State v. Taylor
| Decision Date | 08 November 1994 |
| Docket Number | No. 64895,64895 |
| Citation | 889 S.W.2d 124 |
| Parties | STATE of Missouri, Plaintiff/Respondent, v. Willie TAYLOR, Defendant/Appellant. |
| Court | Missouri Court of Appeals |
Charles M. Shaw, Shaw, Hawlett & Knappenberger, Clayton, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Jennifer A. Glancy, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant, Willie Taylor, appeals the conviction of two counts of possession of a controlled substance, § 195.202 RSMo Cum.Supp.1993 for which he was sentenced to two concurrent terms of eight years of imprisonment as a prior drug offender.
We review the facts in a light most favorable to the verdict. On April 14, 1992, St. Louis police officers executed a search warrant on 2004 Adelaide. Detective Vickers of the St. Louis Police Department Narcotics Task Force had obtained the search warrant based upon information from a confidential informant and subsequent surveillance of the residence.
The confidential informant advised Detective Vickers that a black male known to the informant as "Tony" was selling heroin from the residence at 2004 Adelaide. "Tony" was described as approximately 30-32 years old, 5'5"' tall, 185 pounds with a medium complexion. Based upon this information, Detective Vickers, with other officers, conducted surveillance on six different occasions during the week prior to the execution of the warrant. He observed that there were many short-term visitors that would use a "pattern knock code" to gain entry into the residence. The defendant was observed opening the front door, coming and going from the residence using a key and driving a green Jaguar. After conducting the surveillance, Detective Vickers obtained a search warrant based upon the knowledge gained from the informant and through the surveillance.
On April 14, 1992, St. Louis Police Department detectives went to the residence to execute the search warrant. The detectives knocked on the front door, identified themselves as police officers and stated that they had a search warrant. Detective Vickers observed the defendant through a small viewing window in the front door. Defendant appeared surprised and he turned and ran into the interior of the residence. The detectives, using a battering ram, forced open the front door.
While the detectives were breaking down the front door, Officer Zwick and Detective Weiter, who were posted at the rear and side of the residence, saw the defendant stick a portion of his body out of the window and toss a brown plastic grocery bag in the direction of the roof of the house next door. The bag, which landed in the gangway next to the house and was seized by the detectives, contained a gun and small baggies of heroin and codeine.
Detective Vickers, after entering the residence through the front door, found the defendant on the third floor near the open window. Detective Vickers handcuffed the defendant and began bringing him downstairs. At that point, Officer Zwick notified Detective Vickers that they had found the bag in the gangway. Detective Vickers went outside and observed that the bag contained narcotics.
Detective Vickers placed the defendant under arrest and advised him of his Miranda rights. After indicating that he understood his rights, Detective Vickers asked the defendant if he threw the bag from the window. The defendant responded
Three electronic digital scales, a small coffee blender with white powder residue, $550 in currency and $250 worth of food stamps were found in the second floor back bedroom which the defendant shared with his girlfriend Sheila Proctor. The substances recovered from the bag thrown by the defendant were tested and determined to be heroin and codeine.
On September 13, the jury found the defendant guilty of two counts of possession of a controlled substance. On October 15, defendant was sentenced as a prior, persistent and prior drug offender to two concurrent terms of eight years. Notice of this appeal was filed on October 15, 1993.
Defendant contends the trial court erred in the following six points: (1) failing to suppress evidence seized from the defendant's residence because the search warrant was issued based upon a faulty affidavit; (2) allowing the detectives to testify about the defendant's post-Miranda statement because it was exculpatory and not an admission; (3) allowing MAI-CR 3d 302.04 which defines "reasonable doubt" to be read to the jury because it is unconstitutional; (4) refusing to submit a jury instruction based upon MAI-CR 3d 310.08 regarding "mere presence" which allegedly would have warned the jury that defendant's presence alone was insufficient to make him responsible for the crime; (5) allowing Detective Vickers to testify over defense counsel's objection that he learned through alleged hearsay statements that the defendant and his girlfriend occupied the back bedroom on the second floor; and (6) failing to grant a mistrial when the state failed to provide "material evidence" admitted during the trial and requested by the jury during its deliberations.
