State v. Mahaffey

• Decision Date: 03 July 1984
• Docket Number: No. 13162,13162
• Citation: State v. Mahaffey, 676 S.W.2d 20 (Mo. App. 1984)
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Frank J. MAHAFFEY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 20

676 S.W.2d 20

STATE of Missouri, Plaintiff-Respondent, v. Frank J. MAHAFFEY, Defendant-Appellant.

No. 13162.

Missouri Court of Appeals,

Southern District,

Division Two.

July 3, 1984.

John D. Ashcroft, Atty. Gen., David Mason, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Douglas W. Greene, III, Springfield, for defendant-appellant.

PREWITT, Judge.

Defendant was convicted of selling marijuana and sentenced to ten years' imprisonment. He presents five points for our consideration. We discuss them in the order presented.

Defendant asserts in his first point that the trial court erred by refusing to give an instruction he tendered following MAI-CR2d 3.42 "Circumstantial Evidence". He contends: "This instruction was very important to appellant's case and was necessary to be given to the jury, mainly for the reason that defendant's primary defense was that of entrapment. Appellant asserts that there was no direct evidence of lack of entrapment and that only circumstantial evidence was adduced to prove lack of entrapment, so therefore, the circumstantial evidence instruction must have been given."

This contention is answered by the notes on use following the instruction. Note 2 states that it: "need not be given at all unless the evidence is wholly circumstantial." There was substantial direct evidence of guilt and that there may have been circumstantial evidence pertaining to some of the issues presented does not change the clear language of that note.

An instruction on circumstantial evidence is required only when all the evidence in the case is circumstantial. State v. Sheppard, 515 S.W.2d 785, 787 (Mo.App.1974). If there is any direct evidence of the crime, a circumstantial evidence instruction is not required. State v. Walls, 597 S.W.2d 868, 870 (Mo.App.1980). This point is denied.

In his second point defendant states that the trial court erred by sustaining objections to questions he asked of Carolyn Porter, an "undercover agent" who had purchased the marijuana from defendant, during her cross-examination. The questions complained of in this point were: "Have you used drugs in the past?"; "Have you used speed before?"; and "Have you purchased marijuana from Charley Ingram?" He contends that these questions were relevant concerning the credibility of the witness, relying on State v. Lynch, 528 S.W.2d 454 (Mo.App.1975), and State v. Horton, 607 S.W.2d 764 (Mo.App.1980).

As those cases and others acknowledge, see Murphy v. State, 636 S.W.2d 699, 702 (Mo.App.1982); State v. Meek, 584 S.W.2d 168, 170 (Mo.App.1979), impeachment by showing such acts is a matter for the trial court's discretion.

Without objection defendant's counsel asked the witness: "You've used drugs in the past?", and the answer was "Yes." The objection came when counsel asked about using marijuana and when that was sustained, about using "speed".

Whether the witness had purchased marijuana from Charlie Ingram was answered, "No", before an objection was stated. Defendant would have been concluded by this answer, see State v. Lynch, supra, 528 S.W.2d at 457, and the record left with that denial, so there could have been no prejudice to defendant by the trial court sustaining the objection and ordering that question and answer stricken. Under the circumstances here we find no abuse of discretion in the trial court's ruling. This point is denied.

In summary, defendant states in his third point that the trial court erred by allowing Carolyn Porter to testify regarding other times that she had purchased marijuana from defendant because she had "no independent recollection of what had transpired". The full point is set out below. ^* The record does not support this contention. Defendant's counsel established that at the time her deposition was taken the witness "didn't have any independent recollection of what had transpired and the dates". At the trial she agreed with defendant's counsel "that the recollection that you have today comes from reading the reports". The reports were made by her and given to another who typed them from her reports but not in her "language".

Defendant relies on Brookman v. General Safety and Security, Inc., 600 S.W.2d 100 (Mo.App.1980). There the witness had no present recollection after using the report but was relying solely upon it. The record here indicates that the reports refreshed the witness's memory.

If the witness had "recollection" at trial as defendant's counsel suggested, and she agreed, then that indicates she had her memory refreshed by the reports and she recalled the incidents, not based upon the report, but upon her prior participation. "Recollection" is the act or power of recollecting and "recollecting" is to recall to mind; remember. The American Heritage Dictionary 1089 (1978). Had her testimony come solely from the report we would be faced with a situation apparently like in Brookman, but here it appears the reports caused her to recall the incidents. This point is denied.

Defendant's fourth point is as follows:

"The court erred to defendant's prejudice by allowing the playing of a tape recording of a conversation between the appellant and Carolyn Porter and also be allowing transcripts of the tape-recorded conversation to be passed to the jury for the following reasons:

a. Neither the tape recording nor the transcripts were the best evidence of the conversation;

b. The tape recording and the transcripts were cumulative and added emphasis to any damaging effect which the said conversation might have against defendant c. The witness, Carolyn Porter, was present in court and testified as to her recollections of the said conversation;

d. The tape itself was audible obviating the necessity of any further transcript;

e. The trial judge did not instruct the jury that differences in meaning may be caused by such factors as the inflection in a speaker's voice;

f. There was no stipulation or evidence or testimony regarding the accuracy of the transcript;

g. There was no testimony with respect to by whom or how the transcript was prepared or to its accuracy;

h. The trial judge instructed the jurors that 'you are cautioned that you are to concentrate on the tape, these transcripts are merely an aid to assist you in understanding the tape, the tape itself is the real evidence in the case'; and

i. That the aforesaid oral instruction gave undue weight to the tape in that the judge specifically told the jury to concentrate on the tape and that the tape was 'real evidence', giving the tape recording undue weight, all to the prejudice of this appellant."

Human nature and memories being what they are, as a practical matter the tape would ordinarily be the most accurate evidence of what occurred in the conversation. See State v. Montgomery, 590 S.W.2d 105, 108 (Mo.App.1979). Although the best evidence rule has been said to apply only to documentary evidence, see Riney v. Zenith Radio Corp., 668 S.W.2d 610, 611 (Mo.App.1984), it has also been said that it applies to sound recordings as well as documents. See State v. King, 557 S.W.2d 51, 53 (Mo.App.1977).

Carolyn Porter, a participant in the conversation with defendant, stated that she had listened to the tape to make sure it was accurate. That it is cumulative does not prevent its use because of the state's burden of proof. A transcript of the tape was given to each juror just before listening to the tape and after it was played the transcripts...