Dеfendant was convicted upon jury trial of growing and cultivating marijuana, § 195.200.1(3), RSMo Supp.1983. He was sentenced to 15 years in prison in accordance with the verdict of the jury.
Defendant has appealed, alleging several instances of trial error which he claims entitle him to a reversal. We affirm the conviction.
The facts are as follows:
Defendant was living with his girl friend in a house located on the Gravois arm of the Lake of the Ozarks. The house was owned by his girl friеnd’s father, a John Fee.
Living nearby, one lot removed, was Mr. John Loman. The Loman house and the Fee house where defendant and his girl friend were living were separated by a building lot. There was a house on this lot but it was forward of the Loman and Fee houses so that the view and the passage between the two houses was unobstructed.
The defendant and Loman became engaged in an altercation. Defendant called thе water patrol to complain of an assault upon himself by Loman. Two officers, Joseph Hughes and Gary Haupt, showed up. After talking with the defendant they went to talk with Mr. Loman in his front yard. Loman told the officers that marijuana plants were being grown in the backyard of the Fee residence where appellant lived. Officer Hughes walked across the intervening lot toward the Fee residence. He saw pots along the seawall and also on the back porch of the Fee residence, containing what he thought were marijuana plants. As a part of his officer’s training he had been taught to identify marijuana plants. The back porch or “sundeck” was unenclosed except by a railing. The potted plants were sitting on tables, on some benches and on the floor.
Hughes returned to where Officers Haupt and Loman were. Haupt and Hughes, aсcompanied by Loman, then went back to the Fee residence. The defendant was on the dock. Haupt took Hughes’ Miranda card and read the defendant his Miranda rights.
Hughes asked the defendant if he had any identification on him. He said he did have “up at the house.” Hughes and Haupt followed defendant toward the house. As they neared the door, the defendant said: “Come on in, be careful.” The “be careful” was becausе of paint on the officers’ shoes from the freshly painted boat dock.
The three entered the house. Defendant searched through the house for his identification. He opened up a small box that looked like a jewelry box on an end table. He closed it very quickly, but not before Hughes spotted a bag with a “leafy-looking material” in it. Hughes asked defendant if he would open the box again. Defendant immediately agrеed, and Hughes took the bag of what turned out to be marijuana, as Hughes had suspected.
Defendant was placed under arrest. Other officers arrived shortly, and the potted marijuana plants were loaded on the truck and hauled away.
In due course defendant was charged with “manufacturing marijuana,” was tried and convicted.
The marijuana plants seized at the place of defendant’s residence on the day of his arrest, as earlier described, were introduced in evidence. There were 190 of them. Defendant says the court erred in admitting them into evidence, because their seizure was the product of an unreasonable and unlawful warrantless search.
This point is denied.
The appellant’s attack here focuses upon the warrantless seizure of the plants on the back porch. He says, citing
State v. Buchanan,
He says that the “plain view” doctrine does not justify the seizure of the plants seen by the officer from a distance, but identified from the adjoining landowner’s premises. He says that two of the conditions of the “plain view” doctrine, listed in
State v. Strickland,
We think the basic inquiry is whether appellant had a legitimate expectation of privacy in the places where he had the potted marijuana, and we conclude that he did not. With respect to the plants sitting along the seawall, visible at close range from points where the public was coming and going, that seems fairly clear. As to the plants on the back porch, a closer analysis is necessary, but the same conclusion holds. For one thing, the display of the plants on the seawall indicates that defendant had no expectation of privacy in the same plants on the back porch. Add the fact that they were on an unenclosed porch, visible and identifiable from the adjoining neighbor’s property, and you have a picture of property — if that term can be used with respect to contraband — for which no privacy was expected. See
People v. Lashmett,
Back to
State v. Buchanan,
Another feature which distinguishes Buchanan from this case is the advertence of the discovery of the gun in Buchanan, as opposed to the inadvertence of the discovery of the contraband in our case.
Assuming “inadvertence” has anything to do with the right to seize contraband which is easily visible and identifiable from a neighbor’s property, it does not disqualify this seizure that Officer Hughes walked across the intervening lot and viewed the plants with the purpose and expectation of seeing marijuana. The “inadvertence” spoken of in
Coolidge v. New Hampshire,
Defendant offers a second reason why the marijuana plants should not have been admitted in evidence. There were 190 plants found at defendant’s residence and admitted in evidence. A chemical analysis had been conducted only upon 7 of them. Defendant says that the 183 other plants were not identified as marijuana and therefore not entitled to admission in evidence. Defendant’s argument is, taken from his brief:
In order for there to have been a proper foundation, Mr. Durham [the chemist] either, one, should have tested each plant and matched each tested samplе with the potted plant in court, or, two, should have examined each marihuana plant previously and have been able to identify each one in court as the plant he viewed previously. Neither method of identification occurred here.
