State v. Olivares

868 S.W.2d 122, 1993 Mo. App. LEXIS 2027, 1993 WL 532353
CourtMissouri Court of Appeals
DecidedDecember 28, 1993
DocketNo. WD 47087
StatusPublished
Cited by4 cases

This text of 868 S.W.2d 122 (State v. Olivares) 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. Olivares, 868 S.W.2d 122, 1993 Mo. App. LEXIS 2027, 1993 WL 532353 (Mo. Ct. App. 1993).

Opinion

FENNER, Judge.

Appellant, Rosario M. Olivares, appeals her conviction in the Circuit Court of Jackson County, Missouri, for two counts of possession of a controlled substance with intent [124]*124to distribute, deliver, or sell, in violation of section 195.211, RSMo Supp.1992.

Appellant was charged by information and a jury trial took place in June of 1992. Viewed in the light most favorable to the verdict, the evidence at trial showed the following: Detective Sidney Whitfield, an undercover narcotic agent and detective employed by the Jackson County Drug Task Force, testified that on October 9, 1991 at approximately 1:00 p.m., he and Agent Hernandez met with a suspect, identified as Diana Sell, on 89th Street in the parking lot of Chopsticks Restaurant, near Ward Parkway Shopping Center. Sell was accompanied by a Mexican male, identified as Bonda-Acosta.1 The purpose of the operation was to purchase one pound of marijuana from Sell and contract for another three pounds of marijuana in the hopes that Sell would lead them to her source. According to Detective Whitfield’s testimony, this was an ongoing investigation. Sell sold Detective Whitfield one pound of marijuana, which was packaged in a freezer bag, and Detective Whitfield gave Sell $1550.00 in marked bills for the marijuana. When Detective Whitfield asked Sell about buying three more pounds, Sell conferred with Bonda-Acosta and indicated that this could be arranged. At that point, they drove to 1013 West 85th Street where they were followed by several police officers. Detective Whitfield testified that Sell and Bon-da-Acosta returned to the parking lot fifteen to twenty minutes later with the three pounds of marijuana. However, they quickly drove off when they saw a police car that was not involved in the operation.

Sell was later arrested and had a fifty dollar bill on her that Detective Whitfield had given her at the buy. On the evening of October 9, 1991, a search warrant was executed at 1013 West 85th Street, the home where appellant resided. Sergeant James K. Bruce of the Jackson County Drug Task Force testified that he supervised the search. Both he and Detective Ray Killion, who was the property officer on the search warrant, testified that appellant stated that all the drugs in the house were hers. During the course of the search, $1650 was found in a nightstand in one of the bedrooms, $1500 of which was the money that Detective Whitfield had given to Sell in the undercover drug deal earlier in the day. In appellant’s purse, the officers found $400.00 in cash, a brass cigarette ease with three hand-rolled marijuana cigarettes, and ten packets of white and chunky white powder found to be cocaine. Other items found in appellant’s residence included ten bags of marijuana in a freezer, a rifle, and a shotgun.

Appellant testified that she had resided at 1013 West 85th Street in Kansas City, Missouri since 1981. She testified that on October 9, 1991, her three children, her sister, and two Mexican males, one of whom was Bonda-Acosta, lived with her in that home. Apparently, appellant and Bonda-Acosta were having a relationship. She suspected that Bonda-Acosta was using drugs because she found cocaine in his coat pocket one day. Appellant testified that she knew Sell from going to school with her and that Sell had a drug problem. Appellant stated that she was not aware of any drugs in her house. She stated that the freezer where marijuana was found was brought in by Bonda-Acosta and the other man living in her house. She claimed to have no knowledge about what was inside the freezer nor any knowledge about any drugs being brought into her home. She stated that the police officers pointed guns at her children and her sister when they drove up to the house during the execution of the search warrant. At that point, she admitted that she said that all the drugs in the house were hers.

During the execution of the search warrant, appellant was placed under arrest because of traffic warrants and was brought to the Raytown Police Department. She was held there for a few hours until she paid off her traffic tickets. While there, she was interviewed by Deputy Harold Thompson. Deputy Thompson talked to appellant about becoming an informant and tried to obtain [125]*125her cooperation. Appellant was read her Miranda rights and signed a Miranda waiver. Appellant did not offer Deputy Thompson much information other than to say, “she could buy any amount of marijuana as long as she had the money, and she flies to someplace in Texas to purchase it from an unknown male.... [and] she can get [cocaine] from a man who’s tried to get her to sell it.” Appellant did not provide any further information.

The jury found appellant guilty on June 11, 1992 and assessed punishment at five years imprisonment on Count I, possession of marijuana with intent to distribute, deliver, or sell, and ten years imprisonment on Count II, possession of cocaine with intent to distribute, deliver, or sell. On July 6, 1992, appellant filed a Motion for Judgment of Acquittal or, in the alternative, For a New Trial, which motion was denied. Judgment was entered on November 4,1992 and appellant was sentenced in accordance with the jury’s recommendation, with the sentence imposed in Count II to run concurrently with the sentence imposed in Count I. This appeal followed.

In her first point on appeal, appellant argues that the trial court erred in allowing the State, through the testimony of Detective Whitfield, to introduce to the jury criminal acts of another party, insinuating that appellant was involved in these acts, and hearsay statements of said other party. Appellant specifically complains about Detective Whitfield’s testimony as to a sales transaction with Diana Sell that occurred on October 4, 1991, a few days before the transaction that led to the search of appellant’s home, and statements made by Sell during this transaction. Appellant further complains that the State was allowed to introduce over objection the bag of marijuana that Detective Whitfield allegedly purchased from Sell on October 4th. Appellant contends that this “other crimes evidence” along with the hearsay statements of Sell, who did not testify at trial, violated appellant’s right to a fair trial.

In the case at bar, during pretrial motions, defense counsel moved “for any disclosure of any alleged other-crimes evidence.” The State advised that it expected that an officer would testify at trial that on the occasion of an earlier undercover purchase of marijuana from Diana Sell, on October 4, 1991, Sell advised the undercover officers that a Mexican woman was her source for the drugs she was selling. Sell was not to be called as a witness.

The court determined that attempting to repeat the conversation of Diana Sell on October the 4th would be hearsay where Sell was not a witness. The court concluded that this particular line of inquiry would not be permissible.

At trial, the subject of the transaction on October 4th was brought out on cross-examination of Detective Whitfield by defense counsel. The testimony was, in relevant part, as follows:

Q. [defense counsel]: You became involved in this case before October the 9th, correct?
A, [Detective Whitfield]: Correct.
Q.: I think you testified that it was some — something ongoing or something?
A.: Yes.
Q.: Now, on October the 9th at 1:00 when you met Ms.

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Bluebook (online)
868 S.W.2d 122, 1993 Mo. App. LEXIS 2027, 1993 WL 532353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-olivares-moctapp-1993.