State v. Garrett

• Decision Date: 21 April 2004
• Docket Number: No. 25108.,25108.
• Citation: 139 S.W.3d 577
• Parties: STATE of Missouri, Plaintiff-Respondent, v. David B. GARRETT, Defendant-Appellant.
• Court: Missouri Court of Appeals

139 S.W.3d 577

STATE of Missouri, Plaintiff-Respondent, v. David B. GARRETT, Defendant-Appellant.

No. 25108.

Missouri Court of Appeals, Southern District, Division One.

April 21, 2004.

Appeal from the Circuit Court, Jasper County, David C. Dally, J Amy B. Bartholow, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Adriane Dixon Crouse, Assistant Attorney General, Jefferson City, for respondent.

PHILLIP R. GARRISON, Judge.

On September 29, 2003, this court issued an opinion in this cause. On November 25, 2003, by order of the Supreme Court of Missouri, this cause was transferred to that court. On April 16, 2004, the Supreme Court entered an order re-transferring the cause to this court. The original opinion of this court, which follows, is now readopted and reissued.

A jury convicted David B. Garrett ("Appellant") of one count of possession of more than five grams of marijuana with the intent to distribute, and one count of possession of methamphetamine with the intent to distribute, both violations of Section 195.211.¹ The trial court sentenced Appellant, a prior and persistent drug offender, to two consecutive terms of twenty years imprisonment without the possibility of probation or parole. In three points, Appellant assigns error to the trial court in its admission of certain testimony and exhibits, and its failure to declare a mistrial sua sponte after the prosecutor's allegedly improper reference to Appellant's right not to testify. We reverse and remand for new trial.

Appellant does not challenge the sufficiency of the evidence supporting his convictions. Viewed in the light most favorable to the verdicts, the evidence revealed the following: James Altic ("Altic"), an officer with the Joplin, Missouri police department, was assigned to that department's narcotics unit in March 2001 when he received information suggesting that drug-related activity was occurring regularly at a house located at 1624 Virginia in Joplin ("1624 Virginia"). Specifically, a confidential informant told Altic that Appellant was selling narcotics from his residence at that location.

Altic's initial response to the information provided by the confidential informant was to begin surveillance at 1624 Virginia. In the course of his surveillance, he observed Appellant entering and leaving the residence and noted that Appellant's car was parked outside the house. A check of police records revealed a previous report in which Appellant had listed 1624 Virginia as his address. Altic consulted the officer who had filed that report and the officer confirmed that Appellant lived at 1624 Virginia.

Based upon the confidential informant's tip, and his own investigation, Altic obtained a search warrant for 1624 Virginia, which was executed at approximately noon on March 16, 2001. Out of concern for their safety, the officers executing the warrant coaxed Appellant to come out of the residence under the pretext of informing him that his parked vehicle had been struck by another car. The ruse was successful, and Appellant came out of the residence, wearing only blue jeans, and went with officers to the side of the residence, where he was detained. Other officers entered the house to "clear" it of any danger and discovered another person, Samantha Overstreet ("Overstreet"), in the house. She was detained as well.

After the house was "cleared," Altic waited with Appellant in an upstairs living room of the residence while other officers searched the house. In the course of that search, Officer Matt Cowdin ("Cowdin") and Larry Stout ("Stout") found several items in an upstairs bedroom dresser, including thirteen bags of marijuana, two loaded handguns and $400 in cash. On a bed in the same room, the officers found $744 in cash in a wallet underneath a pillow. In a closet in the bedroom, Stout discovered a bag of marijuana weighing over 100 grams. A box located on the floor next to the dresser contained 84 green or clear "baggies" filled with a white powder later determined to be methamphetamine, several empty "baggies," scales, pills, a mirror, and rolling papers. The officers also noted both men's and women's clothing scattered on the floor throughout the room. Also seized were nine letters addressed to Appellant at 1624 Virginia and in the possession of Robert Nance, who lived in the back half of the house.

