State v. Pacchetti

• Decision Date: 14 April 1987
• Docket Number: No. 14594,14594
• Citation: 729 S.W.2d 621
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Charles PACCHETTI, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 621

729 S.W.2d 621

STATE of Missouri, Plaintiff-Respondent, v. Charles PACCHETTI, Defendant-Appellant.

No. 14594.

Missouri Court of Appeals,

Southern District,

Division Two.

April 14, 1987.

Motion for Rehearing or To Transfer

Denied May 3, 1987.

Application to Transfer Denied June 16, 1987.

Charles M. Shaw, Shaw, Howlett & Schwartz, Clayton, for defendant-appellant.

William L. Webster, Atty. Gen., Colby Frissell-Durley, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

PER CURIAM.

A jury found defendant guilty on all three counts of the information. Count I charged manslaughter (§ 565.005, RSMo 1978), Count II charged distribution of cocaine, a controlled substance (§ 195.020), ¹ and Count III charged possession of more than 35 grams of marijuana, a controlled substance (§ 195.020). The information also charged, and the trial court found, that defendant was a prior offender and a persistent offender. Defendant was sentenced to 15 years' imprisonment on Count I, life imprisonment on Count II, and ten years' imprisonment on Count III, the sentences to run consecutively. Defendant appeals.

Defendant's first point is that the evidence is insufficient to support his conviction of manslaughter because "there was insufficient evidence as a matter of law to conclude that the deceased [Derek Anderson] died by any criminal agency or act of the defendant."

In determining the validity of defendant's first point, this court must view the evidence in the light most favorable to the state, accept all substantial evidence and all legitimate inferences fairly deducible therefrom tending to support the verdict, and reject contrary and contradictory evidence. State v. Christopher, 720 S.W.2d 435, 436 (Mo.App.1986).

Section 565.005, RSMo 1978, which was in effect at the time of the instant offense, read:

"Every killing of a human being by the act, procurement or culpable negligence of another, not herein declared to be murder or excusable or justifiable homicide, shall be deemed manslaughter."

In the early evening of June 29, 1984, Derek Anderson, 16, died as a result of an intravenous overdose of cocaine. In general, the state's manslaughter theory was that defendant provided Derek with the cocaine which caused his death within an hour or so after it was injected into his bloodstream. Defendant is an adult whose age is not shown, but one of his prior felony convictions occurred in 1963.

Derek and his stepbrother Larry Pothoff were guests of the defendant and his family at defendant's home in Osage Beach. On June 29, between 4:00 p.m. and 6:00 p.m. Derek and Larry watched movies in the bedroom of Karen Nichols, defendant's stepdaughter. In addition to Karen, other teenagers present included Kim Larkin and defendant's stepchildren Donnie Nichols and Debbie Nichols.

Larry testified that defendant, whose bedroom was down the hall, came into Karen's room and asked to speak with Derek. Derek went with defendant to defendant's room and several of the other teenagers went there too. Defendant showed Derek some guns. After Karen and Kim left the room defendant asked Derek, "Have you ever heard of anybody opening on cocaine?" Derek and defendant were sitting next to each other on defendant's bed. Derek said, "No." Defendant picked up a blue plastic bottle from a "little counter" next to his bed. Defendant said, "This stuff is almost pure. It doesn't do anything to me." Defendant then told Larry, Donnie and Debbie to leave the room.

The group of teenagers intended to go out for dinner. During the course of several minutes, while they were waiting outside for Derek to come, they honked the horn to summon Derek. Twice defendant opened an upstairs window and told them, "Derek is in the bathroom. He will be right down." After a few more minutes, defendant opened the window and yelled to the teenagers below, "Derek has had an overdose. Call an ambulance."

Larry ran inside and upstairs. He found Derek lying on the floor, face up, with his eyes open, not moving and not saying anything. Defendant was giving Derek mouth-to-mouth resuscitation. The blue bottle was lying at Derek's feet.

Kim arrived upstairs shortly after Larry did. By this time Larry had taken over from defendant the task of attempting to resuscitate Derek. Kim testified that while defendant was standing over Derek defendant said repeatedly, "I shouldn't have given it to him."

