State v. Sullivan, s. 19834
| Decision Date | 21 November 1996 |
| Docket Number | Nos. 19834,20769,s. 19834 |
| Citation | 935 S.W.2d 747 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Charles W. SULLIVAN, Defendant-Appellant. Charles SULLIVAN, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent. |
| Court | Missouri Court of Appeals |
Tim Hogan, St. Louis, Marc B. Fried, Hillsboro, for Charles Sullivan.
Jeremiah W. (Jay) Nixon, Attorney General, Breck K. Burgess, Assistant Attorney General, Jefferson City, for State.
Following a jury trial, Charles Sullivan (Defendant) was convicted of possession of a controlled substance with intent to distribute in violation of § 195.211 1. He was found by the trial court to be a prior and persistent drug offender, §§ 195.275 and 195.291.1 and .2, and sentenced to ten years in the Department of Corrections without eligibility for probation, parole, or release except by act of the Governor.
Defendant, Martin Whiteside and Wayne Cordia were boating on Lake Wappapello when they were stopped by Officer Donald Carnahan of the Missouri Water Patrol. Although the boat was owned by Mr. Cordia, Defendant was driving. Officer Carnahan testified that he stopped the boat after observing one of the passengers riding on the "gunnel," or side of the boat, in violation of state law. Officer Carnahan obtained identification from all three individuals and requested the registration papers. At this time he discovered that the owner of the boat was Mr. Cordia. Officer Carnahan issued summonses for riding on the gunnel of the boat and for not having the registration papers on board.
He then initiated a computer check on the occupants. Based upon the information he received from the computer check, he requested permission from Defendant to search the boat. Defendant gave his consent. Officer Carnahan discovered two bags of marijuana. No other drug paraphernalia was found on the boat. All three men were arrested.
The charges against Mr. Whiteside were dropped in exchange for his cooperation with the State. Mr. Whiteside testified that approximately one week after the arrest, all three men met to discuss the situation. During the meeting, Defendant told Mr. Whiteside that he put the marijuana in the boat with the intent of "giving it back" to Mr. Cordia.
Defendant raises eleven points on direct appeal in Case No. 19834. Defendant also appeals from the denial of his Rule 29.15 2 Motion in Case No. 20769. The appeals were consolidated.
In his direct appeal, Defendant alleges that the trial court erred: 1) in trying Defendant on the charge of possession with intent to distribute as such statutes are unconstitutionally vague and overbroad; 2) in overruling Defendant's objection to the admission of evidence as the State failed to reasonably account for the chain of custody; 3) in ruling that Defendant had no standing to challenge the search of the boat; 4) in denying Defendant's request for a continuance and/or to strike the testimony of Mr. Whiteside for the reason that the witness failed to appear at his deposition; 5) in overruling Defendant's motion for judgment of acquittal at the close of the State's case and for new trial as there was insufficient evidence to establish possession of a controlled substance; 6) in overruling Defendant's motion for judgment of acquittal at the close of the State's case as there was reasonable doubt as to Defendant's intent to possess or distribute a controlled substance in Wayne County; 7) in overruling Defendant's motion for judgment of acquittal at the close of the State's case as there was reasonable doubt that there were more than five grams of marijuana seized from Defendant; 8) plainly when it failed to declare a mistrial, sua sponte, when Officer Carnahan testified to Defendant's post-Miranda silence; 9) plainly when it failed to declare a mistrial, sua sponte, when the State improperly commented on Defendant's failure to testify; 10) in sentencing Defendant as a prior and persistent drug offender; and 11) in sentencing Defendant to a ten year term without eligibility for probation, parole or release except by act of the Governor as the punishment is disproportionate to any harm suffered by the State.
In his first point, Defendant alleges that the statute under which Defendant was tried is unconstitutionally vague and overbroad in that it failed to put Defendant on proper notice that his conduct was illegal and it failed to adequately define what conduct is to be prevented.
