State v. Eib
| Decision Date | 15 July 1986 |
| Docket Number | No. WD,WD |
| Citation | 716 S.W.2d 304 |
| Parties | STATE of Missouri, Respondent, v. George M. EIB, Appellant. 36702. |
| Court | Missouri Court of Appeals |
David C. McConnell, Kansas City, for appellant.
Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
Before NUGENT, P.J., and BERREY and GAITAN, JJ.
The defendant-appellant, George M. Eib, was convicted on two counts of the sale of cocaine, a Schedule II controlled substance, in violation of § 195.020, RSMo 1978 punishable under § 195.200.1(4) RSMo 1978. He appeals those convictions alleging the trial court erred: (1) by finding the appellant to be a prior offender when he had successfully completed a suspended imposition of sentence; (2) by not holding that charging appellant as a prior offender was a retrospective application of law and denied him due process and equal protection of the law; (3) by denying an entrapment defense; and (4) by denying an instruction on the state's failure to call the informant as a witness. The judgment of the trial court is affirmed.
The essential facts surrounding the events leading to the arrest and conviction of the appellant are not disputed. The appellant sold cocaine on two separate occasions, December 1, 1983 and December 6, 1983, to Detective Daniel Mulloy of the Drug Enforcement Unit of the Kansas City Missouri Police Department. These transactions were negotiated by a police informant, Laurie Jones. Appellant believed Detective Mulloy to be the informant's boyfriend. Detective Mulloy testified that he had never met appellant before the night of December 1. Detective Mulloy was present at the buy as a result of a pre-arranged set-up by the informant. Further, Detective Mulloy testified that the discussion for the purchase of the cocaine was between the informant and appellant. Mulloy testified that on the night of December 1, the informant made a series of telephone calls to appellant. Subsequent to those calls and some five hours later, the appellant showed up at the apartment where Mulloy and the informant had been waiting. He apologized for being late, threw a plastic bag containing a white powdery substance on the couch and accepted $115. Before he left, he stated he would be happy to do business any time.
Mulloy further testified that the second transaction occurred on December 6 and was set up entirely by the informant. He assumed it was set up in accordance with his instructions. The arrangement was for the purchase of 1/8 ounce of cocaine for $300. Detective Mulloy and the informant met appellant who was accompanied by a blonde female at a shopping center. Appellant handed Mulloy the cocaine which was contained in clear plastic bags. He received the agreed upon $300 and stated,
At trial the informant did not testify. Mulloy testified that the informant was a friend of the appellant and had purchased cocaine from him at different times. He said the informant had identified appellant as one of ten or fifteen persons she knew was actively selling narcotics. Mulloy testified that the informant stated she had known the appellant for five years and that he was dealing in drugs the entire time. She stated that appellant always had cocaine. This testimony was consistent with the appellant's statement that he and the informant had been friends and used drugs together for approximately five years. Appellant claims that the informant was the supplier of those drugs.
A week following the second transaction, the Grandview police executed a search warrant at appellant's residence. As a result of the search, the police uncovered what was believed to be one gram of cocaine, some stolen property, and marijuana and cocaine paraphernalia.
Appellant's first two points address the same issue and therefore will be considered together. Appellant plead guilty on August 10, 1978 in Missouri to sale of a controlled substance. He received a suspended imposition of sentence and was placed on probation which he successfully completed. That plea of guilty was the basis for the state's amending its indictment by information to charge appellant as a prior offender. The basis for the state's action was an amendment in 1980 to § 558.016 RSMo Supp. which permitted a plea of guilty to be used to establish a defendant as a "prior offender." Section 558.016 states that "A 'prior offender' is one who has pleaded guilty to or has been found guilty of one felony." If a defendant is found to be a prior offender, the court may sentence him after a jury finds him guilty.
Appellant asserts that the 1980 amendment breached a contract between the appellant and the state relative to his 1978 plea agreement and therefore it was impermissible and error. He asserts that there was an agreement between the state and appellant prior to the 1978 plea which stated his successful completion of probation would make appellant pure in the eyes of the law. He further states the 1980 amendment is a retrospective application of the law and a denial of due process and equal protection under the law.
