Sawyer v. State

810 S.W.2d 536, 1991 Mo. App. LEXIS 502, 1991 WL 47588
CourtMissouri Court of Appeals
DecidedApril 9, 1991
DocketNos. 56427, 58438
StatusPublished
Cited by3 cases

This text of 810 S.W.2d 536 (Sawyer v. State) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sawyer v. State, 810 S.W.2d 536, 1991 Mo. App. LEXIS 502, 1991 WL 47588 (Mo. Ct. App. 1991).

Opinion

GARY M. GAERTNER, Presiding Judge.

Appellant, John R. Sawyer, appeals from his conviction of six counts of obtaining a schedule II controlled substance by deceit under RSMo § 195.170.1 (repealed 1989). The trial court sentenced appellant as a prior offender to a total of ten years imprisonment. We affirm.

The six incidents which comprise appellant’s crime are identical. Appellant would make an appointment to see a local doctor about his hyperparathyroidism.1 Appellant, who was 44 years old at the time of trial, had suffered from this condition for twenty-three years and testified that he was often in pain. He took the drug dilau-did, a schedule II controlled substance, to help alleviate the pain which was caused by his constant passing of kidney stones.

When appellant arrived at the doctors’ offices, he would appear to be in a great deal of pain and would give the doctors his medical records, detailing his illness. Appellant would then inform the doctors that, since he was in the Merchant Marines and was soon to be heading for the Persian Gulf, he would need a large prescription of dilaudid. Appellant would also supply the doctors with various nonexistent Bridge-ton, Missouri addresses.

The six doctors obliged appellant’s request and between November 3, 1987, and November 18,1987, appellant filled the doctors’ prescriptions for a total of 1400 tablets of dilaudid. Appellant conceded at trial that his Merchant Marine story was a lie, that he did not tell any of the doctors about his prior prescriptions for dilaudid for fear that they would not prescribe additional dilaudid and he admitted that he defrauded or deceived the doctors into prescribing dilaudid for him. Appellant’s defense to the charges was that the large quantity of dilaudid was a medical necessity for his condition. Appellant claimed that he took up to 200 tablets at a time to relieve his pain.

The jury did not believe appellant’s defense and convicted him on all six counts. This appeal followed.

Appellant first claims that the trial court erred in refusing to grant a mistrial because of jury exposure to a newspaper article about the case. On the morning of January 20, 1989, the last day of trial, the St. Louis Post Dispatch printed an article about the appellant’s trial. The article reported the method by which appellant obtained the dilaudid, which had already been admitted at trial. The story also indicated that the prosecutor in the case told the paper that appellant was arrested in Calla-way County where he had “tried the same scam” and stated that appellant had previously “used the same scheme” to obtain 1100 tablets of dilaudid in Joplin and Springfield, Missouri before coming to St. Louis.

The court was immediately made aware of the article on the morning of January 20, [538]*5381989, but decided to question the jury after their verdict in order to keep from attaching undue significance to the article. Immediately after the jury rendered its verdict, the court and both counsel asked each juror individually about the article.2

Through the inquiry, the court found that each juror was aware of the existence of the article. Two jurors and the alternate had actually read the article. The alternate juror did not read the article in its entirety, missing any mention of the Calla-way County arrest and the reference to Joplin and Springfield. One of the other jurors remembered seeing the reference to Callaway County while the other did not. A fourth juror scanned the article and remembered noticing the Callaway County arrest. However, the juror believed that this reference was a typographical error and should have read “St. Louis County.” All of the jurors and the alternate stated that the details or content of the article were not discussed during their deliberations. The most that could be learned from their individual testimony was that those who remembered reading or discussing the article believed that the article did not contain a conclusion as to appellant’s guilt or innocence and that the article merely recited the facts as they had developed during the trial. All of the jurors stated that the article did not play any role in their verdict.

Appellant asserts that the juror’s claims that the article did not influence their verdict is not sufficient to render the incident non-prejudicial, arguing, implicitly, that the mere fact that the article was read by a juror mandates a new trial.

The trial court’s obligation, when confronted with publicity, as occurred here, is to determine whether the publicity created a danger of substantial prejudice to the defendant. State v. Stith, 660 S.W.2d 419, 424 (Mo.App., S.D.1983); U.S. v. Hood, 593 F.2d 293, 296 (8th Cir.1979). If the court determines that the publicity does create such a hazard, the jurors should then be polled individually to determine whether they have been exposed to the publicity and, if they have, the court must determine the extent and the effect that this exposure had upon the jury. Stith, 660 S.W.2d at 424; U.S. v. Burchinal, 657 F.2d 985, 997 (8th Cir.1981). While there are many cases dealing with the possible prejudice that publicity has on a jury, each was decided on its own facts and we have found none which mandate a new trial solely because an article or broadcast has been heard by a juror(s). See Stith, 660 S.W.2d 419; Hood, 593 F.2d 293; Burchinal, 657 F.2d 985; State v. Keeny, 431 S.W.2d 95 (Mo.1968); State v. Moore, 499 S.W.2d 826 (Mo.App., Spfld.D.1973).

In the present case, most of the article concerned evidence which was admitted at trial. Indeed, appellant admitted that he purposely lied to the doctors in order to obtain large quantities of dilaudid, which was precisely the major thrust of the article. The appellant’s arrest in Callaway County was not in evidence. The article’s reference to Joplin and Springfield re-creations of the same scheme were in evidence at trial. The extent of appellant’s activities there, namely obtaining 1100 dilaudid tablets, was not in evidence.

The jurors were not questioned by either of the attorneys regarding their recollection of the article’s reference to the 1100 dilaudid tablets. Thus, the court was presented with a newspaper article containing, in essence, a recount of the trial which also presented two revelations which were not part of the evidence; appellant’s arrest and his receipt of 1100 tablets. None of the jurors stated that they had noted the reference to the 1100 dilaudid tablets and only one juror accurately recalled the reference to Callaway County.

On the other hand, the appellant admitted to committing the basic “scheme” outlined in the article, the jurors specifically noted that they did not discuss the content of the article in their deliberations and that the article played no part in their deliberations.

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220 S.W.3d 422 (Missouri Court of Appeals, 2007)
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882 S.W.2d 748 (Missouri Court of Appeals, 1994)

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Bluebook (online)
810 S.W.2d 536, 1991 Mo. App. LEXIS 502, 1991 WL 47588, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sawyer-v-state-moctapp-1991.