Subsequent to the seizure of these items, Appellant was placed under arrest. At that time, Altic discovered and seized ten small green and clear "baggies" containing a white powder later determined to be methamphetamine from the front watch pocket of the jeans Appellant was wearing. Altic did not, however, submit these baggies to the officer in charge of collecting evidence at the scene but, instead, gave them to the officer some time later at the police station, claiming they had been seized from Appellant's front pocket. Appellant requested that he be given his shirt, wallet, and shoes before being taken away. Cowdin complied with that request, after seizing the cash from the wallet found under the pillow. Appellant did not deny that the wallet, which contained no identification, or the shoes and shirt he was given, belonged to him.

Appellant did not testify at trial, but proffered the testimony of the owner of a rental house, who authenticated a document purporting to be a rental agreement between the witness and Appellant for the rental of a house at 1620 Virginia, signed prior to the raid that led to Appellant's arrest. Appellant also presented the testimony of an employee of a local utility company to authenticate a signed request of Appellant for the initiation of electrical service at 1620 Virginia. At the close of evidence, Appellant was found guilty as charged and sentenced at a later hearing as indicated above. This appeal followed.

In Appellant's first point, he claims that the trial court abused its discretion when it overruled Appellant's numerous hearsay objections to repeated references in opening statement, during Altic's testimony, and in closing argument, to statements made by the confidential informant connecting Appellant to the drug activity at 1624 Virginia. Appellant argues these references fit the classic definition of hearsay and that he was prejudiced by their admission due to the otherwise "tenuous" connection between Appellant and the address where the drugs were seized. Although we do not agree with Appellant's characterization of the nature of his connection with the residence where the drugs were seized, we do agree that he was unduly prejudiced by the repeated recitals of hearsay.

During the State's opening statement, the prosecutor told the jury that the search warrant for 1624 Virginia was served pursuant, in part, to information given to Altic by a confidential informant who stated that Appellant was dealing drugs from his home at that address. Appellant objected to any reference to the confidential informant's statement on the ground that it was hearsay. The prosecutor responded by stating that the statement was offered not for its truth but to explain the subsequent conduct of Altic. Appellant's objection was overruled.

During Altic's testimony, he was asked on direct examination to relate to the jury what he was told by the confidential informant. Appellant twice renewed his hearsay objection and was again overruled when the prosecutor told the court that the informant's statement was offered not for its truth but to explain Altic's subsequent conduct. Altic proceeded to testify that a confidential informant told him that Appellant was selling drugs from his home at 1624 Virginia.

In the course of the State's closing argument, the prosecutor made the following statement: "Now, how else can [sic] connect some more dots here? And you remember [Altic] told you about what his crime unit does, how they develop informants.... The informant told Altic that [Appellant] was dealing drugs out of his house." Appellant's immediate hearsay objection was overruled, and the prosecutor continued, in his final closing argument, to refer to the informant's statement concerning Appellant dealing "dope" from 1624 Virginia.

In considering claims of error arising out of the admission or exclusion of evidence, we remain mindful of the broad discretion enjoyed by the trial court in making such decisions; absent an abuse of that discretion, the admission or exclusion of evidence is undisturbed by this court. State v. Robinson, 90 S.W.3d 547, 550 (Mo.App. S.D.2002). We review such claims of error "for prejudice, not mere error, and we will reverse only if the error was so prejudicial that it deprived [an appellant] of a fair trial." State v. Russell, 872 S.W.2d 866, 869 (Mo.App. S.D.1994).

Appellant contends that the confidential informant's statement to Altic constituted inadmissible hearsay in that it was "in-court testimony of an extrajudicial statement offered to prove the truth of the matters asserted therein, resting for its value upon the credibility of the out-of-court declarant." State v. Harris, 620 S.W.2d 349, 355 (Mo. banc 1981). Appellant correctly argues that the "underlying rationale for the hearsay rule is that `for the purpose of seeking trustworthiness of testimonial assertions, and of affording the opportunity to test the credit of the witness, such assertions are to be made in court, subject to cross-examination.'" Id. (quoting State v. Chernick, 280 S.W.2d 56, 60 (Mo.1955)).

The State, in response, notes a longstanding exception to the rule excluding hearsay, namely, that "statements made by out-of-court declarants that explain subsequent police conduct are admissible, supplying relevant background and continuity." State v. Dunn, 817 S.W.2d 241, 243 (Mo. banc 1991). The rationale for this exception is that by admitting hearsay statements for this limited purpose "the triers of fact can be provided a portrayal of the events in question, more likely to serve the ends of...