*1 finding of on count 8. question with of whether cur in the misconduct Count deals the contempt by cited Judge mitigating lied his affidavit to the factors Conard addition that, during opinion, the final call include principal when he said I also the the would ... evening, King he Judge Chief “indicated Co- provocation directed at extreme if would the order of the was not sure follow more than King Chief was nard —who opin- Contrary principal the court.” merely “not blameless.” holds, state- the of whether this ion reprimand Judge I would Conard not depend is true does whether ment on count misconduct 8. Judge agreement existed between Conard King. depends upon It and Chief King’s Despite is true.
the statement Chief acquiescence Judge or- Conard’s
eventual
der, equivocates repeatedly about whether
he will follow it: anyway, all there is to
Frank: Well that’s you You do one of two know. can either now; you right things; can inform me Missouri, Respondent, STATE I going to and will he is be released now say though it’s that is still immediate even late, you you an hour can tell me Danny HENDRICKS, Appellant. you’ve going to release him in which case you in the got an order and I will see No. 79513.
morning. Missouri, Supreme Court of City Attorney just the walked Chief: Well En Banc. in, my options discussing our what are calling you with him and conversation 1997. back? judge’s repeated questioning the au-
thority in face of order was a lawful contempt support a criminal
sufficient that, cajol- prolonged
charge. The fact after comply
ing, King eventually agreed to Chief express change the he did
does not fact that as to whether he would enforce
doubts allegation
Judge’s order. affidavit’s since, for
literally misleading true. It is not contempt, subse- purposes of criminal does not
quent compliance with the order Additionally, contempt. the evi-
purge the support finding that this does not
dence I
supposed untruth was willful. would
find misconduct on Count opinion that agree principal with of his
Judge overstepped the bounds Conard right reply to his attackers
privileged impending prose- commented on the
when he Accordingly, I eon- of Mr. Freeman.
cution that, yeah, you’ve got Attorney [Judge Oh opinion Conard]: Gener- General’s in there. The at 8 under the annota- opinion absolutely The Circuit look at the bottom Section clear. al's authority Judge tions. has the to ... Well, got [King]: I’ve print don't think [King]: this in fine Chief no I Chief Wait minute. Is book, you're hook thing? says right cross I don’t think I have the someplace end It at the of this 8 in here. talking a section about. There isn’t ... references
COVINGTON, Judge. Hendricks, Danny appeals from
Appellant, finding guilty him judgment trial court’s The Mis- selling controlled substance. District, Appeals, Eastern souri Court of opinion. case after See Rule transferred the called to decide 83.02. The Court is properly trial court can enter whether the guilty selling a controlled sub- verdict of 1994,1 RSMo stance under section utters the words of an where a defendant actually have the offer to sell but does possession. in his controlled substance judgment of the trial court is affirmed. 14, 1994, an undercover detective On Missouri Task for the Northeast Narcotics Shelby informant in Force met a confidential County, detective and the Missouri. The buying drugs discussed from Con- informant detective and the informant nie Wood. The way road on to her met Wood on the told them to follow her to her house. She the transaction. house to make house, the detective and the At Wood’s appellant, informant were introduced into another brother. Wood went Wood’s detective and sat room and the kitchen returned down at the table. Wood containing approxi- packets, each with two mately The detective gram half a of cocaine. gave left the room and Wood Wood $100. talking. appellant began the detective and liked Appellant told the detective that him, appel- that Wood had sold the cocaine eight-ball detective an lant could sell the commonly day. “eight-ball” An used next ounce, eighth of an or three to refer to an grams, and a half of cocaine. detective he, detective, appellant that if liked told get appel- in touch with the cocaine he would they lant and “would do the deal.” twenty spoke for about and the detective not return to the minutes. The detective did Appel- complete house to the transaction. arrested, charged, and convict- lant was later Defender, Adamson, A Renae Asst. Public selling a controlled substance. Section ed Columbia, Appellee. 195.211. Appellant’s appeal asserts: sole Nixon, (Jay) Attorney Jeremiah W. Gener- Attorney finding [appellant] al, Mary Bryan, The trial court erred Moulton Assistant sentencing convic- General, guilty him on his City, Respondent. Jefferson noted, are to RSMo 1994. 1. Unless otherwise all references substance, statements constitute tion for sale of a controlled substance. These entirely presentation regarding [appellant’s such violated because actions law, right process guaranteed appellant’s subpoint due as one. Fifth and Fourteenth Amendments allow a does not to the United and Arti- States Constitution *3 why say does there Appellant decision. not 1, cle Section 10 of the Missouri Constitu- be he to the must evidence that had access
