State v. Jay

724 S.W.2d 293, 1987 Mo. App. LEXIS 3581
CourtMissouri Court of Appeals
DecidedJanuary 28, 1987
DocketNo. 14595
StatusPublished
Cited by7 cases

This text of 724 S.W.2d 293 (State v. Jay) 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. Jay, 724 S.W.2d 293, 1987 Mo. App. LEXIS 3581 (Mo. Ct. App. 1987).

Opinion

CROW, Chief Judge.

A jury found Erman C. Jay (“defendant”) guilty of selling methamphetamine and guilty of selling marihuana, § 195.020.-1, RSMo Cum.Supp.1984, assessing punishment at 25 years’ imprisonment for each crime. The trial court imposed those sentences, ordering that they run concurrently. Defendant appeals, briefing four points. As the sufficiency of the evidence to support the verdicts is unquestioned, we synopsize only the evidence necessary to discuss the assignments of error.

Trooper Terry Gene Mills of the Missouri State Highway Patrol began working as an “undercover agent” in Newton County in late February, 1984. As a “cover,” Mills occupied an apartment in Neosho, which he shared from June through September of that year with one Glenn Smith, a paid informant.

Mills testified that on September 21, 1984, he and Smith were in the apartment. Smith, at Mills’ direction, telephoned defendant and arranged to meet him “near the Oklahoma state line in order to purchase two grams of methamphetamine.” Mills and Smith went to the agreed site, met defendant, and Mills purchased two “packets of white powder” from defendant, paying him $200 that had been provided for Mills’ use by the “Newton County Investigation Fund.” According to Mills, he asked defendant “how pure the crank was.” Mills quoted defendant as saying it was “77 percent pure,” and that “it was good crank.” Mills also recalled defendant saying he “was at the laboratory when it was weighed and tested.”

On September 27, 1984, Smith arranged another meeting with defendant at a different location. During this encounter, Mills purchased a plastic bag containing “plant material” from defendant, paying him $80.

The substances purchased by Mills were subsequently tested at the Missouri State Highway Patrol laboratory. Those tests confirmed that the substance purchased September 21 was methamphetamine, and that the substance purchased September 27 was marihuana.

Defendant’s first assignment of error is:

“The trial court erred to the defendant’s substantial prejudice when it failed to sustain the defendant’s motion to dismiss for misconduct by the State’s agents because the testimony of ... Mills clearly indicated that informant Smith engaged in substantial illegal activity during the investigation of defendant in that the conviction of defendant [295]*295rests upon evidence obtained by outrageous conduct on the part of the State and the use of said evidence deprived defendant of his right to due process of law.”

The point is based on Mills’ testimony that Smith (a) was an “admitted drug user,” (b) had no regular job, (c) got in a fight about a “girl friend” while he was “drinking,” (d) was, at one time during the. undercover operation, arrested pursuant to an Oklahoma warrant, and (e) had to be admonished by the landlord on one occasion to be quiet. Additionally, Mills disclosed that Smith had a “girl friend,” who “came and went” at the apartment. Mills explained that he was gone “two or three days a week,” and that Smith’s girl friend stayed at the apartment when Mills was absent. Asked how much Smith was paid for his services as an informant during the six months he filled that role (April through September, 1984), Mills replied, “In the total period it was over $6,000.”

Citing State v. Hohensee, 650 S.W.2d 268 (Mo.App.1982), defendant insists that “the use of a paid informant conducting a meretricious relationship in an apartment provided by the police; who is also an admitted drug user, and who is sought by law enforcement officers from a sister state is so outrageous as to offend traditional notions of due process.”

At trial, defendant moved for dismissal of the information at the close of the State’s evidence, advancing essentially the same argument he makes here. The trial court denied the motion.

Defendant maintains that the conduct of the State’s “agents” in the instant case, while perhaps not as egregious as the conduct condemned in Hohensee, nonetheless compels reversal. We disagree.

In Hohensee, a police department made a deal with two ex-convicts whereby they, in return for leniency on a pending felony charge, would supply information to the police concerning ongoing criminal activity. The ex-convicts were paid weekly salaries by the police department, and worked under supervision of an undercover police officer.

The two ex-convicts and the undercover officer arranged with the accused to commit a burglary. The accused’s role was to serve as lookout. The two ex-convicts forcibly entered a building and removed a safe, which the undercover officer helped load into a van. The building’s owner knew nothing about the venture; consequently, the break-in was without the owner’s consent. The safe was taken to a prearranged location, where the quartet opened it. The accused was eventually charged with, and convicted of, burglary in the second degree.

On appeal, this Court, in a comprehensive opinion by Flanigan, J., examined numerous cases where “outrageous conduct” by law enforcement officers had produced evidence vital for conviction. Id. at 270-74. The opinion held that the government action in sponsoring the acts of the two ex-convicts with respect to the break-in was outrageous and that due process barred the accused’s conviction. Id. at 274[3]. The opinion emphasized that if the conduct of the two ex-convicts and the undercover officer, each acting as a salaried agent of the police department, were subtracted from the incident, what remained was the lone figure of the accused sitting in a parking lot a half block away. The opinion found it difficult to conceive a situation where the government’s involvement could be greater or the accused’s could be less, and the conduct of the latter still be subject to prosecution. Id. at 274.

An obvious and fundamental difference exists between the instant case and Hohensee. Here, none of the evidence that incriminated defendant was obtained by the conduct about which he complains, nor was such conduct the basis for either of the charges against defendant. That is, Smith’s drug use, turbulent lifestyle, and licentious relationship with his concubine were not components of the crimes for which defendant was prosecuted. In Ho-hensee, the ex-convicts and the undercover officer orchestrated the criminal activity and assigned the accused a role in it, for which the accused was then prosecuted. Here, Smith’s peccadilloes were unrelated [296]*296to the charges against defendant. The instant case is merely another illustration of the harsh reality that law enforcement agencies must, of necessity, utilize unsavory characters to locate, identify and apprehend drug pushers.

Defendant’s reliance on Hohensee is misplaced. His first point is, accordingly, rejected.

Defendant’s second point is:

“The trial court erred in overruling defense counsel’s motion for sua sponte

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892 S.W.2d 761 (Missouri Court of Appeals, 1995)
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Jay v. State
784 S.W.2d 631 (Missouri Court of Appeals, 1990)
State v. Manns
745 S.W.2d 768 (Missouri Court of Appeals, 1988)

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Bluebook (online)
724 S.W.2d 293, 1987 Mo. App. LEXIS 3581, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jay-moctapp-1987.