State v. Mahaffey

676 S.W.2d 20, 1984 Mo. App. LEXIS 4657
CourtMissouri Court of Appeals
DecidedJuly 3, 1984
DocketNo. 13162
StatusPublished
Cited by7 cases

This text of 676 S.W.2d 20 (State v. Mahaffey) 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. Mahaffey, 676 S.W.2d 20, 1984 Mo. App. LEXIS 4657 (Mo. Ct. App. 1984).

Opinion

PREWITT, Judge.

Defendant was convicted of selling marijuana and sentenced to ten years’ imprisonment. He presents five points for our consideration. We discuss them in the order presented.

Defendant asserts in his first point that the trial court erred by refusing to give an instruction he tendered following MAI-CR2d 3.42 “Circumstantial Evidence”. He contends: “This instruction was very important to appellant’s case and was necessary to be given to the jury, mainly for the reason that defendant’s primary defense was that of entrapment. Appellant asserts that there was no direct evidence of lack of entrapment and that only circumstantial evidence was adduced to prove lack of entrapment, so therefore, the circumstantial evidence instruction must have been given.”

This contention is answered by the notes on use following the instruction. Note 2 states that it: “need not be given at all unless the evidence is wholly circumstantial.” There was substantial direct evidence of guilt and that there may have been circumstantial evidence pertaining to some of the issues presented does not change the clear language of that note.

An instruction on circumstantial evidence is required only when all the evidence in the case is circumstantial. State v. Sheppard, 515 S.W.2d 785, 787 (Mo.App.1974). If there is any direct evidence of the crime, a circumstantial evidence instruction is not required. State v. Walls, 597 S.W.2d 868, 870 (Mo.App.1980). This point is denied.

In his second point defendant states that the trial court erred by sustaining objections to questions he asked of Carolyn Porter, an “undercover agent” who had purchased the marijuana from defendant, during her cross-examination. The questions complained of in this point were: “Have you used drugs in the past?”; “Have you used speed before?”; and “Have you purchased marijuana from Charley Ingram?” He contends that these questions were relevant concerning the credibility of the witness, relying on State v. Lynch, 528 S.W.2d 454 (Mo.App.1975), and State v. Horton, 607 S.W.2d 764 (Mo.App.1980).

As those cases and others acknowledge, see Murphy v. State, 636 S.W.2d 699, 702 (Mo.App.1982); State v. Meek, 584 S.W.2d 168, 170 (Mo.App.1979), impeachment by showing such acts is a matter for the trial court’s discretion.

Without objection defendant’s counsel asked the witness: “You’ve used drugs in the past?”, and the answer was “Yes.” The objection came when counsel asked about using marijuana and when that was sustained, about using “speed”.

[22]*22Whether the witness had purchased marijuana from Charlie Ingram was answered, “No”, before an objection was stated. Defendant would have been concluded by this answer, see State v. Lynch, supra, 528 S.W.2d at 457, and the record left with that denial, so there could have been no prejudice to defendant by the trial court sustaining the objection and ordering that question and answer stricken. Under the circumstances here we find no abuse of discretion in the trial court’s ruling. This point is denied.

In summary, defendant states in his third point that the trial court erred by allowing Carolyn Porter to testify regarding other times that she had purchased marijuana from defendant because she had “no independent recollection of what had transpired”. The full point is set out below.

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Related

State v. Gleason
813 S.W.2d 892 (Missouri Court of Appeals, 1991)
Case v. State
780 S.W.2d 681 (Missouri Court of Appeals, 1989)
Gamble v. Hoffman
732 S.W.2d 890 (Supreme Court of Missouri, 1987)
State v. Welty
729 S.W.2d 594 (Missouri Court of Appeals, 1987)
State v. Hendrix
699 S.W.2d 779 (Missouri Court of Appeals, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
676 S.W.2d 20, 1984 Mo. App. LEXIS 4657, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mahaffey-moctapp-1984.