State v. Kuhrts

• Decision Date: 15 August 1978
• Docket Number: No. 39088,39088
• Citation: State v. Kuhrts, 571 S.W.2d 709 (Mo. App. 1978)
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Michael James KUHRTS, Defendant-Appellant. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 709

571 S.W.2d 709

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

No. 39088.

Missouri Court of Appeals, St. Louis District, Division Four.

Aug. 15, 1978.

Motion for Rehearing and/or Transfer Denied Oct. 13, 1978.

Application to Transfer Denied Nov. 6, 1978.

Robert W. Meyers, Shaw, Howlett & Schwartz, Clayton, for defendant-appellant.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Jeff Schaeperkoetter, Carson W. Elliff, Asst. Atty's. Gen., Jefferson City, Daniel M. Buescher, Pros. Atty., David B. Tobben, Asst. Pros. Atty., Union, for plaintiff-respondent.

SNYDER, Judge.

Defendant Michael James Kuhrts was convicted by a jury of the sale of a controlled substance (§ 195.020, RSMo Supp.1975 ¹) and sentenced to five years' imprisonment. He appeals.

As grounds for reversal, appellant contends that the trial court erred in: (1) refusing to suppress the testimony of a state trooper and evidence concerning lysergic acid diethylamide (LSD) "seized" from appellant; (2) ordering appellant to comply with certain disclosure requests; (3) admitting into evidence a bag of white powder received from appellant; (4) submitting verdict directing Instruction No. 5 to the jury; (5) denying appellant's motions for a directed verdict; and (6) permitting a state trooper to state that he feared for the safety of an informant.

A Missouri State Highway Patrol trooper was working undercover on March 4, 1975 in Gasconade and Franklin Counties. He arrived in Union about 8:45 p. m., picked up his "confidential informant" and two other men and drove to a local fast food drive-in where they met the appellant. One of the occupants of the car started talking with appellant about drugs and appellant got into the car. The appellant brought up the topic of mescaline, and said "Patty" had some for sale at $45 an ounce. Appellant said he could get some for the trooper and directed him to drive to Patty's. When they arrived, appellant and another of the car's occupants (not the trooper) went into an apartment building. The trooper had given appellant $45 to make a purchase for him. When defendant and the other person returned to the car, appellant handed the trooper a bag of white powder which was subsequently determined to contain LSD. Appellant was arrested for the sale of LSD some eleven months after the incident. His trial and conviction followed. Other necessary facts will be related in the discussion of issues raised on appeal.

Appellant first claims error in the refusal of the trial court to suppress the testimony of the state trooper and the evidence of the bag of white powder (state's Exhibit No. 1). The point has not been preserved for review either as to the suppression of evidence of state's Exhibit No. 1 or the testimony of the trooper.

Appellant's motion to suppress does not mention the state trooper. It refers only to an arrest by Franklin County officers and an allegedly illegal seizure at the time of the arrest. However, at the hearing on the motion before trial and again immediately before trial, appellant argued orally that the state trooper's testimony as well as the "items of evidence seized" (presumably the bag of white powder) should be suppressed. As grounds for suppression appellant asserted that the state trooper had no statutory authority to act as an undercover agent under the circumstances. Nowhere in the record is there a specific motion by appellant, either oral or written, to suppress the trooper's testimony, but for appeal purposes appellant's argument at the pretrial hearing will be considered as a motion to suppress the testimony of the trooper.

However, the objections made during the trial to the testimony of the trooper were that his statements were irrelevant, immaterial and self-serving declarations. The court overruled the objections. Appellant raised no objections at trial based on the trooper's alleged lack of authority to carry on investigative activities in Franklin County. Then, in his motion for a new trial, appellant returned to the claim that the trooper's testimony as to state's Exhibit No. 1 should have been suppressed because of his lack of statutory authority to act.

A point raised on appeal which is not based on the theory of the objection made at trial is not preserved for review. State v. Carter, 557 S.W.2d 47 (Mo.App.1977); State v. Washington, 320 S.W.2d 565 (Mo.1959). "In order to preserve for appellate review an objection to the admission of testimony the objection stating the grounds must be made at the time the evidence is sought to be introduced, and the same objection and grounds must be set forth in the motion for a new trial." State v. Hernandez, 325 S.W.2d 494, 496 (Mo.1959). Here the objections made at trial, irrelevancy, immateriality and self-serving declarations, were not the same as the reasons assigned for error in the motion for a new trial and the point as to the trooper's testimony is not preserved for review.

