State v. Anthony, WD
| Decision Date | 20 July 1993 |
| Docket Number | No. WD,WD |
| Citation | 857 S.W.2d 861 |
| Parties | STATE of Missouri, Respondent, v. Marvin D. ANTHONY, Appellant. 47011. |
| Court | Missouri Court of Appeals |
Rebecca L. Kurz, Asst. Appellate Defender, Kansas City, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
Before LOWENSTEIN, C.J., P.J., and BERREY and ULRICH, JJ.
Marvin D. Anthony appeals from the judgment of conviction for the sale of a controlled substance in violation of section 195.211, RSMo Supp.1992. Mr. Anthony waived his right to trial by jury, and the case was tried to the court. Mr. Anthony was found to be a prior and persistent drug offender, §§ 195.275 and 195.291, RSMo Supp.1992, but was sentenced to ten years imprisonment as a prior and persistent offender, §§ 558.016 and 558.019, RSMo Supp.1992. Mr. Anthony contends on appeal that (1) the State failed to establish a chain of custody sufficient to reasonably assure that the purported controlled substance distributed by him was substantially in the same condition when it was analyzed by a forensic chemist that it was in when first obtained; and (2) sections 195.275 and 195.291 are unconstitutional and violate his equal protection rights because the statutes permit enhanced punishment without requiring a finding that he committed two or more felonies at different times or that he served not less than 120 days in the Department of Corrections. Mr. Anthony also claims that (3) he was denied due process rights in that the purchasing undercover officer's pretrial and in-court identifications of Mr. Anthony were erroneously accepted into evidence because the pretrial identification procedures were impermissibly suggestive and the in-court identification was unreliable as a matter of law and void of any independent basis; and (4) the court erroneously permitted the prosecuting attorney to cross-examine Mr. Anthony regarding his failure to explain to police authorities where he was on the day of the alleged offense, thereby constituting an impermissible comment upon his postarrest silence. Because points (1), (2), and (4) were not preserved, Mr. Anthony seeks plain error review of the issues presented in those points. The conviction is affirmed, but the case is remanded with directions that the trial court correct the sentence imposed in the judgment of conviction as specified infra.
On June 20, 1991, an undercover Kansas City, Missouri, police officer went to a residence in Kansas City in response to anonymous complaints that narcotics were being sold at the residence. An informant accompanied the officer. The officer and the informant arrived at the residence at approximately 8:36 p.m., when it "was still light outside," and found a man later identified as Mr. Anthony on the front porch of the residence.
The undercover officer, the informant, and Mr. Anthony entered the residence through the front door and proceeded to a coffee table. The officer told Mr. Anthony that he wanted to buy twenty dollars' worth of crack cocaine. Mr. Anthony reached under the coffee table, brought out a wicker bowl, and placed it on top of the coffee table. Inside the bowl were small white objects that appeared to the officer to be crack cocaine "rocks." The undercover officer reached into his left pocket and removed a twenty-dollar bill and a small white rock of crack cocaine. 1 Mr. Anthony saw the crack cocaine the undercover officer had removed from his pocket and made a comment. The undercover officer took one of the rocks from the bowl and handed Mr. Anthony the twenty-dollar bill. The undercover officer then placed the rock he purchased from Mr. Anthony in a pocket other than the one in which he had placed the cocaine that he had acquired during the prior, unrelated purchase. The undercover officer and the informant left the residence. The officer proceeded to his vehicle and drove away from the residence.
After arriving at the police station, the undercover officer field-tested the substance purchased from Mr. Anthony to determine whether it was cocaine. The field test was positive for the presence of cocaine.
On June 26, 1991, the undercover officer, accompanied by another police officer, drove by the residence during daylight hours. The undercover officer drove by the residence intending to purchase more cocaine and to prepare the other officer to execute a search warrant for the residence in the future. (The drive-by was standard operating procedure in anticipation of executing a search warrant to help insure that the correct residence would be searched since the undercover officer would not normally accompany the searching officers.) As the two officers drove by the residence, the undercover officer observed Mr. Anthony sitting outside the residence near the sidewalk and "quite a few people all around" the house and road. Fearing that someone milling about the residence may have seen him with another police officer, the undercover officer did not attempt to purchase additional cocaine from Mr. Anthony.
