531 S.W.2d 47 | Mo. Ct. App. | 1975
Defendant was charged under the Second Offender Act with unlawful possession of
Defendant has not challenged the sufficiency of the evidence to sustain the guilty verdict and a fairly terse recitation of the evidence demonstrates why he has not done so.
During the afternoon of July 17,1973, an officer (Harman) of the Kansas City, Missouri, Police Department received information from a reliable informant that defendant was driving a truck of a particular description in the vicinity of 41st and Oak Streets, in Kansas City, and was in possession of some “narcotics” and “weapons”. Additionally, defendant was reported to be leaving for Kansas within the next thirty minutes. The police computer terminal disclosed the existence of two outstanding warrants for defendant’s arrest for traffic violations. The information received from the informant and the existence of the outstanding warrants was made available to two officers (Lynch and Chapman) who subsequently apprehended defendant in his truck near the vicinity of 42nd and McGee Streets, Kansas City, Missouri.
Shortly after defendant was apprehended, Officer Harman arrived at the scene. Defendant was advised by the officers of the two outstanding warrants and was placed under arrest. At the scene defendant’s person was searched by Officer Chapman. The search uncovered two small bottles on defendant’s person containing approximately 150 “tabs” which appeared to the officers to be “narcotics”. While still at the scene of the arrest, Officer Lynch searched the truck defendant had been driving and found another bottle containing approximately 65 “tabs”, which also appeared to the officers to be “narcotics”.
Defendant raises but one issue on appeal — that the trial court erred in refusing to sustain various motions made by him for a mistrial predicated upon the state’s injection before the jury of “crimes” other than the one for which he was standing trial. As hereinafter demonstrated, defendant assiduously pursued the collective aspects of the lone issue raised on appeal from the time the state made its opening statement, thence throughout the remaining course of the trial, and, as well, in his motion for a new trial.
The factual core of the single issue presented, as delineated by defendant in his brief, consists of the following sequential events.
During the state’s opening statement, the assistant prosecuting attorney presenting the case said: “The evidence will be that after the defendant, Willie Earl Tygart, was placed under arrest . he was asked by one of the two patrolman what the two pill bottles contained, that were removed from his left front pocket; and the defendant freely admitted to the
During the course of the state’s direct examination of Officer Lynch, the state elicited that defendant, with reference to the contents of the two bottles removed from his person, stated in Lynch’s presence at the scene of the arrest, “It is LSD. Goes for $2.00 a hit.” Defense counsel objected thereto “on the basis that the prosecutor has adduced evidence of crimes not charged against the defendant.” Defense counsel followed up his objection with a single claim for curative relief — a motion for a mistrial. Again, the trial court refused to declare a mistrial. Although all concerned apparently construed “Goes for $2.00 a hit” as meaning “I [defendant] am selling it [LSD] for $2.00 a hit”, it appears equally susceptible of being construed as meaning “I [defendant] purchased it [LSD] for $2.00 a hit.”
During defense counsel’s recross-examination of Officer Harman, the record discloses the following questions asked to which the following answers were given:
“Q. Officer, did you have an opportunity to talk to the defendant at the station?
A. Yes, sir; I did.
Q. Did he tell you what he did for a living?
*50 A. Yes, sir. He stated he pushed narcotics parttime; and I don’t recall what else he said.”
Defense counsel objected thereto on the ground that the answer to the last question constituted evidence of crimes other than the one for which defendant was being tried, and again limited his request for relief solely to declaration of a mistrial. The trial court again denied defense counsel’s request to declare a mistrial. In refusing to accede to defense counsel’s request for a mistrial on this occasion, the trial court (out of the presence of the jury) observed that defense counsel had “opened the door” and he could not find, as claimed by defense counsel, that Officer Harman “took an unfair opportunity to unload” on him. The record is totally devoid of any indication that Officer Harman was acting in bad faith or that he was intentionally bent on injecting prejudice into the case to the detriment of defendant. The record, at best, shows that Officer Harman gave a natural, spontaneous and wholly responsive answer to the precise question posed to him by defense counsel. Such being the case, defendant is in no position to presently drape the responsive answer with a charge of prejudicial error since he “invited” the complained of disclosure. As noted in State v. Brown, 463 S.W.2d 821, 823 (Mo.1971), when defense counsel “gets into deep water” because of a disclosure he himself invited on cross-examination “it will be his own fault.” Any inclination of the trial court in the instant case to declare a mistrial was obviously dulled by the fact that counsel for defendant invited the complained of disclosure. This circumstance, coupled with the fact that the trial court was not presented with a choice of some form of corrective relief short of a mistrial, dulls any inclination on the part of this court to label the trial court with an abuse of discretion for not declaring a mistrial.