tion, in that the State’s evidence was insuf- con Appellant cites cases that he substance. support ficient to the conviction because a presence tends need for a show the [appellant’s that [the officer] statement to substance, but he not connect controlled does “eight be him he would to sell an any respect, to nor present them case a not ball” at date did constitute a later they explanation why provide does he sale of a controlled substance. statements, al authoritative. His be Allegedly question at issue is the of what though nothing thought-provocative, are an constitutes offer to sell controlled sub- then presented, more. statements are His provides pertinent stance. Section 195.211 any reasoning. Left as unsupported left any person is part: unlawful for to “[I]t they are, they pro completely undeveloped, manufacture, distribute, deliver, produce or meaningful nothing vide for review. Certain distribute, deliver, attempt to manufacture or ly they possibility to the of a lend themselves produce possess or controlled substance to arguments. number It is not of reasoned deliver, distribute, to with intent manufac- however, province, to within this Court’s ture, produce or a controlled substance.” about, decide, speculate arguments that enacting its companion section 195.211 and or that are asserted asserted statutes, general assembly definitional Leahy, developed. Leahy not v. but all, some, has defined not but (Mo. 1993); 221, Krame 227-28 banc “delivery,” include for ex- terms. Definitions Waller, 236, (Mo.App. v. 849 S.W.2d actual, constructive, ample, which “the or 1993). person attempted from one to anoth- transfer ... of a ... er controlled substance and requirement the ar There is no that (em- 195.010(10) a sale.” includes Section gument appellate per of an be section brief added). “barter, phasis defined as “Sale” is Goldenberg, fect. Sutton v. 862 S.W.2d exchange, gift, or ...” or therefor. offer (Mo.App.1993). An added). 195.010(37) (emphasis Section however, adequately ad present and should 195.010, “offer” is defined in section term not be Thummel dress the issues to decided. meaning purposes has the of the term for nor 1978). (Mo. King, banc 570 S.W.2d 195.211, together as it is read with of section error, being with submission of 195.010(37), previously section been decided why respect to out reasoned with by this Court. had appellant there must be evidence that puts subpoints forth two or require, not access to the substance does appeal. for his Under his first allow, even a decision. See id. subpoint, appellant dispute that he states, subpoint, con appellant an offer. In his second
uttered words of He instead, offering to allow a that mere words do not constitute a tends that conviction that, to sell substance in the absence sale. He contends absent evidence that a controlled actually proof was controlled he had the controlled substance that the substance sub possession or access to his sister’s would render the imitation controlled had cocaine, Presumably, appel there no conviction under stances act “obsolete.” can be argues “superfluous.” Appellant Putting way, ap it another lant section 195.211. means that, to but though person that offered sell cocaine pellant submits even the state substance, actually delivered an imitation proved appellant asked detective subject multiple buy could convictions the detective wanted to sell sub following day, no one sale—the offer a controlled “eight ball” stance, of an the sale had to the section and established access PRICE, C.J., BENTON, HOLSTEIN, substance, section imitation controlled LIMBAUGH, ROBERTSON, JJ., concur; 195.242. WHITE, J., J.,concurs result; dissents mer Appellant’s contention without opinion filed. separate it. The made crimes both selling of an imitation controlled substance WHITE, Judge, dissents. offering controlled and the to sell a sub person than stance. When a violates more hinges on the This conviction statute, prosecu criminal it is one within the to “offer for sale.” This is a what means tor’s discretion determine the statute issue, reading expansive crucial since the prosecutor statutes under which the desires vastly basis for this conviction that forms the Watts, proceed. enlarges of conduct liable to severe the class 1980). prosecutor’s deter *4 majority to criminal sanctions. The refuses evidence, mination will be based the important question. I would address this any along with other considerations that the it, and I would reverse. answer prosecutor may properly take into account. efficacy selling of the crime of an imita The controlled substance is not diminished tion Sufficiency Appellant’s Brief
