State v. Wallace, 58603
| Decision Date | 18 February 1992 |
| Docket Number | No. 58603,58603 |
| Citation | 825 S.W.2d 626 |
| Parties | STATE of Missouri, Respondent, v. Clay Jason WALLACE, Appellant. |
| Court | Missouri Court of Appeals |
William L. Webster, Atty. Gen., John P. Pollard, Asst. Atty. Gen., Jefferson City, for respondent.
Alan J. Koshner, St. Louis, for appellant.
Appellant Clay Jason Wallace, appeals his convictions by a jury of possession of more than 35 grams of marijuana (Count I), § 195.020 RSMo 1986 (repealed; current version at § 195.202 effective August 1990), possessing cocaine (Count II), § 195.020 RSMo 1986 (repealed; current version at § 195.202 effective August 1990), resisting arrest (Count III), § 575.150 RSMo 1986, two counts of possessing a short-barrel shotgun (Counts IV and V), § 571.020 RSMo 1986, and selling cocaine (Count VI), § 195.020 RSMo 1986 (repealed; current version at § 195.211 effective August 1990) (all further references shall be to RSMo 1986 unless otherwise noted). Appellant was sentenced to pay fines and serve consecutive terms of imprisonment as follows: confinement for a period of three years and a fine of one thousand dollars under Count I; two years and a fine of two thousand dollars under Count II; a fine of two thousand dollars under Count III; a fine of five hundred dollars for each of Counts IV and V; and five years under Count VI. Appellant was sentenced to a total of ten years' imprisonment and fined a total of six thousand dollars.
On appeal, appellant alleges that the trial court erred in: (1) allowing the state to introduce evidence illegally seized in a warrantless search of appellant's residence to prove the corpus of the crimes for felony possession of marijuana, possession of cocaine and possession of two short-barreled shotguns; (2) allowing the state to introduce hearsay evidence that appellant allegedly delivered a narcotic controlled substance to a confidential informant when said "percipient witness" was not produced at trial for cross-examination purposes by defense counsel, in violation of appellant's confrontational rights under the state and federal constitution; (3) failing to grant appellant's motion for new trial because of improper argument and mischaracterization by the state of its evidence during closing argument; (4) allowing the jury to consider whether appellant resisted arrest without the corpus of said crime established by the state; and (5) refusing to give appellant's tendered jury instructions for the reason that they were not inconsistent with pattern instructions as found in MAI-CR3d. We affirm in part and reverse and remand in part.
The facts, viewed in the light most favorable to the verdict, are as follows. On July 27, 1989, Officer Robert Kindred of the Troy Police Department, assigned as a special deputy sheriff for Lincoln County, and Chief Deputy sheriff Mick Harding met with Joe Morton, a confidential informant. Morton had previously informed police that appellant was selling cocaine. Harding and Kindred met with Morton at 4:30 p.m. at the Cuivre River State Park to set up a drug buy.
The officers searched both Morton and his car for money and drugs and none was found. Morton was then given fifty dollars to buy drugs from appellant. Kindred and Harding followed Morton to appellant's home. Morton met with appellant and gave him the money in exchange for a bag containing a white substance, later identified as cocaine. Kindred and Harding observed the transaction from a side street where they were parked approximately 100--120 yards away. Kindred had the aid of binoculars.
Morton left appellant's home and met Kindred and Harding at a previously designated point. Kindred took possession of the cocaine bought from appellant and both Morton and his car were again searched and nothing was found. Kindred and Harding then tried to contact other officers to apply for a search warrant for appellant's home.
Officers Brodt and Chidster began surveillance of junk vehicles located in back of appellant's home around 5:00 p.m. Appellant pulled up in his Grand Prix and walked towards a junked, gold Maverick, and opened the trunk. He lifted his head and looked around, then directed his attention back to the trunk. When appellant closed the trunk he was carrying a plastic bag containing a brown, leafy substance later identified as marijuana. Appellant then began walking away from the Maverick and towards Officers Brodt and Chidster.