Derek, who never recovered consciousness, was taken to the emergency room at the Lake of the Ozarks General Hospital where, after unavailing medical efforts, he was pronounced dead. There was medical testimony that death was due to an intravenous overdose of cocaine. There were two puncture sites on the inner aspect of Derek's right arm showing intravenous injections. Derek was right handed and there was testimony that it would be difficult to give an injection with just one hand and that a right handed person ordinarily would inject the left arm if he were injecting himself.

Defendant, who suffered from back problems, used injectable Nubain for pain, and there was a supply of hypodermic needles in his bedroom. Several of the teenagers testified that before Derek accompanied defendant to the latter's bedroom "there was nothing abnormal about Derek."

On July 2, 1984, after obtaining a search warrant, several officers searched defendant's house. Under defendant's bed they found a canister containing 33.8 grams of marijuana. This canister was within reach of defendant's side of the bed which he shared with his wife. On a shelf on defendant's side of the bed, they found a plastic bag containing 4.1 grams of marijuana.

From the foregoing evidence the jury was entitled to find that defendant possessed cocaine, that defendant knew it was cocaine and was aware of its nature, that defendant asked Derek if Derek had heard of anyone "opening on cocaine," that Derek had not so heard, that defendant suggested that the other teenagers leave the room, that while defendant and Derek were alone in the room cocaine was injected into Derek's bloodstream, that defendant performed the injection or assisted Derek in doing so, that defendant "gave" the cocaine to Derek, and that the amount injected was an overdose which caused Derek's death almost immediately.

In attacking the sufficiency of the evidence, defendant's brief makes the following arguments: "The blue bottle was never found"; "the circumstances were inconclusive as to the bottle's contents"; "Larry was the only one to see this bottle, although there were other witnesses present"; no witness, other than Kim, heard defendant make the statement "I shouldn't have given it to him."

The foregoing arguments, in effect, constitute claims of conflicts in the evidence. Such conflicts were for the resolution of the jury, but they do not destroy the submissibility of the state's case.

Defendant's brief also argues that the evidence supports the inference "that Derek, with his well-chronicled history of drug abuse, injected, sniffed or ingested cocaine which was his own, not that which was allegedly Pacchetti's." There was no showing that there was any cocaine in the bedroom other than that contained in the blue bottle.

This court holds that the evidence was not insufficient for any of the reasons advanced by defendant. Defendant's first point has no merit.

Defendant's second point is that the conviction on Count I, manslaughter, and the conviction on Count II, delivery of cocaine, a controlled substance, may not co-exist. He advances three independent grounds: (a) sentencing him on both counts violates his rights under the double jeopardy provisions of the Fifth and Fourteenth Amendments of the U.S. Constitution and Art. I, § 19 of the Missouri Constitution; (b) the Count II offense is included in the Count I offense because the Count II offense was established by proof of the same or less than all of the facts required to establish the commission of the Count I offense and § 556.041(1) permits only one of the two convictions to stand; (c) the conviction on Count II and the punishment imposed for it contravene § 556.041(4).

In Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977), the Court said:

"The Double Jeopardy Clause 'protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.' North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted). Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense." (Emphasis added.)

In Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984), at 104 S.Ct. pp. 2540-2541 the court said:

"In contrast to the double jeopardy protection against multiple trials, the final component of double jeopardy--protection against cumulative punishments--is designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature. Because the substantive power to prescribe crimes and determine punishments is vested with the legislature, United States v. Wiltberger, 5 Wheat, 76, 93, 5 L.Ed. 37 (1820), the question under the Double Jeopardy Clause whether punishments are 'multiple' is essentially one of legislative intent." Also at 104 S.Ct. p. 2541, fn. 8, the court said:

"In the federal courts the test established in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), ordinarily determines whether the crimes are indeed separate and whether cumulative punishments may be imposed. See Albernaz v. United States, 450 U.S. 333, 337, 101 S.Ct. 1137, 1141, 67 L.Ed.2d 275 (1981); Whalen v. United States, 445 U.S....