State v. Sockel, KCD

Decision Date19 January 1973
Docket NumberNo. KCD,KCD
Citation490 S.W.2d 336
PartiesSTATE of Missouri, Respondent, v. William Henry SOCKEL, Jr., Appellant. 26061.
CourtMissouri Court of Appeals

S. Richard Beitling, William S. Ferguson, Jr., Kansas City, for appellant.

John C. Danforth, Atty. Gen., Vincent F. Igoe, Jr., Asst. Atty. Gen., Jefferson City, for respondent.

Before SHANGLER, C.J., and DIXON and CROSS, JJ.

DIXON, Judge.

William Henry Sockel, Jr., was convicted by a jury of the offense of possession of stimulant drugs in violation of Section 195.240 RSMo 1969, V.A.M.S. (all statutory references will be to RSMo 1969 unless otherwise noted). He was sentenced by the court, under Section 556.280 pursuant to a finding of prior felony conviction, to a term of nine years.

On June 17, 1970, in the early morning hours, the Kansas City Police responded to a cab driver's request for assistance with a sick passenger. Two officers responded to the call and, upon arriving at the location of the cab, found the defendant in an unconscious state in the rear seat of the cab. The police noted the presence of a hypodermic needle and vials on the rear seat of the cab. These were in plain view of the police from outside the cab and even more obvious when they entered the cab to render assistance to the unconscious defendant. This assistance consisted of administering ammonia capsules which sufficiently aroused the defendant to permit his removal from the cab with the assistance of the officers. There were five bottles or vials on the rear seat with the syringe, and four contained pills or tablets, and one contained a greenish yellow liquid. Defendant had a small puncture wound on his right forearm and a substance that 'looked like blood' was on both defendant's arm and the needle of the syringe. Defendant was vomiting after his removal from the cab, but was able to remain erect and walk. He was placed under arrest and in one of the two police vehicles at the scene. The cab driver called the attention of the officers to some other items of personal property placed in the trunk of the cab by the defendant. These were removed by the officers and placed in the police cars. Among these items were packages and bottles of pills, hypodermic syringes, two license plates, tires, radios, typewriter, tape recorder, suitcase and other items. The items last mentioned had been placed in the trunk of the cab when the defendant, upon the initiation of his trip, directed the cab driver to a disabled vehicle from which the defendant removed the articles.

What has been related thus far is a composite of the testimony of the cab driver and the two police officers.

Because of its importance in the disposition of this appeal, the disposition and movement of the items removed from the cab will be related in detail so far as the record here supplies such detail. The disposition of the items from the rear seat and the trunk at the scene is not clear except that all the items were placed in one of the police vehicles. From the scene, the record shows they were taken to 'the property room.' At 7:00 a.m., the arresting officers arranged the items in a group and took photographs. Both the items from the rear seat and from the trunk were included in the photographs. The property was all inventoried, listed on property slips and placed in the property room. The property slips were not identified or related to the items in any way on the record. The inventory made was not in evidence, and any relationship between the inventory and the property list is not shown. Nothing appears concerning the property items' care and custody while in the 'property room' except that 'they were under lock.' One of the officers testified he had made no marks on the bottles to identify them. The other officer said he marked some of the bottles but not the one with the yellow liquid; he 'believed' the other officer did initial that particular bottle.

The State then presented evidence from a third police officer who had no part in the initial investigation. This officer said he took certain property to the police laboratory. He did not know what the property was, but was listed on property slips B08500, B08A01 and B08A02. No testimony appears even suggestive of a connection of this property with the defendant. Delivery of the items to the laboratory was acknowledged by the lab technician who identified the receipt by the numbers shown. The witness recited at length his findings upon analysis. Three of the several vials and bottles were found to contain the prohibited substance in liquid form. Several other vials and bottles contained other prohibited substances in tablet form. The lab man then stated that he renumbered the sacks received, sealed them and placed them in the 'property room.' The State then inquired as to the present location of the samples which had been analyzed. The startling response was that they had been destroyed. The State, over the vehement protest of the defense, then elicited testimony that because of storage limitations, the standard police practice was to destroy all such material once a year.

Scrutiny of this record discloses not one iota of evidence, documentary, oral or otherwise, to connect the findings of the laboratory with the items found in the cab with the defendant on the night of the arrest. Upon proper objection, the evidence of the lab technician should have been excluded. Absent such evidence, this conviction could not stand.

The difficulty arises because no complaint or objection on this ground was made by the defense at trial. To understand and perhaps excuse neglect on counsel's part in failing to object, it is necessary to advert to the photographs taken at the station house the morning of defendant's arrest. There were two of these photographs in evidence. The first was marked Exhibit 1 and when it inexplicably disappeared after the first day of trial, the defense stipulated that another photograph of the same scene could be substituted. The record does not disclose any remarked or additional marking of the photograph finally used. No exhibits have been filed here, but the index to the transcript refers to the second photograph as 'State's Exhibit 2' and, presumably, the State has possession of the finally marked exhibit.

The originally marked photograph was identified early in the testimony of the first of the arresting officers. When it was first offered, the officer had verbally described the items found in the cab with the defendant. The officer was then asked if he could recognize 'any of those items or a reproduction thereof' to which he responded affirmatively. The State then requested that two photographs be marked as State's Exhibits 1 and 2. The defense objected on the grounds that the pictures were inflammatory in showing other offenses, that the items in the picture had not been marked or initialed in any way and were commonly available bottles. The State then made an offer to prove that the officer testifying had laid the articles out for the photograph and was present when the picture was taken. The objection of the defense was then overruled and the defense then made a further objection that there was 'no showing that the chain of evidence had remained intact.' The court then said that he was not sure what the chain of evidence would be 'but based on the present state of the record,' the objection would be overruled. The State had known for at least three days that all physical evidence in the case had been destroyed. The State on the day of trial had furnished the defense with a...

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13 cases
  • State v. Johnson
    • United States
    • Missouri Court of Appeals
    • May 4, 1976
    ...relevant purposes, State v. Myers, 351 Mo. 332, 172 S.W.2d 946, 949--50 (1943), or proof that the item is the same one, State v. Sockel, 490 S.W.2d 336 (Mo.App.1973). The items defendant here maintains were not proven to be in the same condition between arrest and swabbing are his hands. De......
  • State v. Koonce
    • United States
    • Missouri Court of Appeals
    • May 5, 1987
    ...of Robin so as to rise to a level of prejudicial or plain error. The plain error rule is to be used sparingly. State v. Sockel, 490 S.W.2d 336, 339 (Mo.App.1973). It is invoked on a case by case basis, and there must be a sound, substantial manifestation, and a strong clear showing that inj......
  • State v. Davis
    • United States
    • Missouri Supreme Court
    • April 28, 1978
    ...93 (Mo.1969); State v. Embry, 530 S.W.2d 401, 404 (Mo.App.1973). The plain error rule should be exercised "sparingly," State v. Sockel, 490 S.W.2d 336, 339 (Mo.App.1973), and cannot be used as a vehicle for review of every alleged trial error which is not asserted or properly preserved for ......
  • State v. Moon
    • United States
    • Missouri Court of Appeals
    • July 8, 1980
    ...to review sua sponte for plain error is rarely exercised and properly so. State v. Jackson, 495 S.W.2d 80 (Mo.App.1973); State v. Sockel, 490 S.W.2d 336 (Mo.App.1973); Rule 30.20. It should be exercised in this case because both areas of error affect fundamental rights under our Federal Con......
  • Request a trial to view additional results

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