Lastly, during the state’s closing argument two incidents of similar import occurred. The assistant prosecuting attorney in his closing argument contended before the jury that “. . . after being asked by Officer Lynch what these two bottles contained, you will recall his — Officer Chapman’s testimony, defendant said ‘They’re LSD and they go for $2.00 a trip.’ . . . or words to that effect; I’m sure you will remember — .” Defense counsel objected thereto — “on the basis that the prosecutor has again told the jury that there may have been a sale of narcotics, which the defendant is not charged with” — and once again limited his request for relief to a mistrial which the trial court denied. Immediately after the trial court’s ruling the prosecuting attorney argued to the jury as follows: “And after numerous questioning by Mr. Wilson, in cross-examination of Officer Harman, where he asked Officer Harman whether he questioned the defendant as to his occupation. I am sure that at the close of last night’s evidence you will remember Officer Harman’s answer that this defendant, Willie E. Tygart, gave: he said, ‘Yes; I’m a parttime narcotics pusher.’ ” Again defense counsel lodged an objection, on the ground that the argument related to a crime or crimes other than the one which defendant was charged with, and his claim for relief was again relegated solely to a request for a mistrial. Consistent with its prior rulings, the trial court declined to declare a mistrial. At this point, however, the trial court, of its own volition, absent objection of any kind by defense counsel, orally instructed the jury as follows: “Ladies and gentlemen of the jury: You are instructed by the Court that this defendant is not charged with the sale of a controlled substance.” Thereafter, the assistant prosecuting attorney continued the state’s closing argument and, among other things, informed the jury that the “State does not wish to imply that he is charged with the sale; and as I said before, the Instruction Number 4 charges this defendant only with possession, knowing possession of LSD;
Both defendant and the state, with unanimity, contend that ultimate disposition of
Denominating the admissibility of certain extraneous crimes in given circumstances as “exceptions” to the obtaining rule is somewhat of a misnomer. What have been denominated as “exceptions” more appropriately lend themselves to being characterized as extraneous crimes that have a “legitimate tendency” or “logical relevancy” to prove an accused’s identity or some or all of the elements of proof of the crime for which he stands charged. A similar observation was made by Division One of this court in State v. Randall, Mo.App., 530 S.W.2d 407, handed down November 3, 1975.
With the above in mind, this court’s attention now logically focuses on the scope and nature of proof relative to a charge of possession of a controlled substance in violation of Section 195.020, RSMo Supp.1973. The sufficiency of the proof necessary to sustain a conviction for actual or constructive possession of a proscribed controlled substance is tested by whether “ ‘the defendant was aware of the presence and character of the particular substance, and was intentionally and consciously in possession of it.’ ” (Emphasis added.) State v. Young, 427 S.W.2d 510, 513 (Mo.1968); and State v. Burns, 457 S.W.2d 721, 725 (Mo.1970). MAI-CR No. 1410, given by the trial court in compliance with the mandate of Rule 20, required the jury, among other things, in order to find the defendant guilty as charged, to find and believe beyond a reasonable doubt “that defendant was aware of the character of the drug and intentionally and knowingly had it in his possession”. This court encounters no difficulty in perceiving evidence of sales of narcotics by defendant, or evidence susceptible of being construed as sales of narcotics by defendant, as being fraught with a “legitimate tendency” or “logical relevancy” to show that defendant was aware of the “character” of the drug contained in the three bottles seized from him and that he “intentionally and knowingly had it in his possession”.
Although never broached by defendant, evidence and comments restricted to defendant’s acknowledgment that the “tabs” seized from him were LSD, standing alone, could conceivably be argued as adequate to show defendant’s awareness of their “character” and that he “intentionally and knowingly had [them] in his possession”, and
Judgment affirmed.
All concur.
. On appeal defendant has not questioned the constitutionality of either of the searches or seizures mentioned.