This argument may be rejected because it was never raised at trial or in appellant's motion for new trial. There is simply no evidence in the record to support the appellant's assertion. At best the appellant argues his own understanding of the effect of that plea. 1 Appellant argues that the principles set forth in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), apply here. In Santobello there was clearly a negotiated basis for the defendant's plea of guilty and it was preserved for review. Id. at 258-59, 92 S.Ct. at 496-97. In the case at bar, appellant does not have the record at trial to support that application.
It is well settled that a party cannot broaden or alter on appeal the scope of his trial objection. State v. Light, 686 S.W.2d 538, 542 (Mo.App.1985); State v. Franks, 685 S.W.2d 845, 848 (Mo.App.1984).
The appellant has the burden of filing a record on appeal which incorporates the basis for the challenged error, and if he fails to do so, there is nothing for an appellate court to review. State v. Jones, 594 S.W.2d 932, 935 (Mo.1980). The appellant in this instance did not offer or introduce at trial a record of the 1978 plea proceeding and he introduced no evidence at trial indicating the terms of the plea bargain. In fact, he introduced no evidence that appellant's guilty plea in 1978 was entered in reliance on a plea agreement.
Since the assertions the appellant makes under this issue lack any support in the record, they simply may not be considered on this appeal. State v. Shives, 601 S.W.2d 22, 30 (Mo.App.1980); State v. Burrington, 371 S.W.2d 319, 320-31 (Mo.1963).
Next, appellant asserts the trial court's action amounted to an ex post facto application of § 558.016. An ex post facto law is "one which renders an act punishable in a manner in which it was not punishable when it was committed." Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 137, 3 L.Ed. 162 (1810); U.S. Const. Art. I, § 10.
This issue was recently considered by this court in State v. Blaylock, 705 S.W.2d 30 (Mo.App.1985). In October, 1977, Blaylock was charged in Florida with the felony offense of burglary. Blaylock entered a plea of guilty to the charge but the Florida court, under law peculiar to Florida, withheld adjudication of guilt and imposition of sentence. The court placed Blaylock on probation for a three-year period and in July, 1979, he was discharged from that probation.
Blaylock asserted that the application of § 558.016.2, was ex post facto because the statute was not in effect until after the Florida offense and after he had finished the probationary period resulting therefrom. After finding Blaylock was a prior offender, the court merely took the issue of punishment from the jury.
State v. LaPlant, 673 S.W.2d 782, 785 (Mo. banc 1984).
State v. Blaylock, 705 S.W.2d at 34. Consequently, appellant must fail on these arguments.
Next we turn to appellant's assertion of entrapment. Appellant states that he was wrongfully denied an entrapment instruction. To show entrapment, Defendant must show both unlawful governmental inducement to engage in unlawful conduct and his lack of predisposition. State v. Willis, 662 S.W.2d 252, 255 (Mo. banc 1983), State v. Jenkins, 674 S.W.2d 93, 95 (Mo.App.1984), State v. Stout, 675 S.W.2d 931, 937 (Mo.App.1984). Where the defendant is predisposed to commit the offense, the defense of entrapment is not available to him. State v. Robinson, 664 S.W.2d 543, 545 (Mo.App.1983).
The issue of whether the specific government conduct involved was "outrageous" such that due process would bar the government from invoking judicial processes to obtain a conviction is one of law for the court and is not one of fact for the jury. State v. Hohensee, 650 S.W.2d 268, 272 (Mo.App.1982).
With the aforementioned principles of law in mind, we now examine the record to determine the evidence appellant presented at trial to support entrapment. Appellant alleges that the informant called him up and asked him to conduct a drug transaction. He stated that they had known each other and used drugs together for some five years. He claimed she was his main supplier. Appellant alleges the informant gave him the drugs to hold for her in anticipation of later sale to her boyfriend. He claims she later called him down to make the sale because she did not want...
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...; State v. Cameron , 604 S.W.2d 653, 661 (Mo.App.1980) ; State v. Dees , 631 S.W.2d 912, 916 (Mo.App.1982) ; State v. Eib , 716 S.W.2d 304, 309–10 (Mo.App.1986).The gap in civil cases preceding Pisoni may be attributable in part to MAI's arrival in the 1960's. With case law already barring ......