State v. Kitchen

Decision Date08 August 1997
Docket Number21135,Nos. 19701,s. 19701
Citation950 S.W.2d 284
PartiesSTATE of Missouri, Respondent, v. Edward KITCHEN, Appellant. Edward KITCHEN, Appellant, v. STATE of Missouri, Respondent.
CourtMissouri Court of Appeals

Lew Kollias, Asst. Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Jacqueline K. Hamra, Asst. Atty. Gen., Jefferson City, for respondent.

CROW, Judge.

A jury found Defendant, Edward Kitchen, guilty of two felonies:

Count I: production of more than five grams of marijuana, § 195.211, RSMo Cum.Supp.1991;

Count II: possession of more than thirty-five grams of marijuana, § 195.202, RSMo Cum.Supp.1991.

The jury assessed punishment at five years' imprisonment on Count I and three years' imprisonment on Count II. The trial court imposed those sentences, ordering that they run concurrently. Defendant brings appeal 19701 from that judgment.

While that appeal was pending, Defendant filed a motion to vacate the judgment and sentences per Rule 29.15. 1 The motion court denied relief after an evidentiary hearing. Defendant brings appeal 21135 from that judgment.

We consolidated the appeals, Rule 29.15(l ), but address them separately in this opinion.

Appeal 19701

The first of Defendant's two points relied on avers the trial court erred in overruling Defendant's objection to the State's cross-examination of Defendant about an essay he wrote for a college English class detailing the growing of marijuana. Defendant's second point maintains the trial court should have dismissed Count II because that count subjected Defendant to "multiple punishments for but one possessory crime," as the marijuana on which Count II was based was the same marijuana on which Count I was based.

Defendant does not challenge the sufficiency of the evidence to support the verdicts, hence we recount only the evidence necessary to address the claims of error, viewing it in the light most favorable to the verdicts. State v. Schaal, 806 S.W.2d 659, 661 (Mo. banc 1991), cert. denied, 502 U.S. 1075, 112 S.Ct. 976, 117 L.Ed.2d 140 (1992).

Francis Zulauf, a resident of St. Louis, owns 80 acres of land in Crawford County. In March, 1992, Zulauf and his son were walking there. In the northwest corner they discovered a "patch" where there were "big round cylinders like, plastic [in the ground] ... full of peat moss or growing stuff."

On June 15, 1992, Zulauf returned to the site and saw what he believed to be marijuana growing there.

The next day, Zulauf telephoned Troop I of the Missouri State Highway Patrol at Rolla and told Corporal Tim Hannan what he (Zulauf) had seen. Hannan and another officer went to the site that day. Hannan described the site as a "creek bottom" surrounded by trees and underbrush. There, the officers found a "marijuana patch." Hannan recounted:

"The patch was an area about twenty feet across, basically round shape. It was surrounded by ... two foot high chicken wire. The patch contained twenty-nine marijuana plants, ten of which were planted in the ground. The others were in one gallon plastic pots. The ground beneath the plants that were planted in the ground ... contained potting soil. The potting soil had been placed there shaped in craters underneath each plant. Some of the small trees around the edge of the twenty foot plot had been partially cut with a hand type saw and then bent over."

Asked about the bent trees, Hannan replied, "[T]hey were bent over to let the sunlight penetrate down into this area that had been cleared."

The plants were about three feet tall.

The officers left the site intact.

The officers returned to the site June 23. Hannan observed that the one-gallon pots had been moved "into a different configuration." A two-gallon plastic bucket had been added to the patch. The plants growing in the ground were in the same locations; they had grown taller. Five male plants had been pulled from the ground and were lying on a log beside the patch. Asked about those plants, Hannan explained:

"A male marijuana plant is a ... plant which contains pollen sacks to fertilize the other female marijuana plants.... The female plants have a higher THC content and the THC content continues to grow higher when they are not fertilized by the male plants."

According to Hannan, THC is the "active ingredient" in marijuana, and removing the male plants makes the marijuana in the female plants "more potent."

The officers again left the site intact.

Hannan returned to the site July 1 and again July 21. He observed no changes on either occasion.

On July 22, Hannan and another officer kept the site under surveillance all day but saw no one.

Hannan and the other officer resumed surveillance the following day, July 23. Around noon an individual approached the site on foot. The individual "was wearing a camouflage hat, and ... had a camouflage mask over his face." Describing the individual's movements, Hannan narrated:

"He first came toward our location and then he ... circled around back behind us and spent some time back behind us. He then slowly circled around to the north side of the plot ... and he then came back across in front of us and then back into the plot.... He was walking around, was walking in front of us, he would stop and look and was glancing up at the trees.... He would take a few short steps and stop and look around."

