State v. Polk, 35812
| Citation | 529 S.W.2d 490 |
| Decision Date | 21 October 1975 |
| Docket Number | No. 35812,35812 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Steven James POLK, Defendant-Appellant. . Louis District, Division Two |
| Court | Court of Appeal of Missouri (US) |
Charles D. Kitchin, Public Defender, Thomas J. Prebil, James C. Jones, Asst. Public Defenders, St. Louis, for appellant.
John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Paul Robert Otto, Asst. Atty. Gen., Brendan Ryan, Circuit Atty., Patrick J. Hitpas, Asst. Circuit Atty., St. Louis, for respondent.
Steven James Polk, hereinafter the defendant, appeals from a conviction, following jury trial, of Illegal Possession of a Schedule I Substance, Heroin, in violation of §§ 195.020 and 195.200 RSMo. 1971, and the court-imposed sentence of 12 years in the custody of the Missouri Department of Corrections.
Defendant was charged in an Amended Information with the above named offense on May 24, 1973, and a prior conviction of possession of a stimulant drug on May 1, 1970. During the course of the trial a hearing was had on the issue of the prior conviction and from the evidence adduced thereat the trial court found that defendant was subject to the provisions of § 556.280, the Second Offender Act, and did not, therefore, submit to the jury the issue of punishment.
Viewed in a light most favorable to support the jury verdict, the evidence at trial would support a finding that on May 17, 1973, an unidentified, previously reliable informer advised officers Gordon and Morgan that a Robert Seddens was selling heroin from an apartment at 5802 Clemens, in the City of St. Louis. Relying on this information both officers prepared affidavits, a complaint for search warrant, and a search warrant on that same day. Because Officer Morgan, who was familiar with the neighborhood, doubted the existence of the address given by the informer, he and Gordon accompanied the informer to the neighborhood where the informer pointed out to them the building numbered 5820 Clemens. Having obtained this information the officers then erased the '02' portions of the address in each of the documents they had prepared and inserted in lieu thereof the figures '20.' The dates on each of the documents, which had originally been dated May 20th were also changed to May 21st due to the fact that the two police officers had been unable to make application for the search warrant on the 20th. All the aforesaid changes were made prior to the application for the search warrant to a Judge of the St. Louis Court of Criminal Correction on May 21, 1973. The affidavits in support of the application for search warrant refer to the informer advising the police officers that Robert Seddens was selling heroin out of his apartment #304 at 5820 Clemens; that the narcotics were contained in small tin foil packets or capsules and were kept by Seddens in various parts of his apartment; that the informant had occasion to be in Seddens' apartment on May 17th, and while there observed numerous known narcotic addicts enter and purchase narcotics from Seddens, after which Seddens would then leave the room and return shortly with either small capsules or tin foil packets and hand these to the purchaser and in return receive $10.00 for each capsule or packet sold. The 'Application for Warrant' described the contraband as 'A large quantity of heroin and various amounts of controlled substances and paraphernalia for the unauthorized use thereof.' It further described the premises to be searched as: 'The third floor brick constructed multi-dwelling apartment building and basement beneath said building located, known and numbered as 5820 Clemens Apartment 304: in the City of St. Louis, Mo.' The search warrant issued authorized a search for 'A large quantity of heroin and various amounts of controlled substances and paraphernalia for the unauthorize use thereof' on the premises described in the affidavits and application as '5820 Clemens Apartment 304.'
Armed with the search warrant issued by the Judge of the St. Louis Court of Criminal Correction on May 21, 1973, the two police officers who had made application for the search warrant and four others went to the premises at 5820 Clemens and to Apartment 304 on May 24, 1973, at about 10:45 p.m. and knocked on the door to the apartment. No one responded and after they remained standing outside the apartment for approximately 10 to 15 minutes, the defendant and a white man, approximately 24--25 years of age, approached the apartment. The police officers advised the defendant that they had a search warrant to search the apartment, read the search warrant to him and gave him a copy and advised him that they wanted to search the apartment. The defendant opened the door to the apartment with a key and told them: 'Go ahead and search.' One officer testified that he also said that he didn't have any narcotics on the premises. Officer Gordon was designated the 'search officer' and during the course of the search of the apartment he seized from a closet shelf on the southwest wall of a bedroom situated in the rear of the building, a 'male jewelry box' containing a pill box in which there was a pink capsule and some white powder, 2 hypodermic needles, 2 eye-droppers or syringes, and three bottle caps which the police officers identified as 'cookers' for the processing of heroin. Also a number of other pink capsules were found in the jewel box but these were partially empty. Defendant was advised that he was under arrest and 'given his rights' but nonetheless, when he was asked if he lived in the apartment with anyone, stated that he lived there alone. The items seized on the premises were placed in an evidence bag and the defendant was given a receipt for them. The defendant was taken to the police station and then the articles seized were taken to the Narcotics division offices at police headquarters where they were marked and then delivered to the police department laboratory. A police department criminologist testified that he analyzed the contents of the evidence bag and by means of a 'color test' and a microcystalline test and determined that five of the seven capsules contained 'traces' of a white powder tested positively for heroin. Everything else tested negatively. There was so little heroin in the capsules that it could not be weighed and the tests consumed all of the heroin 'traces' found, so there was none left, and the capsules containing these 'traces' of heroin were not introduced into evidence at the trial by the State.
Defendant's only witness was John D. Simon, Jr., who testified that in the latter part of April, 1973, he and three others--defendant, Vince Jordan, Mike Greenlea--rented the apartment in the defendant's name. He, Simon, paid $20.00 towards the rent, although he did not know how much the monthly rent was. He had only used the apartment occasionally, amounting to a total of perhaps seven days, for study and to visit with his girlfriend. He testified that the jewel box belonged to Mike Greenlea and that he had seen it and the contents on the dresser in the bedroom on one occasion. He stated that he had to open the lid of the box to see its contents, and on that occasion it did not contain any pink capsules. He denied that he had ever seen Mike Greenlea use heroin in the apartment and said that he had in the past seen syringes like those in the jewel box used by his cousin who was a diabetic. He admitted, on cross-examination, that he did not know whether Mike Greenlea or any of the others with whom he rented the apartment were diabetic. He denied knowing what the bottle caps were for.
On appeal the defendant raises a number of points which he contends require reversal of his conviction. However, because of the result we have reached in this case we do not reach other than his contention that the trial court erred in overruling his motion for judgment of acquittal at the close of all of the evidence for the reason that the State failed to prove 'knowing and conscious possession' of heroin which he is charged with unlawfully and feloniously having in his possession on the 24th day of May, 1973.
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State v. Williams, 36168
...character of the particular substance, and was intentionally and consciously in possession of it.' (original emphasis) State v. Polk,529 S.W.2d 490, 492 (Mo.App.1975). See also State v. Burns, 457 S.W.2d 721 (Mo.1970); State v. Roberts, 524 S.W.2d 174 (Mo.App.1975); State v. Berry, 488 S.W.......
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State v. Moiser
...intentional possession, either actual or constructive, must be established. State v. Burns, 457 S.W.2d 721 (Mo.1970); State v. Polk, 529 S.W.2d 490 (Mo.App.1975). The state must also show that the defendant was aware of the presence and nature of the substances in question. State v. Wiley, ......
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State v. Rivers, 38205
...in possession of it." (Emphasis in original) State v. Williams, 546 S.W.2d 533, 535(2) (Mo.App.1977), quoting from State v. Polk, 529 S.W.2d 490, 492(1) (Mo.App.1975). We believe that the same principles apply to the offense of illegal distribution, i. e. proof of the knowledge of the natur......
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