State v. Pittman

• Decision Date: 13 July 2005
• Docket Number: No. 26203.,26203.
• Citation: 167 S.W.3d 232
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Jeremiah E. PITTMAN, Defendant-Appellant.
• Court: Missouri Supreme Court

167 S.W.3d 232

STATE of Missouri, Plaintiff-Respondent, v. Jeremiah E. PITTMAN, Defendant-Appellant.

No. 26203.

Missouri Court of Appeals, Southern District, Division Two.

July 13, 2005.

Rosalynn Koch, Columbia, MO, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Leslie E. McNamara, Asst. Atty. Gen., Jefferson City, MO, for Respondent.

JEFFREY W. BATES, Chief Judge.

Jeremiah Pittman ("Defendant") was charged by information with the class C felony of tampering with a witness. See § 575.270.¹ Following a jury trial, Defendant was convicted of this offense and sentenced by the trial court to serve four years in prison.² Defendant presents two points on appeal. In Point I, Defendant claims the trial court erred in preventing Officer Mark Ringgold ("Ringgold"), the witness allegedly threatened by Defendant, from being cross-examined about arranging Defendant's quick release from jail so he could work as a police informant. In Point II, Defendant claims the trial court erred in denying his motion for a judgment of acquittal because the evidence was insufficient to prove that Defendant was guilty of witness tampering. We affirm the judgment of the trial court. To better facilitate our discussion of the issues, we will address Defendant's points in reverse order.

Point II — Sufficiency of the Evidence

In Defendant's second point relied on, he contends the trial court erred in denying his motion for judgment of acquittal filed at the close of the State's evidence. The trial court's denial of the motion was error only if there was insufficient evidence to convict Defendant of the charged offense. See State v. Bass, 81 S.W.3d 595, 614 (Mo.App.2002). Here, the State charged Defendant with tampering with a witness in violation of § 575.270.1. This subsection of the statute states:

A person commits the crime of tampering with a witness if, with purpose to induce a witness or a prospective witness in an official proceeding to disobey a subpoena or other legal process, or to absent himself or avoid subpoena or other legal process, or to withhold evidence, information or documents, or to testify falsely, he: (1) Threatens or causes harm to any person or property; or (2) Uses force, threats or deception; or (3) Offers, confers or agrees to confer any benefit, direct or indirect, upon such witness; or (4) Conveys any of the foregoing to another in furtherance of a conspiracy.

In reviewing the sufficiency of the evidence to prove this charge, we only determine whether the State produced substantial evidence from which a reasonable jury could have found Defendant guilty beyond a reasonable doubt. State v. Bruce, 53 S.W.3d 195, 198 (Mo.App.2001); State v. Webber, 982 S.W.2d 317, 324 (Mo.App.1998). "Substantial evidence is evidence from which the trier of fact could reasonably find the issue in harmony with the verdict." State v. Gomez, 863 S.W.2d 652, 655 (Mo.App.1993). It is the jury's function to weigh the evidence and determine issues of witness credibility. See State v. Rose, 86 S.W.3d 90, 105 (Mo.App.2002). Therefore, "we accept as true all evidence favorable to the State, including all favorable inferences drawn therefrom, and we disregard all evidence and inferences to the contrary." State v. Bright, 963 S.W.2d 423, 429 (Mo.App.1998). We have summarized the evidence presented at trial in accordance with these principles.

In May 2001, Ringgold was working for the Springfield Police Department as an undercover narcotics officer. Ringgold had been given a cell phone to use while working as an undercover officer so persons whom he was investigating for drug offenses would have a way to contact him. On May 31st, Ringgold purchased drugs from Defendant, who was known by the "street name" of Matt.³ Ringgold paid Defendant $580 for the drugs. After this initial encounter, Ringgold spoke with Defendant two or three more times by telephone.

On September 24, 2002, Ringgold met Elwin Jenkins ("Jenkins") and purchased narcotics from him for $240. During that meeting, Ringgold gave Jenkins his cell phone number so they could arrange future drug transactions. Thereafter, Ringgold spoke with Jenkins five or six times by telephone.

On the 30th or 31st of September, 2002, Ringgold drove to a gas station to purchase more drugs from Jenkins. When Jenkins arrived, he had several passengers in his vehicle. Several persons in Jenkins' car got out and went inside the store. Defendant was one of Jenkins' passengers. When Jenkins came back outside, he approached Ringgold's vehicle. Jenkins stated that one of his friends had said Ringgold "was a snitch with the police department." Ringgold denied the accusation, but Jenkins did not sell Ringgold any drugs that night. Soon after this incident, Ringgold received a threatening telephone call. This was the first such call he had received while working on over 200 narcotics investigations.

