State v. Stout, 47259

• Decision Date: 17 July 1984
• Docket Number: No. 47259,47259
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Donny Joe STOUT, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 931

675 S.W.2d 931

STATE of Missouri, Plaintiff-Respondent, v. Donny Joe STOUT, Defendant-Appellant.

No. 47259.

Missouri Court of Appeals,

Eastern District,

Division Two.

July 17, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 28, 1984.

Application to Transfer Denied

Oct. 9, 1984.

John Ashcroft, Atty. Gen., Jefferson City, for plaintiff-respondent.

Shaw, Howlett & Schwartz, James J. Knappenberger, Clayton, for defendant-appellant.

SIMON, Judge.

The appellant, Donny Joe Stout (Stout), was convicted of selling a pound of marijuana in violation of § 195.020 RSMo (Supp.1983). The trial was held in the Circuit Court of Warren County and the judge, in accordance with the jury verdict, imposed a sentence of 25 years imprisonment.

On appeal, Stout contends the trial court erred in: (1) refusing to grant his request for a continuance on the morning of the trial on the following grounds: (a) that the state failed to comply with discovery Rule 25.03 and therefore, defense counsel was not prepared; and (b) that Stout wished to discharge his counsel; (2) permitting the state to give a transcript of a tape recording to the jurors to read while the tape was played and failing to give a limiting instruction; (3) failing to grant the motion for acquittal or new trial based on insufficiency of evidence regarding entrapment; (4) failing to grant the motion for new trial based upon prosecutorial misconduct; and (5) sentencing Stout to 25 years imprisonment because such sentence was the result of bias and prejudice and is excessive. We affirm.

On February 16, 1982 William Russell Wagner (Wagner) approached Police Officers Sewell and Cason of the City of Mexico Police Department and volunteered to work with them on reducing the drug problem in Audrain County. Wagner offered to buy drugs and become an informant for the police. Wagner relayed the names of several potential drug suppliers, including Stout's, to Officer Sewell who subsequently noted these in his police report. Officer Sewell gave Wagner a written list of names the police suspected of being involved with drugs, but Wagner tore up the list after reading and memorizing it.

Under the guidance of the officers, Wagner first contacted Stout on February 19, 1982, at the Missouri Livestock Auction Center Cafe where Stout was employed. Wagner asked Stout if he could purchase some marijuana from him. Stout said he wasn't sure and told Wagner to wait until Monday the 22nd when he might have something. On the 22nd Wagner again talked with Stout at the cafe and Stout told him he could buy cocaine at $100 a gram and Mexican marijuana at $50 an ounce. Wagner said that he would like to purchase a pound of marijuana. On the 23rd, Stout phoned Wagner and informed him that he had ten pounds of marijuana coming in from Arkansas and wanted to sell the whole amount. Wagner replied that all he wanted to purchase was a pound and Stout said he would see what he could do. Wagner saw Stout the next day and Stout agreed to sell him a pound when the marijuana came in, which he expected in a week. On March 8th Stout approached Wagner at the cafe, said he had the marijuana and they made arrangements to meet the next evening.

On March 9, 1982, Wagner met with Officers Sewell and Cason around 6:00 p.m. at the Panhandle Eastern Building in Mexico, Missouri. Wagner and his car were searched, a tape recorder was secured on him and he was told to keep the recorder operating until he returned. Wagner was given $850 in cash, the price Stout was asking for the pound of marijuana. Wagner left at 6:20 p.m. and went directly to Stout's trailer home where Stout invited Wagner in and introduced his wife, Connie Lee Stout. Stout brought out a grocery sack with a large and small bag. When Stout showed Wagner the small bag, Wagner asked, "Is this the one that I am going to be buying?" Stout replied, "Yes, that is the one that you are going to get." After the money exchanged hands, Stout assured Wagner the bag weighed a pound and told Wagner he hoped that everyone would be satisfied with it. Stout handed Wagner 6 blue pills to try, offering to sell him more if he liked them.

Wagner left the Stout's residence and returned directly to the Panhandle Eastern Building where he turned over the tape recorder and drugs to Officers Sewell and Cason. Wagner testified he returned at 8:00 p.m. Stout was arrested shortly afterwards.

