STATE of Missouri, Respondent, v. Scott A. HILL, Appellant.
No. 73667.
Supreme Court of Missouri, En Banc.
March 24, 1992.
William L. Webster, Atty. Gen., Millie Aulbur, Asst. Atty. Gen., Jefferson City, for respondent.
PER CURIAM.
The defendant was convicted of trafficking drugs in the first degree, in violation of
The challenged statute reads as follows:
A person commits the crime of trafficking drugs in the first degree if, except as authorized by sections 195.005 to 195.425, he distributes, delivers, manufactures, produces or attempts to distribute, deliver, manufacture or produce more than five hundred milligrams of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD). Violations of this subsection shall be punished as follows:
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(2) If the quantity involved is one gram or mоre the person shall be sentenced to the authorized term of imprisonment for a class A felony which term shall be served without probation or parole.
Thе range of punishment for a Class A felony is “not less than ten years and not to exceed thirty years, or life imprisonment.”
The state‘s evidence demonstrated that the blotter paper, impregnated with the solution, weighed much more than 500 milligrams. The defendant claims that the weight of the LSD alone was infinitesimal and that the blotter paper cannot reasonably be understood to be a “mixture or substance” within the terms of the statute. Alternatively, he suggests that, if the statute is construed to punish offenders аccording to the weight of the paper used, it violates the due process clause of our state constitution.
The defendant acknowledges that similar аrguments based on the federal due process and equal protection clauses were rejected in Chapman v. United States, — U.S. —, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991). In applying the due process clause of our own constitution, we elect to follow Chapman. The statute adequately warned the defendant that something besides the weight of the LSD would be considered in determining the authorized punishment. The legislature‘s use of “mixture” and “substance” indicates its disposition to punish for whatever vector an offender might choose.
The defendant also contends that the sentence of 30 years without possibility of probation or parole constitutes cruel and unusual punishment under the eighth and fourteenth amendments to the federal constitution, or under
The defendant next argues that the state impermissibly introduced evidence of other crimes. The state showed that the officer initially triеd to purchase 1,000 hits. The defendant said that he only had 500 hits available, but could produce 500 more later in the day. The state also played a tape of thе transaction between the defendant and the undercover officer. The taped conversation included the officer‘s remark, “These kids down in Ozark eat this shit likе candy. Boy, they love it.” The defendant replied, “Oh yeah, they‘ll love it. They‘ll like it a lot.” The state also presented evidence that after the defendant and undеrcover officer were arrested together, the defendant suggested that he and the officer could do business again after things cooled down. The defendаnt protests admission of his statements and of the quoted portion of the tape. He argues that the evidence tended to link him with other crimes and was prejudicial.
The statements were part and parcel of a single transaction. State v. Kenley, 693 S.W.2d 79, 82 (Mo. banc 1985), cert. denied, 475 U.S. 1098, 106 S.Ct. 1500, 89 L.Ed.2d 900 (1986). The conversations, moreover, show the defendant‘s knowledge of the nature of thе substance he was selling and his purpose of delivering a substantial quantity of LSD to the buyer. The trial judge was not obliged to exclude the statements.
The prosecutor‘s inquiry, furthermore, was about the potential jurors’ willingness to consider life imprisonment. The jury did not аssess a sentence of life imprisonment. By analogy to the cases holding that an improper Witherspoon-Witt excusal does not demonstrate reversible error if the jury does not assess the death penalty,2 the excusals in this case did not constitute reversible error because the jury did not assess life imprisonment.
The defendant finally argues that the prosecutor sought to minimize the impact of the mandatory sentence by saying, “clemency, the law can change, anything [can] happen.” The defendant admits that he took no objection to this argument, and for this reason we deny relief. See State v. McMillin, 783 S.W.2d 82, 98 (Mo. banc), cert. denied, — U.S. —, 111 S.Ct. 225, 112 L.Ed.2d 179 (1990).
It is extremely important, moreover, to view challenges to closing argument in context. The state suggests that the challenged argument responded to defense counsel‘s statement that:
No matter how well Mr. Hill might do in prison, no matter what the possibilities of rehabilitation are in prison, he would not get out without a minimum of ten years and up to life imprisonment without parole or probation.
The stаte‘s argument in response certainly did not give rise to plain error.
The judgment is affirmed.
ROBERTSON, C.J., and RENDLEN, COVINGTON, HOLSTEIN, BENTON and THOMAS, JJ., concur.
BLACKMAR, J., concurs in separate opinion filed.
BLACKMAR, Judge, concurring.
I concur in the per curiam opinion, but feel that some additional obsеrvations are in order.
1. Mandatory Sentence
It is my opinion that the circumstance that a sentence is within the statutory limits should not foreclose judicial scrutiny for compliance with the Eighth Amеndment to the United States Constitution and
The stipulation that the sentence be served without probation or parole does not render it cruel or unusual. This provision simply eliminates one possibility for early release. The governor‘s power to grant “reprieves, cоmmutations and pardons,”
2. Witherspoon-Witt
The prosecutor questioned members of the venire as to whether they would consid-
The prosecutor‘s suggestions might present dangers in a case governed by Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). Even though we conclude that there is no Witherspoon-Witt problem in this case, I believe that it is appropriate to comment on a matter which came up in the course of the trial and which, if carelessly applied in a capital case, might result in an unnecessary reversal.
With these observations, I concur.