State v. Baker

• Decision Date: 01 April 2003
• Docket Number: No. SC 84507.,SC 84507.
• Citation: 103 S.W.3d 711
• Parties: STATE of Missouri, Respondent, v. Gary Lynn BAKER, Appellant.
• Court: Missouri Supreme Court

Page 711

103 S.W.3d 711

STATE of Missouri, Respondent, v. Gary Lynn BAKER, Appellant.

No. SC 84507.

Supreme Court of Missouri, En Banc.

April 1, 2003.

Rehearing Denied May 27, 2003.

COPYRIGHT MATERIAL OMITTED

Donald W. Petty, Liberty, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Karen L. Kramer, Assistant Attorney General, Jefferson City, for respondent.

STEPHEN N. LIMBAUGH, JR., Chief Justice.

A jury convicted appellant Gary Lynn Baker of the class C felony of "creation of a controlled substance," in violation of section 195.420, RSMo 2000. After appeal to the Court of Appeals, Southern District, this Court granted transfer, Mo. Const., art. V, sec. 10, to determine whether stating "no objection" at trial invalidates a previously entered continuing objection. The judgment is affirmed.

I. Facts

Appellant does not challenge the sufficiency of the evidence. Viewed in the light most favorable to the verdict, State v. Werner, 9 S.W.3d 590, 593 (Mo. banc 2000), the relevant facts are as follows:

On March 10, 2000, employees at the Golden Valley Country Market Store in Clinton, Missouri, informed police that appellant had purchased a large quantity of matchbooks. The striker plates on matchbooks are a source of red phosphorous, a substance needed to produce methamphetamine. Police had previously learned that within the past year, appellant had also purchased a sizable amount of pseudoephedrine and iodine crystals, both precursor ingredients of methamphetamine.

Relying upon this information, as well as statements from witnesses that had seen appellant manufacturing methamphetamine, Sergeant James Wingo, a narcotics investigator with the highway patrol division of drug and crime control, requested and was granted a warrant to search appellant's residence. To execute the search warrant, Sergeant Wingo enlisted the help of a special emergency response (SER) team. The SER team was to secure the premises, while Sergeant Wingo and other local law enforcement officers conducted the actual search. At the hearing on appellant's motion to suppress the admission of evidence discovered during the search, Sergeant Wingo testified that he employed the services of the SER team because they were specially trained to enter hostile environments, and he had reason to believe that appellant, whom the officers knew to be present at the residence, posed a serious threat of violence.

The warrant was executed at ten o'clock in the evening, after extensive briefing of the SER team. The building to be searched was a former restaurant, which had been partially converted into a residence. It had numerous doors and was located in a secluded area. Captain Bruce Houston, a member of the SER team, testified at trial that he attempted to gain entry to the residence by using a battering ram against one of the steel doors. When this failed, he broke a window and released the front door lock, letting the remaining team members inside. After searching both floors of the residence, the SER team found two individuals. They did not, however, find the appellant.

The team suspected that appellant was hiding in a cubbyhole upstairs. Rather than enter the hiding place and risk that appellant was armed, the team attempted to determine whether appellant was present by throwing a lighting device into the hole. In response, appellant called out, "Okay, okay, I'm here." The officers eventually convinced appellant to surrender.

Once the SER team secured the premises, local law enforcement officials commenced the search. The officers discovered numerous ingredients and pieces of equipment used in making methamphetamine, including pseudoephedrine, hydrogen peroxide, lye, methanol, naphtha, match strike plates, sulphuric acid, muriatic acid, iodine, acetone, ephedrine, lighter fluid, an electric skillet, a hot plate, filters, and funnels. The officers also found a shotgun, rifle and pistol ammunition, and bows and arrows.

Based on the evidence discovered during the search, appellant was arrested and charged with creation of a controlled substance in violation of section 195.420. In the preparation of his defense, appellant filed a motion to suppress the admission of the above items, alleging, inter alia, that the warrant was illegally executed by law enforcement officers in violation of appellant's Fourth Amendment rights. At a hearing on the motion, Officer Wingo offered the following testimony regarding the execution of the search warrant:

Defense Counsel: Did you have any particular fear of any type of bodily harm when you were executing the search warrant?

Wingo: Yes.