In his first point, defendant contends that the trial court erred in failing to suppress evidence seized from the defendant's residence. It is unclear from defendant's brief exactly what evidence should have been suppressed. The alleged grounds for suppression are that the search warrant issued was invalid because it was based upon the faulty affidavit of Detective Vickers. The duty of a reviewing court is simply to ensure that the issuing judge had a substantial basis for concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); State v. Shuck, 800 S.W.2d 49, 51 (Mo.App.W.D.1990). There are two grounds which defendant claims make the affidavit invalid.
The first reason is that the defendant does not fit the description given by the confidential informant. Defendant cites no case law and this court finds none on its own to support the proposition that the defendant had to be specifically identified as "Willie Taylor" in the search warrant. In Gates, supra, the Supreme Court stated that reviewing courts should give great deference to a magistrate's determination of probable cause. It would be inconsistent with the Fourth Amendment's strong preference for searches for courts to have a grudging or negative attitude toward warrants. Courts should interpret affidavits in a common sense as opposed to a hyper-technical manner. Gates v. Illinois, 462 U.S. at 236, 103 S.Ct. at 2331, 76 L.Ed.2d at 547. With these guidelines for reviewing the validity of warrants in mind, we find that the search warrant was valid despite the affidavit not specifically naming the defendant, Willie Taylor.
Defendant also claims that the affidavit was faulty because the confidential informant was unreliable. Defendant cites State v. Dudley, 819 S.W.2d 51, 54 (Mo.App.S.D.1991) for the principle that hearsay could be a proper basis to establish probable cause if there is a substantial basis for crediting the hearsay. The defendant further relies on Dudley for the point that informants of the "criminal milieu" deserve less of a presumption of reliability. Id. at 54. Defendant asserts that the confidential informant was not a substantial basis for probable cause.
While conducting surveillance, it is not necessary to actually observe drugs; it is only necessary to show a substantial basis that contraband will be found. State v. Laws, 801 S.W.2d 68, 70 (Mo. banc 1990) (citing Gates, 462 U.S. at 236, 103 S.Ct. at 2331, 76 L.Ed.2d at 547). State v. Vega, 875 S.W.2d 216, 218 (Mo.App.E.D.1994). "It is enough, for the purposes of assessing probable cause that 'corroborating through other sources of information reduced the chances of a reckless prevaricating tale' thus providing a 'substantial basis for crediting the hearsay' " Illinois v. Gates, 462 U.S. at 244-245 103 S.Ct. at 2335, 76 L.Ed.2d at 552 (citing Jones v. United States, 362 U.S. at 257, 269, 271, 80 S.Ct. 725, 735, 736, 4 L.Ed.2d 697, 707, 708).
The affidavit in this case had two sources of reliability. First, the affidavit demonstrated that confidential informant had personal knowledge that quantities of heroin were being kept and sold at the address in question. "Probable cause does not require that an informant be one whose reliability has been previously established." State v. Griffin, 756 S.W.2d 475, 484 (Mo. banc 1988). The true inquiry is whether the informant's information is reliable. Id. at 484. The confidential informant had proven to be reliable in the past based upon information that he/she had provided the detective. Such information apparently leading to ten narcotics arrests and four convictions. This information alone would have been sufficient for the magistrate to find the existence of probable cause. In State v. Vega, 875 S.W.2d 216, 218 (Mo.App.E.D.1994), this court stated that "tips by informants found to be reliable in the past are sufficient to support an issuing judge's finding of probable cause." See also, State v. Laws, 801 S.W.2d at 70.
The affidavit contained a second source of probable cause. "Missouri courts have held that 'personal knowledge of the informant corroborated through other sources is enough to establish probable cause.' " State v. Berry, 801 S.W.2d 64, 66 (Mo. banc 1990) (citing State v. Moiser, 738 S.W.2d 549, 557 (Mo.App.E.D.1987)). After receiving the information from the confidential informant the affiant, Detective Vickers, conducted his own independent surveillance of the residence on at least six occasions with three other officers. The surveillance verified the location of the residence, app...
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