Opinion
No. WD54686
Filed: October 20, 1998
APPEAL FROM THE CIRCUIT COURT OF PETTIS COUNTY, THE HONORABLE DONALD BARNES, JUDGE.
ROSEMARY PERCIVAL, PUBLIC DEFENDER OFFICE, 505 E. 13TH STREET, KCMO 64106-2865, FOR APPELLANT.
JOHN MUNSON MORRIS, ATTORNEY GENERAL OFFICE, P.O. BOX 899, JEFFERSON CITY, MO 65102, FOR RESPONDENT.
Breckenridge, P.J., C.J., and Howard, J., concur.
On June 25, 1997, a jury found the defendant, Preston White, guilty on Count I of the class B felony of attempting to manufacture a controlled substance, § 195.211, RSMo 1994, and on Count II of the class D felony of possession of pseudoephedrine with the intent to manufacture methamphetamine, § 195.246, RSMo Supp. 1997. The defendant was sentenced to consecutive terms of ten years for the manufacture of a controlled substance, and five years for the possession of pseudoephedrine. The defendant asserts that his convictions imposed multiple cumulative punishment and, as such, violated his double jeopardy rights. He also claims that the trial court should have declared a mistrial when the state's witnesses testified that the defendant requested to speak with an attorney. He acknowledges that his trial counsel did not preserve either issue below, and thus requests plain error review pursuant to Rule 30.20. Because we hold that possession of pseudoephedrine with the intent to manufacture methamphetamine includes the element of the awareness of the presence and the nature of the substance and that the defendant's Fifth Amendment claim was waived, we affirm the convictions.
Since sufficiency of the evidence is not an issue on appeal, the following is an abbreviated recitation of the facts. At approximately 9:30 P.M. on February 4, 1997, two police officers knocked on the door of a residence that they had under surveillance in Pettis County. Theresa Adams opened the door, and the officers identified themselves and were allowed to enter the house.
One of the officers testified that there was a strong odor of chemicals that 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 could see the silhouette of a man crouching in the doorway. Eventually, the defendant and Paul Lutjen came out into the living room. After finding a clear bag of white, powdery substance that had fallen out of Lutjen's pants, the officers informed the house occupants, including the defendant, of their Miranda rights. When 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.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
A search warrant was obtained for the residence. The police found the ingredients and equipment necessary to manufacture methamphetamine, including empty and full containers for pills that included ephedrine and pseudoephedrine; 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 photocopied chapters of a book entitled "Production of Methamphetamine from Ephedrine."
The defendant denied any knowledge of the methamphetamine lab in the kitchen. Troy Rule, a man who had been visiting the house just prior to the time of the defendant's arrest, testified that he had seen nothing to indicate presence of a methamphetamine lab, and he denied that anyone had been making the drug in the kitchen. Additionally, Theresa Adams, the defendant's girlfriend, testified that Lutjen had asked her to store some boxes in her house, which she agreed to do. She denied any odor of methamphetamine in the house and denied knowing anything about a methamphetamine lab. The defendant testified that he did not know that Lutjen had set up a methamphetamine lab in the house, and denied seeing the drug paraphernalia or the methamphetamine lab. He denied ever admitting that he was "cooking" or that he admitted owning a clear bag containing a white, powdery substance.
The defendant acknowledges that he did not properly preserve either claim of error, thus, he requests review 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. 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). Review is required only when there is a "strong clear showing that manifest injustice or a miscarriage of justice will result if relief is not given." State v. Flynn, 875 S.W.2d 931, 934 (Mo.App. 1994). A conviction will be reversed only if it is established that it had a decisive effect on the jury's verdict. State v. Clark, 913 S.W.2d 399, 405 (Mo.App. 1996).
The defendant asserts that the trial court erred in that 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. The defendant points out that pseudoephedrine is a necessary ingredient for the manufacture of methamphetamine. Therefore, it follows that the defendant's conviction under Count I, attempting to manufacture methamphetamine required proof of possession of pseudoephedrine.
As guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article 1, Section 19 of the Missouri Constitution.
"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) (citing 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 v. McTush, 827 S.W.2d 184, 186 (Mo. banc 1992). The legislative intent regarding cumulative sentences is determined by examining the relevant statutes. State v. Villa-Perez, 835 S.W.2d 897, 903 (Mo. banc 1992).
