State v. Moiser

• Decision Date: 01 September 1987
• Docket Number: No. 51960,51960
• Citation: 738 S.W.2d 549
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Larry MOISER, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 549

738 S.W.2d 549

STATE of Missouri, Plaintiff-Respondent, v. Larry MOISER, Defendant-Appellant.

No. 51960.

Missouri Court of Appeals Eastern District, Division Four.

Sept. 1, 1987.

Motion for Rehearing and/or Transfer Denied Sept. 30, 1987.

Application to Transfer Denied Nov. 17, 1987.

William L. Webster, Atty. Gen., Carrie Francke, Sp. Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

James Jay Knappenberger, Clayton, for defendant-appellant.

SIMON, Judge.

Defendant, Larry Moiser, was found guilty by a jury on the following four counts: (1) selling marijuana, a Schedule I controlled substance, in violation of § 195.020, RSMo Cum.Supp.1984 (All further references shall be to RSMo Cum.Supp.1984 unless otherwise noted); (2) possessing more than thirty-five grams of marijuana in violation of § 195.020; (3) possessing psilocybin, a Schedule I controlled substance, in violation of § 195.020; and (4) possessing pentazocine, a Schedule IV controlled substance, in violation of § 195.240, RSMo (1978). Defendant was sentenced to a term of imprisonment of twenty-five (25) years for Count I, a consecutive term of ten (10) years for Count II, and concurrent terms of ten (10) years apiece for Counts III and IV to be served consecutively to Count I.

On appeal, the defendant contends that the trial court erred in: (1) overruling defendant's pretrial motion to dismiss Count I and failing to sustain defendant's motion for judgment of acquittal at the end of defendant's case and at the close of all the evidence, in that the evidence was insufficient; (2) allowing into evidence a tape recorded phone conversation and testimony concerning that conversation and various other conversations by third parties; (3) failing to sustain defendant's request for a mistrial or to take other corrective measures after the prosecutor made certain references regarding defendant's attorney and the representation of defendant's wife Cathy Moiser; (4) failing to suppress evidence obtained pursuant to a search warrant; (5) allowing the prosecution to refer to the unavailability of the confidential informant, Bill Howard, and a threat made by defendant concerning Bill Howard; (6) allowing the prosecution to elicit evidence that defendant was involved in a "prior heroin sale;" (7) allowing evidence to be received concerning defendant's silence after being advised of his rights; (8) allowing the prosecution to mention, during voir dire, the fact that Cathy Moiser may testify; and (9) allowing the prosecution to produce rebuttal evidence concerning Cathy Moiser's conversation with a probation officer regarding a pre-sentence investigation done as a result of her guilty plea to certain criminal charges. We affirm in part and reverse in part.

In determining whether evidence is sufficient to sustain a criminal conviction, we accept as true all evidence, direct and circumstantial, and all reasonable inferences which are most favorable to the verdict and disregard the evidence and inferences contrary to a finding of guilt. We do not weigh the evidence, but rather, determine whether or not there was substantial evidence to support the jury verdict. Substantial evidence means evidence from which the trier of fact could find the issue in harmony therewith. State v. Ritterbach, 637 S.W.2d 820, 822 (Mo.App.1982).

On April 2, 1985, St. Louis County Police Officer Tom Crowley received a telephone call from an informant, Bill Howard. The informant was instructed to come to Crowley's office in the Drug Enforcement Unit where he agreed to make a telephone call. The informant dialed a number, stating that it was "Larry Moiser's phone number."

A tape recorder was attached to the phone, and the call was made and recorded in Officer Crowley's presence and partially in the presence of Officer Busalaki. Prior to recording, the tape recorder was tested. The recording of the conversation that ensued was played for the jury. The pertinent parts of the conversation illustrate that the informant asked the person to whom he spoke if he were "Larry" to which the response was "Yeah." Later, the informant stated, "Uh, I'm with this guy, how much did you want for one of those?" to which the response was, "Five eighty five." An arrangement was made for the informant and the other speaker to meet later that day. After the call was recorded, Officers Crowley and Busalaki played back the tape.

