State v. Crockett

801 S.W.2d 712, 1990 Mo. App. LEXIS 1697, 1990 WL 178816
CourtMissouri Court of Appeals
DecidedNovember 20, 1990
DocketNo. 57327
StatusPublished
Cited by5 cases

This text of 801 S.W.2d 712 (State v. Crockett) 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. Crockett, 801 S.W.2d 712, 1990 Mo. App. LEXIS 1697, 1990 WL 178816 (Mo. Ct. App. 1990).

Opinion

PER CURIAM.

Defendant appeals his conviction by a jury of one count of possession and two counts of sale of cocaine. The court sentenced defendant to seven years for possession, and fifteen years for each sale, to be served consecutively. We affirm.

On December 23, 1988, the defendant met with Jeff Toalson and Thomas Schrader. The three went to defendant’s apartment, which defendant kept for the purpose of dealing drugs. Toalson and Schrader agreed to purchase $200 and $50 of cocaine, respectively. Defendant produced cocaine from a Pennzoil can on the refrigerator and began to weigh it on a set of scales, while Toalson folded papers to [714]*714transport the cocaine and Schrader removed money from his wallet to pay for the cocaine. By authority of a warrant, the police entered the apartment with a key obtained from the landlord. The police found the defendant sitting at the table with the cocaine, Toalson folding the papers and Schrader holding the money. A search of the apartment produced 5.32 grams of cocaine inside of the Pennzoil can, and a large amount of unprocessed cocaine between mattresses in the bedroom. Cocaine was found on the table, in a vial, in a grinder, in a funnel, and in a folded piece of paper on the kitchen table. Toalson, Schrader, and defendant were arrested. Toalson and Schrader agreed to testify against the defendant in return for lenient treatment. Before trial, defendant attempted to suppress all evidence gained by entry into the apartment on the grounds that the warrant was defective. Defendant also attempted to limit testimony by Toal-son and Schrader concerning other narcotics transactions involving defendant. The trial court denied the motions, and defendant was convicted by a jury.

In his principal point defendant claims that:

“[t]he trial court erred in overruling appellant’s motion to suppress physical evidence and statements, based upon the fact that the Affidavit In Support Of The Search Warrant was vague and unreliable on its face, combined with the fact that the issuing judge had, previous to the date of the application for search warrant, expressed a prejudicial opinion concerning the appellant, which related specifically to the issue addressed in the application for the search warrant.”

In his affidavit for the search warrant, the first deputy stated as follows:

“I am an Audrain County Deputy Sheriff and have been for ten years. I am familiar with Jerry Crockett and I know that he has a reputation for dealing in cocaine. I know that he has an apartment upstairs at 314 East Monroe in Mexico, MO. I have had reliable information for more than the last year that Jerry Crockett is selling cocaine in local taverns here in Mexico. On November 23, 1988, a law enforcement undercover agent told me the agent was in Crockett’s apartment at 314 East Monroe here in Mexico, MO and Crockett said to the undercover agent that this is where Crockett brings his clients to do drugs, and that Crockett does only cocaine in the apartment. The undercover agent told me that Crockett got some cocaine from the kitchen area of the apartment and laid out some lines of cocaine on the kitchen table, and offered some drugs to the under cover [sic] agent. The agent told me the agent attempted to buy some cocaine from Crockett, but the agent did not have enough money to make Crockett’s minimum sale of one gram.
Tonight I and other members of the Audrain County Sheriff’s department have had the apartment at 314 East Monroe under surveillance, and because of the number of persons going into the apartment I believe that Jerry Crockett is now in the apartment, and that cocaine is now being used, and if a search warrant is issued that cocaine will be found in the apartment.”

Defendant claims that there was no verifiable information from any reliable source which indicated that defendant possessed controlled substances on the date of the search, other than indications that an undercover agent saw narcotics in the apartment on November 23, 1988. The main thrust of defendant’s complaint is that the information supplied by the informant is too stale to be considered by the issuing judge. “The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” State v. Moiser, 738 S.W.2d 549, 557 (Mo.App.1987) (quoting Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). The duty of the reviewing court is simply to insure that there was a substantial basis for the issuing judge to conclude [715]*715that probable cause existed. Id. The issuing court’s determination as to what facts and circumstances constitute probable cause is accorded great deference by the reviewing court. Id.

We cannot say that the affidavit presented to the judge did not establish a fair probability that contraband would be found in Crockett’s apartment. See, State v. Hall, 687 S.W.2d 924 (Mo.App.1985). This result is not affected by the testimony of the Circuit Clerk that the issuing judge had told her that in his opinion Jerry Crockett was a known drug dealer. This statement was made sometime prior to the issuance of the warrant and at a time when she was discussing with him the possible appointment of Crockett’s wife as the Chief Deputy Clerk. The prosecutor did not present any evidence to rebut the testimony of the Circuit Clerk as to the judge’s statement. The trial court can disbelieve the evidence presented, even if uncontradicted. Mansfield v. State, 625 S.W.2d 214, 215 (Mo.App.1981). In any event, it is presumed that a judge will not involve himself in a proceeding in which he cannot be impartial. See State v. Hoeber, 737 S.W.2d 484, 486 (Mo.App.1987). Familiarity or contacts with the defendant do not necessitate disqualification. Molasky v. State, 710 S.W.2d 875, 879 (Mo.App.1986). The record fully supports the trial court’s denial of defendant’s Motion To Suppress.

Defendant also claims that the state did not make a submissible case of the sales of cocaine because it failed to provide evidence that “something changed hands.” This is not a requirement of the statute. Section 195.020, RSMo 1986, under which defendant was charged, makes it unlawful to sell a controlled substance. Sale is defined by § 195.010(37) to include “barter, exchange, or gift, or offer therefor....” § 195.010(37), RSMo Cum.Supp.1989. (Emphasis added). The proscribed conduct includes an offer to transfer the controlled substance as well as a sale in the normal sense. It is not necessary that the elements of commercial sale, i.e., fixed price, delivery and payment, be present in order to constitute a sale. State v. Crumbaker, 753 S.W.2d 76, 78 (Mo.App.1988).

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Cite This Page — Counsel Stack

Bluebook (online)
801 S.W.2d 712, 1990 Mo. App. LEXIS 1697, 1990 WL 178816, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-crockett-moctapp-1990.