State v. McNeal, 36711

• Decision Date: 13 July 1976
• Docket Number: No. 36711,36711
• Citation: 539 S.W.2d 722
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Charles McNEAL, Defendant-Appellant. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 722

539 S.W.2d 722

STATE of Missouri, Plaintiff-Respondent, v. Charles McNEAL, Defendant-Appellant.

No. 36711.

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

July 13, 1976.

Charles D. Kitchin, Public Defender, James C. Jones, Henry Riecke, Asst. Public Defenders, St. Louis, for defendant-appellant.

Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for plaintiff-respondent.

KELLY, Judge.

Charles McNeal, appellant, was convicted of feloniously selling a Schedule I Controlled Substance--Heroin--in violation of § 195.020 RSMo. 1969 and sentenced to imprisonment in the custody of the Missouri Department of Corrections. § 195.200(4) RSMo. 1969. He appeals contending that his conviction should be reversed and he should be discharged or, in the alternative, his conviction should be reversed and the cause remanded for a new trial. We affirm the judgment of the trial court.

On appeal Mr. McNeal alleges that the trial court was guilty of error in: 1) permitting the substitution of an information wherein the date of the offense charged was changed from December 1, 1973, as pleaded in the indictment originally filed in the Circuit Court of the City of St. Louis, to December 2, 1973, and thereby 'prejudiced substantial rights of the defendant.' 2) in overruling his motion for judgment of acquittal at the close of all of the evidence because the evidence was insufficient to prove that he was involved in the sale of heroin on December 2, 1973, beyond a reasonable doubt; and 3) in denying his motion for mistrial when the prosecutor introduced testimony that the police officer, Richard C. Hemphill, attempted to purchase heroin from him in November of 1973, and in permitting, over his objections, evidence of unrelated crimes.

With respect to appellant's first point, this proceeding was instituted by the filing of an indictment in the office of the Clerk of the Court for Criminal Causes of the City of St. Louis charging that the offense was committed on December 1, 1973. On November 18, 1974, by leave of court, a Substitute Information in Lieu of Indictment was filed charging appellant with the Illegal Sale of a Schedule I Controlled Substance--Heroin--on December 2, 1973 and on November 20, 1974, the cause came on for trial on this Substitute Information. Prior to the commencement of the trial a conference was held in the chambers of the trial court at which time the Assistant Circuit Attorney outlined what had occurred with reference to the endorsement of two additional witnesses after the filing of the original indictment and the filing of the Substitute Information in Lieu of Indictment aforesaid. He stated to the trial court that he noticed that day that the State had not endorsed those two witnesses on the 'new information' and he was therefore filing 'another memorandum with the Court, endorsing' those two witnesses--Robert Roither and Thomas Marren, from the St. Louis County Police Department. The trial court inquired of appellant's counsel if he had any objection to those actions outlined by the State's attorney and he replied that he had no objection. The trial court thereupon announced that leave would be granted to add the endorsements, that leave had already been granted to file the substitute information, and inquired if there were any other matters that should be taken up. Appellant's counsel replied that he would like for the record to show that prior to the filing of the substitute information his client maintained that he was normally baby-sitting for his sister's children during the time this alleged crime occurred, but with the change of date as pled in the substitute information his client said he would not have been baby-sitting on that date because his sister would not have been working. However, although the record indicates that the question of alibi might have been discussed on November 18, 1974, when the trial court granted leave to file the substitute information, whatever that discussion constituted is not a part of this record and we would have to speculate as to its contents. Suffice it to be said, however, that other than this statement by defense counsel that the change of date ruled out the alibi appellant might have attempted to establish so long as the date of the offense was allegedly December 1, 1973, no objection to the filing of the substitute information nor to proceeding to trial on it was lodged. No request for a continuance so that he might prepare his defense, nor for any other reason, was voiced at that time.

