State v. Tilley
| Decision Date | 22 May 2003 |
| Docket Number | No. 24804.,24804. |
| Citation | 104 S.W.3d 814 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. James TILLEY, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Lisa M. Stroup, Assistant State Public Defender, St. Louis, for appellant.
Jeremiah W. (Jay) Nixon, Attorney General, Richard A. Starnes, Assistant Attorney General, Jefferson City, for respondent.
A jury found James Tilley ("Defendant") guilty of attempting to manufacture methamphetamine (§ 195.211), possession of methamphetamine (§ 195.202), and possession of precursor ingredients for methamphetamine with the intent to manufacture that drug (§ 195.420).1 Because he was proven to be a prior and persistent offender, the trial judge imposed sentence.
Defendant appeals and presents issues about the following: (1) defense counsel's alleged conflict of interest arising from his representation of a co-defendant; (2) sufficiency of the evidence to support Count I (§ 195.211) and Count III (§ 195.420); (3) a request for plain error review of his double jeopardy claim; and (4) the trial court's refusal to admit a letter which was not disclosed to the State. This court affirms.
This court reviews the facts in the light most favorable to the verdict. State v. Withrow, 8 S.W.3d 75, 77 (Mo.banc 1999). In doing so, we afford the State the benefit of all favorable inferences drawn from the evidence and disregard all evidence and inferences to the contrary. Id. "An inference is a logical and reasonable conclusion of a fact not presented by direct evidence but which by the process of logic and reason, a trier of fact may conclude exists from the established facts." State v. Hyde, 682 S.W.2d 103, 106[8] (Mo.App. 1984). Although an inference only satisfies a party's burden of producing evidence with regard to a particular fact, a trier of fact may accept existence of the assumed fact. Id. at 106[9].
On April 13, 2001, deputy sheriff Sullivan ("Sullivan") learned via a female informant that she had been at Defendant's house "the night before." While she was there, she received methamphetamine that "was pulled from underneath the cabinet between the kitchen and the living room."
Based on that information, Sullivan and sheriff's deputy Penrod ("Penrod") went to Defendant's house at 1666 County Road 216 near Chaffee, Missouri. When they arrived, Defendant "was on the roof of a shed that was just southwest of the residence." Another person (later identified as Roger Graviett) came out the front door of the house. Penrod moved toward Graviett to speak with him, while Sullivan went to the shed to talk to Defendant.
Sullivan testified he "hollered up to" Defendant and asked him to come down and talk. Defendant stepped to the edge of the shed roof and stated he would come down. Thereon, Defendant turned and walked away from the roof edge. Sullivan anticipated Defendant was proceeding to the back of the shed where a ladder was located; consequently, Sullivan went to meet Defendant at the bottom of the ladder. After getting to the back and waiting "for a few seconds" without Defendant appearing, Sullivan stepped back so he "could see over the ladder." Although the shed was "small," Sullivan could not see Defendant; consequently, he walked to the front of the shed. When Sullivan still could not see Defendant, he returned to the ladder and viewed Defendant starting down the ladder. The foregoing caused Sullivan to wonder what Defendant was doing because it was a small roof, yet Sullivan had to walk around to look for Defendant. He also noted there were no tools on the roof.
After Defendant was on the ground, Sullivan told him about the informant and asked permission to search his house. Defendant consented to the search. Penrod then entered the house while Sullivan stayed outside with Defendant and Graviett. When Penrod returned in "barely" over a minute, he indicated to Sullivan he found methamphetamine in the cabinet location described by the informant. The deputies then arrested Graviett and Defendant, called for a transport deputy, and began a more thorough search of the house.
Sullivan started the search in a "utility room" located between the bathroom and the back wall of a bedroom. There, he found a "duffel bag" in the middle of the floor. Knowing methamphetamine labs are often mobile and components thereof are often transported in this manner, Sullivan promptly opened the bag. Inside, he found a pint of Liquid Fire, two large spoons, a spatula, Aqua airline tubing, rubber gloves, side cutters, vice grips, plastic bags, coffee filters, plastic spoons, a hot plate, salt (contained in a plastic bag), and two Energizer lithium batteries. The two batteries were in a package designed to hold four batteries.