by allowing offering a conviction for to sell a requiring pres controlled substance without majority refusal to rule on a The bases its entment of the substance. uncharitably reading appel- of the narrow alleged support subpoint, ap-
In of this Certainly, is far from lant’s brief. the brief White, pellant cites State 907 S.W.2d inclined than is perfect. But am far less (Mo.App.1995). Appellant contends that majority of his the to hold the deficiencies prove White holds that the state must State-appointed against Mr. Hen- counsel specific intent to an con- sell imitation currently in imprisoned He is the dricks. general trolled substance of the instead If con- Center. it is to Ozark Correctional says intent to sell. that White year sen- demn him to serve out his seven intent, specific means the state must show tence, majority ought at address the to least Giving appellant more than mere words. appeal. simply not the substance of his It is trying the benefit of the doubt and strictly enforces the case that the Court ease, apply pre- toWhite this this Court way majority in briefing rules the that the sumes that means that the state suggests. Today opinion we hand down specific must show intent to sell a con- approach: a far draconian that describes less White, however, trolled substance. re- policy “this is to decide a case on its Court’s only quires pre- that when substance is than on technical deficiencies merits rather sented, the defendant know nature of the Generally, in we will not exercise the brief. the substance. Where White take disregard point un- discretion to a defective appellant’s is left to surmise. deficiency disposition the impedes less on the again, appellant’s pre- Once statements are quality merits.”1 The of the unsupported by any sented left rea- preclude court of brief did not the above, soning. As stated it is not within deciding the from the case on merits. province speculate about Court’s fact, question to so that court found the arguments that are asserted but compelling as to necessitate transfer here. 227- developed. Leahy, not 858 S.W.2d at briefing ob- quality The of the so Appellant’s alternative submission that this cannot also does not allow decision. scure the issue Court make a decision. judgment The is affirmed. punish expressed inno- Prelutsky, have our reluctance to
1. Wilkerson v. 943 S.W.2d Hamid, (Mo. 1997); See also Brown v. parties shortcomings banc on for the of counsel cent (Mo. 1993) (Holding that declared, banc appeal. it is the As we have often possi- "cases should be heard on the merits if policy the merits of this court to decide cases on ble”); King, Thummel v. possible.”) whenever 1978) ("On we numerous occasions the to commit a crime—what readiness requiring one’s briefs Another concern But both statute does. claims that this fairness. We State presented is address the issues majority opinion brief and the reasonably the State’s must isolate held that briefs have meanings. emphasize difference the opposing that the so as to ensure the issue repeatedly de- Here, at here is again, conduct issue respond.2 has a chance to side only as “offer for sale” —but recognized scribed —never no doubt that the State there is phrase sell.” That phrase “offer to The with the to make its case. issue and was able conduct, accurately describes the much more appel- does not claim respondent’s brief to crimi- fact, legislature chose insufficient; is not what the fatally but lant’s brief is nalize. lengthy enti- section brief contains State’s Brief.” Raised