Brodt attempted to arrest appellant but appellant looked at Brodt and took off running. Brodt yelled and began chasing appellant. As appellant was running away, he was emptying the plastic bag by throwing the leafy substance on the ground. Appellant also removed small packets containing a white substance from his waist ripping them open and throwing them down. Brodt lost appellant in the woods and he and Chidster began gathering the leafy substance appellant had thrown on the ground. Brodt went to appellant's home while Chidster remained with the cars.
As Officers Kindred and Harding were returning to the sheriff's office they heard Chidster's radio call and returned to appellant's home. Officer Roth had already been dispatched to the home. When Kindred arrived he asked appellant's father if there were any firearms in the house and appellant's father indicated there were. Appellant's father then led Kindred to appellant's bedroom so the guns could be secured for safety purposes. The guns were checked, unloaded, and then laid on the couch.
Officers Brodt, Harding, and Kindred went to apply for search warrants. Upon returning to the home with the search warrants the entire house was searched. Kindred and Roth searched appellant's room finding two short-barrel shotguns, marijuana, cocaine, and drug paraphernalia. Officers Brodt, Harding and Chidster searched the cars in the backyard. Nothing was found in the Grand Prix but some marijuana, traces of cocaine, and a piece of paper stating "minus one (1) ounce light" were found in the Maverick.
In his first point, which contains five subpoints, appellant alleges that the trial court erred in allowing the state to introduce evidence illegally seized in a warrantless search of appellant's residence to prove possession of marijuana, cocaine, and two short-barreled shotguns. Although appellant argues this was a warrantless search, we note that a search warrant was issued for the residence but appellant appears to be arguing that the warrant was invalid thereby rendering the search warrantless. At the outset, we note that appellant has failed to state wherein and why the trial court erred in his point relied on. Rule 30.06(d). Additionally, he failed to preserve each of the five subpoints due to the fact that they were not contained in his Point Relied On. State v. Carey, 808 S.W.2d 861, 866[11, 12] (Mo.App.1991). We therefore review for plain error and determine if manifest injustice has occurred.
In his first subpoint, appellant argues that the search warrant was invalid in that it did not comply with the statutory requirements set forth in §§ 542.276, 542.291, and 542.296. Appellant contends that Officer Kindred's statement does not comply with § 542.276 because it is not signed, dated, and notarized. Further, he argues that Kindred's statement is fatally defective on its face because it did not disclose the identity of the confidential informant.
Initially, we note that the record on appeal contains unsigned applications for search warrants (complaints), a signed affidavit by Officer Brodt concerning the vehicles, an unsigned statement by Officer Kindred concerning the residence, signed search warrants for both the residence and the vehicles and signed return and inventory sheets for both the residence and the vehicle. The record on appeal does not indicate if any of these documents are from the court file which the trial court mentioned at the suppression hearing or the exhibits at the suppression hearing.
Examining the record, we find that the procedural aspects of issuing the warrant are mentioned only at the suppression hearing. At the suppression hearing the testimony was as follows:
Q [Prosecutor] I'll show you what's been marked for identification as State's Exhibits No. 1 and 2, and ask you if you can identify those.
A (By Officer Kindred) Yes, sir.
Q And what are they?
A They're complaints for search warrants.
Q And are these originals or are they photocopies?
A Appear to be photocopies.
Q And who was the complainant in both of these complaints?
A Me.
Q Are these the duplicates of the complaints for search warrants that you procured that evening?
A Yes.
Q Now, these have no signatures or copies of signatures; is that correct?
A That is correct.
Q Except for the signatures, do they fairly and accurately represent the actual complaints for search warrants that is filed with that Court right now?
A Yes, sir.
Q [Prosecutor] After completing the complaints for search warrants, what, if anything, did you do?
A We went to Ellsbury, where the Judge issued the search warrant.
Q Okay.
(State's Exhibits 3 and 4 are marked for identification, by the Clerk.)
Q [Prosecutor] I'll show you what's been marked as State's Exhibits 3 and 4, and ask if you can identify those. (Pause.)
A These are copies of the search warrants.
Q And these, also, are photocopies?
A I believe so, yes, sir.
Q And do the copies reflect a signature on the bottom?
A Yes, sir.
Q Have you had occasion to get search warrants or deal with correspondence in the past?
A Yes,...
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