At some point, Defendant was arrested and charged with distribution of a controlled substance, based upon his sale of drugs to Ringgold on May 31, 2001. Defendant's preliminary hearing on this charge was set for October 23, 2002. Ringgold was subpoenaed to testify as a witness against Defendant at this hearing. In order to preserve Ringgold's undercover identity, he was dressed in jeans and a T-shirt. This was the same attire he typically wore during undercover operations. While Ringgold was sitting on a bench outside of the courtroom and waiting to be called as a witness, three individuals approached and sat down on the opposite end of the bench. Ringgold recognized Defendant and Jenkins, but he did not know the third person. Both Defendant and Jenkins accused Ringgold of being "a snitch or informant." Ringgold did not reply to the accusation or disclose that he was actually a police officer. Ringgold was not required to testify because Defendant waived his preliminary hearing. His next court appearance was scheduled for November 1, 2002.

Ringgold left the courthouse at approximately 10:30 a.m. and returned to the narcotics unit office. At about 11:30 a.m., Ringgold received a call on his cell phone while he was in the break room with approximately 10 other police officers. The caller hung up when Ringgold answered, and the caller ID feature of Ringgold's cell phone did not register a number to show who had called.

At 11:51 a.m., Ringgold received a second call. He attached a microcassette recorder to the phone and was able to record a portion of the call, which lasted about 10 seconds. During that short conversation, the caller threatened to put Ringgold "in a f_____meat locker."

When Ringgold received a third call a couple of minutes later, he was able to record all of it. During that call, three or four people spoke to Ringgold via a speakerphone. Ringgold was able to identify Defendant, Jenkins and another individual named Timothy Ruble ("Ruble") by their voices.⁴ The tape-recording of this call was admitted in evidence and played for the jury. The conversation lasted about 10 minutes. During this call, the following statements were made to Ringgold:

1. "I'm gonna put your ass in a f_____body bag and your gonna meet the grim reaper m f_____."

2. "[Y]ou better look over your shoulder for real man, I'm not playing with you."

3. "We know where you live now."

4. "[w]hat were you doing in court, snitching, right...."

5. "It's amazing that people call me up, my boy Matt calls me up, tells me he's got this snitch in court, give me your number, but uh yeah, watch yourself."

6. "I'm gonna pick my teeth with your m_____f_____bones, I swear to God."

7. "Dog you know, whenever you go into court next time ... [a]nd I get my charges dropped, you feel me."

8. "Gonna kill your little family, dog, just like Capone...."

9. "[Y]ou remember white boy walking up there in the gas station, you know what I'm saying, I said you was a snitch...."

10. "Well, I'll just put it like this dog, don't get into your car too quick."

11. "Don't worry m_____f_____, we're on the way."

Ringgold identified Jenkins as the person who said he would put Ringgold in a body bag and pick his teeth with Ringgold's bones (statements 1 and 6, supra). Pittman made the statement that Ringgold had better look over his shoulder (statement 2, supra). Ringgold could not identify who made the other statements listed above.

At the conclusion of the third call, Ringgold made arrangements to have Defendant arrested for tampering with a witness. When Defendant arrived at the police department around 1:30 p.m., he was interviewed by Ringgold after being given a Miranda warning and signing a waiver form.⁵ Defendant admitted that he participated in the calls, and he prepared and signed a handwritten document which stated:

I was cooking steaks, and I heard the speaker phone on, so I came in there, and they said it was the informant. So I asked him how much he liked being a snitch and how much he got paid for it. I was mainly just clowning on him. It was a joke, but I did not threaten him.

Ringgold testified, however, that people in the drug culture do not joke about being a snitch. Typically, snitches are threatened with death, and informants are always concerned about their safety when they provide information to the police. During the third phone call, one of the persons on the speakerphone made a reference to his charges being dropped the next time Ringgold went into court.⁶ Ringgold described this as a reference to the fact that charges against a suspect will be dropped if an informant refuses to testify.

As noted above, the issue for us to decide is whether the State presented substantial evidence from which a reasonable jury could have found Defendant guilty beyond a reasonable doubt of the crime of tampering with a witness. The elements which the jury had to find in order to return a verdict of guilty were contained in Instruction No. 5, the State's verdict-directing instruction. It is set out in full below:

INSTRUCTION NO. 5

A...