State v. Morrison
| Decision Date | 29 November 1976 |
| Docket Number | No. KCD,KCD |
| Citation | 545 S.W.2d 376 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Steven MORRISON, Defendant-Appellant. 28104. |
| Court | Missouri Court of Appeals |
J. Martin Kerr, Independence, for defendant-appellant.
John C. Danforth, Atty. Gen., Nanette Laughrey, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Before DIXON, P.J., PRITCHARD, C.J., and WASSERSROM, J.
This case is one of two in which the same defendant was tried and convicted of separate offenses involving the sale of controlled substances. The offenses both occurred during a two-day period. This appeal involves the first tried of the two offenses. The appeal from the second conviction is decided contemporaneously in State v. Morrison (Mo.App.1976) (No. KCD 28103 handed down November 29, 1976).
This appeal involves the case tried in April, 1975, in Sullivan County. Involved is the sale of a controlled substance, amphetamine, on May 1, 1974. A state highway trooper, working under cover, purchased 100 amphetamine tablets from the defendant on that date for $15.00. The jury, on the basis of the trooper's testimony and that of a forensic chemist employed by the State, found the defendant guilty and assessed punishment at a term of five years.
Since the entire circumstances of the offenses are interrelated on these appeals, a recital of the entire factual background will be useful in understanding the issues raised.
The highway patrolman first contacted the defendant in a bar in Brookfield, Missouri, on May 1, 1974. On the occasion of that first contact, the defendant sold the patrolman the 100 tablets afforing the basis for the instant case. During the course of this transaction, the defendant indicated a willingness and capability to furnish much larger quantities of drugs. An arrangement was then made for a meeting the next night, at which time the patrolman purchased 1,000 amphetamine tablets. At that time, the defendant furnished the patrolman with a list of available drugs and prices. This subsequent sale is the subject of the second appeal decided contemporaneously, State v. Morrison, supra (No. KCD28103 handed down November 29, 1976).
The instant case was brought by indictment in Linn County. Upon defendant's motion, the venue was changed to Sullivan County, and the judge of the circuit was disqualified. Both the trials were on change of venue and judge. There was apparently an agreement that both causes be transferred to Sullivan County, and both were tried in that county before the same judge.
Upon the trial in Sullivan County before a jury and the special judge transferred to hear the case, the patrolman described the sale and made an in-court identification of the defendant and described him as having longer hair and a beard at the time of the sale. The prosecutor then had identified a picture of the defendant, marked as Exhibit 1. This picture is a full-length front and side view of the defendant. In the front view, a card bears the legend, 'Mo. S. H. Patrol TROOP B 6--2--74.' The State's case went forward with proof of the chain of custody of the drugs and proof of the nature of the substance by a chemist. As noted, the jury convicted and imposed a five-year sentence.
Defendant's first claim of error is that the court erred in admitting into evidence and permitting the jury to view the photograph of the defendant. It is questionable that the record made at the time the exhibit was offered is sufficient to raise the issue of error in permitting the jury to view the photograph. In any event, that issue was not raised in the motion for new trial. Defendant seeks review under Rule 27.20. Defendant makes two contentions of error. His first contention is that the jury may have seen a legend on the reverse of the photograph which referred to two charges of selling controlled substances (amphetamines). This is totally without merit. The transcript in this case discloses the exhibit was affixed to a sheet of cardboard, and the back of the exhibit is not visible.
On the other branch of the defendant's argument that the 'tag' appended to the picture constituted an improper use of a 'mug shot,' defendant cites State v. Poor, 533 S.W.2d 245 (Mo.App.1976), as setting forth the standards for use of such photographs. Poor held such a photograph admissible on exactly the theory the State pursued in this case, to buttress the identification testimony where the physical characteristics testified to by the identifying officer had been questioned, in this instance, by the alteration of facial hair and hairstyle. Defendant seeks to find a holding in Poor that the State be required to show that the photograph was taken in 'connection' with the instant offense. He claims that the jury may have inferred that other offenses were involved because the legend would suggest such other offenses unless the photograph was related to the present offense. Poor did not lay down an ironclad rule that the State must prove a connection with the pending charge to permit the introduction in evidence of such a photograph. Each use of such photographic evidence must be examined in the light of the facts and circumstances of each case. The date on the photo was after but close in time to the offense charged. The photograph shows it was made by the agency investigating the offense. There was no reference of any sort to other offenses at or near the time of the photograph. Under the mandate of Rule 27.20, that 'manifest injustice' appear, the facts of the whole record in this case show conclusively this defendant is entitled to no relief on this claim.
Defendant also questions the validity of the venire on the ground that women were systematically excluded from the panel. The defendant concedes there was no motion to quash and no claim of error in the motion for new trial. The request is that this court determined that the...
To continue reading
Request your trial
-
Presley v. State
...S.W.2d 59 (Mo.App.1980); State v. Marshall, 571 S.W.2d 768 (Mo.App.1978); State v. Lane, 551 S.W.2d 900 (Mo.App.1977); State v. Morrison, 545 S.W.2d 376 (Mo.App.1976); State v. Gamache, 519 S.W.2d 34 (Mo.App.1975). In McWilliams, Naylor, Woods, Dodson, Marshall, and Morrison, the trial judg......
-
State v. Rodgers
...the light of the facts and circumstances of each case. State v. Vanzant, 814 S.W.2d 705, 707 (Mo. App. 1991)(citing State v. Morrison, 545 S.W.2d 376, 378 (Mo. App. 1976)). See also State v Tivis, 933 S.W.2d 843, 846 (Mo. App. 1996). An inference suggesting prejudicial evidence of other cri......
-
State v. Snowden
...facts and circumstances of each individual case. State v. Vanzant, 814 S.W.2d 705, 707 (Mo.App. 1991) (citing State v. Morrison, 545 S.W.2d 376, 378 (Mo.App.1976)). Although such photographs can carry an inherent prejudice through implying that a defendant has a prior criminal record and is......
-
State v. Davis
...in the light of the facts and circumstances of each case. State v. Vanzant, 814 S.W.2d 705, 707 (Mo.App.1991) (citing State v. Morrison, 545 S.W.2d 376, 378 (Mo.App.1976)). See also State v. Tivis, 933 S.W.2d 843, 846 Id. at 822. Rodgers explained that knowledge that a defendant was identif......