State v. Prier, 10391

• Decision Date: 13 January 1978
• Docket Number: No. 10391,10391
• Citation: 561 S.W.2d 437
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Jerry PRIER, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 437

561 S.W.2d 437

STATE of Missouri, Plaintiff-Respondent, v. Jerry PRIER, Defendant-Appellant.

No. 10391.

Missouri Court of Appeals, Springfield District.

Jan. 13, 1978.

Motion for Rehearing or Transfer Denied on Jan. 30, 1978.

Application to Transfer Denied March 13, 1978.

John B. Newberry, Springfield, for defendant-appellant.

John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Before STONE, P. J., and HOGAN and FLANIGAN, JJ.

FLANIGAN, Judge.

A jury convicted defendant-appellant Jerry Prier of three offenses, each involving the sale of a controlled substance (§ 195.020 as amended L.1971), ¹ and he was duly sentenced. Each offense was charged in a separate count in the same information.

On this appeal defendant's sole "point relied on" is that the trial court erred in permitting, over the objection of the defendant, the three offenses to be tried before the same jury. It is the position of defendant that Rule 24.04 did not permit the joinder of the instant three offenses in one information. It is the position of the state that joinder of the three offenses in one information was proper under Rule 24.04 and that the trial court did not err in permitting the joint trial.

Before the trial the defendant, by motion, objected to the joinder of the three offenses in one information and objected to their joint trial. The objections were renewed in a motion made by defendant during the trial and in his post-trial motions. The brief of the state concedes that the motions were timely and in proper form.

Rule 24.04 provides, in pertinent part: "All offenses which are based on the same act or on two or more acts which are part of the same transaction or on two or more acts or transactions which constitute parts of a common scheme or plan may be charged in the same indictment or information in separate counts, or in the same count when authorized by statute . . ." (Emphasis added) It is the position of the state that the italicized portion of the rule authorized the joinder of the three offenses in one information. The state does not seek to justify the joinder on any other basis.

The information in the case at bar charged the defendant with three unlawful sales of controlled substances, each offense occurring in Greene County. The three offenses were as follows: March 12, 1975 "3,4-methylenedioxy amphetamine" (Count III); March 20, 1975 "marijuana" (Count I); May 9, 1975 "cocaine" (Count II).

The state's evidence showed that each of the three sales was made to Donald Lipp, a corporal of the Missouri State Highway Patrol. Lipp was working "under cover," that is, "in civilian clothes, with a longer type of hair, usually with a beard and moustache, usually working narcotics on the street, attempting to make drug purchases."

On March 12, 1975, Lipp, with two confederates Ingram and Dowdy, went to the home of defendant at 1222 N. Forest in Springfield. Lipp was introduced to defendant by Ingram as being Ingram's cousin, "Clint Powers" from Kansas City. Lipp told defendant that he was interested in buying some drugs. Defendant said that he knew a person, one Mike Davis, who had some drugs the evening before and suggested that the two men go to see if that person had any left. Lipp and defendant went in Lipp's car to the 900 block on East Elm. While Lipp waited in the car, defendant went into an apartment building, obtained from Davis a quantity of the drug named in Count III, and gave it to Lipp in return for $175.

On March 20, 1975, about 8:30 p. m., Lipp drove to defendant's house. Defendant told Lipp that a man was coming over with a pound of marijuana at 9 p. m. and asked Lipp if he was interested in buying some. Lipp said that he was interested. At 9 p. m. a man arrived with a quantity of marijuana. The record shows that the man was introduced to Lipp as Boyd, but he was Jay Manning. Defendant and "Boyd" placed some of the marijuana in eight small plastic bags. The bags were placed in a paper sack which was delivered to Lipp in return for $80.

While they were together on March 20 defendant gave Lipp his telephone number and, according to Lipp, "told me that any time I was in town, if I could not go by, to call him, that if he did not have anything in the narcotic line that he could locate some for me."

On May 9, 1975, about 7 p. m., Lipp telephoned defendant who asked Lipp if he was interested in purchasing some cocaine and, if so, to call him back. At 8:35 p. m. Lipp telephoned defendant who told him that a man was coming over with a gram of cocaine for which he wanted $60. Lipp drove to defendant's home. An unidentified man was in the living room. Defendant obtained a quantity of cocaine from the refrigerator and sold it to Lipp for $60.

The St. Louis district of this court has said that Rule 8(a) of the Federal Rules of Criminal Procedure, ² although not identical in language to Rule 24.04, is so similar to it that judicial interpretations of the federal rule are persuasive. State v. Johnson, 505 S.W.2d 11, 12 (Mo.App.1974).