These movements continued about ten minutes, after which the individual entered the marijuana patch. Hannan's account continued:

"He ... began looking at the plants. He changed the location of the bucket that was in the patch and placed some sticks over the top of the bucket. He grabbed a hold of some of the marijuana plants and pulled them down toward his face and looked at them, pulled them down towards his nose.... He pulled ... looked like three, maybe more, of the other male marijuana plants which I had seen in the patch earlier that day and shook the dirt off of them and laid them down at the edge of the patch. He also picked up the other five of the male marijuana plants which had been pulled two or three weeks previous and moved them to a different location."

Then, said Hannan, the individual picked up four of the one-gallon pots containing marijuana plants and walked from the patch. Hannan and the other officer thereupon arrested the individual and removed the mask. The arrestee was Defendant.

Samples from the plants Defendant was carrying and samples from the plants in the patch were tested by a Missouri State Highway Patrol chemist; he identified them as marijuana.

Defendant's evidence included testimony by his brother, Andy. Andy recounted he received a phone call during the second week in July, 1992, from an unidentified caller. According to Andy, the caller said marijuana was "growing on the property line behind my father's place."

Defendant's father testified he resides on a farm adjoining Zulauf's land.

Defendant testified that the night before the arrest, his father and Andy talked with him (Defendant) about the phone call. Defendant avowed he was concerned about it because his father was running for sheriff, and if information about the marijuana became public knowledge it could hurt his father politically. Furthermore, explained Defendant, he had been misidentified in a marijuana patch on an earlier occasion and he did not want to be accused anew.

Therefore, said Defendant, the day after the conversation with his father and Andy, he (Defendant) went in search of the marijuana. According to Defendant, "It took a little while to find it."

Asked why he carried the four one-gallon pots containing marijuana plants from the patch, Defendant responded:

"I just wanted to get the pots out because my mom and dad had these pots at their house with these flowers in them, looked like the same kind of dirt, and I thought if I just get the pots out then it wouldn't be such a risk to them. My mom and dad just lived up a half a mile away and I knew that my mom was out there potting up flowers and stuff all the time."

During cross-examination, the prosecutor asked Defendant about a course in English composition he had taken in college. Defendant's lawyer objected that the inquiry was "irrelevant and improper impeachment," and that the question was "argumentive and assumes facts not in evidence."

The trial court overruled those objections, whereupon cross-examination continued:

"Q. You are very familiar with how to grow [marijuana] and where to grow it and whether to use chicken wire and what kind of potting soil to use and so on, aren't you?

A. Not personally. As far as the essay that you are talking about, I did do an essay on that, as I wrote about a lot of things.

Q. You wrote an essay for English Composition I there at Union Central College?

A. It was one of the compositions that I wrote."

The prosecutor then adduced testimony from Defendant that his essay described how to minimize the risks of failure and arrest, how to select growing sites, and how to "be as covert as possible, yet provide for solar exposure." Defendant further admitted the essay warned that one should not, under any circumstances, cultivate marijuana on his own property, as the government would seize the property.

Shown Exhibit 19, Defendant identified it as a copy of his essay. Defendant acknowledged the essay recommended the erection of a "two foot high poultry wire fence around the gardening area," and the essay discussed putting potting soil beneath the plants. Furthermore, the essay explained that watering the plants during "summer dry spells" may be necessary. Cross-examination continued:

"[Q.] In this essay do you also say that by June the plants will have determined their sex and at that time the male plants can be removed?

A. Yes.

Q. And do you also state the female plants are the desired gender producing the popular and sought after resin spuds?

A. That's what I understand.

Q. And removing the males...

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7 cases
  • State v. Francis
    • United States
    • Missouri Court of Appeals
    • June 22, 1999
    ...only the evidence necessary to address the claims of error, viewing it in the light most favorable to the verdict. State v. Kitchen, 950 S.W.2d 284, 285 (Mo. App. 1997). On April 15, 1996, Gregory Watson was driving towards his home when he received several electronic pages displaying Regin......
  • State v. Ogle, 21384
    • United States
    • Missouri Court of Appeals
    • April 29, 1998
    ...in the discretion of the trial court, and an appellate court will not interfere unless that discretion is abused. State v. Kitchen, 950 S.W.2d 284, 287-88 (Mo.App.1997). However, while these general propositions are valid, they do not apply to cross-examination of a defendant on a subject t......
  • State v. Francis
    • United States
    • Missouri Court of Appeals
    • June 22, 1999
    ...only the evidence necessary to address the claims of error, viewing it in the light most favorable to the verdict. State v. Kitchen, 950 S.W.2d 284, 285 (Mo.App.1997). On April 15, 1996, Gregory Watson was driving towards his home when he received several electronic pages displaying Reginal......
  • State v. Mitchell
    • United States
    • Missouri Court of Appeals
    • July 14, 1998
    ...broad discretion in determining the scope of cross-examination. State v. Taylor, 944 S.W.2d 925, 935 (Mo. banc 1997); State v. Kitchen, 950 S.W.2d 284, 287 (Mo.App.1997). An appellate court will not interfere unless that discretion is abused. Kitchen, 950 S.W.2d at 287-88. Whether cross-exa......
  • Request a trial to view additional results

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