After seizing the duffel bag and its contents, Sullivan recalled Defendant's delay in descending the shed roof. Accordingly, he went to the roof where he found a "spot of white powder that was smashed in the shingles." He collected a sample of that powder, and a subsequent analysis thereof revealed it was methamphetamine.
Meanwhile, Penrod finished searching the kitchen area. In doing so, he found empty plastic bags in a trash can located in the kitchen. These empty bags contained a residue, i.e., "a real fine powder that they weren't able to scrape out when they were cleaning the bag out." This powder residue tested positive for methamphetamine.
The medicine cabinet, in the only bathroom in Defendant's home, contained two syringes. Penrod testified this fact was of "particular interest" because (1) some methamphetamine users inject the drug with this type of syringe, and (2) he found nothing in the bathroom to indicate a "medicinal purpose for the syringes," i.e., he found no "insulin or anything as such."
At trial, Sullivan testified that each item in the duffel bag was commonly used by persons who manufacture methamphetamine using the anhydrous ammonia method and explained in detail the function of each. Moreover, he testified that based on what he found in the bag and the fact that methamphetamine was in the house, it was his opinion that a substantial step had been taken toward the manufacture of methamphetamine. Penrod testified the "white" color of the methamphetamine found at Defendant's house indicated it came from a "newer" batch, i.e., chemical evaporation will cause methamphetamine to darken over time.
Both Defendant and Graviett were charged with violations of controlled substance laws and both were represented by public defender Christopher Davis (Davis). By the time of Defendant's trial, Graviett had pleaded guilty to "manufacturing methamphetamine." Called as a witness for Defendant, Graviett testified that on April 13 he was staying at Defendant's house; Defendant was gone for two or three days staying with his girlfriend; the duffel bag was brought to Defendant's house by Brian Simpson and left there without Defendant's knowledge; Defendant just returned from his girlfriend's home and had not been inside his house by the time the police arrived; Defendant knew nothing about the duffel bag or its contents; and the methamphetamine found in the kitchen and on the shed roof belonged to him (Graviett).
The jury convicted Defendant on all charges, and this appeal followed. Additional facts will be given as required to analyze Defendant's points relied on.
In his first point, Defendant alleges the trial court plainly erred when it failed to, sua sponte, declare a mistrial when defense witness Graviett testified. Defendant claims "an actual conflict of interest had developed at that point because counsel [Davis] represented both [Defendant and Graviett] when their interests became directly adverse." The factual context for this argument is as follows.
Graviett's claim at Defendant's trial that Defendant knew nothing about the duffel bag was apparently a surprise to the prosecutor. Specifically, Graviett had not told law enforcement officials the "Brian Simpson" story, i.e., that Simpson allegedly left the bag at Defendant's home without Defendant's knowledge. Moreover, Graviett apparently made no such claim at his guilty plea hearing. Accordingly, the prosecutor's cross-examination tactic was to implicitly accuse Graviett of recent fabrication of this story. Moreover, during cross-examination, Graviett recanted his direct examination testimony that he knew what was inside the bag by saying he had "no clue what was inside of it" and only pleaded guilty to a charge relating to the bag's contents to get out of jail. On redirect, Davis sought to rehabilitate Graviett on this point by using a letter Graviett had written to Davis months before Graviett's guilty plea hearing. In the letter, Graviett accepted blame for all the events occurring at Defendant's house and exonerated Defendant from any involvement or knowledge thereof. Before Graviett could fully identify the letter, however, the State objected and claimed the letter had not been disclosed in response to discovery requests.2 The court sustained that objection. At that point, Defendant proceeded with the trial without offering the letter into evidence, or making an offer of proof regarding the same, or seeking a mistrial based on defense counsel's alleged conflict of interest.
Defendant argues that if Davis had not represented both Graviett and him, the court would have allowed admission of the letter. As such, Defendant claims the letter would have been a prior, consistent statement attributable to Graviett which would have bolstered Graviett's credibility with the jury. He insists that the court committed plain error when it did not sua sponte declare a mistrial after he was unable to rehabilitate Graviett due to circumstances arising out of defense counsel's "conflict of interest."
For Defendant to prevail on his...
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