State v. Zimpher, KCD

• Decision Date: 31 May 1977
• Docket Number: No. KCD,KCD
• Citation: State v. Zimpher, 552 S.W.2d 345 (Mo. App. 1977)
• Parties: STATE of Missouri, Respondent, v. Lloyd Charles ZIMPHER, Appellant. 28788.
• Court: Missouri Court of Appeals

Page 345

552 S.W.2d 345

STATE of Missouri, Respondent, v. Lloyd Charles ZIMPHER, Appellant.

No. KCD 28788.

Missouri Court of Appeals, Kansas City District.

May 31, 1977.

R. E. Moulthrop, Bethany, for appellant.

John C. Danforth, Atty. Gen., Donald A. Purdy, Jr., Asst. Atty. Gen., Jefferson City, for respondent.

Before SWOFFORD, P. J., and SHANGLER and DIXON, JJ.

SWOFFORD, Presiding Judge.

The appellant (defendant) was tried before a jury on the charge of possession and control of marihuana in a quantity exceeding 35 grams (Section 195.200-1(1) (b) RSMo 1969, as amended Laws 1975). The jury returned a verdict of guilty and assessed the defendant's punishment at four years. After an unavailing motion for a new trial and allocution, the defendant was sentenced to four years under the supervision of the Department of Corrections, from which judgment he appeals. He asserts seven points or assignments of error, including three charging the trial court with error in overruling his motion for a directed verdict at the close of the state's case. The defendant did not testify and offered no evidence.

It should here be restated that the appellate review in this case is restricted to a consideration of the whole record and consideration of the facts in evidence and the inferences that may be reasonably drawn therefrom in the light most favorable to the state, and all evidence and inferences in conflict therewith are to be disregarded. State v. Colthorp, 437 S.W.2d 75, 76(1) (Mo.1969); State v. Watson, 350 S.W.2d 763, 766(1) (Mo.1961); State v. Wishom, 416 S.W.2d 921, 923(1) (Mo.1967).

When so viewed, this record, in pertinent part, discloses:

On October 29, 1974, Melvin Smith, the Sheriff of Harrison County, Missouri, filed a sworn complaint in the Magistrate Court of such county asking that a search warrant be issued permitting him to search a dwelling house located at 604 North 17th Street in Bethany, Harrison County, Missouri for certain controlled substances (as specifically described therein) including marihuana or cannabis sativa. In support of such sworn complaint, Sheriff Smith filed his own affidavit and that of Gary Baker, a member of the Missouri State Highway Patrol, setting forth in specific detail the factual reasons for their belief that the premises was being used for the sale, use and distribution of various drugs within the statutory proscription of controlled substances.

In accordance with the complaint and supporting affidavits, Magistrate Loman, during the afternoon of October 29th, issued a "Search Warrant Authorizing Search for Controlled Substances" of the dwelling at 604 North 17th Street and placed it in the hands of Sheriff Smith for execution, return and inventory, as provided by law.

At approximately 3:20 a. m. the following morning, Sheriff Smith, Sergeant Baker and Corporal Stratton of the Highway Patrol, and other law enforcement officers, went to the premises on 17th Street for the purpose of execution of the warrant. Sheriff Smith testified that he chose the early morning hour to conduct the search because he felt there was a greater chance then to find the occupants of the house at home.

Sheriff Smith knocked on the door, identified himself as a peace officer with a search warrant and asked to be admitted. Receiving no response, he and another officer kicked the front door open and entered the house. Sheriff Smith found one Lyndal Lee Stewart in a bed in the front room. Highway Patrolmen Corporal Stratton and Sergeant Baker found the defendant and one Ronald Gail Johnson asleep in a bed in an adjoining bedroom and brought them into the front room and handcuffed them. All three were placed under arrest and read the Miranda warning. The Sheriff then inquired as to "Who was in charge of the house?" Johnson replied, "We all are, I guess. We make up money and pay the rent. I paid the rent the last time." The defendant then said, "That's right" and Stewart nodded his head in agreement.

During the ensuing search of the premises, Sergeant Baker found a bag of what appeared to be marihuana in a drawer of a chest of drawers located in the bedroom which was occupied by the defendant and Johnson and which was marked State's Exhibit No. 1. Corporal Stratton found another bag containing a wood and brass pipe, cigarette papers and a plant material in the drawer of a night stand beside the bed in which the defendant and Johnson had been sleeping. This was marked State's Exhibit 2. ¹

The chain of custody of State's Exhibits 1 and 2 is clearly shown and not seriously challenged. Highway Patrolmen Baker and Stratton turned these exhibits over to Sheriff Smith at the scene; the Sheriff turned them over to Sergeant Rhoades, evidence technician of the State Highway Patrol; Rhoades turned them over to Afton Ware, a forensic chemist employed by the Missouri Highway Patrol, who made certain examinations and tests of the material; upon the completion of these procedures, Ware returned the exhibits to Rhoades, who in turn delivered them back to Sheriff Smith; and Smith produced them at trial.