F.R.Cr.P. 8(a), in language broader ³ than that contained in Missouri Rule 24.04, defines what offenses may properly be joined in one information. Even if joinder is proper under F.R.Cr.P. 8(a), it may be prejudicial to the defendant and, if so, he may obtain relief under F.R.Cr.P. 14 which permits the court, upon a showing of such prejudice, to order an election, separate trials or other appropriate relief. ⁴ If, however, the joinder is improper under F.R.Cr.P. 8(a), and an objection is timely posed, discretion is not involved. The court must order a severance, and commits reversible error in failing to do so. United States v. Marionneaux, 514 F.2d 1244, 1248(1, 2) (5th Cir. 1975); King v. United States, 355 F.2d 700 (1st Cir. 1966); ⁵ United States v. Goss, 329 F.2d 180 (4th Cir. 1964); Ingram v. United States, 272 F.2d 567 (4th Cir. 1959); Metheany v. United States, 365 F.2d 90, 95 (9th Cir. 1966); Cupo v. United States, 123 U.S.App.D.C. 324, 359 F.2d 990 (1966); Wright, Fed.Prac. and Proc., Vol. 1, § 221, p. 432; Moore's Fed.Prac., Sec.Ed., Vol. 8, § 8.04(2).

The state has not cited any Missouri case dealing with the "common scheme or plan" portion of Rule 24.04 as the only justification for joinder of offenses in one information.

If the propriety of the instant joinder was to be determined solely by an examination of the face of the information, as distinguished from an examination of the evidence adduced at the trial, the state's position would fail. Each count of the information alleged only the date of the sale, its commission in Greene County, the specific drug sold, and the fact that the defendant, with the requisite intent, was the seller. The information did not contain any express allegation that the acts or transactions mentioned respectively in the three counts were "parts of a common scheme or plan." There was no allegation that each count involved a sale to the same purchaser, Cpl. Lipp. In none of the counts was the purchaser identified. ⁶

Federal authority exists to the effect that the propriety of joinder of defendants under F.R.Cr.P. 8(b), or the joinder for trial of two or more indictments or informations under F.R.Cr.P. 13 (which involves the inquiry of whether the offenses were properly joinable in a single indictment or information under F.R.Cr.P. 8(a)) need not be "gleaned from the face of the indictments," and that joinder is proper if the evidence at the trial "demonstrates that the two separate offenses could have been charged in a single indictment." Griffin v. United States, 272 F.2d 801, 802(1) (5th Cir. 1960). See also United States v. Franks, 511 F.2d 25, 29 (6th Cir. 1975); United States v. McDaniels, D.C., 57 F.R.D. 171, 174(2) (1972).

If the propriety or impropriety of the instant joinder need not be gleaned from the face of the information but may be based on the trial evidence, the state's position similarly fails for the reason that the evidence at the instant trial does not support a finding that the three offenses were "parts of a common scheme or plan." There is nothing in the evidence to support a finding or reasonable inference that the defendant, prior to the commission of the first offense, intended to commit all of them. Although the series of purchases may have been within a scheme or plan harbored by Lipp, so far as the defendant is concerned they appear to have been independent transactions, unrelated to each other, impromptu and casual in nature, not products of a single or continuing motive. They involved different drugs, different times, different participants and generally different circumstances. There is no showing that if any of the offenses had not been committed, a villainous and overall design would have been frustrated.

Rule 24.04 in its present form became effective on July 1, 1971. The former version of Rule 24.04 was more narrow in the type of joinder of offenses permitted in one indictment or information. ⁷ The "common scheme or plan" portion of the rule first appeared in 1971. Although, as has been indicated, the issue of the propriety of the instant joinder is one of first impression in this state, Missouri courts have dealt with a "common scheme or plan" doctrine as a part of the law of evidence. Case law in that area is instructive here and demonstrates an unwillingness on the part of the courts, on records such as this, to permit the introduction of evidence of drug offenses other than the one on trial.

"It is the well established general rule that proof of the commission of separate and distinct crimes by the defendant is not admissible, unless such proof has a legitimate tendency to establish defendant's guilt of the charge for which he is on trial. State v. Selle, Mo., 367 S.W.2d 522, 529; State v. Shilkett, 356 Mo. 1081, 204 S.W.2d 920, 922-923. It has been said that 'Generally speaking, evidence of other crimes is competent to...