State v. Umfleet, 40097

Decision Date21 August 1979
Docket NumberNo. 40097,40097
Citation587 S.W.2d 612
PartiesSTATE of Missouri, Respondent, v. Charles UMFLEET, Appellant.
CourtMissouri Court of Appeals

John D. Ashcroft, Atty. Gen., Jefferson City, Hugh C. Roberts, Jr., Pros. Atty., St. Francois County, Farmington, for respondent.

Ronald Pedigo, Public Defender, Farmington, for appellant.

DOWD, Presiding Judge.

A jury convicted Charles Umfleet of selling LSD, a Schedule I controlled substance, to Dennis Becker of the St. Louis Metropolitan Police Department. He was sentenced by the court to twelve years imprisonment pursuant to the Second Offender Act, Section 556.280. Umfleet appeals.

Officer Becker, accompanied by another officer and an informant, contacted Umfleet in a bar in St. Francois County at 9:30 p. m. on September 15, 1976. The informant asked Umfleet if he had "anything". Umfleet answered that he did not but that they should return to the bar in one-half hour and he would. At 10:00 p. m. the trio again approached Umfleet. This time Umfleet told Officer Becker that he could get them all the mescaline they wanted for $2.00 a hit. Becker gave Umfleet $20.00 for ten hits. Umfleet took the cash and walked out onto the bar's front porch where the officers observed a man named Satterfield handing Umfleet a number of small orange pills. Umfleet returned to the inside of the bar and gave the pills to Becker. Chemical analysis subsequently revealed that the pills contained Lysergic Acid Diethylamide, otherwise known as LSD.

The appellant was charged by information under Sections 195.240 and 195.200 RSMo 1969. At the close of the State's evidence, the appellant moved for a judgment of acquittal charging that the information incorrectly listed § 195.240 rather than § 195.020. The court overruled the motion as hypertechnical.

While giving expert testimony Richard Chaklos, a chemist for the Drug Enforcement Administration, stated that amounts of LSD anywhere from 15 to 100 micrograms could have an effect on a person's body. The court overruled the appellant's objection that the statement was irrelevant.

The appellant relied on an alibi defense, calling his wife, his wife's cousin Barbara Dixon, and Barbara Dixon's husband to testify that Charles Umfleet had been visiting the Dixons in Springfield, Missouri at the time of the sale. The State objected to defense counsel's reference to a statement Barbara Dixon had given to appellant's former attorney. The court sustained the objection on the grounds that appellant had not produced the statement in response to the State's motion for discovery. The court also refused to admit a picture of the appellant's motorcycle on the same grounds.

Since the information charged appellant under the Second Offender Act, the court was to impose sentence on appellant if convicted. During the course of the instruction conference, in response to a motion by the prosecutor, the court instructed the defense counsel not to mention minimum or maximum punishment during his closing argument. The prosecutor commented during his argument that it was not the jury's responsibility to fix punishment.

The appellant asserts the following points relied on in this appeal: (1) that the evidence was insufficient to support the conviction; (2) that he was denied effective assistance of counsel; (3) that Missouri's discovery rules are unconstitutional; (4) that Barbara Dixon's statement and (5) the photograph of appellant's motorcycle should have been admitted; (6) that the Assistant Prosecutor who tried the case was unqualified; (7) that certain comments the prosecutor made were unfair; (8) that the information was defective; (9) that part of the chemist's testimony was irrelevant, incompetent immaterial and without proper foundation; (10) and, that LSD should not be a Schedule I controlled substance.

Appellant contends that the evidence was insufficient to show that he was the seller of the drugs. He argues that he was a mere go-between and that the trial court should have directed a verdict in his favor.

On the night of the sale, the appellant took the money from Officer Becker, went out to the bar's front porch, got the drugs from Satterfield, returned to the table where Becker sat and gave Becker the drugs. Appellant claims that these facts show that he acted as an agent of the police and was merely a go-between for the police and the actual seller, Satterfield.

In determining the sufficiency of the evidence, the appellate court should only decide whether the evidence was substantial enough to submit the case to the jury. State v. Longmeyer, 566 S.W.2d 496, 499 (Mo.App.1978). The above described facts could reasonably support a jury finding that the appellant was the actual seller of the LSD. The contention is without merit.