If this constitutional challenge has been preserved for review, this Court does not have jurisdiction and the appeal must be transferred to the Missouri Supreme Court. State v. Roberds, 820 S.W.2d 621, 622 (Mo.App.1991); State v. Perkins, 680 S.W.2d 331, 334 (Mo.App.1984). "[O]ur Supreme Court has exclusive original appellate jurisdiction in all cases involving the validity of a statute of this state." Perkins, 680 S.W.2d at 334; see also MO. CONST. OF 1945., art. V, § 3 (1982).
Roberds, 820 S.W.2d at 622; see also State v. Root, 820 S.W.2d 682, 685 (Mo.App.1991).
Defendant first challenged the constitutionality of § 195.211 in his Motion for Judgment of Acquittal or New Trial filed on April 27, 1994, after Defendant's trial had concluded. "A constitutional question is waived if not raised at the earliest opportunity." State v. Plummer, 860 S.W.2d 340, 351 (Mo.App.1993). This claim was readily apparent to Defendant far in advance of trial, yet no allegation of unconstitutionality was raised until after Defendant had been found guilty. As this constitutional challenge has not been preserved for review, transfer to the Missouri Supreme Court is not necessary. Point One is denied.
In his second point Defendant asserts that the trial court erred in overruling his objection to the admission of physical evidence as the State failed to reasonably account for the chain of custody. For the reasons that follow, this claim must also fail.
At trial, Defendant asserted there was a problem in the chain of custody. He stated that one of the individuals, Pamela Johnson, shown by the crime laboratory records to have had possession of the evidence, was not in court to testify that she did, in fact, handle the substance. On appeal, Defendant seeks to challenge the entire chain of custody of State's Exhibit 1.
"It is within the discretion of the trial court to determine whether a chain of custody has been sufficiently established before allowing the admission of physical evidence." State v. Grisby, 811 S.W.2d 488, 489 (Mo.App.1991). The evidence must provide reasonable assurance that the exhibit sought to be introduced is the same and in like condition as when received. State v. Fels, 741 S.W.2d 855, 857 (Mo.App.1987). "The state is not required to account for the hand to hand custody of evidence under the reasonable assurance standard, nor is it required to exclude every possibility that the evidence had been disturbed." Id. Moreover, "[c]hain of custody of an exhibit is irrelevant where the exhibit is positively identified at trial." State v. Gustin, 826 S.W.2d 409, 417 (Mo.App.1992); Fels, 741 S.W.2d at 857.
The State elicited testimony from several different witnesses that illustrated the chain of custody. Officer Carnahan testified that on May 29, 1993, he seized the marijuana in question and placed it in a plastic bag with an evidence sticker. He kept the marijuana with him in his briefcase as he processed Defendant and the two other individuals. He then transported the evidence to the Doniphan Police Department. Officer Talburt, the evidence officer, testified that he received the exhibit from Officer Carnahan at the Doniphan Police Department and placed the exhibit in the evidence locker. Officer Talburt was the only individual with access to the locker.
On June 18, 1993, Officer Talburt retrieved the evidence from the locker and transported it to the Southeast Missouri Regional Crime Laboratory. It was signed in by Pamela Johnson, a chemist at the laboratory, who then placed the evidence in an evidence locker. The substance was tested that same day by Dr. Robert Briner, the director of the laboratory, and then returned to the locker.
Officer Talburt checked the exhibit out from the laboratory on October 28, 1993, and turned it over to Officer Carnahan for Defendant's preliminary hearing. The evidence was then returned the same day to the evidence locker and was not removed again until trial.
Not only did the State present testimony that provided a reasonable assurance that the chain of custody for State's Exhibit 1 was credible, but Officer Carnahan positively identified State's Exhibit 1 as the marijuana he seized in the search of the boat. Therefore, Point Two has no merit.
In his third point, Defendant's claim of error is twofold. First, he asserts that the trial court erred in finding that Defendant lacked standing to challenge the alleged consensual search of the boat. Secondly, he claims the trial court erred in overruling Defendant's objections to the validity of the search.
For the reasons that follow, we find that Defendant lacked standing to challenge the search and therefore, we need not consider Defendant's second complaint concerning the validity of the search.
We recognize that the search in the present appeal is that of a boat and not an automobile. However, because watercraft are similar to automobiles in that both are inherently mobile, the exceptions to the warrant requirement applicable to automobiles...
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