Appellant argues at length, as a basis for his objection to the introduction in evidence of state's Exhibit No. 1, that the Missouri State Highway Patrol has limited powers of search and seizure. His motion to suppress alleges his arrest by Franklin County officers on March 4, 1975. In fact, appellant was arrested some eleven months later. The motion further alleges that the Franklin County officers did not have a warrant, did not witness the appellant in violation of law and had no probable cause to arrest appellant. The motion then goes on to say that "certain articles" were taken from the appellant pursuant to an illegal and unconstitutional arrest, an allegation far afield from the facts.

Appellant's objection to state's Exhibit No. 1 at trial was as follows:

Judge, we would object for the reason that there has been, first of all, no foundation laid for it being admitted in evidence and, secondly, no quantitative analysis of this particular supplement of this of this State's Exhibit No. 1, for the reason that it has not been properly examined or is there any proper quantitative analysis of this object, State's Exhibit No. 1.

As grounds for his motion for a new trial, appellant asserts that the evidence of the bag of white powder should be suppressed because the state trooper did not have authority to carry on law enforcement activities in Franklin County under the circumstances. Thus, one reason for suppression of the evidence is given by appellant in his motion to suppress, a different reason is given for his objection at trial, and still a third reason is advanced in his motion for a new trial. This point also is not preserved for review. State v. Hernandez, supra; State v. Washington, supra; State v. Carter, supra. Also see State v. Brookshire, 353 S.W.2d 681 (Mo.1962).

Even if appellant had properly raised this point on appeal, it would be ruled against him. There was no search and seizure of state's Exhibit No. 1. It was not taken from appellant at the time of his arrest, which occurred some eleven months after the bag came into possession of the trooper. The trooper purchased it from appellant and at that time acquired the right to possession and control of the substance. Such a purchase is not a search or seizure. Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966); State v. Hughes, 519 S.W.2d 18 (Mo.1975); State v. Flynn, 519 S.W.2d 10 (Mo.1975).

Appellant next urges that the trial court erred in overruling his motion for a continuance and in ordering him to respond to paragraphs two and five of the state's request for disclosure. The argument portion of his brief is directed only to the state's request for disclosure. The denial of the motion for a continuance is not mentioned, nor are any authorities cited to support the granting of a continuance. Therefore, only the matter of the request for disclosure will be considered.

The challenged paragraphs in the state's request for disclosure are framed in the language of Rule 25.34(A)(2) and (5). On October 29, 1976, appellant confessed the state's request for disclosure. On December 12, 1976, the morning of the trial, appellant attempted to withdraw his confession of the disclosure request. The court refused to allow him to withdraw his confession and overruled his objections to paragraphs two and five.

The two paragraphs objected to by appellant read as follows:

(2) The names and last known addresses of persons, other than Defendant, who Defendant intends to call as witnesses at any hearing or at trial, together with their written or recorded statements, and existing memoranda reporting or summarizing part or all of their oral statements;

(5) Any intent of the Defendant to rely on the defense of alibi, and specific information as to the place at which the accused claims to have been at the time of the alleged offense, together with the names and addresses of the witnesses by whom he proposes to establish such alibi.

Appellant cites only Wardius v. Oregon, 412 U.S. 470, 472, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973) in support of his objection. There the United States Supreme Court held that due process "forbids enforcement of alibi rules unless reciprocal discovery rights are given to criminal defendants. Since the Oregon statute did not provide for reciprocal discovery, it was error for the court below to enforce it against petitioner . . . ." Wardius is distinguishable. Missouri rules allow criminal defendants liberal reciprocal discovery rights. Oregon did not.

Further, appellant has not stated in his brief any specific way in which he would be prejudiced by the disclosure of the requested information. A defendant lacks standing to challenge the constitutionality of the rule requiring a defendant to disclose certain information to the state in the absence of a showing that he was prejudiced by the operation of the rule. State v. Toliver, 544 S.W.2d 565 (Mo. banc 1976). This point is ruled against appellant.

Appellant...