From the Circuit Court of Cole County; Criminal Appeal; Judge James F. McHenry.
Motion for Rehearing Overruled, Transfer Denied August 2, 1983. Application Denied September 20, 1983.
Before Clark, P.j., Dixon, Nugent, JJ.
The opinion of the court was delivered by: Clark
Deborah Anne Pilchak was indicted on two charges, the first for the felony sale of cocaine, a Schedule II controlled substance, § 195.020, RSMo 1978, and the second, for unlawful use of a weapon, § 571.030, RSMo Supp. 1982. The first count alleged appellant to have acted in concert with one Gary Erwin McCaw in the cocaine sale. The weapons charge was based on appellant's conduct alone. Verdicts of guilty were returned by the jury on both counts and, in accordance with the recommendation of the jury, a sentence of life imprisonment was imposed on the drug charge and a two year sentence on the weapon offense. This court is vested with jurisdiction of the appeal under Article V, § 3, Missouri Constitution as amended, 1982; State v. Martin, 644 S.W.2d 359 (Mo. banc 1983).
From the evidence presented, the jury was entitled to find that the following events occurred late in the year 1981. In October, an informer divulged to the Cole County Sheriff the operation of a drug ring handling illicit sales of cocaine. The leader of the enterprise was reported to be Gary McCaw. Based on this information, John Bickers, a Missouri State Highway Patrol officer, was assigned to conduct an undercover investigation. Bickers, using an assumed identity, was introduced to McCaw by the informer, Lee Downing, for the purpose of negotiating a cocaine purchase. The initial purchase was represented by Bickers to be a sample transaction of one ounce as a prelude to quantity purchases later. On this date of the first introduction, November 11, 1981, a purchase was concluded for $2500.00. Additional one ounce purchases were made by Bickers from McCaw on November 17 and November 24.
On the last mentioned date, a larger purchase was discussed and an agreement for the sale of a kilo (2.2 pounds) of cocaine was reached. The parties agreed to meet at the Best Western Motel in Jefferson City the morning of December 5, 1981. To this point, Officer Bickers had not seen appellant and her name had not been mentioned.
It was planned to conclude the undercover operation with this final drug sale and, as a consequence, the Best Western Motel was placed under extensive surveillance. Rooms 135 and 137 of the motel were rented, the latter to be used by Bickers and a Columbia police officer who was posing as Bickers' partner and the former by officers who were electronically monitoring Room 137. Outside the motel, two other cars of officers were keeping watch. From these sources, McCaw and appellant were seen to arrive together and enter the motel. Inside, appellant and McCaw acted as strangers and each registered in a separate room, appellant being assigned Room 139 and McCaw Room 141. Appellant registered under a former married name, gave a Michigan address and a false license plate number.
At 10:00 A.M., in accordance with the prearrangement, McCaw telephoned Bickers' room and told him to come to Room 141. Bickers did so and there found McCaw with a briefcase. The briefcase contained a large plastic bag enclosing a white powder and a hard crystal structure of high grade cocaine known as a "rock." The amount of cocaine was 20 ounces, only a part of the purchase. McCaw informed Bickers that the balance of the drugs were in the next-door room with his girlfriend.
It was Bickers' assignment to complete the transaction in Room 137 and he persuaded McCaw to accompany him there to meet his partner who had the money to pay for the purchase. McCaw, carrying the briefcase, left Room 141 to walk with Bickers to Room 137. In doing so, they passed Room 139 where McCaw stopped and knocked. Appellant opened the door and took the briefcase which McCaw handed to her. No words were exchanged. McCaw and Bickers then proceeded to Room 137 where McCaw was introduced to Bickers' purported partner. The officers had $55,000.00 in cash to make the purchase and this was shown to McCaw. Computed at a reduced price for quantity purchase, the price to be paid McCaw for the one kilo of cocaine was $53,800.00.
Apparently being satisfied that the transaction could be concluded, McCaw left the room and returned in about 30 seconds carrying the briefcase deposited a few minutes earlier in Room 139. When the briefcase was opened, it contained, in addition to the large plastic bag, twelve smaller bags also containing a white powder found to be cocaine. McCaw was then given the currency and while he was counting it, the officers in the next room were alerted and McCaw was arrested.
At this same time, the other officers who had been stationed outside went to Room 139 and were admitted by appellant. She was placed under arrest and her purse was seized. Upon examination, the purse was found to contain a loaded revolver and more than $2500.00 in cash. Among the bills, two had serial numbers matching those used to make the drug purchases from McCaw the month before. Drug paraphernalia was recovered from the vehicle in which McCaw and appellant had arrived.
In her first point, appellant contends the evidence by Bickers as to the drug sales made by McCaw in November should have been excluded as "evidence of separate crimes that were not charged in the indictment." She argues that prejudice was entailed because the evidence was offered to prove appellant and McCaw were major drug dealers whose activities extended beyond the single transaction charged in the indictment.
In support of the argument, appellant cites three cases: State v. Reed, 447 S.W.2d 533 (Mo. 1969); State v. Carter, 475 S.W.2d 85 (Mo. 1972); and State v. Burr, 542 S.W.2d 527 (Mo. App. 1976). None of these cases, however, is of any aid to appellant because in each the prejudice and consequent reversal were based on evidence of other drug sales made by the defendant. Here, ...