In the present case, the defendant was convicted under two separate statutes, § 195.211, RSMo 1994, and § 195.246, RSMo Supp. 1996. Since neither statute reveals whether the legislature intended to punish the same conduct under both statutes, both parties concede that Missouri's general cumulative punishment statute, § 556.041, RSMo 1994, is applicable. Villa-Perez, 835 S.W.2d at 903. Section 556.041, in relevant part, states:
When the same conduct of a person may establish the commission of more than one offense he may be prosecuted for each offense. He may not, however, be convicted of more than one offense if
(1) One offense is included in the other, as defined in § 556.046.
Section 556.046.1, RSMo 1994, states that:
An offense is so included when
(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged.
Section 556.046.1 has been interpreted to mean that if each offense requires proof of an element which the other does not, the offenses are not offenses included in the other. Villa-Perez, 835 S.W.2d at 904; McTush, 827 S.W.2d at 188. "Application of double jeopardy analysis . . . under . . . the multiple offense limitation statute, thus requires determination of the facts necessary to prove each offense involved. The analysis focuses upon the statutory elements of each offense, rather than upon the evidence actually adduced at trial." State v. McLemore, 782 S.W.2d at 128. Thus, if the two offenses each contain an element which the other lacks, then the defendant may be convicted of both offenses without violating his double jeopardy rights. "Usually the analysis is uncomplicated. The elements of each offense are gleaned from statutory or common law definition and, then, simply compared." Id. at 128-29.
Count I, attempt to manufacture a controlled substance is governed by § 195.211, which provides:
[I]t is unlawful for any person to . . . attempt to distribute, deliver, manufacture, or produce a controlled substance or to possess with intent to distribute, deliver, manufacture, or produce a controlled substance.
(Emphasis added).
For the inchoate offense of attempt, § 564.011, RSMo 1994, sets forth that:
1. A person is guilty of attempt to commit an offense when, with the purpose of committing the offense, he does any act which is a substantial step towards the commission of the offense. A "substantial step" is conduct which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense.
2. It is no defense . . . that the offense attempted was, under that actual attendant circumstances, factually or legally impossible of commission, if such offense could have been committed had the attendant circumstances been as the actor believed then to be.
Count II, possession of pseudoephedrine with the intent to manufacture methamphetamine, is set out under § 195.246.1, which provides:
It is unlawful for any person to possess . . . pseudoephedrine, its salts, optical isomers and salts of optical isomers with the intent to manufacture methamphetamine or any of its analogs.
The defendant argues that each of the elements needed to prove Count II, possession of pseudoephedrine with the intent to manufacture methamphetamine, were also necessary to prove Count I, attempt to manufacture a controlled substance. Specifically, the defendant argues that he could not have been in possession of the ingredients needed to manufacture methamphetamine, so as to make him guilty under Count I, without being aware of the presence of pseudoephedrine with the intent to manufacture methamphetamine and, therefore, also guilty under Count II. In response, the state argues that the second element of Count II requires that the defendant be aware of the nature and presence of pseudoephedrine in order to be guilty of possession with the intent to manufacture methamphetamine. On the other hand, to obtain a conviction for the manufacturing of methamphetamine, awareness need not be proven.
This question has not been addressed by our courts and thus, we will review the question under Rule 30.20 for plain error. State v. Flynn, 875 S.W.2d at 934 (exercising appellate court discretion to review a constitutional claim for plain error).
In State v. Brown, the court held that the crimes of possession and manufacturing required different elements and, as such, convictions for both crimes did not violate double jeopardy. 750 S.W.2d 139, 141 (Mo.App. 1988). The court determined that to convict a defendant for possession, the state must prove that he had knowledge of the presence and nature of the substance, while to be convicted of manufacturing, the state had the burden of showing the planting, cultivation, growing or harvesting of marijuana. Id. In another case titled State v. Brown, the court rejected the argument that the defendant's double jeopardy rights were violated because she was convicted of the separate crimes of possession and manufacturing marijuana. 750 S.W.2d 715, 717 (Mo.App. 1988). Dismissing the defendant's argument, the court ruled that the charge of possession requires knowledge of the presence and nature of the controlled substance, while manufacturing consists of promoting the growth of the plant. Id.
See also Villa-Perez, 835 S.W.2d at 904 (ruling that possession and transportation of marijuana are separate offenses); Wright v. State, 764 S.W.2d 96, 98 (Mo.App. 1988) (finding that stealing a controlled substance and possession of that controlled substance does not violate the prohibition of double jeopardy).
