State v. Lemon
| Decision Date | 31 December 1973 |
| Docket Number | No. KCD,KCD |
| Parties | STATE of Missouri, Respondent, v. Scott LEMON, Appellant. 26473. |
| Court | Missouri Court of Appeals |
Gerald Kiser, Public Defender, Liberty, for appellant.
John C. Danforth, Atty. Gen., Charles B. Blackmar, Asst. Atty. Gen., Jefferson City, for respondent.
Before SHANGLER, P.J., and SWOFFORD and WASSERSTROM, JJ.
Appellant was convicted of selling a quantity of Methamphetamine HC1, a restricted drug, in violation of Section 195.020 RSMo 1969, V.A.M.S., and was sentenced to 10 years in the Department of Corrections. From this conviction and sentence, he appeals.
The appellant (hereinafter called defendant) asserts five points upon which he seeks reversal.
First, the verdict was not based upon substantial evidence showing a sale of drugs by defendant to Donald Kenney as charged in the indictment. Second, the state's evidence rather 'tended' to show a sale to one Ed Bowman, and therefore there was a fatal variance between the indictment and proof. Third, the court erred in giving Instruction No. 2, hypothesizing a sale by defendant to Kenney, since there was no evidence of such sale or that defendant aided or abetted another to make such sale. Fourth, the court erred in giving Instruction No. 4, stating the law on aiding and abetting, since there was no evidence to support that theory of guilt. Fifth, the court erred in admitting State's Exhibit No. 1, an envelope and box containing a drug; that said exhibit was not properly identified as connected with the offense charged or with the defendant, in that the chain of evidence of possession, custody and identification thereof was incomplete.
For the disposition of this appeal, the defendant's position may be further condensed and summarized. Basically, he apparently takes the position that if the state's evidence established that he made a sale of restricted drugs the buyer was one Ed Bowman, not Donald Kenney, as charged in the indictment and submitted to the jury. He further asserts there was no evidence that he aided or abetted any subsequent sale by Ed Bowman to Donald Kenney. Lastly, he asserts that State's Exhibit No. 1 should not have been received in evidence because its chain of custody and possession from Kenney to the trial (a period of 9 months) was not sufficiently established.
Proper determination of the problems, thus presented, requires a somewhat detailed review of the evidence. Neither defendant nor Ed Bowman testified.
We recognize the rule that in determining the sufficiency of the evidence, this court accepts all evidence, circumstantial or direct, tending to support the conviction together with all favorable inferences reasonably to be drawn therefrom. State v. Harris, 485 S.W.2d 612 (Mo.1972); State v. Petrechko, 486 S.W.2d 217 (Mo.1972).
The indictment, under which the defendant was tried, charged that on December 8, 1971 he 'did then and there wilfully, unlawfully, feloniously and knowingly sell to Donald E. Kenney' (emphasis supplied) a quantity of Methamphetamine HC1, a controlled substance. In the light of this indictment, we will summarize the evidence in the two areas vital to the determination of this appeal and the resolution of the points urged by the defendant.
As to the sale. Donald E. Kenney was an undercover narcotics agent for the Gladstone, Missouri police department. He posed as a drug user in order to gather information and evidence for the prosecution of narcotic cases in Clay County, Missouri.
He testified that his only encounter with the defendant (whom he had not known before) was at the home of one Ed Bowman. Kenney, under the name of Dave Johnson, went to the Bowman home at about 7:40 p.m. on December 8, 1971 and found the defendant sitting behind the wheel of an automobile in Bowman's driveway. Another man, not further identified in the record, was sitting in the rear seat of the car. Kenney approached the car and asked the defendant if 'Ed' was at home. The defendant replied 'Yeah' and asked Kenney if he was 'Dave'. Kenney replied that he was and asked the defendant if he was 'Scott'. The defendant said that he was and 'indicated that they had been looking for me' (Kenney-Johnson). About that time, Ed Bowman came out of his house and stood at the driver's window and Kenney stood behind Bowman next to the left rear door of the car.
