State v. Cannady, 43689

• Decision Date: 25 October 1983
• Docket Number: No. 43689,43689
• Citation: State v. Cannady, 660 S.W.2d 33 (Mo. App. 1983)
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Michael CANNADY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 33

660 S.W.2d 33

STATE of Missouri, Plaintiff-Respondent, v.Michael CANNADY, Defendant-Appellant.

No. 43689.

Missouri Court of Appeals,

Eastern District,

Division Five.

Oct. 25, 1983.

Charles W. Bobinette, St. Louis, for defendant-appellant.

John Ashcroft, Atty. Gen., Jefferson City, for plaintiff-respondent.

MELVYN W. WIESMAN, Special Judge.

Defendant was convicted of Illegal Distribution and Delivery of Phenmetrazine, a controlled substance, and was sentenced to a term of ten years imprisonment.On appeal, he argues that the trial court erred: (1) in admitting into evidence experimental and opinion evidence that the pills in question contained phenmetrazine; (2) in admitting testimony describing how drug users use phenmetrazine and (3) in failing to declare a mistrial after the prosecuting attorney made inflammatory and prejudicial statements and referred to matters unsupported by the evidence during the closing argument.We affirm.

On appeal from a criminal conviction, the State is entitled to the most favorable view of the facts in evidence and reasonable inferences therefrom.State v. Light, 636 S.W.2d 157, 158(Mo.App.1982).

Detectives Swan and Holifield of the St. Louis Police Department approached Glenda Schmeid to purchase "Preludin."Schmeid and the two detectives attempted to locate defendant.They saw defendant running on a street in the City of St. Louis.Schmeid left the detectives, approached defendant, and purchased twelve pills with money provided by the detectives.Schmeid put the pills in her mouth, returned to the detectives and spit the twelve wet orange-coated pills into Swan's hand.Although the detectives did not hear the dialogue between Schmeid and the defendant, they each observed the transfer of money, saw defendant pull a vial from his pants pocket and exchange something with Schmeid, and saw Schmeid put her hand to her mouth.

Later that day, the detectives packaged the pills and delivered them to the St. Louis Police Department laboratory.Mr. Joseph Crowe, a criminalist, tested the pills at the laboratory the following day to determine their chemical content.He conducted visual observations of the pills and scientifically evaluated their contents with the aid of a gas chromatograph-mass spectrometer (GCMS).Crowe concluded that the pills delivered to the detectives contained phenmetrazine.His testimony that the pills contained phenmetrazine was the sole evidence establishing the chemical contents of the pills.

In defendant's first point, relating to the admission of experimental and opinion evidence, he claims that the State failed to lay a proper foundation for admission of Crowe's experimental and opinion evidence the State failed to prove that the pills were in the same condition when tested as when taken from defendant, the State failed to prove that the GCMS instrument used in testing the pills was reliable and properly functioning at the time of the tests and Crowe's interpretation of the test results and opinion that the pills contained phenmetrazine was based on incompetent, unverified assumptions and hearsay evidence.He has failed to preserve any of these claimed errors for review.

Defendant never made an objection at trial that the State failed to prove that the pills were in the same condition when tested as when taken from defendant.Furthermore, Crowe testified that he observed the pills, compared them with information from the Physician's Desk Reference and determined that pills of that type usually contained phenmetrazine.Defendant raised no objection to this testimony.Next, Crowe described his method of testing the pills, using the GCMS, as follows:

A. [Crowe] I set the instrument up so that if Phenmetrazine was present the instrument would indicate that it was there.I then took one of the pills and broke it open and it contained a white center, which is the way the pill is manufactured.Knowing that the controlled substance, if there was one present, would be in the white center and not the pink coating, I took part of the white center, placed it in the test tube along with methynol.

MR. MARTIN: [Defense counsel] I'm sorry?

A. Methynol.And then aggitated the liquid and the white solid on the grounds that part of the controlled substance, if it was present, would be in the liquid.I then injected one microliter of liquid into the GCMS, the instrument, then it printed out a mass spec of what was in that tablet and it gave ten drugs that were the closest match to what was in the liquid.I then compared the mass spec of the unknown with the mass spec of a standard that was run of the first match that the computer gave us, and they were the same.This indicated to me that the white center did in fact contain Phenmetrazine.

MR. MARTIN: Judge, may my objection be noted subject to cross?

THE COURT: Sure.

Q.Do you have what the results of those tests are again?

A.That--

MR. MARTIN: Same objection continues, Your Honor, subject to cross, rather than seeking voir dire at this time.

THE COURT: Very well.

