examined the contents--described by him as "plant material"--and determined the material was marihuana weighing 311.6 grams. Whittle's examination required approximately an hour, after which he handed the marihuana, encased in the plastic sack and the paper sack, which in turn had been wrapped in two plastic bags, back to Burton. Burton testified he took the package to Lamar and placed it in the evidence room at the police station. What happened to the package thereafter is the subject of appellant's fourth point, discussed infra.
Joyce Strong, called as a witness by appellant, testified that appellant is Mick Strong's sister, and that everybody calls appellant Susie. On cross-examination Joyce Strong disclosed that appellant resided "[o]ut by Milford," some ten or eleven miles from Lamar.
Appellant's first point is:
"The court below erred in allowing over objection the introduction into evidence of hearsay elicited from the State's witness Cornell, because such hearsay, of words purportedly spoken by Joyce Strong and Mick Strong, not in the presence of the [appellant], was employed by the prosecution as substantive evidence of guilt, thereby denying [appellant] her rights under the Sixth Amendment and depriving her of a fair trial, to her prejudice."
We first consider the contention that Cornell was improperly allowed to testify as to out-of-court statements uttered by Mick Strong. We learn from the argument following appellant's first point that appellant is complaining about the following passage from Cornell's testimony:
[Cornell]: In the course of conversation he indicated that he was able to at different times come into that much marijuana at one time, yeah.
Q ... Then did you talk to him about what type of marijuana?
A We talked several different times and eventually he said he could get some.
According to Cornell, Mick Strong made the above statements after the September, 1986, sale and prior to the sale in question.
Assuming, without deciding, that Cornell's testimony about Mick Strong's statements was inadmissible hearsay, we find no prejudice to appellant. Mick, called as a witness by appellant, disclosed he was incarcerated by the Department of Corrections, having pled guilty earlier to the September, 1986, sale. Mick confirmed that Cornell had come to Mick's trailer November 17, 1986, asking whether Mick could find Cornell some marihuana. Mick testified he told Cornell he (Mick) would try, and to meet him at Onstott's "a little bit later." Mick explained to the jury that he did not drive, having lost his license in 1984, so he started to Onstott's (five or six blocks from his trailer) on foot. En route, according to Mick, he made a call from a public phone to a man he had met two or three...
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