Court of Appeals of Missouri, Eastern District, Third Division
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Appeal from the Circuit Court of the City of St. Louis. Honorable Rex M. Burlison.
FOR APPELLANT: Lisa M. Stroup, Assistant Public Defender, Office of the Missouri Public Defender, St. Louis, Missouri.
FOR RESPONDENT: Chris Koster, Attorney General, Richard A. Starnes, Assistant Attorney General, Jefferson City, Missouri.
Kurt S. Odenwald, Presiding Judge. Robert G. Dowd, Jr., J., Concurs. Gary M. Gaertner, Jr., J., Concurs.
Kurt S. Odenwald, Presiding Judge
Appellant Alvin S. Spears, Jr. (" Spears" ) appeals from the judgment of the Circuit Court of the City of St. Louis (" trial court" ) finding him guilty of felony possession of a controlled substance and misdemeanor possession of a controlled substance. Spears argues that the trial court erred in (1) allowing Officer Kenneth Allen's (" Allen" ) late endorsement as a witness for the State, (2) overruling Spears's motion to suppress oral statements he made to the arresting officers, Allen and Officer Adam Feaman (" Feaman" ), as well as his objection to those statements at trial, and (3) overruling Spears's objection to the admission of two of the State's exhibits. Spears further argues that the case should be remanded to the trial court with instructions to issue an order nunc pro tunc correcting the judgment form to remove all references to Spears being a prior and persistent offender.
The trial court did not abuse its discretion in permitting Allen's testimony because Spears suffered no genuine surprise as a result of the State's late endorsement of Allen as a witness. Because Spears's oral statements to Feaman and Allen were not made during a custodial interrogation and were spontaneous and voluntary in nature, the trial court did not clearly err in overruling Spears's motion to suppress or his objection at trial. Further, the trial court committed no error, plain or otherwise, by admitting State's Exhibits 2A and 2B into evidence because the evidence at trial established a sufficient chain of custody for the exhibits. Finally, we remand the case to the trial court with instructions to issue an order nunc pro tunc correcting the judgment form to remove all references to Spears being a persistent offender.
Factual and Procedural History
Around 5:00 p.m. on September 23, 2011, Feaman and Allen were conducting surveillance of a gas station in the City of St. Louis. Feaman and Allen were in an unmarked car, but were wearing police uniforms. Feaman and Allen observed Spears standing near his vehicle talking to another man. Spears removed an item from his pocket and showed it to the man,
who shook his head and walked away. Spears then took a cigar, rolled something into it, and licked the paper to seal it. Another man walked across the parking lot, and Spears waved him over. The two men spoke briefly and Spears showed the man an item Spears had removed from his pocket. The man handed Spears money in exchange for the item and walked away.
At that point, Feaman and Allen drove their car onto the gas station parking lot and parked directly behind Spears's vehicle. Feaman and Allen got out of the car, approached Spears, and identified themselves as police officers. Before Feaman and Allen asked Spears any questions, Spears told the officers that he had some weed on him and had just rolled a blunt that he was about to smoke. Because Spears admitted to committing a crime, Feaman handcuffed him. Spears became agitated and said that he wanted the officers to " work with him" and let him go. Spears then told Feaman and Allen to take the marijuana and blunt out of his front right shorts pocket. As Feaman reached into Spears's pocket, Spears stated " damn, this game over. I got some pills on me." " Pills" is a street term for powdered heroin packaged in gel capsules. Feaman found two knotted plastic bags in Spears's front right shorts pocket. One bag contained what Feaman believed to be marijuana, and the other bag contained gel capsules and a rolled cigar with what Feaman believed to be marijuana inside.
The officers placed Spears under arrest. Feaman advised Spears of his Miranda rights, which Spears stated he understood. After Spears was placed in the officers' car, he told the officers that there was more heroin in his vehicle and a blender in the backseat. Feaman recovered a knotted plastic bag with brownish chunks of apparent heroin and a blender with white residue in Spears's vehicle. The chunks recovered from Spears's vehicle tested positive for heroin and weighed more than two grams. The loose vegetation and the vegetation inside the cigar paper tested positive for marijuana, while the gel capsules tested negative for controlled substances.
The State charged Spears as a prior and persistent offender and prior drug offender with felony possession of a controlled substance and misdemeanor possession of a controlled substance. The case was tried before a jury beginning on July 22, 2013. Prior to trial, Spears filed a Motion to Suppress Evidence and Statements (" motion to suppress" ). As grounds for his motion to suppress statements, Spears alleged that his statements were not voluntary, and that his custody and interrogation were " inherently coercive." As grounds to suppress the physical evidence seized, Spears alleged that the officers' search and seizure were unlawful.
A hearing was held on Spears's motion to suppress. At the suppression hearing, the knotted bag containing green vegetation suspected to be marijuana was labeled State's Exhibit 1A and the cigar containing suspected marijuana was labeled State's Exhibit 1B. State's Exhibit 2A was a gel capsule containing powder. Feaman testified that, other than the exhibits being opened for laboratory testing, the items appeared to be the same as when he seized them. The trial court denied the motion to suppress.
Feaman was the first witness to testify at trial. As Feaman began to testify regarding the statements Spears made to Feaman and Allen in the gas station parking lot, Spears objected, referencing ...