State v. Lloyd

• Decision Date: 27 November 2006
• Docket Number: No. 26737.,26737.
• Citation: 205 S.W.3d 893
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Eubert G. LLOYD, Jr., Defendant-Appellant.
• Court: Missouri Court of Appeals

205 S.W.3d 893

STATE of Missouri, Plaintiff-Respondent, v. Eubert G. LLOYD, Jr., Defendant-Appellant.

No. 26737.

Missouri Court of Appeals, Southern District, Division Two.

November 27, 2006.

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Douglas A. Forsyth, St. Louis, MO, for Defendant-Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, MO, for Plaintiff-Respondent.

JEFFREY W. BATES, Chief Judge.

In August 2002, Eubert Lloyd (Defendant) was charged by information with committing the class B felony of manufacturing a controlled substance in violation of § 195.211 by growing more than five grams of marijuana.¹ The original information was later amended to allege that Defendant was a persistent offender. See § 558.016.3. During the trial, the court found Defendant to be a persistent offender beyond a reasonable doubt. A jury convicted Defendant of the charged offense, and the trial court determined punishment. See § 557.036.4(1). Defendant received an enhanced sentence of 30 years in prison. See § 558.016.7(2). Defendant presents four points on appeal. He contends the trial court erred in: (1) excluding hearsay evidence relating to Defendant's state of mind concerning the growing of marijuana on his property; (2) not acting sua sponte to remedy alleged prosecutorial misconduct during cross-examination and closing argument; (3) excluding evidence that other marijuana was discovered on Defendant's property five months after he was arrested; and (4) denying Defendant's motion to suppress. We affirm.

Defendant does not contest the sufficiency of the evidence to support his conviction. "We consider the facts and all reasonable inferences derived therefrom in a light most favorable to the verdict, and we reject all contrary evidence and inferences." State v. Campbell, 122 S.W.3d 736, 737 (Mo.App.2004). We have applied this standard in summarizing the facts set forth below.

Defendant and his wife, Sheena Lloyd (Sheena), owned a 180-acre farm in Crawford County, Missouri. They lived in a house on the premises along with Sheena's son, D.J. Sergeant Richard Lisenbe (Lisenbe) worked for the Missouri State Highway Patrol in the marijuana eradication unit. On June 20, 2002, he and other officers went to Defendant's farm. In a forested area behind the barn, officers found a cleared patch containing two cultivated marijuana plants. In another wooded area about two hundred yards from the front entrance to Defendant's house, the officers found a second cleared patch containing 228 cultivated marijuana plants. Lisenbe left Defendant's premises and obtained a warrant to search Defendant's home and outbuildings.

Defendant and Sheena were at home when the warrant was executed the following day. D.J. had left two or three weeks earlier to spend the summer with his grandparents. In a red shed about 70 feet from Defendant's house, officers found an indoor marijuana-growing operation. They observed two stacks of bricks with a blanket over the top. Underneath the blanket, there were growth lights suspended over 72 starter pots containing marijuana seeds. A fan was pointed into the growing area to keep it cool. The shed also contained black buckets, potting soil and fertilizer. Just behind this shed, officers located 25 starter marijuana plants in styrofoam cups. In another nearby shed, more plant food and fertilizer were discovered in large white containers. In a small roofless enclosure, officers located more starter plants in styrofoam cups. In Defendant's barn, officers found enough water hoses to reach the large marijuana patch in the woods. From that patch, officers seized 228 plants.² Each plant would produce at least one pound of marijuana, which had a street value of around $1,200. The plants appeared to have been placed in holes dug with a post-hole auger and filled with potting soil and fertilizer. A tractor equipped with an auger was located in Defendant's yard. There was a worn patch connecting the house to the large marijuana field. In addition, officers seized the two plants from the smaller marijuana patch from the clearing in the woods behind the barn.

Defendant's two-bedroom residence was searched next. In the bedroom used by Defendant and his wife, officers removed plant food, a used pipe and some seeds or leafy material that appeared to be marijuana. In D.J.'s bedroom, officers removed a marijuana plant, a water pipe and a High Times magazine containing an article titled, "What to Feed Your Weed." In another part of the house, officers seized a bong, rolling papers, a machine to help roll cigarettes, marijuana seeds, a set of portable scales and an electrical box containing a number of breakers that could be used to control circuits running to the outbuildings like the red shed.

