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STATE v. MAXON



NOTICE: This slip opinion is subject to
revision and may not reflect the final opinion adopted by the
Court.


STATE

v.

MAXON


Opinion
Missouri Court of Appeals Southern District

Case Style: State of Missouri, Plaintiff-Respondent, v. Darel
Maxon,
Defendant-Appellant.

Case Number: 22305

Handdown Date: 11/15/99

Appeal From: Circuit Court of Laclede County, Hon. James A.
Franklin, Jr.

Counsel for Appellant: Emmett D. Queener

Counsel for Respondent: Gregory L. Barnes

Opinion Summary: None

Citation:

Opinion Author: James K. Prewitt, Judge

Opinion Vote: AFFIRMED. Garrison, C.J., and Barney, J.,
concur.


Opinion:

Following jury trial, Defendant was convicted of distributing
a controlled
substance, Section 195.211, RSMo 1994, and possession of a
prohibited
weapon, Section 571.020, RSMo 1994. Defendant was sentenced as a
prior
offender to fifteen years in the Missouri Department of
Corrections on
Count I, and seven years’ imprisonment on Count II. Defendant
appeals.[1]
The sufficiency of the evidence is not at issue. There was
evidence that on
September 27, 1995, with the assistance of a "confidential
informant,"
undercover police officers arranged to purchase one-quarter of a
pound of
marijuana from two men. The officers, J.D. Collins and Eddie L.
Porter,
went to Ronnie Hayes’ trailer on Route WW in Laclede County. When
the
officers arrived at the trailer, Hayes, a man known to the
officers as
Darel or "Max," a female named Diane, and an unknown
male were present.
The officers and the informant would not agree to allow Hayes and
Max to go
alone to pick up the marijuana, so all five left together in the
informant’s car, with Max driving. Officer Porter and the
informant were
taken to Frank’s Lounge, where they were instructed to stay.
After
discussion, Hayes and Max agreed that Officer Collins could ride
with them,
but they would not allow him to go to the house of their
"source." Officer
Collins waited for them in a patch of woods while they obtained
the
marijuana.
When Hayes and Max returned with a bag containing marijuana,
Collins
negotiated with them, resulting in a price of $450.00. Collins
gave Hayes
the money, and Hayes and Max left to pay their source. They
returned a few
minutes later, picked up Collins and Porter, and returned to
Hayes’
trailer. It earlier had been agreed that Hayes and Max would
receive
one-quarter of an ounce of the marijuana as a
"gratuity" for making the
deal, but the officers attempted to persuade them to accept cash
instead.
The men would not agree. Using a set of postal measuring scales,
Max
extracted one-quarter of an ounce of marijuana from the bag, and
then
returned the bag to Collins.
Collins testified that as the officers were about the leave the
trailer,
Max asked Porter if he was interested in buying a stainless steel
nine
millimeter pistol. Hayes and Max also said they had a sawed-off
shotgun for
sale. The officers expressed an interest in purchasing the guns
at a later
date.
On October 3, 1995, Officer Porter called Hayes and was told that
the guns
were available. The officers went to Hayes’ trailer that day.
Hayes, Max,
Diane, and other unknown people were in the trailer, including a
man named
Darrell who was sitting on a sofa with Diane. From a bedroom, Max
produced
a green canvas bag with two sawed-off shotguns. Max apologized
for having
previously sold the nine millimeter pistol. Porter conversed with
Max about
the guns and verified that the shotguns were functional. Porter
agreed to
the offer made by Max of $30.00 for each gun. Porter wanted to
keep the
canvas bag as well, and Hayes agreed to that. Measuring revealed
that one
of the shotguns had a barrel length of 13 ? inches, and an
overall length
of 23 7/8 inches.
One issued raised at trial was whether "Max" was the
Defendant, Darel
Maxon. Defense counsel argued that the officers had identified
the wrong
man, and that the other Darrell could have been the man with whom
the
officers dealt. This issue is raised in Appellant’s first point.
He argues
that the charges should have been dismissed due to late
disclosure of
"potentially exculpatory evidence." The morning of the
second day of trial,
the prosecutors provided Appellant with a copy of a report of an
interview
with Diane Langdon, the "Diane" who had been present in
the trailer. In
that report, Diane identified the other Darrell as Darrell
Campbell.
Appellant claimed that the failure of the prosecutor to earlier
disclose
this report violated his right to due process, in that Darrell
Campbell
matched the physical description of the "Darel"
involved in illegal
activities as described in Officer Porter’s report.
The prosecution has an affirmative duty to disclose exculpatory
evidence.
State v. Calvert, 879 S.W.2d 546, 548 (Mo.App. 1994), citing
Brady v.
Maryland, 373 U.S. 83, 87 (1963). However, the State cannot be
faulted for
nondisclosure if the defendant had knowledge of the evidence at
the time of
trial. Calvert, 879 S.W.2d at 548.
If disclosure is required, a new trial will be granted only when
the
undisclosed evidence is material. Hayes v. State, 711 S.W.2d 876,
879
(Mo.banc 1986). Evidence is material only if there is a
reasonable
probability that, had the evidence been disclosed to the defense,
the
result of the proceeding might have been different. Id. See also
State v.
Phillips, 940 S.W.2d 512, 516-17 (Mo.banc 1997).
Prior to trial, Appellant subpoenaed Darrell Campbell’s records
from the
Department of Corrections. It is apparent that Appellant knew the
identity
and the present location of the other Darrell before receiving
the report
of the interview. Additionally, the jury was made aware of the
presence of
another Darrell in the trailer as it was brought out during
cross-examination of Officer Porter, during presentation of
Appellant’s own
case, and in closing argument.
Because the issue of identity was raised at the trial, and
Appellant
obviously knew of Darrell Campbell when he subpoenaed Campbell’s
prison
records, we cannot say that the result of the proceeding might
have been
different if the report had been timely disclosed to Appellant.
Point I is
denied.
For his second point, Appellant alleges trial error by allowing a
jury
instruction to be submitted on accessory liability when the
Information
charged him as a principal. It is proper, however, to submit to
the jury a
theory of accomplice liability despite charging the defendant as
a
principal. State v. Isa, 850 S.W.2d 876, 898 (Mo.banc 1993). See
also State
v. Friend, 936 S.W.2d 824, 827 (Mo.App. 1996). Point II is
denied.
The judgment is affirmed.

FOOTNOTES:

[1]
The written Sentence and Judgment does not specify whether
the
sentences of imprisonment are to run concurrently or
consecutively; nor was
there an oral pronunciation at the sentencing hearing in this
regard. The
sentences, therefore, are to run concurrently. Section 558.026.1,
RSMo.
1994.

Separate Opinion:
None

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