State v. North, WD

• Decision Date: 25 March 1997
• Docket Number: No. WD,WD
• Parties: STATE OF Missouri, Respondent, v. Gavin Lee NORTH, Appellant. 52167.
• Court: Missouri Court of Appeals

Page 16

941 S.W.2d 16

STATE OF Missouri, Respondent, v. Gavin Lee NORTH, Appellant.

No. WD 52167.

Missouri Court of Appeals,

Western District.

March 25, 1997.

David L. Simpson, Asst. Public Defender, Columbia, for appellant.

Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

HANNA, Judge.

The jury found the defendant, Gavin Lee North, guilty of two counts of distribution of cocaine, § 195.211, RSMo 1994, on December 21, 1995. The defendant was sentenced to consecutive six and seven year terms of imprisonment. The issues on appeal are whether the defendant waived his right to a speedy trial, the admissibility of tape recording evidence, and the chain of custody of evidence.

The defendant was originally convicted on the same charges on December 23, 1993, and sentenced to concurrent terms totalling seventeen years as a prior offender and as a prior drug offender. He appealed those convictions but while the appeal was pending, the defendant's Rule 29.15 motion was sustained by the lower court, which granted the defendant a new trial. ¹ He dismissed his appeal, which allowed the case to proceed to retrial.

On the evening of September 3, 1991, Sergeant Michael Noellsch, an undercover Missouri highway patrol officer, along with confidential informant, Matthew Wright, went to the defendant's home in Warrensburg. Sergeant Noellsch asked the defendant about the price of cocaine and was told that "[h]e wanted $1,800 for one ounce of cocaine." Indicating that this was too high a price, he inquired of a quarter of an ounce to check the quality first. The defendant made several phone calls and then indicated he was leaving to obtain the cocaine. Noellsch gave the defendant $575 to purchase the drugs. Approximately five and a half hours later, the defendant returned without the cocaine and refunded Noellsch's money.

The next day Noellsch went to Wright's apartment and asked him to call the defendant. Noellsch recorded this conversation as well as two subsequent telephone calls that Wright made to the defendant. The conversations were recorded by having Wright hold a microphone wire to the telephone receiver while he spoke with the defendant. The defendant agreed to sell a half of an ounce of cocaine and they arranged to meet in Elm, Missouri.

Noellsch and Wright drove to Elm and met the defendant at the junction of U.S. 50 and Elm in the afternoon at an APCO station. The defendant was driving a Dodge pickup truck and was accompanied by Mary Jane Chapman. Noellsch gave the defendant $1,050 in cash for the cocaine and the defendant and Chapman drove off. A short time later, Chapman returned by herself and pointed to a blue cardboard tube which appeared to contain cocaine. On the evening of September 9, 1991, Noellsch and Wright arranged to meet the defendant at the same location where the defendant gave Noellsch a half of an ounce of cocaine for $1,025.

Subsequent laboratory tests revealed that the substance purchased on September 4 was 14 grams of cocaine and the substance purchased on September 9 was 13.4 grams of cocaine. All of the meetings between the defendant, Chapman, and Wright were recorded by using a tape recorder that Noellsch kept hidden in his right front pants pocket.

The sentence imposed in the 1993 conviction was predicated on the 1988 marijuana felony conviction. His prior offender status caused the court to sentence the defendant to a term in excess of the range of punishment that could normally be imposed. The defendant's appeal on the 1988 conviction was pending in this court at the time of sentencing in 1993. The defendant voluntarily dismissed his appeal and upon its dismissal, the case was scheduled for retrial. His second trial on the cocaine charges, in which he was not charged under prior offender statutes, resulted in his conviction on December 2, 1995. He appeals.

In his first point, the defendant complains of the state's delay in commencing trial in the first trial. Prior to the commencement of the first trial, the defendant filed a motion to dismiss because there was a delay of over ten months between the charge and the trial. The motion to dismiss was overruled by the court and the defendant claims that he was entitled to a dismissal of the charges. He does not challenge the delay of his second trial, but rather that the state delayed ten months in bringing him to trial in the first trial, a point which was preserved in the proceedings of the first trial and in his appeal. The defendant now contends that if the court had sustained his motion to dismiss in the 1993 case, he would not have been compelled to go to trial in 1995. In this respect, he is correct. The issue is whether defendant is entitled to have the point ruled in this appeal or whether he waived the point by voluntarily dismissing the first appeal.

When the trial court, in its Rule 29.15 motion, granted the defendant a new trial (because the 1988 marijuana conviction had been set aside) the defendant had an appeal pending which challenged the state's right to retry him. The point was a constitutional challenge to his right to a speedy trial. Defendant's claim of delay in bringing his case to trial in a timely manner was a live issue. If the appeal had been pursued with a favorable result, the defendant would have been discharged. Therefore, the trial court's ruling against the defendant became res judicata, not to be relitigated. See Frost v. State, 589 S.W.2d 370, 371 (Mo.App.1979)(stating that when a defendant filed his first Rule 27.26 motion which was denied and he did not appeal, the issues decided by the trial court became res judicata and could not be raised in his second Rule 27.29 hearing or appeal). See also, Hamilton v. State, 548 S.W.2d 267, 268 (Mo.App.1977), where this court held that an appeal from the denial of a Rule 27.26 motion cannot repeat points attacking alleged defects set forth in a first rule 27.26 motion which was not appealed. The trial court's ruling on the first motion was determined to be conclusive and res judicata. Id.

The trial court ruled that the defendant's right to a speedy trial was not violated. That ruling was conclusive and is res...