State v. Jordan

778 S.W.2d 283, 1989 Mo. App. LEXIS 997, 1989 WL 72833
CourtMissouri Court of Appeals
DecidedJuly 5, 1989
DocketNo. 53950
StatusPublished
Cited by3 cases

This text of 778 S.W.2d 283 (State v. Jordan) 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. Jordan, 778 S.W.2d 283, 1989 Mo. App. LEXIS 997, 1989 WL 72833 (Mo. Ct. App. 1989).

Opinion

GARY M. GAERTNER, Judge.

Defendant, Fred Jordan, appeals his convictions by a jury for possession of a Schedule I, and a Schedule II controlled substance, in violation of RSMo § 195.020 (1986). Defendant was sentenced as a class X offender under RSMo § 558.019 (1986) and received two concurrent terms of fifteen years imprisonment. Defendant asserts three points of error on appeal; 1) the trial court’s classification of defendant as a class X offender is unconstitutional as applied; 2) the trial court’s denial of defendant’s motion to strike for cause venireman Maleas was an abuse of discretion; and 3) the trial court’s denial of defendant’s motion to suppress certain evidence is in violation of defendant’s constitutional rights because it was the product of an illegal search and seizure. We affirm defendant’s convictions and remand for resentencing.

The record reveals that on December 17, 1986, at 9:30 p.m. two St. Louis City police officers were on patrol in north St. Louis. The officers observed defendant standing alone at the corner of Vandeventer and Greer. Upon seeing the police car the defendant turned and ran down Greer. The officers then turned on Greer to follow and observe the defendant. As he ran both officers witnessed defendant drop an object from his hand and then discontinue running. The officers stopped their vehicle, one retrieving the object while the other approached defendant. The object was an unpackaged syringe.

The officers then requested defendant to explain his possession of the syringe and asked whether he was diabetic. Defendant did not articulate a response but mumbled an inaudible reply. Defendant’s cheeks were puffed out, he was sweating profusely and he appeared extremely nervous. Defendant then began to cough violently, at which time a clear plastic bag flew from defendant’s mouth and hit one of the officers in the chest. The bag contained thirty capsules filled with what appeared to the officers to be cocaine. The officers then placed defendant under arrest and read him his Miranda rights. Subsequently defendant spit another plastic bag onto the [285]*285sidewalk. Inside the bag were twenty-five capsules containing a tan, brownish substance.

The contents of these capsules were later subjected to chemical testing at the St. Louis Police Department Crime Laboratory. The contents of the thirty capsules first “coughed up” by the defendant were identified as cocaine. The brownish substance in the other bag was identified as heroin.

Defendant was charged by indictment on February 2, 1987, with two counts of possession of a controlled substance. RSMo § 195.020 (1986). On the day of the trial, September 9, 1987, the State filed a substitute information charging defendant as a class X offender under RSMo § 558.019 (1986). (Effective January 1, 1987).

Prior to the trial, counsel for defendant filed a motion to suppress the evidence obtained on the street. At the hearing, after presentation of evidence, the trial court denied defendant’s motion. Further facts will be presented as required by the discussion of the issues.

In defendant’s first point he asserts that the trial court erred in finding and sentencing him as a class X offender under RSMo § 558.019 (1986). Defendant argues that the statute is an ex post facto law as applied to him in this case because it increased the minimum punishment after the commission of the offense. Defendant further asserts that the trial court’s retroactive application of § 558.019 is in violation of article 1, section 10 of the United States Constitution, as well as article 1, section 13 of the Missouri Constitution.

A “class X offender”- is one who has previously pled guilty to or has been found guilty of three felonies committed at different times. RSMo § 558.019.4(3) (1986). As a class X offender, the minimum prison term which the defendant must serve is eighty percent of his sentence. RSMo § 558.019.2(3) (1986). Under the law in effect at the time of defendant’s offenses he would have been eligible for parole, at the discretion of the parole board, after having served only one-third of his sentence. RSMo § 217.690(2) (1986). Prior to the effective date of § 558.019, defendant could have been classified as a “persistent offender,” and subject to an extended term of imprisonment. RSMo § 558.016 (1986).

In order to fall within the ex post facto prohibition a law must be retrospective, applying to events occurring before its effective date of enactment. In addition, the law must affect or alter substantial personal rights of the offender affected by it. State v. Lawhorn, 762 S.W.2d 820, 824 (Mo. banc 1988).

Section 558.019 as applied in this case falls squarely within the above definition. The record shows that defendant was convicted of offenses which occurred on December 17, 1986. Section 558.019 did not become effective until January 1, 1987. Therefore, the trial court erred in applying the statute to events which occurred before its effective date. Additionally, the application of this statute is more than a change in “modes of procedure which do not affect matters of substance.” State v. Lawhorn, 762 S.W.2d 820, 824 (Mo. banc 1988) (quoting Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987)). Therefore, this case is remanded for the purpose of resentencing under the statutory guidelines in effect at the time of defendant’s offenses.

In defendant’s second point he asserts that the trial court abused its discretion by denying defendant’s motion to challenge for cause venireman Tom Maleas. Defendant argues that Mr. Maleas was unqualified to sit on the jury panel because he answered in the negative twice when asked whether he would base his verdict on the evidence. Additionally, defendant argues that Mr. Maleas was unqualified due to his distaste for jury service and limited understanding of courtroom vocabulary.

At the outset this court recognizes the appropriate standard of review. “In determining the qualifications of a prospective juror the trial court has very wide discretion, and the court’s ruling will not be disturbed on appeal unless it is clearly against the evidence and constitutes a clear abuse of discretion.” State v. Hopkins, [286]*286687 S.W.2d 188, 189 (Mo. banc 1985) (quoting State v. Treadway, 558 S.W.2d 646, 649 (Mo. banc 1977) cert. denied, 439 U.S. 838, 99 S.Ct. 124, 58 L.Ed.2d 135 (1978)). In determining when a challenge for cause should be sustained each case must be decided on its facts. State v. Stewart, 692 S.W.2d 295, 298 (Mo. banc 1985). The qualifications of a prospective juror are not determined by a single response, but are made on the basis of the entire voir dire examination. State v. Murray, 744 S.W.2d 762, 769 (Mo. banc 1988).

Defendant relies on State v. Byrd, 646 S.W.2d 419, 424 (Mo.App., W.D.1983), as factually on point and as controlling legal precedent. The court in Byrd

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778 S.W.2d 283, 1989 Mo. App. LEXIS 997, 1989 WL 72833, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jordan-moctapp-1989.