State v. Hall, WD

• Decision Date: 29 January 1985
• Docket Number: No. WD,WD
• Citation: 687 S.W.2d 924
• Parties: STATE of Missouri, Respondent, v. Kimberly HALL, Appellant. 35617.
• Court: Missouri Court of Appeals

Page 924

687 S.W.2d 924

STATE of Missouri, Respondent, v. Kimberly HALL, Appellant.

No. WD 35617.

Missouri Court of Appeals,

Western District.

Jan. 29, 1985.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

April 2, 1985.

Application to Transfer Denied

April 30, 1985.

C. Clifford Schwartz, Clayton, for appellant.

Diane Garber and Robert R. Sterner, Fulton, for respondent.

Before KENNEDY, P.J., and DIXON and CLARK, JJ.

KENNEDY, Presiding Judge.

Defendant Kimberly Hall was convicted of acting in concert with her husband in possessing less than 35 grams of marijuana, § 195.020, RSMo Supp.1982, and was sentenced in accordance with the jury verdict to 30 days in jail and a $500 fine, § 195.200.1(1)(a), RSMo Supp.1982.

On the information given by a confidential informant, Lieutenant Ken Bishop of the Callaway County sheriff's office obtained on December 31, 1982 a warrant to search the home of Kimberly and James Hall for marijuana and amphetamines. The next morning Lieutenant Bishop entered the home, found James Hall standing in his bedroom doorway and defendant Kimberly Hall in bed. He directed the couple to dress and to sit in the living room. The officer then searched the home and found in one bedroom a water pipe, and, hidden in the collector bag of a stand-up vacuum cleaner several cellophane bags of marijuana and an aluminum foil packet of hashish. In defendant's bedroom, he found a metric scale near the bed and a cellophane bag of marijuana on the dresser. On an end table in the living room, a cellophane bag of marijuana lay among fruit and nuts in a bowl.

By information, James Lee Hall and Kimberly Hall were charged jointly with acting in concert in possessing more than 35 grams of marijuana. The cases were severed and the husband's case tried first, resulting in a jury verdict of not guilty to the charge of joint possession with his wife of over 35 grams of marijuana. Defendant wife, found guilty by jury verdict of joint possession of less than 35 grams of marijuana, appeals.

I

Defendant first contends that collateral estoppel should have barred her trial because she and her husband had been charged in the same information with the same offense of joint possession of marijuana but, since the jury in her husband's trial found him not guilty, they "must have necessarily found that the wife was not guilty". Defendant contends that in her trial the information, evidence and charge to the jury were "exactly and mutually the same" as in her husband's trial, and thus, by failing to sustain defendant's motion to dismiss and plea in bar of prosecution, the trial court committed prejudicial error, placing her in jeopardy twice for the same offense. A separate point, that it was error to submit the charge of joint possession with her husband, is based also upon the husband's acquittal in the earlier trial.

The fact that defendant's husband, with whom she was charged with joint possession of marijuana, had in a separate trial been acquitted of a similar charge, i.e. joint possession with defendant of marijuana, based upon the same event and the same evidence, is no bar to defendant's prosecution. That proposition is too clear to require much discussion. Defendant was not a party to the trial of the charge against her husband, and the result of that case has no bearing, in any way, upon the trial of the charge against the defendant. For a good analysis of the subject, see State v. Swearingin, 564 S.W.2d 351, 353-55 (Mo.App.1978).

II

Next, defendant challenges the submissibility of the case because, she contends, there was insufficient evidence to establish her use or control of or dominion over the marijuana found in the house.

Defendant correctly says that the state must prove her knowing and intentional possession of the marijuana. State v. Barber, 635 S.W.2d 342, 343 (Mo.1982). While one in exclusive possession of premises may be deemed to be in possession of illicit drugs found therein, State v. Wiley, 522 S.W.2d 281, 292 (Mo. banc 1975), if possession is joint with another person, as was the case here, there must be some additional evidence to link the defendant with the drugs. Id.

It is clear that defendant occupied the house in question with her husband. When the police officers entered the house on New Year's morning, 1983, defendant was in bed covered with a sheet. A bag of marijuana was lying on a dresser "located directly next to the bed or practically touching the bed". It would have been "maybe a couple of feet" from the defendant. On the same dresser was an ashtray containing a small amount of marijuana. Also in the same bedroom, on top of a stand or table of some description, was a metric scale with some unidentified vegetable matter on it. The evidence does not show its distance from the bed, but the officer saw it as he entered the bedroom.

