State v. Pernell

• Citation: 606 S.W.2d 389
• Decision Date: 13 April 1979
• Docket Number: No. 40280.,40280.
• Parties: STATE of Missouri, Respondent, v. Larry PERNELL, Appellant.
• Court: Court of Appeal of Missouri (US)

606 S.W.2d 389

STATE of Missouri, Respondent, v. Larry PERNELL, Appellant.

No. 40280.

Missouri Court of Appeals, Eastern District, Division Three.

February 27, 1979.

Motion for Rehearing and/or Transfer April 13, 1979 and retransferred December 10, 1979.

David M. Johnson, Hayes & Heisler, Clayton, for appellant.

John D. Ashcroft, Atty. Gen., Bruce A. Anderson, Asst. Atty. Gen., Jefferson City, for respondent.

Motion for Rehearing and/or Transfer to Supreme Court April 13, 1979 and retransferred December 10, 1979.

GUNN, Judge.

Defendant was convicted of possession of heroin and was sentenced to eight years imprisonment pursuant to the Second Offender Act. In his appeal of the conviction, he cites as error: (1) the admission of a marihuana cigarette (evidence of a separate and distinct crime); (2) the admission of capsules identified as heroin for which the state failed to establish a clear chain of custody; (3) the failure of the state to establish through proper foundation evidence that the tests used to identify the capsules as heroin were reliable; and (4) the failure of the court to dismiss the information based on a violation of the cruel and unusual punishment clause of U.S.Const. Amend. VIII. We affirm.

The state's evidence established that a St. Louis police officer seized five capsules and a hand-rolled cigarette from defendant incident to the execution of a valid search warrant for the seizure of heroin. Officer Jenkins was one of ten men deployed to the suspected premises, a two-family flat occupied by the defendant's mother. Jenkins testified that he was assigned to search the basement, so he headed toward the stairway immediately after the search was announced. He heard the sound of running water and, fearing the destruction of evidence, hurried toward the basement bathroom. Through the open doorway he saw the defendant throwing pink capsules into the toilet. Officer Jenkins arrested defendant and retrieved five capsules which had bounced off the rim of the toilet bowl and onto the floor. Pursuant to the arrest, Jenkins searched his captive and discovered a marihuana cigarette. Defendant was then charged with another violation of the Missouri Controlled Substance Law—possession of marihuana. Jenkins sealed the capsules in one evidence envelope and the cigarette in another. Each of the labels had been previously filled out by a Sergeant Walker who was in charge of the raid and who initialed and returned them to Jenkins for delivery to the police laboratory. Jenkins conveyed the envelopes to the receiving officer of the laboratory, Sergeant Brasser, who noted their code numbers in a record book and pinned a receipt to the evidence envelopes. Though Brasser did not testify at trial, Joseph Stevens, a police chemist, stated that Brasser delivered the envelopes to him for analysis. Stevens described the various tests performed: a screening test and microcrystalline test on the capsules and a microscopic examination and the modified Duqunois test on the cigarette. On the basis of the reactions received, Stevens concluded that the capsules contained heroin and that the cigarette contained marihuana. Though the accompanying laboratory report did not indicate which specific tests were performed, Stevens explained that he was quite sure that the four he described were the ones administered as the report indicated no variance from his normal routine.

Defendant first complains that the trial court erred when it admitted into evidence testimony concerning defendant's possession of a marihuana cigarette in his trial for possession of heroin. Generally, evidence of a separate crime is inadmissible unless it has a legitimate tendency to establish the defendant's guilt of the charge for which he is on trial. State v. Harlston, 565 S.W.2d 773 (Mo.App.1978); State v. Ball, 562 S.W.2d 136 (Mo.App.1978). Yet, the defendant's challenge may be effectively dismissed by this court's decision in State v. Williams, 539 S.W.2d 530 (Mo.App.1976). There, it was noted that evidence of other crimes may be admitted to establish ". . . motive, intent, absence of mistake or accident, identity of the accused, or a common scheme embracing the commission of two or more crimes so interrelated that proof of one tends to establish the other." Id. at 534. See also: State v. Granberry, 530 S.W.2d 714 (Mo.App.1975). In Williams, an undercover policeman posed as a narcotics buyer and requested to purchase heroin from the defendant. The defendant agreed to the sale provided that the police officer use the heroin on the defendant's premises. The officer arrested the defendant, searched the apartment, and found three one pound bricks of marihuana on a table. In response to the defendant's argument that admission of evidence relating to his possession of a quantity of marihuana was prejudicial, it was said:

* * * the contested evidence here (the marihuana and marihuana pipe) is logically relevant to establish that the defendant's possession of the heroin was with full knowledge of its illegal character. Although proof of possession of marihuana is not ipso facto evidence of knowing possession of heroin, where the two controlled substances and paraphernalia for their use are found at the same time and in the same place in open view, it has a logical tendency to prove a material fact at issue, that is, knowing possession. * * * Id. at 535.

