State v. White

• Decision Date: 11 January 2000
• Parties: (Mo.App. W.D. 2000) . State of Missouri, Respondent, v. Preston White, Appellant. WD54686 Missouri Court of Appeals Western District Handdown Date: 0
• Court: Missouri Court of Appeals

14 S.W.3d 121 (Mo.App. W.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

State of Missouri, Respondent, v. Preston White, Appellant.

WD54686

Missouri Court of Appeals Western District

Handdown Date: 01/11/2000

Appeal From: Circuit Court of Pettis County, Hon. Donald Barnes

Counsel for Appellant: Rosemary Percival

Counsel for Respondent: John M. Morris

Opinion Summary:

Defendant appeals convictions for possession of psuedoephedrine and attempt to manufacture methamphetamine alleging a conflict between the jury instructions for the offense and proper range of punishment, double jeopardy violations, and failure to declare a mistrial for witness' comment on defendant's request to speak with an attorney.

AFFIRMED.

Division holds: Jury instruction defining "attempt" as a "substantial step" was proper, and did not conflict with statutorily defined punishment. Convictions for possession of psuedoephedrine and attempt to manufacture methamphetamine did not violate double jeopardy prohibitions. Failure to object to witness' comment at trial that defendant asked to speak to an attorney and continued cross-examination on the subject by defense waived claim of error on appeal.

Opinion Author: Forest W. Hanna, Judge

Opinion Vote: AFFIRMED. Breckenridge, P.J., C.J., and Howard, J., concur.

Opinion:

A jury found the defendant, Preston White, guilty on Count I, of the class B felony of attempting to manufacture a controlled substance, section 195.211, RSMo 1994,¹ and on Count II, of the class D felony of possession of pseudoephedrine with the intent to manufacture methamphetamine, section 195.246, RSMo Cum. Supp. 1996. The jury assessed punishment at ten years for the attempt to manufacture methamphetamine, and five years for the possession of pseudoephedrine, and the court sentenced the defendant, in accordance with the verdicts, to consecutive terms of imprisonment. In our original opinion, we affirmed the convictions.

On the defendant's motion for rehearing, the state's response alerted this court to a conflict between the jury instruction defining the offense and the instruction on the range of punishment. The verdict directing instruction for Count I defined "attempt" as a substantial step, a class C felony. It also instructed that upon a finding of guilty, the punishment must be assessed within the range of a class B felony. The jury assessed the maximum punishment, 15 years imprisonment, which is within the range of a class B felony. In light of this discrepancy, this court withdrew its original opinion, and agreed to reconsider the issue.

On resubmission, we requested that the parties rebrief the issues including the propriety of the verdict directing instruction on the charge of attempting to manufacture methamphetamine. Since the original opinion, the Missouri Supreme Court has handed down State v. Withrow, No. 81820 (Mo. banc December 7, 1999). The issue decided there is applicable to this case. Additionally, the defendant challenges his convictions on double jeopardy grounds and on the failure of the trial court to declare a mistrial when the state's witness testified that the defendant requested to speak with an attorney. The convictions are affirmed.

The following is an abbreviated recitation of the facts, which are stated favorably to the

verdicts. At approximately 9:30 p.m., on February 4, 1997, two police officers knocked on the door of a residence in Sedalia that they had under surveillance. Theresa Adams opened the door. The officers identified themselves and entered the house.

One of the officers testified that there was a strong odor of chemicals in the house, which he recognized as a by-product of the manufacture of methamphetamine. There was a sheet hanging between the living room and the kitchen, behind which the officers saw the silhouette of a man crouching in the doorway. Eventually, the defendant and Paul Lutjen came into the living room. The defendant told the officers that he rented the house.² After determining that a clear bag of white, powdery substance belonged to Lutjen, the officers informed all parties of their Miranda rights.³ When police asked if anything would "blow up," the defendant and Lutjen indicated that they had finished "cooking." One of the officers went to the kitchen to get a telephone book for the defendant's use and found another bag containing a white, powdery substance. The defendant admitted that the bag was his. The officers then obtained a search warrant.