The other marijuana, the hashish and the water pipe were found in other rooms in the house.

The state made a submissible case against the defendant. The marijuana in the cellophane bag and in the ashtray lying on the dresser within defendant's reach, near the bed where defendant was found when the officers entered the house, added to the fact of defendant's access to the living room and the other "bedroom" (although there was no bed in it) where the other drugs and the water pipe were found is sufficient to establish her actual or constructive and knowing possession of the drugs. State v. Zimpher, 552 S.W.2d 345, 349 (Mo.App.1977); State v. Jackson, 576 S.W.2d 756 (Mo.App.1979). We have examined each of the cases cited by defendant where joint possession of premises was held not to establish prima facie the possession of drugs found therein, namely, State v. Barber, 635 S.W.2d 342 (Mo.1982); State v. McGee, 473 S.W.2d 686 (Mo.1971); State v. Moore, 659 S.W.2d 252 (Mo.App.1983); State v. Lowe, 574 S.W.2d 515 (Mo.App.1978); State v. Funk, 490 S.W.2d 354 (Mo.App.1973). To that list might be added two recent cases of this court, State v. Hall, 680 S.W.2d 179 (Mo.App.1984); State v. Falkner, 672 S.W.2d 373 (Mo.App.1984). In each case there was a significant difference from the case we have before us at the present time. There were absent the salient circumstances of defendant's joint residence with her husband for at least one month; the close proximity of marijuana to the bed where defendant was sleeping at the time the officers entered the house; the visibility in the bedroom of the metric scale; and her access to the other areas in the house where the drugs and the drug paraphernalia were located, most in plain view. State v. Kerfoot, 675 S.W.2d 658, 662 (Mo.App.1984). Absent from this case is the danger that she was innocent of any knowing and intentional possession of the drugs.

III

Defendant contends that several motions in limine requested by the prosecutor and granted by the trial court denied defendant her Sixth Amendment right to confront witnesses against her. The prosecutor sought and was granted the following motions: (1) To prevent any reference to the outcome of defendant's husband's trial, (2) to prohibit references to fingerprinting and scientific tests which could have been made but were not, and (3) to prevent reference to the confidential informant and to prohibit cross-examination of the informant's reliability.

The court was not in error in its in limine order prohibiting any reference to the outcome of defendant's husband's trial. The fact that he had been acquitted of the charge against him was wholly irrelevant, just as his conviction thereof would have been wholly irrelevant to any issue in defendant's trial. State v. Clark, 646 S.W.2d 409 (Mo.App.1983).

The state made and the trial court sustained a motion in limine to prohibit references to fingerprinting and scientific tests which could have been made but were not. There is no doubt, as an abstract proposition, that this ruling was incorrect. If the state could have fingerprinted objects which defendant was charged with possessing, and did not do so, it was perfectly in order for the defendant to show this fact, either by cross-examination of the state's witnesses or by independent evidence. After all, the defendant was charged with possession of marijuana. The marijuana was contained in cellophane bags. As a part of the state's evidence there were introduced a water pipe and a scale, both of which were drug paraphernalia. These objects were found in the residence and in the bedroom which the defendant occupied with her husband. It was incumbent upon the state to show defendant's possession of the marijuana. Her fingerprints on the cellophane bags containing the marijuana or on the drug paraphernalia would have been relevant to show her possession of them; the absence of her fingerprints would also be relevant on the same issue.

Similarly, if there were scientific tests available to the state which might be relevant on the issue of defendant's guilt, the absence of such tests was a relevant inquiry, either on cross-examination or by direct proof.

The difficulty we have is that we are unable to see any prejudice to defendant. The defendant, in cross-examining the police officer, brought out that the scale did not have her fingerprints on it, and that the water pipe did not have her fingerprints on it. She brought out also that no fingerprint samples were taken of the cellophane marijuana bags. The trial court did limit defendant's attorney in going into whether fingerprints could be obtained from the bags.

As to other "scientific tests" the defendant did not give the trial court any idea what scientific tests she would have liked to inquire about, and gives us no such idea. Before we will reverse for trial court error, we must be able to determine that defendant suffered prejudice thereby. We are unable to assess any prejudice to defendant on account of the exclusion of evidence unless there is a showing what the evidence would have been...