See also the related case, State v. Williams, 542 S.W.2d 3 (Mo.App.1976), in which the same defendant was tried and convicted in a second case for possession of marihuana seized in the drug raid. In the first Williams case, where the charge was possession of heroin, the introduction of marihuana and narcotics paraphernalia was held proper to establish knowing possession of the heroin. In the second Williams case, where the charge was possession of the marihuana also seized and used as evidence in the first case, it was held proper to introduce the heroin and narcotics paraphernalia serving as the basis for the first case conviction of possessing heroin. The two Williams cases are directly on point to the issue which defendant has raised here, and for the reasons expressed in both Williams cases, we reject defendant's argument concerning the introduction of the marihuana cigarette. The first Williams case also refers to a number of cases in which evidence of possession of a different narcotic was held to be logically relevant to prove a defendant's guilt for the sale or possession of another narcotic, e. g., State v. Tilcock, 522 S.W.2d 60 (Mo.App.1975), and State v. McClure, 504 S.W.2d 664 (Mo.App.1974).

The recent decision upon which defendant relies, State v. Garrett, 564 S.W.2d 347 (Mo.App.1978), is clearly distinguishable. Defendant Garrett was arrested when police officers found him flushing capsules down a toilet. Other capsules containing "controlled substances" were found in his pockets. At his trial for possession of narcotics, the defendant was not prejudiced by the admission of other controlled substances, but rather, the admission of police affidavits and a search warrant. While the former could have provided solid and substantial evidence of knowing possession, the latter demonstrated nothing more than that the police believed the defendant possessed narcotics and that the judge was successfully persuaded to agree. ". . . The issuance of a search warrant did not logically tend to establish the issuable fact that defendant thereafter unlawfully possessed narcotics." Id. at 348. Garrett does not aid defendant's position.

Defendant next contends that the trial court committed plain error when it admitted the capsules and cigarette into evidence, because the state failed to establish a sufficient chain of custody. Our review of the evidence convinces us otherwise. The state is not required to account for the hand to hand custody of evidence in order to establish the chain of custody nor exclude every possibility that an exhibit has been disturbed. State v. Lang, 536 S.W.2d 52 (Mo.App.1976); State v. McClain, 536 S.W.2d 45 (Mo.App.1976). Rather, the state must provide a reasonable assurance that the evidence presented has been neither altered nor substituted. State v. Baines, 394 S.W.2d 312 (Mo.1965); State v. Duncan, 540 S.W.2d 130 (Mo.App.1976). The evidence of continuous possession established by the testimony of Officer Jenkins and police chemist Stevens provides that reasonable assurance, and, under identical circumstances, the Supreme Court has reached the same result. State v. McCrary, 478 S.W.2d 349 (Mo.1972). Accord: State v. Webster, 539 S.W.2d 15 (Mo.App.1976).

Defendant also complains that the state failed to establish by sufficient foundation that the tests used to identify the capsules and cigarette were reliable and accepted by the scientific community, or that the tests were properly conducted and the results properly recorded. The first part of his complaint is simply refuted by the testimony of Stevens, a qualified expert witness, who testified without objection that the tests performed were generally acceptable to the scientific community. Defendant adduced no evidence to support his assertion that the tests were unreliable, and the qualifications of Mr. Stevens were not challenged. See: State v. Kuhrts, 571 S.W.2d 709 (Mo.App.1978). Any question as to the reliability of tests used by the chemist cannot be considered by this court when the tests were not challenged by the defendant in the trial court. State v. Andrade, 534 S.W.2d 595 (Mo.App.1976).

Defendant also maintains that Stevens' expert opinion lacked the required factual basis See, e. g.: State v. Maxie, 513 S.W.2d 338 (Mo.1974), because the chemist could not specifically remember performing the tests which he described in his testimony. Similarly, he argues that the laboratory report upon which Stevens relied provided an inadequate factual basis because it only reflected the results of the tests without...