During the search, the police found the ingredients and equipment necessary to manufacture methamphetamine, including: empty and full containers of ephedrine and pseudoephedrine pills; bottles which contained pseudoephedrine and methamphetamine solutions; a glass baking dish with a white residue; black iodine or red phosphorous in a plastic bag; Coleman fuel or acetone; red-stained coffee filters; muriatic acid; plastic bags with red stains; a homemade filter used to cut down chemical fumes; and black iodine crystals. They also found a number of empty pill bottles for different brands of pseudoephedrine in the garbage next to the refrigerator. Many full bottles of pseudoephedrine pills were found in a kitchen cabinet. The police also found photocopied chapters of a book entitled "Production of Methamphetamine from Ephedrine."

The officers believed that some of the substances found were in the early stages of the production of methamphetamine, and that other substances seized were in the latter stages of production. The defendant denied any knowledge that methamphetamine was being manufactured in the kitchen.

The defendant did not properly preserve his claims of error and, accordingly, our review is pursuant to Rule 30.20. Plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom. Rule 30.20. The rule permits plain error review whether the claim of error was briefed or not. Id. Where an error so substantially affects the rights of an accused that a manifest injustice results if it is left uncorrected, plain error review is warranted. State v. Hadley, 815 S.W.2d 422, 423 (Mo. banc 1991).

In his first point, the defendant argues that the circuit court committed plain error in submitting the jury instruction for Count I, the attempt to manufacture a controlled substance, because the instruction defined "attempt" as "a substantial step toward the commission of the offense." He argues that a substantial step toward the commission of the offense is punishable as a Class C felony but that the jury was instructed to assess punishment within the range of a class B felony. Relying on State v. Reyes, 862 S.W.2d 377 (Mo. App. 1993), and a line of similar cases, the defendant contends that two definitions of attempt exist, and that to be convicted under section 195.211 and punished within the range of a class B felony, that the instruction must have defined "attempt" consistent with the common law definition of engaging "in conduct which nearly approached the consummation of the completed offense."

The Missouri Supreme Court has resolved the issue of the definition of "attempt" in specific statutes versus that of the general inchoate offense statute in State v. Withrow, where it held:

The use of the word "attempt" in these various statutes is not an expression of legislative intent to create two levels of attempt to commit an offense. Rather, the use is a signal that in those prosecutions under those particular statutes the maximum punishment was, in the words of sec. 564.011.3, "otherwise provided" for and intended to be greater than that specified in the general inchoate offense statute.

Slip op. at 6-7. "An attempt to commit an offense, regardless of whether the attempt is under sec. 564.011 or under separate provisions proscribing attempting a specified crime, means a substantial step toward the commission of an offense." Slip op. at 8. The court specifically overruled Reyes, and the cases that relied on it. Slip op. at 8. The Court noted that with respect to drug offenses, that the legislature intended to punish the crime of attempt the same as if it were consummated. Slip op. at 6. Thus, the trial court correctly instructed the jury that the definition of attempt was a substantial step. This point is denied.

Next, the defendant asserts that his convictions for Count I, attempting to manufacture a controlled substance, and Count II, possession of pseudoephedrine with the intent to manufacture methamphetamine, violated his right to be free from double jeopardy.⁴ He claims that pseudoephedrine is a necessary ingredient for the manufacture of methamphetamine. The defendant, therefore, argues that his conviction for attempt to manufacture methamphetamine required proof of possession of pseudoephedrine. Because the defendant did not preserve this claim, he asks us to review this claim as a matter of plain error. Although a constitutional claim is waived if not raised at the earliest opportunity, this court will review under the plain error exception "any case in which we can determine from the face of the record that the court had no power to enter the conviction." State v. Elliott, 987 S.W.2d 418, 420-21 (Mo. App. 1999)(citing Hagan v. State, 836 S.W.2d 459, 461 (Mo. banc 1992)).

"The Fifth Amendment, incorporated in and made applicable to the states by the Fourteenth Amendment, ... provides that no one shall be 'subject for the same offense to be twice put in jeopardy of life or limb.'" State v. McLemore, 782 S.W.2d 127, 128 (Mo. App. 1989) (quoting Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 2062, 23 L. Ed. 2d 707, 716 (1969)). If the legislature intends to punish the conduct under more than one statute, however, a defendant may be convicted of more than one offense based on the same conduct. State...