State v. Gamble, 16206
| Decision Date | 27 December 1989 |
| Docket Number | No. 16206,16206 |
| Citation | 781 S.W.2d 820 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Randall GAMBLE, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
William L. Webster, Atty. Gen., Frank A. Jung, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Scott B. Tinsley, P.C., Springfield, for defendant-appellant.
Defendant, Randall Lee Gamble, was jury-tried and convicted in the circuit court of Barry County, Missouri, of the class B felony of conspiring to sell or distribute methamphetamine, a controlled substance, for which conviction Gamble received a prison sentence of 13 years.
In his appeal, Gamble charges trial court error in 1) admitting, over objection, evidence of other crimes he committed, 2) failing to declare a mistrial after a State's witness testified he was shot as a result of his involvement in the conspiracy, 3) failing to excuse for cause a venireperson who indicated that if the State had no evidence of Gamble's guilt, he would not have been charged with the crime, and 4) designating Gamble as a persistent offender, 1 thus enhancing his punishment, when the State had not proved such status. We affirm.
The amended information on which the State proceeded to trial charged that in February of 1987, in Lawrence County, Missouri, Randall Lee Gamble, with the purpose of promoting the sale of methamphetamine, a controlled substance, agreed with Steven Massey and Don Robbins, that one or more of them would sell the methamphetamine, and in furtherance of that conspiracy, one or more of them obtained methamphetamine. The sufficiency of the information, and the sufficiency of the evidence to sustain the charge has not been challenged on appeal.
The State's evidence consisted of the testimony of Steven Massey and Richard Myers, both of whom were admitted illegal drug dealers and coconspirators with Gamble. Massey testified that during the last part of February, 1987, he was approached by Don Robbins, and asked if he was interested in selling methamphetamine. Robbins indicated he and Massey would have to pay $1,800 an ounce for the drug, and that they could make a $200-$400 profit per ounce on the sales. Massey agreed to Robbins' proposal, and Robbins started delivering the methamphetamine to Massey, who, in turn, sold it in the Springfield area. In March of 1987, Massey was present in Robbins' Harley shop in Aurora, Missouri, when Gamble delivered four ounces of methamphetamine to Robbins, and told Robbins how long he had to raise the money to pay for it. Massey further testified the arrangement between the three men was that Gamble would supply the methamphetamine to Massey and Robbins, and that they would sell the drugs and pay Gamble his price for the drug out of the proceeds, keeping any profit for themselves.
Myers testified that he had known Gamble for several years, and was selling methamphetamine for him. On February 25, 1987, Gamble delivered four ounces of crystal methamphetamine to Myers for resale. When the arrangement began, Gamble charged Myers $1,800 an ounce for the drug, but later lowered his price to $1,600 per ounce. Myers knew Don Robbins and of his drug connection with Gamble, as Gamble had told Myers that Robbins was fronting the drugs for him on the same basis as Myers. Massey and Myers both testified that they sold the methamphetamine in question, and that Gamble received his sum of money. Neither Robbins nor Gamble testified.
In his first point relied on, Gamble contends that it was error for the trial court to permit Richard Myers to testify, over Gamble's objection, concerning Myers' drug dealings with Gamble, because such testimony constituted proof of a separate and distinct crime, and for that reason such testimony was inadmissible and prejudicial.
While evidence of other crimes is generally inadmissible, such is not the case if such evidence has a legitimate tendency to establish a defendant's guilt of the charge for which he is on trial. In such cases, evidence of other crimes is competent to prove the crime charged when such evidence tends to establish motive, intent, absence of mistake or accident, or a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other. State v. V------- C-------, 734 S.W.2d 837, 842 (Mo.App.1987).
Gamble was charged with conspiring with Massey and Robbins to sell and distribute methamphetamine. The evidence established not only that he had done so, but that at approximately the same time he was conspiring with Myers to do the same thing. The modus operandi of the transactions was substantially the same, and the separate transactions were closely related in point of time. Gamble's activities with Myers, as well as those with Massey and Robbins, were relevant to prove a common scheme or plan to conspire to sell illegal drugs. The fact that Myers was not named in the information is immaterial. U.S. v. Norton, 846 F.2d 521, 524 (8th Cir.1988). The point has no merit.
Gamble's second point relied on is that the trial court erred in denying his request for a mistrial after Myers testified that he was shot as a result of his involvement in the conspiracy. Gamble contends that such testimony was evidence of another crime, that it had no legitimate tendency to establish that he was guilty of conspiracy, and that the evidence was highly inflammatory and prejudicial.
During cross-examination of Myers by Gamble's attorney, the following exchange occurred: No objection was made to the answer by defense counsel, who continued to question Myers regarding other matters. After defense counsel finished his cross-examination, the prosecutor conducted a redirect examination of Myers, during which the following exchange occurred:
Q. In response to Mr. Gaither's question for the reasons why you--what happened when you quit the use of drugs, did anything else--you said--He said all you got out of it was probation. Did you get personal injuries?
A. Yes, I was shot.
Q. And was that because of your involvement in this conspiracy?
A. Yes.
(Proceedings returned to open court.)
The declaration of a mistrial is a drastic remedy, and should not be granted except in extraordinary circumstances, and the decision of whether to grant a mistrial is a matter addressed to the sound discretion of the trial court, which should be honored by the appellate courts unless there is a clear showing in the record that such discretion was abused. State v. Cheek, 760 S.W.2d 162, 165 (Mo.App.1988). No such showing appears here.
Myers' statement that he was shot as a result of his involvement with drugs was elicited by Gamble's lawyer who made no objection to Myers' remarks. When the prosecutor, on redirect examination, pressed for details regarding the shooting, defense counsel objected, and also requested a mistrial. The trial court sustained the objection, ordered the prosecutor's questions and the witness' answers stricken, and ordered the jury to disregard the question and answer, but denied the request for a mistrial. Under these facts, we cannot say that failure to declare a mistrial amounted to a clear abuse of the trial court's discretion. The point has no merit.
In his third point relied on, Gamble asserts that the trial court erred when it denied his attorney's request that venireperson Arlene Price be excused for cause because Mrs. Price had expressed the opinion during voir dire examination that the State must have evidence against Gamble to charge him with a crime, or "he wouldn't be here."
During voir dire of the entire jury panel, defense counsel was apparently trying to determine if everyone on the panel agreed with the legal principle that a defendant in a criminal case was presumed to be innocent, and it was the State's burden to prove his guilt beyond any reasonable doubt, when the following exchange with Mrs. Price occurred:
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