State v. Jackson

• Decision Date: 03 May 1973
• Docket Number: No. KCD,KCD
• Citation: 495 S.W.2d 80
• Parties: STATE of Missouri, Respondent, v. Melvin Leon JACKSON, Appellant. 26083.
• Court: Missouri Court of Appeals

Page 80

495 S.W.2d 80

STATE of Missouri, Respondent, v. Melvin Leon JACKSON, Appellant.

No. KCD 26083.

Missouri Court of Appeals, Kansas City District.

May 3, 1973.

Robert L. Rodarte, Kansas City, for appellant.

John C. Danforth, Atty. Gen., David Robards, Asst. Atty. Gen., Jefferson City, for respondent.

Before DIXON, C.J., and SHANGLER, PRITCHARD, SWOFFORD and WASSERSTROM, JJ.

SWOFFORD, Judge.

Appellant was convicted on January 31, 1972 of the sale of narcotics (heroin) and was sentenced to five (5) years. He urges reversal upon the ground that the court below erred in permitting the state to offer and read into evidence parts of the deposition of one Elaine Kaptur as part of the state's case and as substantive proof of the charged offense. He asserts that thereby he was deprived of his constitutional right of confrontation as guaranteed by the Sixth Amendment of the Constitution of the United States, and Article I, Section 18(a), V.A.M.S., of the Constitution of Missouri. He further asserts that the deposition of Kaptur was otherwise inadmissible because there was no proper showing that she was unavailable (dead).

This matter presents factual problems and questions of law never before directly ruled upon by the appellate courts of this state.

The witness, Elaine Kaptur, was an informer for the Kansas City, Missouri police department, working with the Narcotics Division on a case-to-case basis and occasionally with the Federal Bureau of Narcotics and Dangerous Drugs. She was paid for this work on a cash basis of unpredetermined and unfixed amounts. She was or had been a drug addict and at the time here involved was under Methadone treatment.

The state's case against the defendant may be thus summarized:

On December 19, 1970, Jerome H. Gershman, a federal agent, in the company of Kaptur, made contact with the defendant for the purpose of making a 'buy' of heroin. After some driving around to various localities and some 'cloak and dagger' maneuvers, Gershman gave Kaptur $50.00 in bills (the numbers of which had been previously recorded) with which to purchase 5 capsules of heroin. At another location of the public streets, he testified he saw Kaptur hand the defendant the money, in his view but not in his presence. She returned to Gersham's car with an envelope containing 4 capsules, which were later analyzed by a chemist connected with the Kansas City police department (who testified for the state) and found to be heroin. Gershaman did not see the transfer of the envelope from the defendant to Kaptur. No arrest was made of defendant until May of 1971, over 5 1/2 months after the claimed purchase of the drug.

At the trial, December 21, 1971, Gershman was interrogated as follows by the prosecuting attorney:

'Q. All right. And, sir, do you know the whereabouts of Elaine Kaptur at this time?

A. She is deceased.

Q. And, sir, did you have occasion to attend her funeral?

A. Yes, I did.'

This was the only evidence offered as to Kaptur's unavailability as a witness as the basis for the use of her deposition as part of the state's case.

James William Eapman, a member of the Narcotics Division of the Kansas City, Missouri police department, testified for the state that he was the surveilling officer on December 19, 1970, whose duty it was to watch the movements of Gershman and Kaptur from a separate vehicle. He had no direct participation in the 'buy' but did identify defendant as being in contact with Gershman and Kaptur that day and saw him in conversation with Kaptur.

The state read the Kaptur deposition as it pertained to this defendant. She was examined by then defense counsel Haggerty. While this questioning by Haggerty is characterized in the state's brief as 'vigorous cross examination' we find it rather perfunctory and brief and many of Kaptur's answers not specific and somewhat vague. As it pertained to this defendant, it consisted of only 4 deposition-spaced pages. She did, however, testify that she gave the $50.00 supplied her by Gershman to the defendant and received in return four (4) capsules identified as the ones analyzed by the police and offered into evidence by the state.

