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10/12/93 STATE MISSOURI v. DARRYL MASON

October 12, 1993

STATE OF MISSOURI, RESPONDENT,
v.
DARRYL MASON, APPELLANT.



Appeal from the Circuit Court of the City of St. Louis. Hon. John G. Moody.

Robert E. Crist, Judge, Crandall, P.j., and Reinhard, J., concur.

The opinion of the court was delivered by: Crist

Defendant appeals his conviction for possession of a controlled substance, § 195.202, RSMo Supp. 1992. We affirm in part and reverse in part.

On August 16, 1991 at approximately 2 p.m., Defendant was standing on the premises of the Darst-Webbe Housing Project at 1600 South Fourteenth Street with a woman. Officers Foster and Bailey, security guards for Darst-Webbe, approached Defendant. Foster testified he recognized Defendant as someone he had previously warned about trespassing. At this time, Foster patted down Defendant's outer clothing to determine whether he had any weapons. At trial, Foster testified he then placed Defendant under arrest for trespassing and conducted a "custodial" search of Defendant. He further testified the custodial search incident to Defendant's arrest revealed an off-white rock substance, identified at trial as cocaine base, a form of cocaine known as "crack." Defendant was then transported to the project's security office, where he was turned over to the metropolitan police.

At his trial for possession of cocaine base, Defendant made a motion to suppress evidence claiming it was seized in violation of his Fourth Amendment rights. At the hearing on that motion, Foster testified he found the cocaine base in a custodial search after he had arrested Defendant for trespassing. On cross-examination, Foster was questioned extensively about this testimony. The crux of the cross-examination was to impeach Foster with his prior inconsistent statements from the preliminary hearing:

Q. Okay. Do you remember coming to court in September and testifying about this case?

A. Yes, I do.

Q. And do you remember taking the stand and being under oath and testifying?

A. Right.

Q. And it was a preliminary hearing, right?

A. Right.

Q. Do you remember testifying that during your search for weapons that was the time you found the rock of cocaine?

A. No. I said the first thing I did before I told him he was placed under arrest was a pat down of the outer garments for my safety and the safety of my fellow officer.

Q. Right. But my question is: Do you recall saying you found it at the time you were searching for ...


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