State v. LaMae, 81,771.

• Decision Date: 25 February 2000
• Docket Number: No. 81,771.,81,771.
• Citation: 268 Kan. 544,998 P.2d 106
• Parties: STATE OF KANSAS, Appellee, v. GEORGE LaMAE, Appellant.
• Court: Kansas Supreme Court

268 Kan. 544

998 P.2d 106

STATE OF KANSAS, Appellee, v. GEORGE LaMAE, Appellant.

No. 81,771.

Supreme Court of Kansas.

Opinion filed February 25, 2000.

Patrick E. D'Arcy, of Kansas City, argued the cause and was on the brief for appellant.

Sheryl L. Lidtke, assistant district attorney, argued the cause, and Nick A. Tomasic, district attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellee. The opinion of the court was delivered by

DAVIS, J.:

The defendant, George LaMae, was convicted of the manufacture of methamphetamine and first-degree felony murder. The case was severed from that of a codefendant, Thomas Finley, prior to trial. Both were convicted and sentenced. This is the appeal filed by LaMae. Finley's convictions were reversed by this court on today's date. See State v. Finley, No. 81,953, filed February 25, 2000.

The defendant asks this court to reverse his convictions based upon the following five reasons: (1) the failure of the trial court to suppress evidence or grant a new trial based on destruction of evidence; (2) the insufficiency of evidence based on the theory of impossibility; (3) the trial court's refusal to give a requested alternative instruction on felony murder; (4) the refusal of the trial court to instruct on ignorance or mistake; and (5) the merger of the charged drug offense with the death of the victim.

On October 1, 1997, the body of LaDonna Jones was found in an attic in Kansas City, Kansas, following a fire which extensively damaged the residence. Evidence was collected which suggested that the production of methamphetamine was the cause of the fire.

The defendant, after being taken into custody, signed a written confession. He stated that he and his girlfriend, the victim, went to the house of Tom Finley around 10:30 in the morning. He stated that he went to the house because he was in possession of a jar of a reddish-brown oil substance that was supposedly from a methadone cook. He took it to Finley because Finley would know how to finish producing it. Finley was working on a car and could not get to it at the time. The defendant stayed at Finley's house all day, although Jones left to go to work and then came back later.

Sometime after midnight that night, Finley, Jones, the defendant, and Finley's girlfriend Dee Sklar went to the attic to finish producing the methamphetamine. Also present in the house were a "skinny kid" and two other friends of Finley, Mike Quinn and Lonnie Joe Pugh. Quinn and Pugh were both asleep downstairs.

According to the defendant, Finley put some of the liquid in the jar in a glass dish and put the dish on a hot plate. Finley then sent Sklar downstairs for some acetone, and he applied the acetone to the substance. Finley then poured the substances through a filter. The resulting mixture was not purely white and Finley told the defendant that this was because the acetone was not clean. Finley was repeating the process with more of the liquid when the electricity went off. Finley then tried heating the mixture with a propane torch. However, when he was attempting to run acetone through it, the mixture caught fire. Attempts to put out the fire with a shirt spread the burning mixture. The fire separated Finley, Sklar, and the defendant from Jones. Finley, Sklar, and the defendant escaped from the house but Jones did not. The defendant testified that he wandered through the yard calling Jones' name and then got into a truck driven by Pugh and drove off.

At trial, the State presented the testimony of Pugh. Pugh confirmed that he was living in Finley's house at the time of the incident and testified that he was sleeping in his room when he heard Finley and Sklar screaming about a fire. Pugh stated that he jumped out of his first-story window and saw people running out of the house. Pugh got into his truck in order to get it away from the house. As he was leaving, the defendant jumped into his truck and said that he needed to get out of there because, with his warrants, he would be "in jail forever." Pugh drove the defendant to a house which he thought was the house of the defendant's brother.

The State also presented the testimony of Shawn Rader, also known as "Slinky." Rader testified that he was staying at Finley's house on the night of the incident because Finley was going to fix his truck the next day. Rader testified that prior to going upstairs, Finley, Sklar, the defendant, and Jones were using methamphetamine. The four of them then went upstairs and the defendant told Rader to "holler" if he was going to go upstairs.

