State v. Reed

811 S.W.2d 50, 1991 Mo. App. LEXIS 954, 1991 WL 105418
CourtMissouri Court of Appeals
DecidedJune 19, 1991
DocketNo. 17069
StatusPublished
Cited by7 cases

This text of 811 S.W.2d 50 (State v. Reed) 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. Reed, 811 S.W.2d 50, 1991 Mo. App. LEXIS 954, 1991 WL 105418 (Mo. Ct. App. 1991).

Opinion

CROW, Judge.

A jury found William Lloyd Reed (“defendant”) guilty of selling cocaine and assessed punishment at ten years’ imprisonment. The trial court entered judgment per the verdict, ordering the sentence to run consecutively to a five-year sentence in another cocaine sale case.1 Defendant appeals, presenting eight assignments of error.

The first two challenge the sufficiency of the evidence to support the conviction. We consider them together. In doing so, we accept as true all evidence and inferences supporting the verdict and disregard contrary evidence and inferences. State v. Evans, 802 S.W.2d 507, 514[12] (Mo. banc 1991). We determine whether the evidence, so viewed, was sufficient to make a submissible case, id., from which a reasonable juror might have found defendant guilty beyond a reasonable doubt. State v. Dulany, 781 S.W.2d 52, 55[3] (Mo. banc 1989).

So viewed, the evidence establishes that on April 27, 1988, Laura Marie Johnson, then age 17, and her “boy friend” met with these law enforcement officers: Clifford Hodge, a “narcotics detective” of the Poplar Bluff Police Department; Sergeant Susan Carroll of that Department; and Corporal Dennis Allen Overbey of the Missouri State Highway Patrol. Ms. Johnson agreed she would go to defendant’s residence, purchase cocaine, and bring it back to the officers. For this mission, she was to be paid $30 by the officers.

Sergeant Carroll, a woman, made a “strip search” of Ms. Johnson. The latter’s clothes were removed, and her body and clothes searched to confirm she was carrying no drugs. Sergeant Carroll taped a battery-operated “body transmitter” on Ms. Johnson, then Ms. Johnson redressed.

Hodge supplied Ms. Johnson three twenty-dollar bills as “buy money” for the cocaine.

Hodge drove Ms. Johnson, her boyfriend, and Overbey to defendant’s neighborhood. Ms. Johnson exited the vehicle. The transmitter was turned on and she began walking toward defendant’s residence. Over-bey positioned himself by an “overpass that runs underneath the railroad track” near defendant’s residence so he could observe Ms. Johnson. Hodge monitored a tape recorder in his vehicle by which anything received from Ms. Johnson’s transmitter could be recorded.

Upon reaching defendant’s residence, Ms. Johnson knocked on the door. Defendant opened it. Ms. Johnson asked whether he had the cocaine. He answered, “yes.” She asked if he “had change for sixty.” He replied, “yes.” At some point — precisely when is unclear — she entered the house.

Ms. Johnson testified defendant went to his bathroom, brought out two small white paper packets, and handed them to her. Then, this:

“Q. Did he tell you that was cocaine?
A. Yes, he did.”

She paid him and he gave her change. Asked whether there was any conversation about her returning to his house, Ms. Johnson testified:

“I asked him if I could cash a check for $40.00 could I come back and get some more and he said yes I could.”

Ms. Johnson avowed no one else was in the house during the transaction.

Ms. Johnson walked back to Hodge’s vehicle and handed him the two packets and the change — a five-dollar bill and five one-dollar bills. She was paid the agreed $30.

Hodge returned to his office, where he “field tested” the substance in the packets. It tested “positive to be cocaine.”

The packets were taken to the Southeast Missouri Crime Laboratory in Cape Girar-deau, where their contents were tested by a forensic chemist. The substance in each packet was cocaine.

At trial, Hodge produced the tape recording. He testified Ms. Johnson’s transmitter was turned on “about 8:35” and the “drug transaction took place at 8:45.” Ms. [53]*53Johnson turned the transmitter off as she returned to Hodge’s car.

The tape was received in evidence and played in the presence of the jury. Ms. Johnson was called into the courtroom to listen. Afterward, she identified the voices on the tape as hers and defendant’s.

Defendant’s first point asserts the “credible evidence adduced at trial was insufficient to sustain a conviction for selling cocaine.” His second point proclaims “the facts and circumstances presented by the State were inconsistent with defendant’s theory of innocence.”2

In challenging the sufficiency of the evidence, defendant asserts the portion of the tape recording during which the alleged sale occurred is unintelligible because of noise from a television playing in defendant’s house. Defendant also complains that Ms. Johnson turned off the transmitter a short distance before reaching Hodge’s car. Defendant emphasizes the transaction between Ms. Johnson and him was unwitnessed by either officer.

Defendant also cites the testimony of his brother, Walter. Walter testified he lived with defendant at the time of the alleged sale. Walter avowed he had seen Ms. Johnson at the house three or four times with defendant, and on those occasions there was no conversation about drugs.3

Defendant argues that but for Ms. Johnson’s testimony, the evidence he sold her cocaine is circumstantial. Defendant contends that inasmuch as Ms. Johnson was a “paid informant” who received money only if her information produced results, she had motive and opportunity to lie.

Defendant’s first two points are a thinly disguised invitation for us to assess Ms. Johnson’s credibility. That is not our role. Ms. Johnson’s credibility and the weight and value to be given her testimony were matters within the province of the jury and are not for review on appeal. State v. Wright, 476 S.W.2d 581, 584[4] (Mo.1972); State v. Jenkins, 776 S.W.2d 59, 62—63[3] (Mo.App.1989).

Ms. Johnson’s testimony, together with the other evidence adduced by the State, was sufficient to support the verdict. Convictions for selling controlled substances have been upheld on similar evidence. State v. Morton, 684 S.W.2d 601, 604-05 (Mo.App.1985); State v. Dunavant, 674 S.W.2d 685, 686-87 (Mo.App.1984). Defendant’s first two points are meritless, and border on frivolous.

Defendant’s third, fourth, and seventh points complain about four members of the venire who, according to defendant, should have been stricken for cause. Defendant maintains (a) his lawyer rendered ineffective assistance in failing to challenge them for cause, and (b) the trial court committed plain error in failing to strike them for cause sua sponte. Defendant seeks plain error review inasmuch as the points were not preserved in his motion for new trial.4

The first problem with these points is the insufficiency of the record. At the completion of voir dire, defendant’s lawyer challenged two members of the venire for cause. The trial court granted the challenges. This left 25 venire members, one more than needed.5

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Bluebook (online)
811 S.W.2d 50, 1991 Mo. App. LEXIS 954, 1991 WL 105418, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-reed-moctapp-1991.