State v. Mozee
| Decision Date | 24 June 2003 |
| Docket Number | No. WD 61663.,WD 61663. |
| Citation | 112 S.W.3d 102 |
| Parties | STATE of Missouri, Respondent, v. Richard MOZEE, Appellant. |
| Court | Missouri Court of Appeals |
Craig A. Johnston, Columbia, MO, for appellant.
Breck K. Burgess, Assistant Attorney General, Jefferson City, MO, for respondent.
Before JOSEPH M. ELLIS, Chief Judge, HAROLD L. LOWENSTEIN, Judge and RONALD R. HOLLIGER, Judge.
Richard L. Mozee appeals from his conviction of one count of delivery of a controlled substance near a school, § 195.214.1 Appellant was sentenced as a prior offender to ten years in the Missouri Department of Corrections.
Appellant does not challenge the sufficiency of the evidence to support his conviction. Viewed in the light most favorable to the judgment, the evidence presented at trial reflects the following.
On March 3, 2000, Officer James Balmer of the North Missouri Drug Task Force went with a confidential informant to the home of Paula Terrell, a known drug dealer, in Moberly, Missouri.2 While Officer Balmer was at the residence, another individual arrived who Terrell referred to as "Lee." That individual sold Terrell some crack cocaine and informed Terrell that he would be at the car wash on Morley Street with more crack cocaine. After a while, Officer Balmer indicated to Terrell that he would like some crack cocaine and suggested that they go to the car wash and see if the individual was still there.
Officer Balmer, Terrell and the confidential informant then got into Balmer's car and drove to the car wash, which was located across the street from North Park Elementary School. When they arrived at the car wash, Officer Balmer and Terrell located "Lee" working on a black Suburban. Officer Balmer and Terrell approached Lee, and Officer Balmer stated that he wanted to buy fifty dollars' worth of crack cocaine. After Lee handed Officer Balmer a rock of crack cocaine wrapped in plastic, Officer Balmer told Lee that the rock in the plastic was only worth forty dollars. Lee agreed to that price and sold the rock of crack cocaine to Officer Balmer for that amount. Officer Balmer and Terrell got back into the car and left.
About an hour after the transaction, Officer Balmer went to the Moberly Police Department to try to identify the individual that had sold him the crack cocaine after the confidential informant was unable to provide him with a name. In the course of talking with various detectives about the individual, Appellant's name came up. Because no picture of Appellant was available at the police department, Officer Balmer contacted the Missouri State Highway Patrol to obtain a copy of the picture from his drivers' license. After a copy of that photograph was faxed to him, Officer Balmer positively identified Appellant as the man that had sold him the crack cocaine at the car wash from that photograph.
On November 12, 2001, Appellant was charged by indictment in the Circuit Court of Randolph County with one count of the class A felony of delivery of a controlled substance near a school in violation of § 558.011.1.3 Following a change of venue, Appellant was tried by jury in the Circuit Court of Howard County on March 18, 2002, and found guilty as charged. Subsequently, the trial court sentenced Appellant as a prior offender to a term of ten years in the Missouri Department of Corrections. Appellant brings three points on appeal from that judgment.
In his first point, Appellant argues that the trial court abused its discretion in failing to exclude testimony from Officer Balmer that the confidential informant had made a positive identification of Appellant from a photograph at some point after Appellant had been charged. Appellant contends that the admission of this hearsay testimony was improper and violated his right to cross-examine and confront the witnesses against him under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 18(a) of the Missouri Constitution.
The trial court is afforded broad discretion in assessing the admissibility of evidence, and its ruling on the admissibility of the evidence will not be interfered with on appeal absent a clear abuse of discretion. State v. Hatch, 54 S.W.3d 623, 631 (Mo.App. W.D.2001). Furthermore, "[w]e review trial court decisions regarding the admissibility of evidence for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial." State v. Uka, 25 S.W.3d 624, 627 (Mo.App. E.D. 2000).
