State v. Kriebs, 21909

• Decision Date: 29 September 1998
• Docket Number: No. 21909,21909
• Citation: 978 S.W.2d 460
• Parties: STATE of Missouri, Respondent, v. Joseph Albert KRIEBS, Appellant.
• Court: Missouri Court of Appeals

Page 460

978 S.W.2d 460

STATE of Missouri, Respondent, v. Joseph Albert KRIEBS, Appellant.

No. 21909.

Missouri Court of Appeals,

Southern District,

Division Two.

Sept. 29, 1998.

Motion for Rehearing or Transfer

Denied Oct. 19, 1998.

Application for Transfer Denied Nov. 24, 1998.

Roy W. Brown and Bruce B. Brown, Kearney, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jill C. LaHue, Asst. Atty. Gen., Jefferson City, for Respondent.

GARRISON, Chief Judge.

On May 22, 1996, Sheriff Wayne Spain of Dade County, Missouri, along with other officers, served a search warrant at the home of Joseph Albert Kriebs ("Appellant"). Sheriff Spain told Appellant that the officers had information that he was growing marijuana, to which Appellant replied either, "Yeah" or "Yes sir, I am." When asked if Appellant would show it to them, Appellant invited the officers into the house and took them to a bedroom where 482 plants were growing inside plastic tubs and styrofoam cups. Subsequent laboratory testing confirmed that the plants were marijuana containing THC. Appellant was tried and convicted of the Class B felony offense of producing marijuana, and of the Class C felony offense of possession of more than 35 grams of marijuana, in violation of §§ 195.211 and 195.202. ¹ The jury assessed a prison term of fifteen and seven years respectively. Appellant's post-trial motions were overruled. Contrary to the jury's assessment of punishment, the trial court imposed two concurrent seven-year prison terms. On this appeal, Appellant contends that the trial court erred in admitting the marijuana into evidence over his objections; in overruling his objections, and failing to grant a mistrial, with regard to statements made by the prosecutor during closing argument; and in submitting both offenses to the jury instead of submitting them in the alternative.

In his first point relied on, Appellant contends that the trial court erred by admitting the marijuana. His point raises a "chain of custody" issue in which he asserts that no sufficient chain of custody was established, because there was not a "reasonable assurance" that State's Exhibit 1, which contained the sample of marijuana tested by the crime lab, and State's Exhibit 2, which contained the bag of marijuana allegedly seized from his property, were in the same condition when tested as when recovered, or that they even comprised the plants that were seized from Appellant's house. In support, Appellant argues that: 1) the identification tags on the exhibits showed a date of seizure of April 22, 1996, but were subsequently altered to show the "true" date of May 22, 1996; 2) according to the identification tag on State's Exhibit 2, it had a weight of 66 lbs. before dry and 36 lbs. after dry, yet the lab technician measured the exhibit to weigh approximately 4.5 lbs.; 3) at least one plant in State's Exhibit 2 was taller and older than the ones allegedly seized from Appellant's home; 4) State's Exhibit 2 was said to contain 482 plants, while a witness claimed that the exhibit could contain no more than 300 plants; and 5) the identification tag on State's Exhibit 2 contained the words "outdoor grow," while the plants were seized from inside Appellant's home. ²

The sufficiency of evidence establishing a chain of custody is a matter addressed to the sound discretion of the trial court. State v. Murray, 630 S.W.2d 577, 581 (Mo. banc 1982); State v. Taylor, 804 S.W.2d 59, 61 (Mo.App. W.D.1991). The trial court is in the best position to determine whether there has been improper tampering with an exhibit. State v. Huff, 789 S.W.2d 71, 78 (Mo.App. W.D.1990); State v. Dudley, 724 S.W.2d 517, 522 (Mo.App. W.D.1986). To receive testimony showing the results of tests performed on articles, the articles must be in the same condition when tested as when originally obtained. State v. Dunagan, 772 S.W.2d 844, 856 (Mo.App. S.D.1989). There is no requirement that the State must account for hand-to-hand custody of the evidence from the time it is obtained to the time it is admitted at trial; rather it is sufficient if the evidence shows a "reasonable assurance" that the exhibit offered is the same and in like condition as when received, and that the exhibit offered has not been tampered with or contaminated. Huff, 789 S.W.2d at 78; Dunagan, 772 S.W.2d at 856.