Later that same day, the residence in which the undercover officer purchased crack cocaine from Mr. Anthony was searched by police officers. Mr. Anthony was present in the residence when the officers searched it. He was detained and subsequently arrested.
On June 27, 1991, the undercover police officer viewed a photographic display. Another officer prepared and presented the display to the undercover officer. From the photographs, the undercover officer identified Mr. Anthony as an individual who sold him crack cocaine on June 20, 1991. The undercover officer placed his initials and the date on the back of the photograph he identified.
The photographic display viewed by the undercover officer was composed of four photographs. Each photograph was of a different male, and each male displayed had facial hair. The photograph of Mr. Anthony was taken closer to his face than were the photographs of the other three individuals in the photo display. Of the four men photographed, Mr. Anthony was the only man who appeared to be perspiring and the only man with a gray sheen about his hair; the other three men had totally black hair. The undercover officer testified that he had seen Mr. Anthony on two occasions before identifying his photograph in the photo display, and that, to the best of his memory, he had never seen the other three men in the photo display before.
The substance purchased by the undercover officer from Mr. Anthony was later analyzed by a forensic chemist who testified at trial. When the substance was received by the chemist, the substance had been sealed in a plastic bag by the undercover officer who had purchased the substance from Mr. Anthony. The undercover officer had placed the rock in the plastic bag, had initialed the package, and had placed a seal over his initials. The forensic chemist opened the sealed package and tested the rock substance purchased from Mr. Anthony. He conducted a series of tests to determine the contents of the rock substance. The tests reflected that the .1 grams of substance contained cocaine base. The chemist then placed the substance in a plastic envelope and sealed it.
Commencing on June 8, 1992, a jury-waived trial was held, during which Mr. Anthony testified. The substance identified by the forensic chemist was admitted as evidence. The court adjudged Mr. Anthony to be guilty of the sale of a controlled substance and found that Mr. Anthony was a prior and persistent drug offender, §§ 195.275 and 195.291, RSMo Supp.1992. In a subsequently issued written judgment, the trial court sentenced Mr. Anthony to ten years imprisonment as a prior and persistent offender, §§ 558.016 and 558.019, RSMo Supp.1992. Mr. Anthony appealed from the judgment of conviction.
As point one on appeal, Mr. Anthony claims that the court plainly erred in admitting State's Exhibit Number 2, the evidence bag containing the substance the undercover police officer allegedly purchased from him. He claims that the prosecution failed to established a proper chain of custody to assure the trial court as the finder of fact that the substance purchased from Mr. Anthony was in substantially the same condition when it was tested that it was in when purchased. Specifically, Mr. Anthony claims that the undercover officer's testimony regarding how he initially possessed the controlled substance was contradictory and confusing and that the state presented no testimony regarding the custody of the controlled substance between the time it was allegedly purchased and the time it was tested by the forensic chemist. Because Mr. Anthony did not object when State's Exhibit Number 2 was admitted into evidence, the issue was not preserved. He now requests that this court review the admission of the evidence for plain error. Rule 29.12(b).
Plain error is evident, obvious, and clear error. State v. Bailey, 839 S.W.2d 657, 661 (Mo.App.1992). Plain error is error so substantial that without correction, manifest injustice or miscarriage of justice will result. State v. Johnson, 829 S.W.2d 630, 633 (Mo.App.1992).
The admission of demonstrative evidence is within the sound discretion of the trial court. State v. Huff, 789 S.W.2d 71, 78 (Mo.App.1990). In order for the trial court to receive testimony showing the results of tests performed on articles, the court must be satisfied not only as to the identity of the articles, but also that the articles were in the same condition when tested as when originally obtained. State v. Gustin, 826 S.W.2d 409, 415 (Mo.App.1992). The evidence presented must provide a reasonable assurance that the exhibit offered is the same and in like condition as when received and that it has not been tampered with or contaminated. State v. Camden, 837 S.W.2d 520, 523 (Mo.App.1992); Huff, 789 S.W.2d at 78. This "reasonable assurance" standard does not require proof of...
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