State v. Taylor

• Decision Date: 09 April 1974
• Docket Number: No. 35291,35291
• Citation: 508 S.W.2d 506
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Joseph TAYLOR, Defendant-Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 506

508 S.W.2d 506

STATE of Missouri, Plaintiff-Respondent, v. Joseph TAYLOR, Defendant-Appellant.

No. 35291.

Missouri Court of Appeals, St. Louis District, Division One.

April 9, 1974.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Nels C. Moss, Jr., Asst. Circuit Atty., St. Louis, Mo., William F. Arnet, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Charles D. Kitchen, Public Defender, John D. Bauer, Kent Fanning, James C. Jones, Asst. Public Defenders, St. Louis, for defendant-appellant.

SIMEONE, Judge.

Defendant-appellant, Joseph Taylor was charged, tried, found guilty by a jury and sentenced by the court to ten years in the department of corrections for selling a Schedule I controlled substance, heroin, in violation of Chapter 195, RSMo, V.A.M.S. He appeals. We affirm.

The state's case was based chiefly on the testimony of Officer William Robinson of the Narcotics Division. Trial was held February 14 and 15, 1973.

On the morning of June 15, 1972, Sergeant Robert Boaz of the Metropolitan St. Louis Police Department, assigned to the Narcotics Division, together with Officer William Robinson and an unidentified woman informant drove to Boyle and Lindell Boulevards in the City of St. Louis. Sergeant Boaz who was Robinson's supervisor met Robinson and a woman informant who was known to Boaz. Sergeant Boaz gave Officer Robinson a ten dollar bill and told him to go along with the informant to 4135 Westminster Avenue. The informant asserted that she knew the people at that address. While Sergeant Boaz waited in a vehicle, Officer Robinson and the informant proceeded to that address.

When Officer Robinson and the informant arrived at the house, a four family flat, there were several persons in front of the house, including the defendant, Taylor, and one Willie Hamilton, known sometimes as Charlie or Billy.

Officer Robinson was allowed to testify over objection to the following. When Robinson and the informant arrived at the house, the informant greeted the persons and especially Taylor and said, 'Hey, baby, what's up? How's it going?' She said, 'I came back like I said.' 'I came to get my stuff.' Officer Robinson, Taylor, Hamilton and the informant were invited into the house, went in and proceeded back to the kitchen. Back in the kitchen, the informant said, 'I came to get my stuff, man. I want to get my thing now.' Taylor asked, 'How much do you want?' And the woman replied, 'I want two things.' Some conversation occurred between Robinson and Hamilton. Officer Robinson testified that 'Mr. Hamilton was high and he was carrying on he was talking to me at which time he was telling me about this bad trip he was on.' Then Taylor said to Hamilton, 'Man, go and get the stuff,' or 'Will you go and get the stuff.' Hamilton left the kitchen and went down the hall. Taylor in turn left and went out the back door and out of sight. While Robinson and the woman informant were in the kitchen, one of the women who had been on the front proch as the two entered came into the kitchen, but did not say anything.

Hamilton returned in a short time with two red capsules. The woman informant told him to give 'it to him (Robinson) because he has the money.' Hamilton gave Robinson the capsules and Robinson in turn gave Hamilton the money. Taylor was 'returning to the room' at that time.

When Taylor returned to the room, he had a rolled up cloth which contained a spoon and an eyedropper with a needle. A capsule was given to the informant; it was put in a spoon and lit and cooked, and the informant 'stuck the needle into her skin and put the solution into her body.' 'In other words she shot up?' 'Yes.' Then Officer Robinson testified, 'Mr. Taylor shot up. He . . . used a slot as a tourniquet and shot in his arm.'

Officer Robinson gave Hamilton the ten dollar bill, and Hamilton gave him the 'stuff.'

On cross-examination Officer Robinson admitted that the informant made the offer to buy something, but that Officer Robinson received the capsules and handed the ten dollar bill to Hamilton.

Officer Robinson was, at the time, a detective with the Narcotics Division and had been assigned to that division for approximately four or five months, but had spent a total of about seven to eight months in that Division. His specific duties were to work as a 'narcotics undercover man.' His job was to purchase narcotics if he could. He had seen the informer only once before.

