State v. Cannon

692 S.W.2d 357, 1985 Mo. App. LEXIS 4039
CourtMissouri Court of Appeals
DecidedMay 28, 1985
DocketNo. WD 35815
StatusPublished
Cited by5 cases

This text of 692 S.W.2d 357 (State v. Cannon) 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
State v. Cannon, 692 S.W.2d 357, 1985 Mo. App. LEXIS 4039 (Mo. Ct. App. 1985).

Opinion

PRITCHARD, Presiding Judge.

For the sale of a controlled substance, appellant was found guilty by the verdict of a jury, but on January 20, 1983, the trial court made an order, “Imposition of Sentence Suspended” and placed appellant on probation for a period of three years. On March 16, 1984, the probation was revoked, and a sentence was imposed of ten years imprisonment. Defendant then filed his notice of appeal from the original jury finding (December 8, 1982), on March 23, 1984, which was timely because a judgment of conviction in a criminal case does not become final until sentence is imposed. State v. Lynch, 679 S.W.2d 858, 860[2] (Mo. banc 1984); State v. Bachman, 675 S.W.2d 41, 47[9] (Mo.App.1984).

By his Point X, appellant says there was insufficient evidence for the jury to have found him guilty of the sale of a controlled substance. The evidence was that Steve Green and Gregory Russell, two undercover detectives, went to a residence at 5527 Wabash in Kansas City, where they met one Jeanette McClelland and tried to purchase illegal drugs from her. She made a phone call and told them to return in about 10 minutes. On returning to the residence, Green saw a 1979 red Camaro and its license number which Russell wrote down. Green got out of his unmarked car and approached the residence where he was introduced to appellant by McClelland, an acquaintance of appellant. Green thereafter purchased a packet from appellant containing phencyclidine, which was so identified by a chemist at the Kansas City Regional Crime Lab. In testifying, appellant denied that he sold drugs to Green and that he delivered drugs to McClelland. There was some contradiction in the testi[359]*359mony of Green and Russell as to whether the sale took place in the yard or the house. Appellant cites no authority as to why and wherein the evidence was insufficient, but argues only that because of delays in bringing the case to trial, the evidence was full of flaws and could not support a guilty verdict. He emphasizes the conflict in the testimony of Green and Russell as to where the sale took place, but State v. Williamson, 595 S.W.2d 4, 7 (Mo.App.1979), takes care of the contention: “[T]he mere fact that contradictions or inconsistencies exist in the testimony does not prevent it from being substantial evidence, for conflicts, inconsistencies and the weight to be given such testimony are for the jury to resolve.” Taken in the light most favorable to the verdict which must be done, State v. Williams, 652 S.W.2d 102, 111 (Mo. banc 1983), there was not an insufficiency of evidence to sustain the verdict, and Point X is overruled.

The remaining ten points will be taken up hereafter, along with the facts as they relate thereto.

By Point I, appellant contends error in the trial court’s refusal to strike a veni-reperson for cause, thereby compelling his use of one peremptory strike to remove her from the jury panel. The matter came up when the prosecuting attorney asked the panel if they or any member of their families had ever had a drug or drug-related problem. Yenireperson Ms. Kensinger answered that she had a sister who had drug problems years ago and had spent some time in Western Missouri and St. Joe, but stated that the experience would not in any way influence her ability to sit as a juror on a case in which defendant was charged with selling a controlled substance. Then Ms. Kensinger asked: “What did he sell though?” Counsel informed her that “It is charged that he sold a Schedule II”, and later informed her that the Schedule II controlled substance was phencyclidine. Appellant contends that Ms. Kensinger’s question strongly suggests that she had prejudged appellant, and the trial court erred in denying the motion to strike for cause. Appellant cites no authority and does not explain why any precedent is unavailable, which subjects the contention to being deemed abandoned. State v. Ritterbach, 627 S.W.2d 894, 897 (Mo.App.1982). Viewing the entire voir dire examination, however, shows that Ms. Kensinger could be fair and impartial, as determined by the trial court, which was in a better position than this court to determine the challenge for cause. In its advice to the panel, the court told the jury that appellant was charged with the sale of a Schedule II substance, phencyclidine, which fact was not evidence and did not create an inference that any offense was committed. Defense counsel further determined that the panel would presume appellant’s innocence, and it would keep an open mind until the case was given to the jury for decision. No abuse of discretion, State v. Clark, 671 S.W.2d 374 (Mo.App.1984), appears, and Point I is overruled.

Again, without citation of authority, in Point II, appellant claims that improper hearsay evidence from McClelland was erroneously admitted. Officer Green approached appellant and McClelland, who in appellant’s presence said “This is M.C.” Evidence of a name by which a person is known is not within the rule excluding hearsay evidence. State v. Shields, 619 S.W.2d 937 (Mo.App.1981). Point II is overruled.

Detective Green testified as to the common use of phencyclidine—that it was snorted, placed in marijuana or cigarettes and smoked. This was in the realm of his personal knowledge, and was not speculation, the ground for the objection. Point III, raising the issue, is overruled.

Appellant says that the chain of custody of State’s Exhibits 1 and 2, the drug and its packet, was not sufficiently established. The evidence is that the officer placed the packet in an evidence envelope, sealed and initialed it, took it to the police laboratory, where the seal was broken, the contents examined, the envelope was resealed and initialed by the examiner. It was [360]*360then picked up the day of trial, opened in the jury’s presence and admitted into evidence. The evidence gives a reasonable assurance that the exhibits remained in the same condition throughout the chain of custody. State v. Collins, 601 S.W.2d 640, 641 (Mo.App.1980). Point IY, on this issue, is overruled.

As to Exhibits 1 and 2, the court stated that it thought there was sufficient evidence (foundation) for their admission, but it would be helpful to everybody if it were determined from the witness the conditions of the exhibits when he took them out of the vault, and the ruling would be reserved. This occurred outside the hearing of the jury. Appellant claims this was improper assistance to the state’s case. The state then elicited from the witness that the condition of the exhibits was that there was no apparent opening to gain access to the contents, and the exhibits were then received into evidence.

In State v. Johnson, 454 S.W.2d 27

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Bluebook (online)
692 S.W.2d 357, 1985 Mo. App. LEXIS 4039, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cannon-moctapp-1985.