Rader testified that he was reading magazines when the power went out. Sklar and Finley then came downstairs, went to the garage, and came back with a halogen headlight hooked to a car battery. Later, Sklar came down and went into the garage. At this point, Rader decided to go upstairs to the attic. He yelled upstairs but did not get an answer. As he ascended the stairs, he saw a pan encompassed in flames fly by. He then ran back downstairs. The defendant ran past him and out the door.

Agent L.D. Matthews of the Drug Enforcement Agency (DEA) testified regarding the heat reduction method of methamphetamine production. Methamphetamine is produced from the breakdown of ephedrine or pseudoephedrine, common ingredients in over-the-counter medications such as cold tablets. The ingredients are separated from the binder material in the tablets by adding a liquid cleaning solvent such as Naptha or methanol such as that found in Heet antifreeze. The mixture is allowed to sit for a period of time, during which the ephedrine is absorbed by the liquid and the binding material settles to the bottom. The liquid is then removed for further processing.

The liquid is evaporated, usually through the application of a heat source, leaving behind the ephedrine in a powder form. Red phosphorous and iodine crystals are then added to the ephedrine powder. The combination of these three powders will create heat but most manufacturers also apply heat to the powders to speed up the process. A small amount of water is added to make a syrupy mixture and the mixture is cooked for several hours until the powders have liquified.

At this point, the mixture is removed from the heat and left to cool. It separates into a dark maroon liquid and a red phosphorus sludge. The mixture is filtered through a common coffee filter and the liquid saved. The liquid now contains methamphetamine but not in a usable form. The liquid must be neutralized through the application of a base such as that found in Red Devil lye. A solution of lye and water is added to the liquid. Coleman stove fuel is then added. The methamphetamine is drawn into the stove fuel and other contaminants sink to the bottom. The contaminants are discarded and either hydrochloric, muriatic, or sulfuric acid is added to the solution to make it crystallize. The result is methamphetamine in a powder form. The methamphetamine powder is white but it can be other colors depending upon how much of the contaminants still remain. The powder is then dried out over slow heat. If the powder contains too many contaminants, acetone is applied to clean it out. The powder is then ready to be used. The process is very dangerous. Not only are the chemicals used at each stage very flammable in and of themselves, but their fumes can also be flammable. The acids used can eat through clothing and skin, and the lye can also cause burns. The red phosphorus used is a flammable solid which is commonly used in explosives, fireworks, and road flares. Iodine crystals, if exposed to air higher than 60 degrees in temperature, will emit poisonous fumes. If the solution is allowed to dry out too much during the cooking process, deadly phosgene gas is created. This situation is exacerbated by the fact that most persons making methamphetamine learn to do so by watching others do it, buying certain recipes, or through trial and error. Most of the time, the whole process is not done at one location, but instead different parts are done at different locations.

A search of the attic by officers of the DEA uncovered evidence of methamphetamine manufacture, including several Coleman fuel cans; glassware, including a glass measuring cup and a round bottom flask; a melted plastic container with a two-layer liquid; an electric skillet; a propane bottle; a 32 oz. bottle of muriatic acid; a 32 oz. bottle of hydrochloric acid; a 32 oz. can of acetone; and a 12 oz. can of Red Devil lye. On the main floor of the residence, officers found a black billfold with two spoons containing white residue. In a plastic trash bag outside the house, officers found two 32 oz. cans of VMP Naptha; four empty 12 oz. plastic bottles of Heet antifreeze; three empty gallon cans of Coleman fuel; an empty 12 oz. can of Red Devil lye; three plastic funnels; coffee filters stained with red phosphorous residue; plastic baggies; and 19 empty pseudoephedrine bottles; and some plastic tubing. In a rental car belonging to Jones which was parked outside the residence, officers found a 32 oz. bottle of hydrochloric acid, two flasks, a black spoon with white reside, a silver hand scale, a 500 ml. glass bottle of acetic acid; a brown glass bottle of methanol, and a 32 oz. bottle of glass cleaner.

One of the pseudoephedrine bottles was retained as a sample. A sample was also taken of the liquid found in the burned plastic container in the attic. The Kansas City, Kansas, Fire Department also kept a propane torch discovered in the attic, the remains of a red plastic 12-volt lamp, a mass of plastic with a metal pail handle, a charcoal lighter, a chrome lighter, and a metal cap from a fuel container. The rest of objects found were destroyed as hazardous waste by a methadone lab cleanup contractor brought in by the DEA.

The liquid sampled from the burned plastic container was separated into liquid and solid portions. Analysis of the liquid...