State v. Neher, No. 27153 (Mo. App. 6/27/2006)

• Decision Date: 27 June 2006
• Docket Number: No. 27153,27153
• Parties: STATE OF MISSOURI, Plaintiff-Respondent, v. BRIAN EDWIN NEHER, Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

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STATE OF MISSOURI, Plaintiff-Respondent, v. BRIAN EDWIN NEHER, Defendant-Appellant.

No. 27153

Court of Appeals of Missouri, Southern District, Division Two.

June 27, 2006

Appeal from the Circuit Court of Barton County, Honorable James R. Bickel, Circuit Judge.

Kent Denzel, Asst. Public Defender of Columbia, MO, for Appellants.

Jeremiah W. (Jay) Nixon, Atty. Gen.; Shaun J. Mackelprang, Asst. Atty. Gen. of Jefferson City, MO, for Respondents.

Jeffrey W. Bates, Chief Judge.

On August 30, 2004, Barton County Sheriff William Griffitt (Sheriff Griffitt), received a telephone call concerning Brian Neher (Defendant) from a confidential informant. After receiving this telephone call, Sheriff Griffitt applied for a warrant to search Defendant's home. In an affidavit attached to the warrant application, Sheriff Griffitt stated:

Your affiant, being a duly sworn peace officer in the State of Missouri, received a phone call from a reliable confidential informant on today's date of 08-30-2004, about [Defendant] who resides at 4 SE 95^th Rd in Barton County. [Defendant] lives in a white trailer house, which is approximately a 16x60 and lives on a dead end road in Barton County. It is better described as the first trailer house west of the railroad tracks, and it is the trailer house right next to his parents house on 95^th rd. The confidential informant has previously given information to your affiant which has been corroborated and found to be reliable.

The confidential informant contacted your affiant, Sheriff William A Griffitt on today's date of 08-30-2004 and stated that [Defendant] was cooking meth late last night (8/29-30/04). The confidential informant also stated that [Defendant] has all the chemicals used in the manufacturing methamphetamine. The confidential informant also stated that he also is in possession of paraphernalia for the manufacturing and use of methamphetamine.

[Defendant] is a known drug user, and manufacturer in Barton and Jasper Counties, and also has a criminal history for possession of controlled substance. One of his associates who was at the residence on 08-29-2004, was a Carl Dale Carter who also has an extensive criminal history involving dangerous drugs including Methamphetamine. Carl Dale Carter was arrested for possession of a control substance on 02-07-2000 in Barton County.

The application and affidavit were reviewed by a Barton County associate circuit judge on August 30, 2004. The judge issued a warrant to search Defendant's premises after finding probable cause to believe methamphetamine (meth) and drug paraphernalia were being kept there.

At around 10:00 p.m. that same day, the warrant was executed by five police officers. During the search of Defendant's trailer, the officers seized meth, marijuana and numerous items of drug paraphernalia from Defendant's home.¹

Thereafter, Defendant was arrested and charged by felony information with committing the following crimes:

Count I — manufacturing meth, a controlled substance, in violation of § 195.211.

Count II — possession of meth with intent to deliver in violation of § 195.211.

Count III — possession of pseudoephedrine with intent to manufacture meth in violation of § 195.246.

Count IV — possession of acetone, ethyl ether, red phosphorus and/or sulfuric acid with the intent to manufacture meth in violation of § 195.420.

Count V — knowingly possessing drug paraphernalia in the form of coffee filters, glass containers and tubing with the intent to use them in combination to manufacture meth in violation of § 195.233.²

Prior to trial, Defendant moved to suppress all evidence obtained during the search of his trailer on the ground that the affidavit attached to the warrant application was insufficient to establish probable cause for the search. Even though the affidavit did not say so expressly, the trial court concluded Sheriff Griffitt could have believed the confidential informant's information was based on personal observation. Therefore, under the totality of the circumstances, there was a substantial basis for concluding the affidavit contained sufficient information to establish a fair probability that the search would uncover evidence of criminal activity. The motion to suppress was denied.

Defendant waived his right to a jury trial, and the case was tried by the court. When the State offered the items seized during the search of Defendant's residence, Defendant objected on the same grounds presented in his motion to suppress. The court overruled the objection and admitted the items in evidence. The State rested its case, and Defendant presented no evidence. After both parties waived closing arguments, the court engaged in the following colloquy with counsel:

THE COURT: At this time, the Court is going to find [Defendant] guilty of Counts I, III, IV and V. I will find him not guilty as to Count II.

