State v. Andrade, KCD
| Decision Date | 01 March 1976 |
| Docket Number | No. KCD,KCD |
| Citation | 534 S.W.2d 595 |
| Parties | STATE of Missouri, Respondent, v. Henry ANDRADE, Appellant. 27602. |
| Court | Missouri Court of Appeals |
Max W. Foust, H. Edward Skinner, Morris, Foust, Beckett & Ponick, Kansas City, for appellant.
John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
Before TURNAGE, P.J., and WELBORN and HIGGINS, Special Judges.
Defendant appeals his conviction of selling Lysergic Acid Diethylamide, LSD, and sentence to five years imprisonment. Section 195.020, RSMo 1969.
On this appeal defendant urges (1) the court erred in admitting opinion evidence based on a p-DMAB Spot Test, Ultraviolet Spectroscopy, and Thin-Layer Chromatograms; (2) error in admitting the opinion of the State's chemist which was based on accepting as true the printed contents label on a container used in the tests he performed; and (3) the State failed to prove defendant was the person who made the drug sale. No merit is found in any of these contentions and the judgment is affirmed.
The jury could have reasonably found, as it must have, that defendant made a sale of ten 'hits' of LSD, or Acid, as it is commonly termed, to Detective O'Donnell of the Kansas City Police Department acting under cover. O'Donnell stated he met defendant, who was riding in the rear seat of an automobile with O'Donnell's informant, in a shopping center parking lot. O'Donnell approached the automobile and spoke with defendant at which time defendant delivered the drugs to O'Donnell who in turn paid the defendant $30.00 in cash.
The meeting had been arranged through an informant, Merlin Stice. Stice also testified she was present in the automobile at the time O'Donnell met the defendant in the parking lot and made the purchase.
The State also produced John Wilson, a chemist, who testified that he tested the substance O'Donnell purchased from the defendant. Wilson stated he ran four thin-layer chromatograms in two separate solvent systems (9:1 chloroform methanol, and 4:1 chloroform acetone) after irradiating half of the four plates. Wilson stated one test might be susceptible to error in determining whether the substance tested was in fact LSD, but stated unequivocally there was no way all four tests could be wrong. Wilson stated as a result of these four tests the substance tested was LSD.
Defendant's counsel at trial conceded the qualifications of Wilson. There was no evidence proffered concerning any inadequacy or deficiency in the tests performed by Wilson nor calling into question in any fashion the conclusion reached by Wilson that the substance tested contained LSD.
Defendant is represented on this appeal by different counsel than appeared at trial. On this appeal counsel now raises questions concerning the adequacy and the validity of the p-DMAB Spot Test, Ultraviolet Spectroscopy and Thin-Layer Chromatograms. Defendant supports such contention by a wide variety of scientific writings garnered from a number of scientific publications. However, this court need not resolve any argument which may exist in the scientific community concerning the validity or reliability of the tests used by Wilson because none of this evidence was presented to the trial court. This court must decide this case solely on the basis of the record made in the trial court. State v. Johnson, 286 S.W.2d 787, 796 (Mo.1956). For that reason defendant's contentions concerning the tests are not open to question in this court.
Defendant urges such tests are open to attack in this court on the basis of State v. Stout, 478 S.W.2d 368 (Mo.1972). However, in that case the court made it clear it was determining the admissibility of the Neutron Activation Analysis Test on the basis of the record made in the trial court.
Defendant further attempts to avoid the consequences of the absence of any evidence questioning...
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...247 N.W.2d 676; Fennekohl v. United States, D.C.App.1976, 354 A.2d 238; Fotianos v. State, Fla.App.1976, 329 So.2d 397; State v. Andrade, Mo.App.1976, 534 S.W.2d 595; Schleiss v. State, 1976, 71 Wis.2d 733, 239 N.W.2d 68. No clear showing of prejudicial abuse has been made The proffered tes......
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...a continuance. We are limited solely to the record made in the trial court, and do not consider the other evidence. State v. Andrade, 534 S.W.2d 595, 597(1) (Mo.App.1976). Defendant raises three other points. All of these are portions of the trial alleged to be plain error. Defendant is for......
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