In order to be convicted of attempting to manufacture methamphetamine, § 195.211 requires that the state prove not only the defendant's attempt to manufacture it but, in addition, that the defendant took a substantial step toward the commission of the offense and that the defendant engaged in such conduct with the purpose of committing such offense. See § 564.011; MAI-CR 304.06. To be convicted of possession of pseudoephedrine with the intent to manufacture methamphetamine the state must prove that the defendant: (1) possessed the pseudoephedrine; (2) was aware of its presence; and (3) possessed it with intent to manufacture methamphetamine. See MAI-CR 325.02. Awareness of the presence of pseudoephedrine is not included in the requirements of attempting to manufacture methamphetamine.
Thus, possession of pseudoephedrine with the intent to manufacture methamphetamine requires the awareness of the pseudoephedrine or, more precisely, the "awareness of the presence and the nature of the substance." State v. Sours, 946 S.W.2d 747, 752 (Mo.App. 1997). This is a separate element not required to be proven in order to convict a defendant of attempting to manufacture methamphetamine. For example, a defendant may be convicted of attempting to manufacture methamphetamine, if the defendant was trying to make methamphetamine with something other than pseudoephedrine. See § 564.011.2 (stating that "[i]t is no defense . . . that the offense attempted was, that under actual attendant circumstances, factually . . . impossible of commission"). One crime preceded the other. The crime of possession was completed before the defendant attempted to manufacture methamphetamine. Once the defendant began to manufacture methamphetamine, the mental state required for possession was no longer an element. Since the crime of possession with the intent to manufacture methamphetamine contains an element not contained in the crime of attempting to manufacture methamphetamine, double jeopardy is not implicated. State v. McTush, 827 S.W.2d at 188. Point denied.
Next, the defendant maintains that the trial court erred in failing to sua sponte declare a mistrial when the police officers testified that the defendant requested to speak with an attorney after they asked him for permission to search the house, thus making an impermissible comment on his guilt and his right to remain silent. We are again requested to review this point pursuant to Rule 30.20, because trial counsel neither objected to the testimony nor raised it in the post-conviction motion. The state suggests that we decline to review because the defendant was not manifestly prejudiced in that: (1) two of the four comments made by the officers were elicited by the defense; (2) the state did not use the testimony to imply the defendant's guilt; (3) the state did not pursue or comment on the testimony; (4) the testimony was only elicited in a casual way; and (5) there was overwhelming evidence of the defendant's guilt.
The defendant contends that testimony of his request to consult an attorney effectively violates his right to silence under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 19 of the Missouri Constitution as it may be perceived to be a remark which would be made by a guilty party. State v. Martin, 797 S.W.2d 758, 764 (Mo.App. 1990).
Our review of the testimony shows that the evidence was not offered to establish, directly or by implication, the defendant's guilt. Other than defense counsel's questions of the defendant on cross-examination, the issue was not again raised. The defendant asked for a telephone book in order to call an attorney. Ms. Adams directed Officer Simons to the kitchen for the phone book for the defendant. While in the kitchen, Officer Simons found the additional drugs that the defendant admitted were his. It is apparent that defense counsel accepted the officers' testimony as part of the events that led to the discovery of drugs in the kitchen, and not as a violation of his right to remain silent.
We agree that evidence that the defendant requested to speak with an attorney may be perceived to be made by a guilty party and, as such, "is not proper comment in testimony." State v. Tims, 865 S.W.2d 881, 886 (Mo.App. 1993). However, we find that the defendant has waived this claim of error in that the answers were never objected to by defense counsel and the defendant continued the questioning of both officers on cross-examination. No request was made by trial counsel for a curative instruction to the jury nor was a mistrial sought. Under such circumstances, any claim of error is waived. State v. Green, 798 S.W.2d 498, 504 (Mo.App. 1990) (citing State v. Delgado, 774 S.W.2d 549, 550-51 (Mo.App. 1989)). See also State v. Kempker, 824 S.W.2d 909, 911 (Mo. banc 1992) (ruling that the failure to object to the state's improper comment on the defendant's failure to testify, during closing argument, is fatal as the judge may not have granted a mistrial). Point denied.
The strongest case cited by the defendant in support of his position is State v. Flynn, in which the court ruled that the state's references to the defendant's post-arrest silence was plain error where the prosecutor deliberately elicited the improper testimony, and then the prosecutor, in closing argument, attempted to imply the defendant's guilt based upon his silence. 875 S.W.2d 931, 936 (Mo.App. 1994).
Judgments of conviction are affirmed.