At trial, Sheriff Spain testified that he personally seized the plants and placed them in a plastic bag; that he transported the plants and placed them in the evidence locker at the Dade County jail; that the items remained in the locker untouched with two exceptions: First, on September 18, 1996, he personally took a sample, placed it in a paper bag (Exhibit 1), transported it to the regional crime laboratory, and retrieved it after testing on October 11, 1996. Second, on February 28, 1997, he took the plastic bag of plants seized, transported it to the laboratory, and retrieved it after testing on March 8, 1997. He further testified that the plants remained in the evidence locker between the time of testing and trial, and that they had been in his control, care, and custody at all times except the time that they were at the laboratory. Additionally, the lab technician testified that he received the marijuana from Sheriff Spain, tested it, and returned it directly to the sheriff, and that the exhibits were in his custody during the testing periods.

The testimony of Sheriff Spain and the lab technician offers a "reasonable assurance" that State's Exhibits 1 and 2 were in like condition when tested as when received, and that they had not been tampered with or contaminated. Even if a proper chain of custody were not established, however, the exhibits were properly admitted because the chain of custody of physical evidence is irrelevant where the exhibit is positively identified. State v. Malone, 694 S.W.2d 723, 727 (Mo. banc 1985); State v. Ingram, 607 S.W.2d 438, 441 (Mo.1980). See also State v. Adkins, 800 S.W.2d 28 (Mo.App. W.D.1990) (holding that where a trash bag of marijuana offered in evidence was positively identified as the evidence seized at the time of appellant's arrest, proof of chain of custody was unnecessary). In this case, Sheriff Spain positively identified both exhibits as the marijuana that he seized from Appellant's home.

Appellant asserts that the "broad" rulings of such cases as Malone, Ingram, and Adkins must have exceptions. In other words, he asserts that there must be exceptions to the rule that a positive identification of the evidence eliminates the need for establishing a sufficient chain of custody. In Malone, however, the Missouri Supreme Court stated that "any such weakness in identification was properly the subject of cross-examination, and was for the jury to consider in assessing the weight of the evidence." Malone, 694 S.W.2d at 727.

State v. Vik, 766 S.W.2d 641 (Mo.App. S.D.1989), is somewhat analogous to this case. In Vik, an officer seized a bag of marijuana from the defendant and placed it in an evidence locker. While doing so, he mislabelled the evidence tag. The officer inadvertently recorded "11-2-86" as the date, when in fact the bag was placed in the locker on 12-2-86. Thereafter, another officer removed the bag and took it to a crime lab for testing. He too mislabelled a report, showing the date that he took the evidence out of the locker as "12-1-86," instead of the true date of 12-3-86. The defendant asserted that the inconsistencies between the testimony of the two officers relative to the dates when the bag came into their possession, as well as the dates placed on the evidence tags and police reports, rendered the bag inadmissible for want of a proper foundation. The Court held that despite these inconsistencies, a proper chain of custody was established by the officers' testimony. In affirming the conviction and the admission of the bag of marijuana, the court stated:

While there was a conflict between the trial testimony [of the officers] as to when they took possession of the bag of marijuana, and the dates shown on the evidence tag and police reports as to when those events took place, the jury was entitled to hear, and accept if they chose, the two police officers' explanation as to how the mistakes occurred. It is evident from the verdict that the jury believed [the officers'] direct testimony, and that they accepted their explanation of the inconsistencies. They had a right to do so.

Id. at 643-44.

In this case, Sheriff Spain testified that he had incorrectly written a "4" instead of a "5," representing the month that the marijuana was seized. He further testified that when he discovered the error, he changed it to reflect the correct date. In light of the verdict, it is evident that the jury accepted this explanation. Furthermore, each of the other four "inconsistencies" was available to the jury for consideration in giving weight and credibility to the State's case. Specifically, the defense counsel argued during closing argument that a reasonable doubt existed with regard to Appellant's guilt, because the identification tag on State's Exhibit 2 revealed a weight before dry of 66 lbs. and a weight after dry of 36 lbs., while the lab technician measured the exhibit to weigh approximately 4.5 lbs. He further pointed out to the jury that at least one plant in State's Exhibit 2 was taller and older than the ones allegedly seized from Appellant's home. Finally, the words "outdoor grow" that were shown on the identification tag of Exhibit 2 were clearly visible to the jury, and the jury could have observed Exhibit 2 and the plants that it contained.

This court finds that all five "inconsistencies" which Appellant complains about were possible "weaknesses" for the jury to have considered in giving weight and credibility to the exhibits. Such "inconsistencies" go to the weight to be accorded to the evidence, not its admissibility. A sufficient foundation was laid for the...