State v. Gustin
| Decision Date | 18 March 1992 |
| Docket Number | No. 17589,17589 |
| Citation | 826 S.W.2d 409 |
| Parties | STATE of Missouri, Respondent, v. Richard GUSTIN, Appellant. |
| Court | Missouri Court of Appeals |
Emmett D. Queener, Columbia, for appellant.
William L. Webster, Atty. Gen., Rudolph R. Rhodes, IV, Asst. Atty. Gen., Jefferson City, for respondent.
A jury found Richard Gustin ("Defendant") guilty of the class B felony of sale of a controlled substance (methamphetamine), § 195.211, RSMo Cum.Supp.1989, and assessed punishment at five years' imprisonment. The trial court entered judgment per the verdict.
Defendant appeals, maintaining the trial court erred in (1) receiving State's Exhibit 1--an envelope containing the alleged methamphetamine--in evidence, in that there were breaks in the chain of custody and (2) allowing a State's witness to "testify from written notes."
Because the sufficiency of the evidence to support the verdict is unchallenged, we set forth only the evidence necessary to adjudicate the claims of error.
In reviewing the trial court's reception in evidence of State's Exhibit 1, the facts and reasonable inferences arising therefrom are to be stated favorably to the trial court's ruling. Cf. State v. Blair, 691 S.W.2d 259, 260 (Mo. banc 1985), cert. dismissed, 480 U.S. 698, 107 S.Ct. 1596, 94 L.Ed.2d 678 (1987); State v. Woods, 790 S.W.2d 253, 254 (Mo.App.1990).
So viewed, the evidence establishes that Robert W. Sharpe, an undercover officer of the Salem Police Department, and David Barker, an informant, arranged to purchase "crank" from Defendant on September 12, 1990. Sometime after "5:00 o'clock" that date, Sharpe rode with Barker in the latter's vehicle to a rural area of Dent County. There, they met Defendant.
Sharpe saw Barker hand Defendant a hundred-dollar bill. Defendant handed Barker "an aluminum foil packet." Barker and Sharpe drove away. Barker handed the packet to Sharpe.
Sharpe and Barker subsequently separated. Sharpe went to the police station and opened the packet. It contained two small "cellophane type triangles that appeared to have been heat-shrunk." Inside each was "a white powdery substance."
At trial, Sharpe was shown State's Exhibit 1. His testimony:
Q. What do you recognize it to be?
A. To be the evidence that I placed into this envelope, and it's dated 9/12 of '90, and these are my initials right here on the seal.
Q. What evidence are your referring to?
A. The aluminum foil packet with two small packets which were wrapped in the aluminum foil that had a white powdery substance.
Sharpe recounted he turned the evidence over to Michael Allgire, Chief of Police of the City of Salem.
Chief Allgire testified he received an "aluminum foil container" from Sharpe on September 12, 1990. It contained "two packets of off-white powdery substance." The Chief's testimony:
Q. What did you do with that object ... that Officer Sharpe gave to you?
A. At that time I had the security box in a bottom desk drawer in my office, and the substance was put in there and secured.
Q. Was it put in any other type of container at that point in time?
A. At that time, no.
....
Q. Was it removed at some point in time and placed into some other container?
A. Yes, it was.
Q. When was that?
....
A. It was on October the 3rd.
Q. And what did you do with it at that point in time?
A. At that point in time, I had Detective Mitch Dane and Officer Bob Sharpe both come into my office and, at that point I returned the item back to Officer Sharpe, at which time he packaged it, and it was turned over to Detective Dane, which is our evidence custodian.
....
Q. I'll show you ... State's Exhibit 1 and ask if you recognize what that is?
A. Yes, I do.
Q. What do you recognize it to be?
A. This here is an envelope that Officer Sharpe, in my office, put this into--put the evidence into, and it was then sealed and turned over to Detective Mitch Dane.
Q. What evidence are you referring to that was placed in that envelope?
A. The aluminum foil with the two little packets of off-white powdery substance.
Q. Who has access to this container in your desk where you placed this foil container?
A. No one.
Q. Is it locked?
A. Yes, it is.
Q. Who has the keys?
A. I'm the only one with a key to it.
Q. Was there any change in the condition of the foil container from when you first placed it in there in September up til October when you removed it?
A. No, there was not.
Q. Had you removed it for any purpose?
A. No, I did not.
Q. Did you give anyone else your keys during that time period?
A. No, I did not.
Detective Mitchell Dane of the Salem Police Department identified State's Exhibit 1 as a manila envelope delivered to him by Officer Sharpe and Chief Allgire on October 3, 1990. Dane placed Exhibit 1 and two other sealed envelopes in a larger envelope and "sent it certified mail to Troop G at Willow Springs."