At trial, Appellant stipulated that Officer Balmer had purchased crack cocaine from an individual at the car wash on the date in question and that the car wash was within 2,000 feet of a school. The theory of defense relied upon by Appellant was that Officer Balmer's identification was not reliable and that Appellant was not the individual that sold him the crack cocaine.
Officer Balmer was the only witness to testify at Appellant's trial. During that testimony, Officer Balmer identified Appellant as the individual who had sold him the crack cocaine at the car wash. On cross-examination, Appellant's counsel attempted to impeach that testimony.
In the course of his cross-examination of Officer Balmer, Appellant's counsel adduced testimony from Officer Balmer that the confidential informant had not been able to provide him with the name of the individual that had sold him the drugs. The trial transcript reflects that the following exchanges subsequently occurred during Officer Balmer's re-direct testimony:
The State: At my request, and after my conversations with [Appellant's counsel] concerning the identification, did you talk to the C.I. to see if this informant would be able to identify the Defendant? In other words, after our meetings, did you meet with the C.I. as to I.D. of this Defendant?
Officer Balmer: Yes, I did.
The State: Was the C.I. able to identify the Defendant?
Appellant's attorney: Again, we would object. I have no clue what he's going to answer, but this has to do with something after the charge. I'm talking about, he talked to her or him immediately after the buy, immediately before this picture I.D., and they said, no, don't have any idea who it was.
Appellant's attorney: Thank you, sir.
The State: Still, our point is this, if I can make this offer.
Appellant's attorney: Judge, I would ask to approach, if he's wanting to make offers about hearsay.
(Counsel approached the bench, and the following proceedings were had:)
The State: We're attacking this officer, and saying why didn't he go question the C.I., and why isn't that C.I. here I.D.ing this guy.4 The officer did follow through. He did talk to the C.I. The C.I. still, even to date, did not identify this guy.
The Court: Well, that was brought out earlier, that the C.I. could not identify this guy. So that was brought out earlier, that the C.I. could not identify.
The State: At the time, but he has just cross-examined him on why he hasn't gone back and checked her again, since she is not working that area.
The Court: Well, that's as far—if you want to ask the reason that the C.I. could not identify, but let's—
Appellant's attorney: Okay. I just don't have any idea what the answer would be.
The State: I'm giving him that answer, and I mean if he's going to argue it to the jury, I think they have a right to know. He can't leave them speculating while I've got him right there.
The Court: You can ask that question.
Appellant's attorney: I would agree with the Prosecutor. I would stipulate that the answer would be that the C.I. has no clue who it was.
The Court: We'll let him ask the question.
The State: Well, I just don't want any open ends.
The Court: Very well.
(The proceedings returned to open court.)
The State: Okay. Again, the point being, you did question the C.I. at my request, to see if that C.I. was now able to identify the Defendant?
Officer Balmer: In what—by name?
The State: Or in any regard.
Officer Balmer: Yes.
The State: Was that C.I. able to I.D. him? Was the C.I.—
Officer Balmer: By the photo. She recognized him from a photo.
The State: She did? When did that happen?
Appellant's attorney: Objection. May we approach?
The State: Was no.
The Court: Was no. And you showed him something, and he was going to just ask, could they identify him, and the answer was supposed to be no.
The State: It was.
Appellant's counsel: Now what we've done is, we've had an objection to the testimony of this C.I. They're hiding it, it's hearsay, the limitation, the whole bit. And he promised us that the answer was no. And the Court said okay, give him that, go ahead and answer. He said, oh, yeah, they identified him from the photo.
The State: I was at the end of the line of questioning.
Appellant's counsel: Defendant requests a mistrial.
The Court: Well, that request is denied.
Appellant contends that Officer Balmer's testimony that the confidential informant had identified him as the drug dealer was inadmissible hearsay evidence that should have been excluded by the trial court. "A hearsay statement is an out-ofcourt statement offered to prove the truth of the matter asserted." State v. Shaw, 14 S.W.3d 77, 81 (Mo.App....
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