State v. MasonState v. Mason
Dеfendant appeals his conviction for possession of a controlled substance,
On August 16, 1991 at approximately 2 p.m., Defendant was standing on the premises оf the Darst-Webbe Housing Project at 1600 South Fourteenth Street with a woman. Officers Foster and Bailey, security guards for Darst-Webbe, approached Defendant. Fostеr testified he recognized Defendant as someone he had previously warned about trespassing. At this time, Foster patted down Defendant’s outer clothing to determine whether he had any weapons. At trial, Foster testified he then placed Defendant under arrest for trespassing and conducted a “custodial” search of Defendant. He further testified the custodial search incident to Defendant’s arrest revealed an off-white rock substance, identified at trial as cocainе base, a form of cocaine known as “crack.” Defendant was then transported to the project’s security office, where he was turned over to the metropolitan police.
At his trial for possession of cocaine base, Defendant made a motion to suppress evidence claiming it was seizеd in violation of his Fourth Amendment rights. At the hearing on that motion, Foster testified he found the cocaine base in a custodial search after he had.arrested Defеndant for trespassing. On cross-examination, Foster was questioned extensively about this testimony. The crux of the cross-examination was to impeach Foster with his prior inconsistent statements from the preliminary hearing:
Q. Okay. Do you remember coming to court in September and testifying about this case?
A. Yes, I do.
Q. And do you remember taking the stand and being under oath and testifying?
A. Right.
Q. And it was a preliminary hearing, right?
A. Right.
Q. Do you remember testifying that during your search for weapons that was the time you found the rock of cocaine?
A. No. I said the first thing I did before I tоld him he was placed under arrest was a pat down of the outer garments for my safety and the safety of my fellow officer.
******
Q. Right. But my question is: Do you recall saying you found it аt the time you were searching for weapons for your own safety?
A. I recall saying that after I placed him under arrest; I found it.
The motion to suppress was overruled.
Following the State’s opening statemеnt, Defendant’s attorney, Douglas Wilburn, made a motion to withdraw arguing he had a potential conflict of interest because he could
At trial, Foster’s testimony was virtually identical to that of the pre-trial motion to suppress hearing. Defendant renewed his motion to suppress, which was overruled. Wilburn renewed his motion to withdraw, which was summarily overruled by the trial court.
Prior to defense resting, Wilburn made an offer of proof on his earlier motion to withdraw. Wilburn stated that if he were to testify, he would explain that at Defendant’s preliminary hearing, Foster testified he discovered the rock of coсaine in his initial search of Defendant for weapons prior to arrest. Wilburn stated he was the only available witness to testify to Foster’s prior inconsistent statemеnts. He stated the judge in the matter was unavailable to testify because he was ill. He then argued that if he would not be allowed to withdraw, the trial court should grant a cоntinuance. The court refused to allow Wilburn to testify or to withdraw. It also denied the motion for continuance.
On appeal, Defendant argues the trial court еrred in overruling his attorney’s motion to withdraw so that he could testify. Defendant asserts he is entitled to impeach Foster with his prior inconsistent statements on a material matter and defense counsel’s testimony was the only way he could present this evidence.
In advocating his position for withdrawal, Defendant relies primarily on Rule 3.7 of the Rules of Professional Conduct which states:
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness exсept where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
S.Ct.R. 4. However, this rule governs the ethical conduct of attorneys and is not a rule of evidence.
See, Mentor Lagoons, Inc. v. Rubin,
Testimony from Defendant’s attorney is competent evidence and Wilburn could properly offer himself as a witness.
Nunn,
We need not decide, however, whether impeachment would be proper in this case. Even if impeachment werе proper, serious question exists whether the only available evidence to impeach Foster was the testimony of Wilburn and if he should have been allowed tо withdraw to so testify. Rule 3.7 of the Rules of Professional Conduct generally prohibits an attorney from simultaneously serving as advocate and witness at a trial.
See, State v. Johnson,
Defendant further asserts, and thе State agrees, the trial court plainly erred when it sentenced him as a prior offender, subject to a minimum prison term of 60 percent, pursuant to § 558.019.
Defendant was charged by information on September 9, 1991, with possession of a controlled substance as a prior and persistent offender. On September 19, 1991, the State amеnded the information to allege Defendant qualified as a persistent offender subject to a minimum prison term pursuant to
Defendant’s conviction for possession of a controlled substance was enhanced by the provisions of
Defendant finally argues the trial court erred in submitting to the jury an instruction patterned after MAI-CR3d 302.04 which defines “reasonable doubt.” Defendant argues thе definition “firmly convinced” suggests a higher degree of doubt than is constitutionally required for acquittal. Our Supreme Court has consistently upheld this instruction as constitutional.
See, State v. Griffin,
We rеverse that portion of the trial court’s judgment sentencing Defendant as a prior offender in accordance with