State v. Plummer, s. 60749 and 62194
| Decision Date | 13 July 1993 |
| Docket Number | Nos. 60749 and 62194,s. 60749 and 62194 |
| Citation | 860 S.W.2d 340 |
| Parties | STATE of Missouri, Plaintiff/Respondent, v. Jerry PLUMMER, Defendant/Appellant. Jerry PLUMMER, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent. |
| Court | Missouri Court of Appeals |
Susan Eckles, Asst. Public Defender, St. Louis, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.
A jury found Jerry Plummer guilty of distributing a controlled substance (marijuana) within one thousand feet of a school in violation of § 195.214 RSMo (Cum.Supp.1989). The trial court found Plummer to be a prior and persistent offender and sentenced him to a term of twenty-five years imprisonment. Plummer filed a Rule 29.15 motion for post-conviction relief which the motion court denied after an evidentiary hearing.
Plummer appeals both the judgment of the trial court and the order of the motion court. On direct appeal Plummer contends the trial court erred in admitting a transcript of a tape recording that identified the drug seller on the recording by Plummer's name, erred in overruling his Batson motion, erred in failing to strike a venireperson for cause, plainly erred in failing to sua sponte declare a mistrial as a result of an argument made by the prosecutor during the rebuttal portion of her closing argument, plainly erred in failing to "challenge" the constitutionality of § 195.214, and erred in overruling his motion to quash the indictment or stay the proceedings based on the composition of grand and petit juries in St. Louis.
On appeal from the order of the motion court Plummer contends that the motion court clearly erred in denying his Rule 29.15 motion in which he alleged he was denied effective assistance of counsel because his trial counsel failed to object to the introduction of a photograph showing a "Warning Drug Free Zone" sign in front of a school. He further contends that the motion court erred in failing to issue findings of fact and conclusions of law on his motion to produce a tape recording and that his post-conviction counsel abandoned him by not proving that Plummer's voice was not on the tape recording used at trial. We affirm both the judgment of the trial court and the order of the motion court.
The sufficiency of the evidence is not in dispute. The evidence, viewed in the light most favorable to the verdict, reveals that at 12:30 p.m. on November 16, 1990 a St. Louis Police Department Street Corner Apprehension Team (SCAT team) conducted an undercover "buy-bust" drug operation in the area of Blair and East Desoto in St. Louis. Detective Rodney Brunson of the St. Louis Police Department was the designated undercover officer. Detective Brunson was wearing a Kel transmitter/tape recorder which enabled a second SCAT team member, Detective Michael Priest, to monitor his activity from a surveillance van.
Detective Brunson heard a whistle as he was driving an unmarked police vehicle slowly down the 1400 block of East Desoto. He looked in his rear view mirror and saw a man sitting on the porch of a residence on East Desoto. Detective Brunson made a U-turn and stopped his vehicle in front of the residence. The man motioned for Detective Brunson to exit his vehicle. Detective Brunson met the man by the porch. The man offered to sell Detective Brunson cocaine or crack. Detective Brunson told the man that he wanted to buy some marijuana. The man handed Detective Brunson two bags containing marijuana and Detective Brunson handed the man a twenty dollar bill whose serial number had been previously recorded for identification. As Detective Brunson left the porch, he noticed a woman leaving the residence. Detective Brunson returned to his vehicle, transmitted a description of the man on the porch, notified the surveillance team that the deal had been completed, and drove away.
After Detective Brunson left the area, other members of the SCAT team went to the East Desoto residence, where they found Jerry Plummer and a woman seated on the porch. Detective Thomas Murphy saw that Plummer matched the description transmitted by Detective Brunson of the man on the porch. The detectives arrested and searched Plummer but failed to find either the "buy" money or any additional narcotics. Detective Murphy then noticed money sticking out of the woman's closed right hand which turned out to be the "buy" money. Plummer was taken to the narcotics office where Detective Brunson positively identified Plummer as the man who sold him the marijuana. The transaction took place 639 feet 5 inches from the front gate of Lowell Elementary School, 1409 East Linton, which was in session on that day.