We have searched the Motion for New Trial filed in this cause for any reference to this point as a grounds for new trial in the trial court but this point is nowhere to be found therein. It is fundamental that where an appellant fails to make known to the trial court his objection so that he might obtain relief and where he fails to call this alleged error to the attention of the trial court in his motion for new trial, he cannot, with a few exceptions, raise it for the first time on appeal. State v. Bowens, 476 S.W.2d 495, 498(5) (Mo.1972), State v. Henderson, 510 S.W.2d 813, 821(12) (Mo.App.1974), Rule 27.20(a) V.A.M.R. Where a defendant proceeds to trial on a substitute information without making known his objections prior to trial, he cannot complain of error, if any, in that respect on appeal. State v. Cook, 333 S.W.2d 337, 340(7) (Mo.App.1960), State v. Maxie, 513 S.W.2d 338, 340(1) (Mo.1974). Furthermore, the appellant utterly fails to show how he was prejudiced by this change in dates. He took the stand in his own defense and denied that he had ever seen Officer Hemphill prior to the day of trial and further testified that on December 2, 1973, he was at home watching a football game because that was his custom to watch football games on Sunday afternoons. He had no independent recollection of this particular Sunday, but it was his habit to spend his Sunday afternoons watching football games. He denied that he had ever been involved in the sale of heroin. At no time has this appellant contended that he was denied any defense to this charge by the change in date. We rule this point against appellant.

With respect to appellant's second point--that there was insufficient evidence to support his conviction--we view the evidence in a light most favorable to the jury verdict, taking all of the State's evidence as true and considering the inferences most favorable in support thereof. Viewed in this light, the jury could have found from the State's evidence that on Sunday, December 2, 1973, Richard C. Hemphill, was a Detective employed by the St. Louis County Police Department as an undercover narcotics agent who performed his duties wearing old clothes, long hair and a beard. That sometime in November, 1973, he had struck up an acquaintance with the appellant through an informant, and at approximately 11:45 or 11:50 a.m. on that Sunday morning he came into the City of St. Louis with $150.00 in his possession for the purpose of purchasing some drugs. He also had another party--an informant--with him at the time. He drove his car to the vicinity of Vandeventer and Aldine in the City of St. Louis and parked his automobile there, remaining behind the wheel of his car. Appellant, whom Hemphill identified as 'McNeal,' came out of a residence near where he was parked and walked onto a vacant filling station parking lot, came over to the car in which Hemphill was seated, and got into the back seat. Hemphill was then introduced to appellant and asked him if he could get some heroin. Appellant replied that he could, and a discussion followed relative to the quality, the color, and 'how many times it would be stepped on.' ¹ Appellant then directed Hemphill and the informant to a residence located near the intersection of Fall and Cottage Avenues, and upon arriving there Hemphill gave appellant the $150.00 to purchase the drugs. Appellant got out of the car, entered the residence, but returned shortly, stated that there was no one at home, and suggested that he might be able to get some heroin at another location. Appellant then directed Hemphill to the intersection of Jefferson and Sullivan Avenues in the City of St. Louis, where Hemphill parked the car on sullivan Avenue and the appellant exited the car and went into a residence at either 2532 or 2534 Sullivan Avenue. Five or ten minutes later the appellant returned to the car and handed Hemphill a tinfoil packet which, upon examination, was determined to be satisfactory to Hemphill. As part of his compensation for getting the heroin for Hemphill, appellant took a pinch of the heroin in his fingers. Appellant, who up to this point had been attired in jeans and a jean jacket, re-entered the residence on Sullivan Avenue and returned to the car wearing a leather type jacket. When asked about the leather type jacket, appellant answered that he owed 'the guy inside' some money and that he had paid the man and got the jacket back. Hemphill then asked the appellant if there was someplace he could drop him off; appellant told him to drop him off right up the street on Grand Avenue because he had some business to conduct there. Hemphill then drove appellant to Grand Avenue where he let him out of the car.

Hemphill labeled the tinfoil package and its contents and packaged it as evidence, put it in his evidence locker, sealed it, and on Monday morning, December 3, 1973, took it to the St. Louis County police laboratory where he surrendered it to Robert Roither, a chemist, who took custody of the evidence envelope and its contents until later that same day when he delivered it to Thomas Marren, a criminalist employed at the police laboratory.

Thomas Marren testified that he was employed as a criminalist by the St. Louis County Police Department when, on December 3, 1973, he received an evidence envelope from Officer Roither which he placed in an evidence locker until December...