David Francis Nanneman, a forensic chemist employed by the Missouri State Highway Patrol, identified State's Exhibit 1 as "an item of evidence" that he "analyzed in the laboratory." His testimony:
Q. ... how did you receive this item?
A. This item was included in ... a larger envelope that we received in the mail.
Q. And do you know when that was?
A. It was in October the 8th, 1990.
Q. In what condition did you find that particular exhibit when you received it?
A. The envelope had evidence tape here that was intact at the time. It did not have evidence tape here at the bottom. The bottom was intact.
Q. Was it open in any fashion when you received it?
A. No, it was not.
Q. Did you open it?
A. Yes, I did.
Q. What did you do with it after you opened it?
A. I removed the contents, analyzed them, and then replaced the contents and placed the blue evidence tape on it, put my initials on the blue evidence tape and placed it in our evidence locker, and then October 19th, I turned it over to the Police Chief in the police station.
Q. Is that Mike Allgire?
A. Yes, it is.
Q. Now, with regard to what you said you did with the object that's in it, what exactly is in this exhibit?
Before Nanneman answered, defense counsel objected that there was "a complete break in the chain." Counsel argued:
There's testimony that this was received and placed in the mail on October the 3rd, 1990, but this person has testified that he did not ... receive whatever he received until October 8th, 1990. That's a five day gap breaking the chain that nobody's here to testify what has happened or what did not happen to that envelope. And additionally ... we don't have any testimony ... that there was any certification returned as required by law. I think there is a complete gap, a break here of five solid days that can't be cleared by the State....
The trial court overruled the objection, whereupon Nanneman's testimony continued:
Q. ... what did you find when you opened this State's Exhibit 1?
A. There was a foil package that contained two corners of a plastic bag that had been heat-sealed and containing an off-white substance.
Q. Were those white containers open in any fashion?
A. No.
Nanneman weighed and tested the substance and determined it contained methamphetamine. Later in his testimony, this occurred:
Q. ... when you obtained this State's Exhibit 1 consisting of the envelope, who did you receive it from?
A. It was Ida McClelland, the evidence clerk in the laboratory, handed me the envelope that was mailed to the Highway Patrol Headquarters in Willow Springs, Missouri.
Q. Did you find any indication that the envelope had been tampered with in any way?
A. No, I did not.
Defense counsel thereupon registered the following objection:
... I'm going to object and ask that the Court strike from the record all the evidence again received in this case. We've come up, based on the last testimony, we've come up with a second break in the chain in that he has no personal knowledge that this came in the mail. He said that he received it from someone else, who was the evidence clerk, and there is no evidence where that clerk came up with it. We've got two complete breaks....
The trial court overruled the objection and denied the request to strike.
After Nanneman's testimony, the prosecutor recalled Chief Allgire. He confirmed State's Exhibit 1 was returned to him by Nanneman. Asked whether the exhibit had been altered between the time he (Allgire) turned it over to Dane and the time he (Allgire) received it back from Nanneman, Allgire replied: "There was just the blue tape here on the bottom."
At the conclusion of Allgire's testimony, the prosecutor offered State's Exhibit 1 in evidence. Defense counsel spoke:
... I'm going to renew my objections based on those two problems that I've already stated, in that, number 1, there's a five day gap in the chain where we don't know what happened to the evidence or where it went. Second, there's another second break in the chain in that this person has no personal knowledge that it was received by a clerk. He has no personal knowledge it was actually received in the mail. This is hearsay.... Third, I don't recall ... the Chief saying that it was sealed after he got it and put back in the desk and kept in that condition until the preliminary hearing in October of '91. I think there are three breaks in that chain, Your Honor, and any one of them would be sufficient--any gap is a gap which does not complete that chain of custody with this evidence, and I object to it being received at this time.
The trial court overruled the objection and received the exhibit in evidence.
Defendant's first point relied on avers the trial court erred in receiving State's Exhibit 1 in evidence. As we comprehend the point, Defendant claims the State failed to establish with reasonable assurance that: (1) the substance tested by Nanneman was the substance purportedly received by Barker from Defendant, (2) the exhibit was in substantially the same condition when analyzed by Nanneman...
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State v. Sullivan, s. 19834
...Id. Moreover, "[c]hain of custody of an exhibit is irrelevant where the exhibit is positively identified at trial." State v. Gustin, 826 S.W.2d 409, 417 (Mo.App.1992); Fels, 741 S.W.2d at The State elicited testimony from several different witnesses that illustrated the chain of custody. Of......
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State v. Anthony, WD
...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 r......
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State v. Dawson
...the identity of the exhibits and that the exhibits were in the same condition when tested as when they were obtained. State v. Gustin, 826 S.W.2d 409, 415 (Mo.App.1992). The proponent of the exhibits must provide the court with a reasonable assurance that the exhibits were not tampered with......
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