State v. Dunavant, 47569

• Decision Date: 31 July 1984
• Docket Number: No. 47569,47569
• Citation: 674 S.W.2d 685
• Parties: STATE of Missouri, Respondent, v. Tony R. DUNAVANT, Appellant.
• Court: Missouri Court of Appeals

Page 685

674 S.W.2d 685

STATE of Missouri, Respondent, v. Tony R. DUNAVANT, Appellant.

No. 47569.

Missouri Court of Appeals,

Eastern District,

Northern Division.

July 31, 1984.

Loramel P. Shurtleff, Columbia, for appellant.

John Ashcroft, Atty. Gen., Jefferson City, for respondent.

REINHARD, Judge.

Defendant was convicted by a jury of selling cocaine and hydromorphone; class A felonies under § 195.020, RSMo.1978. He was sentenced to 30 years for each offense with sentences to run concurrently. Defendant appeals citing as error that a tape recording made of the sale and a transcript of that tape were erroneously admitted into evidence. He further contends there was insufficient evidence to support the verdict.

In reviewing the record to ascertain whether there was sufficient evidence, we will accept as true all evidence whether circumstantial or direct, tending to prove defendant guilty together with all reasonable inferences supportive of the verdict. We disregard the portions of the record contrary to the verdict. Our sole determination will be whether there was sufficient evidence from which reasonable persons could have found defendant guilty as charged. State v. Brooks, 618 S.W.2d 22, 23 (Mo. banc 1981). It is for the jury to decide the credibility of the witness and how much weight is to be accorded to his testimony. State v. Williams, 652 S.W.2d 102, 111 (Mo. banc 1983).

The state's principal witness was Bill Wagner, a police informer. Wagner testified that he contacted defendant to arrange a drug sale. He stated that on March 16, at 6:00 p.m., before meeting defendant to purchase the drugs, he went to the Panhandle Eastern Building in Mexico, Missouri where Detective Sewell and Lt. Cason gave him $1250.00. There, the police officers searched his car and his person, and outfitted him with a tape recorder to record the drug sale. Wagner testified that several hours later, as planned, he met defendant at a Stop N Go market in Audrain County, Missouri. Wagner stated that he got into defendant's car; defendant drove around as the drug transaction was completed. Wagner testified that he received from defendant 10 yellow pills (later identified by expert as hydromorphone) and approximately 1/2 ounce of cocaine in exchange for the $1250.00. Wagner returned to the Panhandle Eastern Building where he gave the police officers the tape recording of the conversation and the purchased drugs. The tape recording was played at trial and a transcript of the tape prepared by Detective Sewell was admitted into evidence. A submissible case was made and the evidence was sufficient to support the jury's conclusion that defendant had sold hydromorphone and cocaine to Wagner. Therefore, defendant's first point of error must be denied.

Defendant next contends that the tape recording was improperly admitted because the tape was of such poor quality that it could not be used as evidence. On the morning of trial, the court heard defense counsel's motion to suppress admission of the tape as evidence. At that time the prosecuting attorney played the tape for the court. While listening to the tape, the court also examined the transcript to verify its accuracy. The court, noting that "[t]he tape is remarkably clear ... from others I have heard," overruled defense counsel's motion and found both tape and transcript admissible as evidence. The admission of tape recordings depends upon the particular circumstances of each case, and the trial court has reasonable discretion in determining admissibility. State v. Walker, 657 S.W.2d 704, 707 (Mo.App.1983). Partial inaudibility is not a bar to admission so long as the unintelligible portions are not so substantial as to render the recording as a whole untrustworthy. State v. Spica, 389 S.W.2d 35, 48 (Mo.1965). We have listened to the tape and find some portions of the tape to be inaudible. However, the inaudible portions are not so substantial as to render the tape inadmissible. We find no abuse of the court's discretion on this issue.

Defendant further contends admission of the tape recording was error because the tape recording was filtered and the prosecutor failed to disclose the existence of the filtered tape prior to trial which resulted in fundamental unfairness and lack of due process for defendant. During the motion to suppress, defense counsel objected strenuously to the admission...