State v. Williams, 59904

• Decision Date: 26 January 1993
• Docket Number: No. 59904,59904
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Cashawn WILLIAMS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 575

849 S.W.2d 575

STATE of Missouri, Plaintiff-Respondent, v. Cashawn WILLIAMS, Defendant-Appellant.

No. 59904.

Missouri Court of Appeals,

Eastern District,

Division Three.

Jan. 26, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 8, 1993.

Application to Transfer Denied April 20, 1993.

Cheryl Rafert, St. Louis, for defendant-appellant.

William L. Webster, Atty. Gen., Millie E. Aulbur, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

PUDLOWSKI, Presiding Judge.

This appeal arises out of the defendant's conviction for possession of heroin, § 195.202, RSMo Supp.1987, obtained in the Circuit Court of the City of St. Louis. The defendant was sentenced to five years imprisonment and on appeal contends the trial court erred in: (1) overruling defendant's request to call a witness to impeach the testimony of a witness for the state; (2) overruling defendant's request for a new trial because of alleged perjured testimony; (3) denying defendant's motion to dismiss because of alleged noncompliance with the statutory provisions regarding the selection of venire persons; (4) failing to declare a mistrial, sua sponte, due to various statements of the prosecutor; (5) overruling defendant's motion to modify the instruction defining reasonable doubt; (6) overruling defendant's objections to various comments made by the prosecutor in closing argument; (7) admitting into evidence two photographs that allegedly misrepresented the crime scene; and (8) not requiring the state to provide racially neutral explanations for striking potential black venirepersons. This final point was transferred to the Missouri Supreme Court. After the Supreme Court decided the cases of State v. Parker, 836 S.W.2d 930 (Mo. banc 1992) and State v. Starks, 834 S.W.2d 197 (Mo. banc 1992), this point was remanded to the trial court to reconsider defendant's Batson motion. We affirm the original seven points and the Batson point after reconsideration by the trial court.

The evidence adduced at trial was as follows: On the morning of May 16, 1990, St. Louis City Police Officers Michael Berra and Ronald Hasty received a call from an informant that two men were selling narcotics at the corner of Glasgow and Cass Streets. The officers drove immediately to the area and set up surveillance of the corner. There, the officers observed two men whose appearance fit the description given to them by the informant. One of those men was the defendant.

The officers watched the two men for approximately thirty minutes and in that time they observed, on several occasions, defendant receive money from an individual. After receiving the money defendant would go retrieve a bottle from a nearby dumpster and then hand the individual something from the bottle. Eventually, the officers approached the young men.

The officers seized $65.00 from defendant and the bottle which was under the dumpster. This bottle was later determined to contain twenty-three heroin capsules. Defendant was charged and convicted for possession of heroin. He was sentenced to five years imprisonment and this appeal followed. Other facts will be developed as necessary.

In his first point on appeal, defendant claims the trial court erred in overruling the defendant's request to endorse and call Terry Flanagan as a witness for the defense and in refusing to allow defendant's attorney to withdraw from representation so she could testify as a witness for defendant. Defendant alleges that both of these witnesses would have testified to prior inconsistent statements made by state's witness Officer Hasty in order to impeach his testimony. In particular defendant argues that at trial Officer Hasty testified the informant was an adult male and that the officers were in a marked vehicle while Officer Hasty allegedly testified to the opposite at a preliminary hearing. Since there was no transcript of the preliminary hearing defendant wanted to impeach Officer Hasty's testimony with testimony from the defendant's attorney and Flanagan who were both present at the preliminary hearing.

A defendant can impeach a prosecuting witness with prior inconsistent statements but this impeachment must not concern an immaterial or collateral matter. State v. Foulk, 725 S.W.2d 56, 65 (Mo.App.1987). When the fact in dispute is of no material significance in the case or is not pertinent to the issues as developed, the matter is collateral. Id. "A matter is not collateral if the alleged discrepancy involves a crucial issue directly in controversy or relates to 'any part of the witness' account of the background and circumstances of a material transaction, which as a matter of human experience he would not have been mistaken about if his story were true.' " Id. (citations omitted).

