State v. Neal, 12056

• Decision Date: 01 October 1981
• Docket Number: No. 12056,12056
• Citation: 624 S.W.2d 182
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Raymond Dale NEAL, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 182

624 S.W.2d 182

STATE of Missouri, Plaintiff-Respondent, v. Raymond Dale NEAL, Defendant-Appellant.

No. 12056.

Missouri Court of Appeals, Southern District, Division Two.

Oct. 1, 1981.

Motion for Rehearing and to Transfer to Supreme Court Denied

Oct. 21, 1981.

Application to Transfer Denied Dec. 14, 1981.

John D. Ashcroft, Atty. Gen., Brian P. Seltzer Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Charles Buchanan, Asst. Public Defender, Joplin, for defendant-appellant.

PREWITT, Presiding Judge.

Defendant was convicted of selling marijuana and sentenced to 45 years imprisonment. Two claims of trial court error are presented: (1) in failing to grant a mistrial or in failing to instruct the jury to disregard "questions of the prosecuting attorney asserting that other defendants had pled guilty based upon the testimony of the undercover informer" and (2) in not sustaining defendant's motion for judgment of acquittal because "the only evidence offered by the state to identify the substance was the opinion testimony of Miles Copher, whose only experience with marijuana was as an illegal drug user and as a drug pusher." As point two contends that the state failed to make a case we consider it first.

The principal witness against defendant was Miles Copher. He testified that defendant sold him 10 pounds of marijuana. Copher said that prior to that sale he knew what marijuana looked like; in the last two years he had smoked "10-12 joints" a day; and had made numerous sales of marijuana, apparently as many as a hundred. Copher said that he and his wife smoked three "cigarettes" from the marijuana defendant sold him. Defendant's counsel objected to Copher testifying that the substance was marijuana because he was not an expert.

The determination of an expert's qualification is a matter for the trial judge's discretion and that determination will not be overturned on appeal unless the record shows a clear abuse of discretion. State v. Hanson, 587 S.W.2d 895, 904 (Mo.App. 1979). An expert witness can acquire his knowledge from practical experience, as well as by scientific study or research. State v. Rhone, 555 S.W.2d 839, 841 (Mo. banc 1977); State v. Hansen, supra, 587 S.W.2d at 904. Police officers with considerable experience in investigating marijuana cases can testify that in their opinion a certain substance is marijuana, and such testimony is sufficient to make a submissible case on that issue. State v. Roper, 591 S.W.2d 58, 61 (Mo.App. 1979). We see no reason why this witness could not also testify and his testimony be sufficient to make a submissible case. It appears likely that his familiarity and experience with marijuana would be more extensive than that of a police officer. His credibility was a question for the jury.

Previous experience in drinking moonshine whiskey and familiarity with it was sufficient to qualify witnesses to give an opinion that a liquid was moonshine whiskey. State v. Moore, 279 S.W. 133, 134 (Mo. 1925). The witness was more than an occasional user. He testified he used marijuana daily. He bought and sold marijuana and in doing so would apparently have had to have been able to recognize it, if not by sight at least by using it. He said he did smoke some of the marijuana defendant sold him. This point is denied.

Defendant's...