tled “Issues Thus, argument, which Mr. Hendricks’s being unable majority is alone find nonsensical majority purports to the issue. discern cho- If had directly point. declaring one to criminalize mere words sen Offer for Sale conduct, it in criminal engage to be interpreta- The issue is one of con- proscribing so could have done opinion out the principal sets Instead, tion.3 The duct “offer to sell.”7 Hendricks statutory language. Mr. pres- relevant prohibit the actually did was to lature delivery of cocaine. Deliv- Thus, proof was convicted drugs for sale. entment of *5 “offer A sale includes ery drugs required includes a sale. a ele- presence of is physical Thus, prohibited is to offering drugs is for sale. therefor.” of the crime of ment light As the for sale. of the eminently a controlled substance reasonable offer This is notes, majority drug not a defined term. stat- “offer” is nature of the substance-centered long, give undefined statu- is urges, we controlled substances As the State ute. The list of meaning. plain “To deter- with details about tory terms their and concerned technical term, contains meaning of a this substance ordinary the controlled mine the purity language drugs, of what its English precursors or consults standard salts Court 4 are composition are.8 Penalties two relevant defi- and chemical There are dictionaries.” weight of the sub- upon the actual emphasizes physi- based nitions of “offer.” One out, points As object: present question.9 stance presentment “[T]o cal criminalized legislature separately has TEN- rejection: hold out: acceptance or (with penalty) the deliv- much severe urged by a less DER, The sense PROFFER....”5 controlled substance.10 ery of an imitation or declare one’s readiness the State is “to it, not, majority misconceives as the Mr. This evidence shows willingness,”6 as the legisla- power of the argument about the that sense of offer did. But Hendricks may be provide two statutes object....” ture infinitive “used with an argu- It is an by the conduct. one violated same liable for a sale does not hold statute no It makes legislative intent. ment about substance. sell a controlled who offers legislature to have enacted for the declaring sense the act of That criminalize would fact, has, Thummel, done so 7. And at 686. 2. Roberts, See, e.g. areas. other noted, there is also 3. As the court (Mo.1989) (upholding a convic- S.W.2d to whether sufficient as serious prostitu- imposed upon a tion based statute presented culpable was to con- mental state agrees to liability or on one who tion “offers does Mr. Hendricks Since vict Mr. Hendricks. person in engage with another in sexual conduct point his squarely address ....”) (emphasis something value return compels does raise since Xbelieve reversal, supplied). discuss this issue. I will not Co., Indus., 195.017, Republic Ins. Inc. v. 1994. 4. Farmland RSMo 8. Section 1997) . 195.211.3, See, e.g., RSMo 1994. sec. 9. Dictionary New International 5. Webster’s Third (1981) original). (emphasis in the 1994. RSMo 10. Section 6. Id. delivering an imitation separate crime for every single substance when —in controlled ex rel. LESTER E. COX STATE already conduct would violate the case—such CENTERS, MEDICAL prove and easier to crime
more severe Relator, offering to sell a controlled substance. The explanation more reasonable is that specify lature intended to that a sale DARNOLD, Special Honorable David not have to be consummated in order to did Judge, Court, Circuit Greene prohibited. The focus of this crime is County, Respondent. delivery. presentment of a substance delivery than comes much closer to No. 79204. mere discussion. Missouri, Supreme Court of I am not to the fact that the conduct blind En Banc.
of Mr. Hendricks and his association with drug give strong sister’s sale rise to the engaged that he was in nefarious inference
activity. Perhaps if officer had returned day,
the next Mr. Hendricks would have might
consummated the sale. Mr. Hendricks chargeable conspirator
have been as a
accomplice legisla- to his sister’s sale. The provided weapons to com-
ture has numerous anticipation drug
bat even the transac- alone,
tions. On his conduct Mr. Hendricks charged attempt have been with an
deliver cocaine. But all of these theories higher, evidentiary specific
have more bur- *6 suggests,
dens than the one the State which words,
requires not deeds. We because we find free — reprehensible expand conduct —to By doing
lature’s words to cover it. so we danger by recognized
risk the the court of “punish[ing] making those sarcas-
tic or insincere statements motivated bra- If criminal-
vado.” wishes to behavior, clearly speak
ize such it must more then, compelled
than it has. Until we are
interpret strictly penal its laws in favor of
the accused.11
Despite majority’s inability to under-
stand Mr. Hendricks’s he raises a cru-
cially important question. It should at least majority finds his
be answered. Since the flawed,
appellate hope counsel’s brief so
will be to answer the when presents his motion to recall the mandate.
I respectfully dissent. Hobokin, See, (Mo.1989). e.g.,