On the morning of the trial, in chambers, Stout requested a continuance based on two grounds: (1) that the state failed to comply with discovery Rule 25.03; and (2) that Stout wished to discharge his counsel and would need a continuance to allow new counsel to become acquainted with the case. The trial court denied Stout's request and the trial proceeded. Subsequently, the trial judge imposed a sentence of 25 years in accordance with the jury verdict.

Stout's first point on appeal is that the trial court erred in failing to grant his request for a continuance. Stout claims the state failed to comply with discovery Rule 25.03 because they did not provide information of a police "hit list;" and information concerning the tape recorder and tape used by Wagner. Therefore, defense counsel was unable to properly prepare for trial. Stout also requested a continuance in order to discharge his counsel because his present counsel failed to subpoena witnesses on his behalf. Stout raises these grounds in two separate points on appeal, but they will be discussed together under Point I herein.

Responding, the state argues that Stout failed to comply with Rule 24.09 which requires that a request for a continuance be accompanied by a written motion supported by affidavit and this standing alone, justified the trial court's refusal to grant a continuance. However, we refuse to rest our decision solely on this basis and will review Stout's allegations on this point. The granting of a continuance is within the discretion of the trial court, and on appeal every intendment in favor of the trial court's action is indulged. The trial judge's ruling will not be disturbed on appeal unless it appears that he acted arbitrarily, capriciously and oppressively, or that his ruling was a clear and certain abuse of discretion. State v. Winston, 627 S.W.2d 915, 917-8[1, 2, 3] (Mo.App.1982).

In Stout's motion for discovery, he requested any exculpatory evidence including but not limited to the "police hit list testified to by Wagner." Wagner had orally informed Officer Sewell of the names of suspected drug dealers. This list included Stout's name and Sewell put these names in the police report, but defense counsel did not receive the police report until after the trial began. Defense counsel learned of this list at a preliminary hearing three months before the trial. During cross-examination of Sewell, defense counsel discovered that in addition to the list contained in the police report, Sewell had given Wagner a list of people the police suspected of dealing in drugs which Wagner, after memorizing, tore up. Sewell testified Stout's name was not on that list. In chambers, at a trial recess, defense counsel renewed her motion for a continuance on the ground that the state's failure to comply with her discovery requests prevented her from exploring Wagner's background and drug related activities for purposes of impeachment. In response, prosecutor stated that he had asked Wagner about the list of names Sewell had given to him and Wagner said he had torn it up. The initial list is in the police report and the prosecutor did not have the report in his file at that time. The prosecutor claims the list which Sewell gave to Wagner no longer exists. The defense counsel did receive the police report during the trial. The trial court ruled the state had complied with discovery rules because defense counsel had not been sufficiently specific in her motion for discovery and had previously identified a list which was different than the one she was referring to in chambers.

Stout contends the trial court's failure to grant a continuance as a result of the state's non-compliance with discovery rules was prejudicial error. When non-compliance of discovery rules is brought to the attention of the trial court, the trial court has the discretion to impose sanctions. State v. Mansfield, 637 S.W.2d 699, 703 (Mo. banc 1982). A continuance is one of several sanctions which may be imposed pursuant to Rule 25.16 (1983). On appeal, the issue is whether the trial court's refusal to impose a sanction results in fundamental unfairness to Stout. We find it does not. In Mansfield, our Supreme Court found the trial court's exclusion of an alibi witness' testimony to be an abuse of discretion, but here, the trial court's refusal to impose the sanction of a continuance was not fundamentally unfair to the defense in that the defense counsel intended to use the information to impeach Wagner. The record reveals that Wagner was extensively cross-examined as to his prior arrests and convictions. Further, Sewell was extensively cross-examined as to both lists. Additionally, defense counsel had three months, after the preliminary hearing, to question Wagner and Sewell about any lists. The trial court's ruling was not fundamentally unfair.

In addition, Stout contends the state failed to properly comply with a discovery request for details on the make and model of the recorder used by Wagner until four working days before trial. As a result, defense counsel contends she was unable to conduct tests for reliability, quality or possibility of alteration. The record reveals the defense counsel never requested the tape or recorder but requested only, the identifying marks, the type of tape and the type of tape recorder used. The state's answer contained this information. When the trial court judge specifically asked the defense counsel whether she had requested the tape or the recorder in order to examine them, she replied she...