Robinson had gone through a training period of some six weeks to identify narcotics and narcotic paraphernalia. He attended classes and had field training. As part of the training he would be taken to various locations where narcotics are known to be sold, was introduced to various persons and places and became acquainted with the terminology. He was introduced to various narcotic users and was familiar with symptoms of users, and during the course of training was shown various capsules.

On July 13, 1972 a suppressed indictment was filed charging the defendant with the sale of heroin to William Robinson. On that same day Taylor walked into police headquarters and said that he heard the police were looking for him. It was at that time the defendant was arrested for the alleged incident on June 15.

On redirect examination Sergeant Boaz was asked whether he specifically put out that defendant was wanted. His response was, 'Well, we had a suppressed indictment for his arrest.' An objection was made to this as not responsive, and it was moved that the answer be stricken. The court overruled the objection and motion.

Following the indictment, several motions were filed by counsel for defendant. One of the motions filed on August 18, 1972 was a motion for a bill of particulars. The motion moved the court for an order directing the State to give the names and addresses of the 'persons to whom defendant is alleged to have sold the heroin. . . .' and the 'names and addresses of the persons who allegedly requested the defendant to sell the heroin.' The court overruled the motion.

Subsequently on October 25, 1972, a substitute information in lieu of indictment was filed alleging a prior conviction and charging that Taylor unlawfully sold heroin to Robinson.

During the trial a chemist testified that the substance in the capsules contained heroin.

During the closing argument of the state, the assistant circuit attorney commented, 'Some of this activity may make you sick. The problem is, it's necessary. You just do not get the pusher off the street and if you would say, 'Well, I'd like to see a kilo of heroin . . ." This argument was objected to because of the reference to a 'pusher.' 'There's no crime alleged as being a pusher and there's no evidence of a pusher . . . It is improper closing argument and also no evidence in this trial as to what the Circuit Attorney's arguing.' The court overruled the objection.

At 11:57 a.m. the jury retired to deliberate. At 12:30 p.m. the jury went to lunch, and at 2:00 p.m., the jury was asked by the court how they stood numerically. The foreman replied, 'A three-way split.' The court after stating that 'as I understand it at this time you're not numerically close to a verdict,' gave instruction No. 8--a 'hammer' instruction. ¹

From the very beginning, before and throughout the trial, defendant contended that he was entitled to be informed of the name and address of the woman informant because 'this informant is the only witness in a position to amplify--cannot conject (sic) testimony as a governing witness and also that this informant was in fact the main and sole negotiator of the alleged sale of heroin involved . . . and the fact that unless the informant's name and address is produced, it will deny me the possibility to prove up the defense of entrapment and also deny me by (my?) right under the Sixth Amendment to cross-examination.'

On appeal, defendant makes several contentions: (1) The court erred in overruling the objection to (a) Sergeant Boaz's reference to a suppressed indictment, (b) Officer Robinson's testimony 'in regards (sic) to the defendant carrying certain narcotics apparatus,' and (c) the reference to defendant 'shooting up.' He contends these matters are irrelevant, immaterial and prejudicial because they evidence 'other crimes'; (2) The court erred in overruling his request for the name and address of the woman informant because her information was relevant and helpful to the defense and was essential to a fair trial; (3) The court erred in allowing Officer Robinson to testify as to what the informant and Willie Hamilton said because the statements made by Robinson were hearsay and denied defendant the right of confrontation guaranteed by the Constitution; (4) The court erred in permitting Officer Robinson to testify regarding the meaning and interpretation of 'drug terminology' because no proper foundation had been laid; (5) The court erred in overruling his objection in the state's closing argument when the assistant circuit attorney made reference to 'pusher' because there was no evidence in the case to warrant such a reference and it was highly prejudicial as inflaming the emotions of the jury; and (6) The court erred in giving Instruction No. 8--the 'hammer instruction.'

As to the first point, defendant contends that the references by Officer Robinson to the fact that the defendant 'shot up'--'used a slot as a tourniquet and shot in his arm' and carried certain 'narcotic apparatus' does not tend to prove or disprove the crime charged (of 'sale') or any material fact pertaining to the issue of whether the defendant sold 'narcotics.' He contends that this evidence was emotionally inflammatory which 'could tip the scales of justice.' He contends that if the defendant had been charged with possession, the evidence of the possession of the apparatus would have been permissible, but when the charge is for 'sale', such evidence is...