Defense Counsel: What was that fear? Wingo: It's — basically stems from Mr. Baker's violent, erratic, paranoid behavior that had been exhibited through contacts with him in the past through law enforcement and by myself.

. . . .

Defense Counsel: You're not aware of him ever being arrested for any kind of assault on a police officer or anybody, have you?

Wingo: Ah, I think he's exhibited, brandished weapons to citizens. As far as assaults on police officers itself? I don't — I don't recall right now.

. . . .

Defense Counsel: Okay. Ah, there was no independent knowledge from you that Gary Baker would actually, in fact, use a gun against you or any other officer attempting to conduct a search warrant, was there?

Wingo: I — I — it wouldn't have surprised me in the least that he would, no.

Defense Counsel: Well, I guess what I'm saying is, is that perhaps maybe it wouldn't surprise you. But I mean, was there any particular indication there on March 10th of 2000 that the defendant might, would use a gun against you if conducting a search warrant of the premises?

Wingo: Mr. Baker has a history — and maybe I wasn't clear before, but I'll try and be a bit clearer now. That not only speaking with other officers, but through personal experience, Mr. Baker has a paranoid type of behavior that's rather odd. Ah, and he does the oddest things, I will tell you that.

The trial court overruled appellant's motion. Immediately prior to trial, appellant renewed his motion to suppress, for the first time specifically arguing that the warrant was improperly executed because the SER team failed to knock and announce their presence before entering the premises. The trial court once again denied appellant's motion. In its "Supplemental Finding on Defendant's Motion to Suppress Evidence," the court found that "the Highway Patrol's past dealing with Defendant, ... the paranoid state Defendant was known to be in at the time of obtaining the search warrant, [and SER team Captain] Bruce Houston's information that Defendant was armed and dangerous" justified the no-knock entry.

At trial, the prosecutor referred to the property seized pursuant to the search warrant during opening arguments. Appellant then requested and was granted a continuing objection to the admission of all evidence discovered during the allegedly improper search. However, when the prosecutor offered the evidence for admission, defense counsel, on his own initiative, announced that he had no objection to the introduction of all the seized evidence.

At the close of evidence, instructions, and argument by counsel, the jury found appellant guilty of possession of a chemical with the intent to create a controlled substance. After determining that appellant was a prior and persistent offender the trial court imposed a twenty-year sentence. Appellant now renews his challenge to the admission of the seized evidence, claiming that his continuing objection properly preserved this issue for appeal. Appellant also argues that there was no probable cause to issue the search warrant, that the information filed by the state did not sufficiently charge the offense of creation of a controlled substance, and that the state's verdict director violated his double jeopardy rights and his right to a unanimous verdict. Finding no reversible error, this Court affirms.

II. The Motion to Suppress Evidence

In his first point, appellant alleges that the trial court erred in overruling his motion to suppress, because the search warrant was illegally executed and the issuance of the search warrant was not supported by probable cause. Specifically, appellant contends that law enforcement officials unjustifiably failed to knock and announce their presence before entering the residence, and that the affidavit underlying the search warrant was based on uncorroborated hearsay, reports from unreliable informants, and information that was so temporally remote that it lacked any probative value. In response, the state argues that this issue was not properly preserved for review because appellant affirmatively waived any objection to the admission of the seized evidence by stating at trial that he had no objection to the admission.

Missouri courts have consistently held that stating "no objection" when evidence is introduced precludes direct appellate review of the admission. See, e.g., State v. Starr, 492 S.W.2d 795, 801 (Mo. banc 1973). However, in this case, and unlike Starr, appellant had requested and received a continuing objection to the admission of the evidence in question before announcing that he had no objection when the evidence was introduced at trial. When presented with virtually identical scenarios, the Court of Appeals has chosen to review the denial of a motion to suppress on its merits, State v. Stillman, 938 S.W.2d 287, 290 (Mo.App.1997); State v. Curtis, 931 S.W.2d 493, 495 (Mo.App.1996), noting that "to now rule a waiver of this point and a denial of review would be a hypertechnical application of the requirement of renewing the objection at every stage." Stillman, 938 S.W.2d at 290. Nonetheless, the state contends that appellant affirmatively waived any appellate review.

The Court is mindful of the firmlyestablished rule that counsel is obligated to make specific objections at trial. See State v. Roller, 31 S.W.3d 152, 157 (...