[PROSECUTOR]: Are you doing lesser included offense on two?

THE COURT: Do you wish to submit a lesser included offense under Count II? The Court finds that there has not been sufficient evidence to find attempt [sic] to deliver.

[PROSECUTOR]: I guess I am so requesting.

THE COURT: .... As to what lesser included offense?

[PROSECUTOR]: Class C felony possession of controlled substance, without the intent part of it.

THE COURT: [Defense Counsel], any comments?

[DEFENSE COUNSEL]: Judge, actually it is my understanding that the Court is free to find the defendant guilty at a bench trial of lesser included offenses. So, as long as they are actually lesser included offenses, and obviously simple possession is one.

THE COURT: The Court does believe that there is sufficient evidence to find, under Count II, to enter a finding of guilty to a lesser included offense the Class C felony of possession of controlled substance, Methamphetamine.

The court sentenced Defendant to concurrent sentences of ten years on Count I, five years on Count II, and four years on each of Counts III, IV and V.

On appeal, Defendant claims the trial court erred in two respects. First, Defendant contends the court plainly erred in finding him guilty of the lesser-included offense of possession of a controlled substance on Count II because Defendant was thereby subjected to double jeopardy. Second, Defendant contends the court clearly erred in overruling the motion to suppress and admitting evidence seized during the search of Defendant's residence because the search warrant was not supported by probable cause.

In Defendant's first point, he contends the trial court committed plain error in finding him guilty on Count II of the lesser-included offense of possession of a controlled substance. According to Defendant, the court violated Defendant's constitutional rights to be protected from double jeopardy by finding Defendant guilty of the lesser-included possession offense.³ Defendant did not raise this double jeopardy issue at trial and seeks plain error review. We decline to do so. As we explained in State v. Gaver, 944 S.W.2d 273 (Mo. App. 1997), "it is well-settled that double jeopardy is a personal right which, if not properly raised, is waived." Id. at 279. To avoid a waiver, an alleged double jeopardy violation must be raised at trial. Id. Since Defendant waived the issue of double jeopardy by failing to raise it in the trial court, we decline to engage in plain error review. Id.; State v. Tilley, 104 S.W.3d 814, 824-25 (Mo. App. 2003); State v. Harp, 101 S.W.3d 367, 376 (Mo. App. 2003); State v. Todd, 70 S.W.3d 509, 529 (Mo. App. 2002); State v. Markham, 63 S.W.3d 701, 708 (Mo. App. 2002).

Defendant argues, however, that we are required by the holding in Hagan v. State, 836 S.W.2d 459 (Mo. banc 1992), to review the merits of the double jeopardy issue. We disagree. Hagan involved a Rule 24.035 proceeding in which the movant contended that, as a result of his guilty plea, he had been punished twice for the same larceny offense in violation of his right to be free from double jeopardy. Id. at 461. The issue before the court was "whether a guilty plea acts as a waiver of a double jeopardy claim asserted by movant for the first time on a collateral attack of his conviction under Rule 24.035." Id. at 460. The Supreme Court acknowledged the general waiver rule and carved out a narrow exception applicable to collateral attacks on judgments arising from guilty pleas:

Weighing these competing interests, United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989), acknowledges the general rule that when an offender seeks to reopen a conviction based upon a guilty plea that has become final, "the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary." Id. at 569, 109 S.Ct. at 762. Collateral attack is generally foreclosed if both of these requirements have been met. Id. An exception to this general rule of waiver, however, exists where it can be determined on the face of the record that the court had no power to enter the conviction or impose the sentence. Id. Broce stands for the proposition that a guilty plea does not waive a subsequent claim of a double jeopardy violation if it can be determined from the face of the record that the sentencing court had no power to enter the conviction or impose the sentence. We believe that the record that a reviewing court may consider in determining whether a double jeopardy claim can be considered on collateral attack consists solely of the State's information or indictment and the transcript of a movant's guilty plea.

Id. at 461 (emphasis in original). Given the markedly different procedural posture and issue presented in Hagan, we find it inapposite.

Assuming arguendo that Hagan has any application to a conviction arising from a finding of guilt by the court rather than a guilty plea, we are still unable to discern how this precedent aids Defendant. Possession of meth in violation of § 195.202 is a lesser-included offense of possession...