Appellant next claims ineffective assistance of counsel. A claim of ineffective assistance of counsel will not normally be considered on direct appeal from a conviction. State v. Hamell, 561 S.W.2d 357, 361 (Mo.App.1977). A hearing under Rule 27.26 VAMR is better suited to determine the relevant facts. State v. Robinson, 551 S.W.2d 309, 312 (Mo.App.1977). This court will, however, consider such a claim as plain error if the record completely discloses the facts necessary for a determination in each instance of alleged ineffectiveness. State v. Evans, 559 S.W.2d 641, 642 (Mo.App.1977).

Here the appellant alleges that his counsel was ineffective in failing to preserve a record or make an offer of proof of Barbara Dixon's statement, in failing to raise certain points in his motion for a new trial and in failing to be adequately prepared for trial. Insufficient facts appear in the transcript to determine that these alleged failures actually constituted ineffective assistance of counsel. Since there is no complete disclosure of the relevant facts in the transcript, point two is ruled against appellant.

The third assignment of error which the appellant raises challenges Missouri's discovery rules as unconstitutional. He asserts that defendants are required to release detailed statements made by alibi witnesses while the State is not required to disclose the names of persons it intends to call to rebut alibi witnesses. This, he claims, violates his right to due process of the law.

Appellant's contention apparently results from an incorrect reading of the law. The Missouri Supreme Court has specifically held in State v. Curtis, 544 S.W.2d 580, 582 (Mo.banc 1976) that due process requires the State to reveal its alibi rebuttal witnesses when the defendant has indicated an intention to call alibi witnesses and has revealed their identities to the State. Point three is ruled against the appellant.

The fourth issue appellant raises concerns the exclusion of Barbara Dixon's statement for failing to disclose its existence in discovery. 1 He claims that the statement was admissible to controvert an attack on Mrs. Dixon's credibility made by the prosecutor during cross-examination.

This point was not included in appellant's motion for a new trial and so cannot be considered in this appeal. State v. Flynn, 541 S.W.2d 344, 348 (Mo.App.1976). It can be considered on review under the plain error doctrine of Rule 27.20 VAMR, but only if the criticized action resulted in manifest injustice or a miscarriage of justice.

We do not believe the court's exclusion of this statement resulted in manifest injustice or a miscarriage of justice. The appellant failed to comply with Rules 25.34(A)(2) and 25.37 VAMR which required him to produce the statement when requested to do so. Exclusion of the statement was a proper remedy for that failure under Rule 25.45 VAMR.

The reasoning used in deciding appellant's fifth point is identical to that used in the fourth. Here the court excluded a photograph of appellant's motorcycle for failing to supply it in response to the State's request. Appellant claims that the photograph was admissible to rebut the State's evidence as to the motorcycle's make and color.

Since appellant failed to comply with Rules 25.34(A)(3) and 25.37 VAMR, exclusion again was proper under Rule 25.45 VAMR. Points four and five are ruled against the appellant.

In his sixth point, appellant challenges the qualifications of the assistant prosecuting attorney who tried this case. He charged that the assistant prosecutor had only been a resident of St. Francois County for a few days and not for the twelve months he alleges is required. This, the appellant asserts, deprived the court of proper jurisdiction. We disagree. A similar contention was rejected in State v. King, 379 S.W.2d 522 (Mo.1964). In State v. King, supra, the court held that a quo warranto proceeding, as set out in § 531 VAMS, is the proper method for challenging a public officer who usurps, unlawfully holds or unlawfully executes any office. This court will not attempt to determine a prosecutor's qualification in a direct appeal. Point six is ruled against the appellant.

In his seventh point appellant complains that the prosecutor was allowed to comment to the jury during argument that it was not the jury's duty to fix punishment while the defense counsel was prevented from mentioning minimum or maximum punishment in his argument. Appellant claims that this was unfair because it imposed restrictions on him which were not imposed upon the prosecution.

Defense counsel failed to object to the prosecutor's comment about fixing punishment at the time it was made. A comment which was not objected to during argument cannot be reviewed unless it was so offensive and prejudicial that the court should have halted the argument sua sponte. State v. Goodwin, 352 S.W.2d 614, 620 (Mo.banc 1962). Such comments may be considered as plain error if they result in manifest injustice or miscarriage of justice. (Rule 27.20 VAMR). It will be unusual, however, for a court to find that a prosecutor's comments even satisfy the threshold plain error...

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