Subsequent to the search, Defendant was charged with manufacturing a controlled substance by knowingly growing more than five grams of marijuana. Following Defendant's conviction of this offense, he appealed. Additional facts necessary to the disposition of the case are included below as we address Defendant's four points of error. For ease of analysis, we will address Defendant's points out of order.

Point IV

Defendant's fourth point concerns the court's ruling on his pre-trial motion to suppress. In May 2003, Defendant filed a motion to suppress all evidence seized by officers during the search of Defendant's property on June 21, 2002. The motion alleged the search was invalid on various state and federal constitutional grounds. The hearing on the motion was held in March 2004. The parties agreed that the trial court could rule after examining the search warrant, Lisenbe's warrant application and affidavit, his deposition and the deposition of an Officer Little. In August 2004, the court made a docket entry denying the motion to suppress.

Trial commenced on August 25, 2004. The motion to suppress was not renewed at trial by defense counsel.³ Furthermore, counsel did not secure, by stipulation or ruling, the right to assert a continuing objection to any evidence seized by officers during the search of Defendant's farm based on the grounds asserted in the motion to suppress. Lisenbe was the State's first witness. During his testimony, 37 exhibits were admitted in evidence.⁴ These exhibits included the pipe seized from Defendant's bedroom, two water pipes seized from Defendant's house and 34 photographs depicting other items that were observed and/or seized by officers during the search. Defendant's attorney stated that he had "no objection" to the admission of these exhibits. Lisenbe's testimony was devoted almost exclusively to identifying and explaining the significance of these 37 exhibits to the jury. At no point during Lisenbe's testimony did defense counsel assert any state or federal constitutional objections to these exhibits or Lisenbe's discussion of them.

The State's only other witness was Highway Patrol Crime Lab employee Darian Attebery (Attebery). She performed the laboratory analysis of the plant material contained in State's Exhibit 2. This exhibit had been identified by Lisenbe during his testimony as the plant leaves he had collected during the search of Defendant's farm. Attebery testified that these leaves, which weighed 570 grams, were marijuana. When the State offered Exhibit 2 in evidence, defense counsel stated that he had "no objection." Defendant asserted no state or federal constitutional objections to Lisenbe's identification of Exhibit 2, the admission of the exhibit itself or the conclusions Attebery reached after analyzing the leaves.

After Defendant was convicted, counsel filed a motion for new trial. The motion contains no allegation that the trial court erred either by denying the motion to suppress or by admitting evidence seized by officers during the search of Defendant's premises.

Defendant's fourth point asserts that the trial court erred in denying the motion to suppress because the warrant was not issued upon adequate probable cause, thereby rendering the search of Defendant's property illegal. This point is defective because the only ruling it challenges is the court's decision to deny the motion to suppress. A pretrial ruling on a motion to suppress and the court's later decision to admit evidence at trial are two separate procedures. A trial objection to the admission of evidence challenged in a motion to suppress is required to preserve the issue for appellate review. State v. Williams, 9 S.W.3d 3, 11 (Mo.App.1999).⁵ Consequently, the ruling on a motion to suppress generally cannot be asserted as a point of error on appeal. Id. "[O]rdinarily, a point relied on that refers only to a ruling on such motion is fatally defective." State v. Shifkowski, 57 S.W.3d 309, 316 (Mo.App.2001). This rule attends because such a ruling is interlocutory and subject to change during trial. Id. "When a pretrial motion to suppress evidence is denied, the defendant must renew the objection or make a specific objection at trial when the evidence is presented to preserve the issue of appellate review. The trial court must be given the opportunity to reconsider its prior ruling against the backdrop of the evidence adduced at trial." State v. Morrow, 996 S.W.2d 679, 681-82 (Mo.App. 1999) (citations omitted). "Accordingly, a point relied on attacking the trial court's ruling on a pretrial motion to suppress, without attacking the court's ruling admitting the evidence, is deficient in that it does not identify the actual ruling that is subject to challenge and, therefore, does not preserve the issue for appellate review." State v. Wolf, 91 S.W.3d 636, 642 (Mo.App.2002).

We acknowledge that an unpreserved error in the admission of evidence that is the subject of a motion to suppress can, in some instances, be reviewed pursuant to Rule 30.20 for plain error.⁶ See e.g., State v. Eoff, 193 S.W.3d 366, 375 (Mo.App.2006)Top...