State v. Eyman, WD

• Decision Date: 04 February 1992
• Docket Number: No. WD,WD
• Citation: 828 S.W.2d 883
• Parties: STATE of Missouri, Respondent, v. Paul EYMAN, Appellant. 43585.
• Court: Missouri Court of Appeals

Page 883

828 S.W.2d 883

STATE of Missouri, Respondent, v. Paul EYMAN, Appellant.

No. WD 43585.

Missouri Court of Appeals Western District.

Feb. 4, 1992.

Motion for Rehearing and/or Transfer to Supreme Court Denied

March 31, 1992.

Application to Transfer Denied

June 2, 1992.

T. Jefferson Stephens, Stephens and Drake, Grant City, for appellant.

William L. Webster, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before BERREY, P.J., and ULRICH and BRECKENRIDGE, JJ.

ULRICH, Judge.

Paul Eyman appeals his conviction for possession of cocaine, § 195.020.1, RSMo 1986 (repealed). He was charged by indictment, convicted in a court-tried case, ¹ and sentenced to three years incarceration in the custody of the Missouri Department of Corrections. Mr. Eyman contends that the trial court erred in (1) overruling his motion to suppress his grand jury testimony and permitting introduction of the testimony at trial and (2) in overruling his motion for judgment of acquittal because, he claims, the evidence was insufficient to establish that he possessed cocaine. The judgment of conviction is reversed.

Paul Eyman was a senior at Tarkio High School when he was served a subpoena to appear before the Atchison County grand jury on January 31, 1990. He was immediately arrested by law enforcement officers, handcuffed, and taken to the grand jury to testify. He was a target of the grand jury investigation. Mr. Eyman was not advised of his constitutional rights pursuant to the fifth, sixth, and fourteenth amendments to the United States Constitution as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He was compelled by law enforcement authorities to testify before the grand jury about events pertaining to a party on August 26, 1989, where he purportedly used cocaine. He was not given the opportunity to consult an attorney before he testified. When Mr. Eyman testified before the grand jury, the prosecuting attorney, the prosecutor's secretary, a court reporter, the sheriff, and a deputy sheriff were all present in the grand jury room. Neither Mr. Eyman nor the prosecuting attorney dispute these facts.

Mr. Eyman was subsequently indicted by the grand jury before which he testified. He was charged with violating § 195.020, possession of cocaine. Prior to trial, Mr. Eyman moved to suppress his testimony before the grand jury. Mr. Eyman contended that his rights pursuant to the fifth, sixth, and fourteenth amendments to the United States Constitution and Article I, § 19 of the Missouri Constitution were breached and that he was not advised of his federal constitutional rights as required by Miranda, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The trial court overruled the motion to suppress.

At trial, Kevin Hicks was the state's single fact witness. He was also the state's only expert witness to testify that the substance at the party was cocaine. The trial court permitted the prosecutor to treat Mr. Hicks as a hostile witness. Like Mr. Eyman, Mr. Hicks was a senior at Tarkio High School. He had known Mr. Eyman since they had been in the second grade and was with Mr. Eyman on the evening of August 26, 1989. Mr. Hicks drove Mr. Eyman and another person to a party in Phelps City. Another person at the party presented a white substance as cocaine.

The essential part of Mr. Hicks' testimony consisted of numerous inconsistent and conflicting statements. He stated that he observed Mr. Eyman use cocaine at the party on August 26. He then said he did not observe Mr. Eyman use cocaine. He stated he did not know whether the white substance was cocaine. Mr. Hicks said that he was not certain Mr. Eyman had used the substance, but that he probably had used it. Mr. Hicks explained that he had drunk seven or eight beers the evening of the party and that he was intoxicated. He further stated that he did not see Mr. Eyman use any of the white substance, but said, "I could hear it." Mr. Hicks stated fifteen people were in the area and that perhaps seven were in the vicinity of the white powder, which was on a mirror. Mr. Hicks testified that he, himself, used the white powder and that he did not experience the same result he had experienced when he previously used cocaine. Mr. Hicks stated that he had used cocaine at least five times before he testified at trial.

The state called two additional witnesses. The prosecuting attorney introduced the transcript of Mr. Eyman's incriminating grand jury testimony through the testimony of the reporter who was present when Mr. Eyman testified before the grand jury. The foreman of the grand jury also testified that the transcript offered at trial was a correct transcript of Mr. Eyman's grand jury testimony. Neither the prosecuting attorney nor Mr. Eyman called additional witnesses. The trial court overruled Mr. Eyman's motions for acquittal and found Mr. Eyman guilty of possessing cocaine.