Afton Ware testified that he had worked as a forensic chemist with the Missouri Highway Patrol over 13 years. His duties were to make microscopic, chemical and physical analysis of specimens submitted to him for that purpose. In the course of his work he stated that he had made approximately 1300 examinations of marihuana, including marihuana seeds. Ware's qualifications were admitted by the defense.

Ware testified that in November of 1974, he made an examination of the contents of the bag marked State's Exhibit No. 1 (the bag found in the chest of drawers as previously related); that such contents weighed 35.0 grams; that the contents consisted of leafy material, hulls and seeds that had the physical appearance of marihuana; that microscopically the leafy material had a warty appearance, the presence of a "sisal of hairs" and secretions of resin. The seeds in this bag had the appearance of miniature coconuts with characteristic veins on the surface and a general oval shape. When questioned about the process of sterilization of marihuana seeds, he testified that this is done by a heat process in the course of which the hulls come off and which process leaves the seeds clean and smooth. He gave his opinion that State's Exhibit No. 1 contained marihuana seeds and marihuana leaf particles.

Ware further testified that the bag marked State's Exhibit No. 2 (the bag found in the drawer of the bedside table, as previously related) was also examined by him. It contained a pipe, cigarette papers and also plant material. The plant material weighed 8.0 grams. His examination of this material also led him to the opinion that it was marihuana. Ware also performed various chemical tests on the plant material and hulls from each exhibit which further confirmed that such material was marihuana.

He only conducted microscopic examination of the seeds but did not do the germination test, which consists of either planting the seeds or placing them in a moist, warm container. He gave as his expert opinion that the seeds in State's Exhibit No. 1 were not sterile.

Prior to the trial, the defendant filed his motion to suppress the evidence of State's Exhibits No. 1 and No. 2 upon the grounds that the search warrant was improper and illegally issued, and that the search and seizure of this evidence, under the warrant, was unreasonable and illegal. An evidentiary hearing was held on this motion prior to trial. At this hearing, the state introduced the Magistrate's records as to the search warrant, as above described, and the testimony of Sheriff Smith. The defendant offered no evidence in support of his motion. The trial court overruled the motion and the defendant thereafter unsuccessfully asserted these same complaints in his motion for a new trial. The same points are raised on this appeal as Points I and II of the Points Relied Upon in his brief.

However, the record shows that when the state had its Exhibits No. 1 and No. 2, the fruits of the search and seizure so far as this case is concerned, marked and identified, no objection was lodged by the defense based upon these grounds. When these exhibits were offered into evidence (perhaps, as a matter of trial strategy), defense counsel stated: "I have no objection." In this posture of the record, the defendant's attack upon the validity of the search and seizure has not been preserved for review.

The rule is now firmly settled that where the validity of a search is questioned and the admission of the fruits of such search is sought to be suppressed in order to preserve any alleged error by reason of the admission of such evidence, the objection thereto must be raised at the earliest opportunity, kept alive by timely objection to the introduction at trial, and preserved by the motion for a new trial. Following the imperative force of previous decisions of the Supreme Court, this court so ruled in State v. Roberts, 530 S.W.2d 428, 431(1) (Mo.App.1975). See also, State v. Simone, 416 S.W.2d 96, 100(11) (Mo.1967); State v. Yowell, 513 S.W.2d 397, 402(1) (Mo. banc 1974); State v. Ealey, 519 S.W.2d 314, 320(5, 6) (Mo.App.1975), and cases cited therein.

The defendant's failure to object and his agreement to the admission of State's Exhibits No. 1 and No. 2 precludes appellate review of his Points I and II, and they are ruled against him.

By Point III of defendant's assignments of error, he asserts that the court erred in overruling his motion for a directed verdict at the close of the state's evidence upon the ground of the state's alleged failure to prove that its Exhibits No. 1 and No. 2 contained proscribed marihuana which, by weight, exceeded 35 grams. This assignment is based upon the theory that the exception explicit in Section 195.010(20), RSMo 1969, as amended Laws 1975, excepts sterile marihuana seeds which are incapable of germination as proscribed substances.

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