Defendant argues this is not a collateral matter and cites State v. Jordan, 664 S.W.2d 668 (Mo.App.1984). In Jordan, the issue was whether an officer could be impeached with his prior inconsistent statements as to why he conducted a search. This court ruled that such evidence is not collateral in that an officer is not likely to be mistaken as to why he conducted a search. Id. at 671. The case at hand is distinguishable.

Here, two officers testified that they went to the scene of defendant's crime because of information they received from an informant. This is uncontroverted and the alleged discrepancies as to what type of car they drove in and the sex of the informant have nothing to do with the background and circumstances of the drug possession the defendant was charged with. Thus, the trial court did not err in refusing to allow the defendant to call Flanagan as a witness. In addition, since defendant claims his attorney would have testified to the same information as Flanagan and we have found that defendant would not impeach as to this information, we find the trial court did not err in not allowing defendant's attorney to withdraw as a necessary witness. Point denied.

In his second point, defendant claims the trial court erred in allowing in alleged perjured testimony by the police officers. Defendant argues that the officers committed perjury when they testified that defendant committed the crime of possessing heroin. Defendant, however, has offered no evidence to support this claim and concedes that "proof of the perjury may not be possible at the present time." Defendant's second point is completely without merit and is denied.

Defendant's third point on appeal states that the trial court erred in denying his motion to dismiss because there was a failure to comply with § 494.400, RSMo.1986, regarding the selection of petit jurors. In addition, defendant alleges the Jury Commissioner of St. Louis City failed to comply with an order correcting certain procedures used in the selection of petit jury panels. Again, defendant has cited no facts to support his claim. Defendant filed a motion to stay the proceedings until jury selection in the City of St. Louis was brought into compliance with statutory provisions regarding the selection of petit jurors. In response, the trial court adopted an order issued by the St. Louis City Circuit Court in another cause of action in regard to an identical motion. The administrative order which the circuit court adopted lifted the stay of proceedings in that case. Thus, it would appear the problems defendant is complaining about as to the petit jury selection process had been remedied by the time of trial. Point denied.

Defendant's next point is that the trial court erred when it failed to grant a mistrial, sua sponte, regarding evidence introduced and argued by the state. In particular, defendant argues the state introduced claims that defendant had sold heroin, had used heroin the night before the alleged crime, would be responsible for the death of the informant had the court ordered disclosure of his name and that defendant had violated his probation.

Defendant claims that the state introduced evidence at trial and argued in closing argument that defendant was responsible for the sale of heroin. The evidence at trial that defendant complains about was the testimony given by the police officers that they witnessed defendant selling narcotics. Defendant did not object to this testimony at trial and he has not requested that we review these points under the plain error rule. We decline to do so sua sponte. State v. Gillespie, 792 S.W.2d 35, 36 (Mo.App.1990).

Defendant did object during closing argument when the prosecutor stated "if we're not willing to stop the sellers as opposed to the buyers...." A trial court has wide discretion in determining the permissible scope of counsel's closing arguments to the jury and we will only reverse when the trial court has clearly abused its discretion. State v. Motley, 740 S.W.2d 313, 316 (Mo.App.1987). Here, the trial court overruled defendant's objection. The prosecutor still explained to the jury, however, that this was a case that dealt with the possession rather than the sale of heroin. In addition, a prosecutor is allowed to comment on evidence raised at trial. A defendant who permits testimony to be introduced at trial without objection cannot later complain about the prosecutor's improper remarks on such evidence during closing argument. Id. at 316-17. Therefore, we find there was no abuse of discretion by the trial court.

Defendant's claim that the prosecutor made comments about drug use on the night prior to the crime is also without merit. The comment came when defendant stated he had missed school on the day of the crime because he had been out late the prior evening. In response the prosecutor asked "What did you stay up late doing, heroin?" Defendant replied "I'm not going to answer that question." Again, the defendant failed to object to this question and he did not ask us to review this under the plain error rule. This being all of defendant's claim as to heroin use, we decline to review this alleged...