A motion to suppress this deposition was filed by defendant and an evidentiary hearing was held thereon prior to opening statements or the introduction of any evidence. The motion to suppress was based upon the claimed violation of Article I, Section 18(b) of the Missouri Constitution, relating to depositions in felony cases.

We have checked the original file from the Circuit Clerk's office as we are empowered to do under Rule 81.12(c) (formerly Rule 82.12(c)), V.A.M.R., and the facts therein together with those presented at the evidentiary hearing on the motion to suppress are as follows:

At the defendant's preliminary hearing in the Magistrate Court he was represented by Mr. Phillip H. Schwarz of the Legal Aid and Defenders Society of Kansas City, Missouri. Schwarz does not appear as counsel thereafter.

After defendant was bound over to the circuit court for trial, he was represented by Mr. Gary Haggerty, also of Legal Aid. Haggerty filed a Motion to Take Deposition as a Poor Person, which was not signed nor sworn to by the defendant and which was, according to his testimony hereafter referred to, filed without his knowledge or consent. The witness, Elaine Kaptur, was named in the motion. The court sustained this motion and on June 24, 1971, Haggerty caused a single Notice to Take Depositions to be served upon the prosecutor's office in this and four (4) other pending cases. In this notice, Elaine Kaptur was listed as one of the witnesses to be deposed beginning on July 12, 1971. On July 15, 1971, the deposition of Kaptur was taken on behalf of all five defendants (including this defendant) before Cynthia M. Berg, Shorthand Reporter, in the courtroom of Division No. 11, Jackson County Courthouse. The appearances, aside from the reporter and witnesses, show that Mr. John Peak appeared for the state and that Mr. Gary Haggerty appeared for all defendants. The deposition shows a Stipulation between the parties (as in civil cases) of a waiver of presentment and signature. Kaptur was examined by Haggerty about several 'buys' from others and the alleged one from defendant. The deposition was transcribed by the reporter, contains her jurat, and was filed. At the time the deposition was taken, the defendant was in the Jackson County Jail in the same building a few floors above the deposition site.

The defendant testified that he had no discussion with Haggerty about the Kaptur deposition nor did he sign any agreement or consent that it be taken; that he only saw Haggerty on one occasion for a short period of time; that he had no knowledge that Kaptur's deposition was to be taken, and that had he known about it, he would have insisted that he be present; that he was not present at the Kaptur deposition and does not know who was there; that he gave no consent to any waiver of presentment and signature; that he never saw the deposition or read it; that he does not know if Kaptur is deceased; and that he first learned about the deposition from his present counsel, who was privately employed by his family. The court records show that present counsel entered his appearance for the defendant November 15, 1971.

The trial court overruled defendant's motion to suppress the deposition of Kaptur and permitted the state to read those portions pertaining to this defendant to the jury, including her statements (over defendant's specific objections) that she had purchased drugs from this defendant both before and after the incident of December 19, 1970. These latter statements were completely outside the indictment or charge here involved.

The constitutional considerations raised under Point I of appellant's brief do not appear to have been properly raised at each stage of the proceeding during the trial nor in defendant's motion for a new trial so as to be properly preserved for our review. Nor are we requested to review such as plain error under Rule 27.20(c). However, we do so sua sponte for the reason that federally guaranteed constitutional rights of the defendant are involved.

The Sixth Amendment of the Constitution of the United States provides in pertinent part:

'In all criminal proceedings, the accused shall enjoy the right * * *; to be confronted with the witnesses against him; * * *'

This Sixth Amendment is held to be applicable to all criminal proceedings in the state courts by reason of the application of the Fourteenth Amendment of the Constitution of the United States prohibiting the deprivation of life or liberty without 'due process of law'. Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966); Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970).

This same right is protected by the Constitution of Missouri, 1945, in Article I, Section 18(a), which provides in part:

'That in criminal prosecutions the accused shall have the right * * *; to meet the witnesses against him face to face; * * *' The reason for the protection of the right of confrontation in criminal proceedings was stated in the case of Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409, by the Supreme Court in 1895 at l.c. 242--243, 15 S.Ct. at l.c. 339, as follows:

'The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his...