Kenney testified that the defendant then handed Ed Bowman a small piece of aluminum foil, two small pieces of aluminum foil stuck together; Bowman fumbled around with it and couldn't get it apart and handed it back to the defendant; the defendant then took 'them' apart and handed 'them' back to Bowman; Bowman then handed Kenney one of 'them' in the presence of the defendant and the defendant asked Kenney how he was going to use it and Kenney replied he would probably 'snort it' and the defendant pointed to the unidentified man in the back seat and said 'He knows all about snorting'; Bowman then handed the defendant a twenty dollar bill; the price was apparently eighteen dollars and the defendant said he did not have any change and Bowman then stated that 'he would trust him for the money'. Later that evening, Kenney gave Ed Bowman six dollars for the part of the substance that Kenney retained.
Kenney further testified that he had known Ed Bowman before and had talked to him earlier about trying to buy some 'speed' from the defendant. Bowman did not testify and is not further identified in the record.
On cross-examination of Kenney, this appears:
'Q. You did not pay or give the defendant anything, did you?
A. No.
Q. You did not receive directly from the defendant anything, directly?
A. No.'
This was the only testimony offered by the state as to the sale charged in the indictment.
As to custody and possession of Exhibit No. 1. Kenney testified that he did not mark the aluminum foil packet received from Ed Bowman in any was for identification, but that he did deliver it to his superior officer, Captain Arthur L. Piburn, at 9:45 p.m. the evening of December 8, 1971.
Kenney was handed State's Exhibit No. 1 and was asked to open it while on the witness stand. It was an envelope in which was a box within which was an aluminum foil packet which Kenney stated 'Appears to me to be the same one' he received, although the packet 'had not been folded' as was the one in Exhibit No. 1. From the witness stand Kenney unfolded the packet, opened it and examined its contents. He stated that the white powder which it contained was 'a substance similar' to that contained in the packet he received from Bowman. On cross-examination, the following appears:
'Q. You cannot here today tell this jury absolutely that this is the same packet that you received on that occasion, can you?
A. I don't have it marked, no, sir.
Q. You can't tell them that's the same packet, can you?
A. No, sir.'
Arthur L. Piburn, Captain of Detectives, of Gladstone, Missouri testified that he received an aluminum foil packet containing a white powder or crystals from undercover agent Kenney at about 9:45 p.m. on December 8, 1971. He 'assigned it a case number', placed it in a pill box and the box in an envelope both containing the date, time and where received and then sealed the envelope and placed it in his locker. He identifies State's Exhibit No. 1 as the pill box and evidence envelope. Only Captain Piburn and Sergeant Mullenix had access to this evidence locker. Piburn assigned Mullenix to transport this evidence to the Kansas City, Missouri police laboratory. Piburn testified that he had brought the evidence envelope and enclosed box to the prosecuting attorney at the start of the trial and had handed it to him in the hallway. He stated, however, that it was not then sealed with his identification seal and that he did not therefore know what was in the box.
Sergeant Russell Mullenix testified that at the direction of Piburn, he took the sealed envelope to the Kansas City police laboratory on December 22, 1971. He thereafter picked up an evidence envelope at the laboratory on January 6, 1972 and returned it to Captain Piburn. He had no knowledge of what was in the envelope at any time.
Karen Huselton is a chemist for the Regional Crime Laboratory at Kansas City. Her duties include the analysis of drug samples. She identified State's Exhibit No. 1 as having been brought to the laboratory on December 22, 1971 by Sergeant Mullenix. There were then two boxes in the evidence envelope--when she received it, one dated December 8, 1971 and the other dated December 15, 1971. Mullenix did not deliver these to her personally on December 22, 1971 but to someone else (whose identity was unknown to her) at the laboratory. She did not remember whether the evidence envelope was sealed when received by her for analysis. Her analysis showed that the pill box marked December 8, 1971 contained a powder form of Methamphetamine, a 'speed' drug. She does not know the exact date of her examination but it was sometime during the week of December 22, 1971, since her chemical report is dated December 29, 1971. Upon receipt from Sergeant Mullenix the laboratory would give him a detailed written receipt. No such receipt was proffered by the state.
This prosecution was based upon Section 195.020 RSMo 1969, V.A.M.S., which provides in pertinent part:
'Prohibited acts
It is unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, distribute, or compound any controlled * * * substance' (Emphasis supplied)
The indictment clearly, simply and unequivocally charges the defendant with a prohibited sale of a controlled substance to Donald Kenney. The state was not required to set forth in the indictment the name of the buyer. Our Supreme Court has held that the statute involved makes it an offense to sell the controlled substance to any person and, while it is desirable, it is not necessary that the name of the...
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