The informant then drove from the police station to North St. Louis County, followed by Officers Busalaki and Scalise. They stopped at a tavern where the informant made a telephone call to someone who instructed him to "call back in a few minutes and you'll be able to come up." At that time, the informant's person and car were searched for contraband and money, and the informant was equipped with a body microphone. The receiver for the microphone was in the police car, but the police did not possess recording equipment at that time. The body microphone and receiver were also tested.

The informant was then given $600 in $20 bills, the serial numbers of which were recorded. The informant entered a residence located at 10104 Count Drive from which Officers Busalaki and Scalise heard the following conversation in pertinent part: The informant asked, "What's going on, Larry.... Do you have the stuff?" Someone replied, "Yes," then the informant said, "Here's $600."

The informant then left the residence, met the two officers, and handed them a bag, the contents of which were later identified as marijuana. A search warrant was subsequently obtained for the residence at 10104 Count Drive listing marijuana and the $600 as the items to be seized.

The search was executed that same evening. When police entered the residence, there were four subjects present, including defendant. Large quantities of marijuana were seized: one hundred forty-four pounds were found hidden in the basement; traces were found on a living room table; in a kitchen refrigerator, and in a bedroom dresser drawer. Also taken from the residence were hypodermic needles containing pentazocine, a Schedule IV controlled substance, which were found in a bedroom dresser drawer.

A metal security box was found on the dining room floor. Upon receiving the key to the box from defendant, police officers found mushrooms inside, which were identified as psilocybin, a Schedule I controlled substance. Also inside the box was cash, including the $600 given to the informant, and a piece of paper on which were written names, phone numbers, and figures. The handwriting on this piece of paper matched a handwriting sample taken from defendant.

Because the informant was unavailable and Officers Busalaki and Scalise did not see who sold the marijuana to the informant, defendant was identified by his voice. The three police officers involved in the transaction, Crowley, Busalaki, and Scalise, identified defendant's voice as that heard either on the tape recording of the telephone conversation or heard through the body microphone receiver.

Defendant's evidence was that he and his wife, Cathy Moiser, separated in January, 1985, and that he did not live at 10104 Count Drive at the time of the incident. From January, 1985, until approximately May, 1986, defendant lived with his mother, and his wife lived at 10104 Count Drive with friends. One of those friends and the wife's brother kept drugs at the residence and sold marijuana out of the house. The brother was one of the persons present at the search.

On April 1, 1985, one of the friends brought the marijuana, seized by the police, to 10104 Count Drive. The wife and friend then hid the marijuana in the basement and the mushrooms belonging to the friend in the metal box.

Defendant's wife stated that although defendant was at the house on April 2, 1985, she did not show him the drugs in the basement or metal box. To the best of her personal knowledge, defendant did not know about the marijuana. The wife testified, "there is no way I would have let him know it was there .... [b]ecause he would have pitched a fit. I had it hid."

Defendant's first point is that the trial court erred in overruling defendant's pretrial motion to dismiss Count I and in failing to sustain defendant's motion for judgment of acquittal at the end of defendant's case and at the close of all the evidence in that there was insufficient evidence to sustain a conviction on each of the four offenses charged. Before analyzing the sufficiency of the evidence, however, we must first address the admissibility of that underlying evidence. This necessitates addressing defendant's points in a different order than presented in his brief. Specifically, with regard to determining whether there was sufficient evidence to sustain a conviction on Count I for the sale of marijuana, we must first address defendant's point two, i.e., whether the trial court erroneously admitted into evidence a tape recorded phone conversation and testimony concerning that conversation and other conversations by third parties which served to identify defendant as the seller of the marijuana. Similarly, in determining whether sufficient evidence existed to sustain convictions on Counts II, III, and IV for the possession of controlled substances, we must first address defendant's point four concerning the validity of the search warrant.

In keeping with this format, we address defendant's point two contending that the trial court erred in admitting into evidence a tape recording of the informant allegedly calling the defendant to arrange a controlled drug buy, police officers' testimony regarding that conversation, and police officers' testimony regarding the conversation informant had with someone at 10104 Count Drive contemporaneously with the drug transaction while officers waited in a police car. Specifically, defendant states that: (1) such evidence did not sufficiently identify the defendant as the seller; and (2) such evidence...