In his first point Plummer claims that the trial court erred in admitting into evidence a transcript of the tape recording of the conversation between Detective Brunson and the drug seller, which identified the undercover police officer as "Det. Brunson" and the drug seller as "Jerry Plummer." The trial court overruled Plummer's objection that the transcript should have identified the drug seller as "suspect." Plummer did not ask for a cautionary instruction.
Transcripts of a tape recording may be used if portions of the tape are inaudible or there is a need to identify the speakers. State v. Engleman, 653 S.W.2d 198, 200 (Mo.1983). The admissibility of transcripts of tape recordings is within the trial court's discretion. State v. Gleason, 813 S.W.2d 892, 896 (Mo.App.1991). In order to demonstrate reversible error, a defendant must show that the admission of the transcript prejudiced his case. State v. Montgomery, 590 S.W.2d 105, 108 (Mo.App.1979).
Plummer argues that identification of the drug seller on the tape recording was a fact issue for the jury's determination and, by identifying Plummer as the drug seller, the state usurped the province of the jury and predisposed the jury to believe that the drug seller on the tape was Plummer before the case was submitted to the jury for deliberation.
One of the foundational requirements for the admission of a tape recording is that the speakers on the tape be identified. United States v. McMillan, 508 F.2d 101, 104 (8th Cir.1974), cert. denied, 421 U.S. 916, 95 S.Ct. 1577, 43 L.Ed.2d 782 (1975); State v. Spica, 389 S.W.2d 35, 44 (Mo.1965), cert. denied, 383 U.S. 972, 86 S.Ct. 1277, 16 L.Ed.2d 312 (1966). Detective Brunson identified Plummer's voice on the tape recording. He testified that Plummer was the man who sold him the marijuana and was subsequently arrested, that he had listened to the tape recording, and that he recognized Plummer's voice on the tape recording as that of the drug seller. The accuracy of his voice identification was for the jury. United States v. Smith, 635 F.2d 716, 719 (8th Cir.1980).
Plummer argues that the use of his name on the transcript unfairly emphasized Detective Brunson's voice identification. We disagree. Since identification of the speaker was a foundational requirement, identification of the speaker was required. The jury was informed that the state prepared the transcript. Thus the identification on the transcript did not give the identification any more weight than it had already been given by the state's witness. Although it was in evidence, the transcript was not sent to the jury room. Plummer cites no precedent holding that the naming of the speakers on the tape as identified at trial is prejudicial. We find no prejudice in these circumstances.
Plummer further complains that the transcript was admitted without a cautionary instruction to the jury. However, Plummer did not ask for a cautionary instruction regarding the use of the transcript and thus waived any requirement that one be given. State v. Stout, 675 S.W.2d 931, 937 (Mo.App.1984).
The trial court did not abuse its discretion in allowing the jury to view the transcript while listening to the tape. Point one is denied.
In his second point Plummer asserts that the trial court erred in overruling his Batson motion in which he asserted that the state used three peremptory strikes in a discriminatory fashion against three black venirewomen.
Plummer raised a timely Batson motion at trial. He argued that the fact the state used four of its peremptory strikes against black venirepersons raised "a prima facie case that the state may have used its peremptory challenge in a discriminatory fashion." The prosecutor explained why she struck one black venireman. This strike is not challenged on appeal. The prosecutor further advised the trial court that she struck the three black venirewomen for the same reasons she struck a white venirewoman: they were women, they had no children, and they had not answered many of the questions posed to the entire panel. The trial court invited Plummer to respond to the state's proffered reasons. However, Plummer's counsel merely stated, "I again raise my objection to their being taken off the panel based on the reasons offered by the State." The trial court overruled Plummer's Batson challenge, stating, "I don't find significant evidence of any discriminatory techniques by the State."
Plummer argues that the reasons given by the state were pretextual and discriminatory. Plummer has failed to preserve this error for review.
The following steps must be taken in the trial court with respect to a Batson motion:
1. The defendant must raise a Batson challenge with regard to one or more specific venirepersons struck by the state and identify the cognizable racial group to which the venireperson or persons belong.
2. The trial court will then require the state to come forward with reasonably specific and clear race-neutral explanations for the strike.
3. If the state articulates acceptable reasons, the defendant has the burden to show that the...
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