A.That the tablets that I check contained Phenmetrazine.

Mr. Crowe concluded, stating that in his opinion, the tablets contained Phenmetrazine.

During defense counsel's extensive cross-examination, Crowe testified to the running and testing of the GCMS instrument.He concluded that it was not the GCMS that interpreted the results of the testing and reached the conclusion that the unknown substance was phenmetrazine, but, rather, he interpreted the test results and used that information in reaching his opinion.At the conclusion of cross-examination, defense counsel moved to strike Crowe's testimony identifying the substance as phenmetrazine.The motion was denied.

To preserve error, an objection must be made with sufficient specificity to advise the trial court of the ground or reason for excluding evidence.State v. Lang, 515 S.W.2d 507, 511(Mo.1974).A general objection preserves nothing for review, State v. Hastings, 477 S.W.2d 108, 111(Mo.1972), and ordinarily constitutes no objection at all.State v. Wintjen, 500 S.W.2d 39, 43(Mo.App.1973).Defendant's statements, objecting "subject to cross," do not call attention of the court to the ground or reason for the objection.Defendant's objection for "lack of foundation, subject to my cross," likewise, is not sufficiently specific to alert the trial court to the grounds for excluding the evidence.SeeState v. Roberts, 622 S.W.2d 226, 227(Mo.App.1981);State v. Vineyard, 497 S.W.2d 821, 829(Mo App.1973).It, therefore, is inadequate to preserve the matter for review.Pazdernik v. Decker, 652 S.W.2d 319, 321(Mo.App.1983).

Although defendant's motion to strike Crowe's testimony at the conclusion of cross-examination was more specific, a specific objection to evidence made after the evidence has been introduced comes too late.State v. Brown, 604 S.W.2d 10, 14-15(Mo.App.1980).An adequate specific objection must be made at the earliest possible opportunity in the progress of the trial.State v. Simmons, 500 S.W.2d 325, 328(Mo.App.1973).

It is clear from the record that defendant made no specific objection to Crowe's opinion testimony that the substance in the pills was phenmetrazine.Further, defendant failed to make a specific, timely objection to the foundation for admission of the evidence, the condition of the pills, or the reliable and properly functioning of the GCMS at the time of the tests."One cannot sit by and gamble on the outcome and, if he loses the gamble, then, for the first time make a tergiversating objection.If he chooses to gamble he must abide his wager."State v. Rideeoutte, 572 S.W.2d 877, 879-80(Mo.App.1978), citingBrown v. Thomas, 316 S.W.2d 234(Mo.App.1958).See alsoState v. Harvey, 625 S.W.2d 198, 200(Mo.App.1981).Where defendant, as a matter of trial tactic, chooses to make a general objection "subject to cross,"he fails to preserve the error for appellate review, even if he later makes a more specific objection after conclusion of his cross-examination.

Further, the grounds for exclusion of the evidence stated in defendant's motion to strike were not the same as those stated in the motion for new trial and on appeal.In the motion to strike, defendant objected, not to the scientific foundation as to the reliability of the machine itself (a ground asserted here), but to the reliability of the GCMS used in conjunction with computer libraries prepared by unknown sources.A point on appeal must be based upon the theory voiced in the objection at trial and a defendant cannot expand or change on appeal the objection as made.State v. Lenza, 582 S.W.2d 703, 710(Mo.App.1979);State v. Peterson, 545 S.W.2d 717, 719(Mo.App.1977);State v. Kerr, 531 S.W.2d 536, 542(Mo.App.1975).

Since Crowe's testimony was the only evidence that the pills contained phenmetrazine, we review defendant's arguments concerning Crowe's opinion evidence and reliability of the GCMS at the time of the test under the plain error rule.Rule 29.12(b).Before a court applies the plain error rule, there must be a sound, substantial manifestation and a strong, clear showing that injustice or a miscarriage of justice will result otherwise.State v. Caffey, 457 S.W.2d 657, 660(Mo.1970);State v. Wendell, 542 S.W.2d 339, 343(Mo.App.1976).We find no manifest injustice or miscarriage of justice from the admission of Crowe's testimony.

Defendant argues that the State must prove that the instrument used in testing was reliable and properly functioning at the time the tests were conducted citing City of St. Louis v. Boecker, 370 S.W.2d 731(Mo.App.1963)andState v. Johnson, 539 S.W.2d 493(Mo.App.1976), and has suggested that such proof is lacking in this case.Although the State has admitted in its brief that "Mr. Crowe did not affirmatively establish that the GCMS was working properly," an examination of the whole record reveals there is evidence to establish a prima facie case of...