Mr. Eyman contends, as point 1, that the trial court erred by overruling his motion to suppress his grand jury testimony and by permitting its introduction because he was not advised of certain of his constitutional rights as required by Miranda before he testified. The right against self-incrimination under Article I, § 19 of the Missouri Constitution and the fifth and fourteenth amendments to the United States Constitution precludes the state from compelling a person to provide testimony that may tend to incriminate himself. Since 1966, law enforcement officers are required to inform persons arrested of the right not to be compelled by governmental authorities to incriminate one's self and the right to counsel provided in the fifth, sixth and fourteenth amendments to the United States Constitution. Miranda, 384 U.S. at 444-45, 86 S.Ct. at 1612-13. Miranda attempts to eradicate custodial coercive circumstances that intimidate or otherwise erode the accused's free will to choose whether he will assert his constitutional rights to counsel and remain silent or waive these rights and speak to the state, which may seek his prosecution and conviction. Id. The state acknowledges that Mr. Eyman was served a subpoena, immediately arrested, and taken to the grand jury to testify. Despite the pervasive awareness among the populace that Miranda imposes on law enforcement officers the duty to inform the accused in custody of these rights, Mr. Eyman was not advised of his rights detailed in Miranda. Id. Additionally, although in custody, he was not given the opportunity to consult legal counsel, was taken to the county grand jury, and was compelled to testify. His grand jury testimony was incriminating.

Few circumstances not involving physical abuse could present a more heinous violation of the accused's fifth, sixth, and fourteenth amendment rights and his rights guaranteed by Article I, § 19 of the Missouri Constitution than those in the present appeal. Mr. Eyman was served a subpoena and arrested, not to compel his appearance before a judicial officer on charges that he committed a crime, but for the purpose of taking him to the grand jury to compel his testimony. Mr. Eyman was handcuffed and transported by law enforcement officers to the grand jury where he remained in custody and was compelled to testify not only before the twelve member grand jury, but also before the prosecuting attorney, the prosecuting attorney's secretary, the county sheriff, and a sheriff's deputy who were in attendance with the grand jury, all without the benefit of counsel's advice. The facts presented here are repugnant to Americans, who, when they observe similar events in other, less democratic societies, call them anathema and condemn the authorities and systems that permit their occurrence.

Mr. Eyman's custodial and involuntary testimony before the grand jury was incriminating, prejudicial, and should have been suppressed on Mr. Eyman's motion. The introduction of the testimony was error. Id. Point 1 is sustained.

Mr. Eyman, as point 2, contends that insufficient evidence was introduced to sustain his conviction. With the suppression of Mr. Eyman's grand jury testimony, the testimony of Kevin Hicks is the only remaining evidence. Thus, the state must rely on Mr. Hicks' testimony to prove Mr. Eyman's guilt beyond a reasonable doubt. On appeal, this court does not reweigh the evidence but, instead, determines if the state produced sufficient evidence to allow a reasonable person to conclude that the defendant is guilty of the crime with which he is charged. State v. Vitale, 801 S.W.2d 451, 456 (Mo.App.1990). Mr. Hicks' testimony must be sufficient to prove beyond a reasonable doubt that the substance present at the party was cocaine and that Mr. Eyman possessed it, the essential elements of the offense proscribed by § 195.020.1. Id.

Proof that a substance is a contraband drug does not always require expert testimony, State v. Neal, 624 S.W.2d 182, 183-84 (Mo.App.1981), but the proof must be sufficient to support a finding by the trier of fact that the substance was the charged contraband beyond a reasonable doubt. Vitale, 801 S.W.2d at 456. Neal requires that the witness must have considerable experience with the substance to sufficiently identify its nature. 624 S.W.2d at 183-84. In Neal, the witness testified that he had smoked ten to twelve marijuana cigarettes daily and had made as many as a hundred sales of marijuana. Id. at 183. This substantial experience with drugs qualified the witness to testify about the identity of a substance in question. Id.

Mr. Hicks' testimony as the state's sole expert witness must be competent to prove that the white substance at the party was cocaine. Mr. Hicks was not qualified as an expert by education or...