However, there was sufficient foundation laid for the admission of the plants into evidence. Chemist Durham and Officers Haupt and Hughes each testified that the plants were marijuana plants. Durham, of course, had chemically tested 7 of the 190 plants and testified that to chemically test each marijuana plant would have been unnecessarily time consuming. Officers Haupt and Hughes both testified to their familiarity with marijuana plants and expressed the opinion that these were of that species. The evidence was entirely sufficient for admissibility.
Of course, if there was any doubt about their being marijuana plants, it was defendant’s privilege to cross-examine the witnesses who identified them as such before the jury, and also to introduce contradictory evidence if he chose to do so. The state did not need to eliminate every possible and remotest doubt that these were marijuana plants in order to get them admitted into evidence, nor does the fact that they are admitted into evidence compel the jury to believe that they are marijuana plants.
Bean v. Riddle,
Defendant takes one more stab at this evidence. He says that the plants as introduced in evidence were in a “changed condition.” How they could have been kept in the same condition as when seized, the
The marijuana were properly admitted into evidence, and defendant’s exception thereto is denied.
II
Defendant next claims that the court erred in admitting into evidence a written statement made by defendant after his arrest, in which he admitted that he had planted the marijuana plants. He says that the confession was not knowingly, freely and voluntarily given. He says that the officers withheld medical attention frоm him, although he repeatedly requested medical treatment. He testified also that he was refused water and cigarettes and threatened to the effect that his girl friend would be prosecuted if he did not sign a written statement.
Once the voluntariness of a confession has been challenged, it is the state’s burden to show voluntariness by a preponderance of the evidence.
State v. Buckles,
The police officers testified with respect to the statement that defendant had given the same voluntarily. They denied that he had rеquested, or that he seemed to need, medical treatment. Of course, the credibility of the witnesses was in the first instance for the trial court’s determination, and the court could accept the testimony of the officers and reject that of the defendant.
State v. Gantt,
Once again, as in the case of the marijuana plants, the state did not have to remove all possible doubt about the volun-tariness of the confession in order to entitle it to admission into evidence.
State v. Craig,
Ill
Defendant next complains of the admission into evidence of the bag of marijuana located in the small wooden box inside the house.
He says first that the bag of dried marijuana was irrelevant to the charge upon which defendant was being tried. His point is that defendant was being tried for growing and cultivating marijuanа and that this charge was grounded upon the growing plants in the pots. There was no showing, defendant correctly says, that the dried marijuana was in any way connected with that which was being grown on the outside.
The state, however, as a part of its case, had to prove that the defendant knew the character of the marijuana plants.
State v. Netzer,
The defendant’s next objection to the bag of dried marijuana is that it was the product of an unreasonable and unlawful search and seizure.
This point is denied. Defendant, although he hаd not been formally placed under arrest at that time, still was as a practical matter under arrest from the time the police officers returned from their conversation with Mr. Loman, after they had seen and identified the marijuana plants, and had read him his
Miranda
rights. The defendant testified at the trial that he supposed he was under arrest from that time. The officers then had a right and a duty to monitor the defendant’s movements. A strikingly similar situation wаs presented to the United States Supreme Court in
Washington v. Chrisman,
[I]t is not “unreasonable” under the Fourth Amendment for a police officer, as a matter of routine, to monitor the movements of an arrested person, as his judgment dictates, following the arrest. The officer’s need to ensure his own safety — as well as the integrity of the arrest — is compelling. Such surveillance is not an impermissible invasion of the privacy or personal liberty of an individual who has been arrested.
Id.
at 817.
See also State v. Esrock,
IV
Defendant complains of the court’s sending exhibits to the jury.
The jury had been out less than five minutes when they sent a note which said: “May we have composite pictures of all the plants.”
The court decided to send to the jury all the pictures and all the written documents “except the test results and the packages.” The court said: “I’m going to submit it all to them so they can’t be complaining that they should have had all of them. If they get any of them, I’m going to give all of them that were introduced.”
Defendant complains of the court giving the jury the photographs which they requested, and complains also of his sending them exhibits which they had not requested.
The business of sending еxhibits to the jury room is a matter which is discretionary with the court,
State v. Williams,
We see no reason at all, however, to hold that the trial judge in any way abused his discretion in ruling as he did on this point.
Y
Appellant complains of the verdict-directing instruction submitted to the jury. The instruction requirеd conviction if the jury found that the defendant “cultivated and grew” marijuana.
Defendant says that the verdict director which he submitted, which required the jury to find that the defendant “manufactured” marijuana should have been given instead and then that the court should have submitted an additional instruction defining the word “manufacture,” MAI-CR2d 33.01, which includes “production” followed by yet another instruction, MAI-CR2d 33.01, defining “production” as including “cultivating and growing.”
Defendant says that giving the thrеe instructions would have been preferable to the single instruction given by the court, and that the, court’s use of the single instruction authorizing conviction for “cultivating and growing” must have confused the jury.
We, however, are unable to agree with defendant’s view. The use of the single instruction instead of the circuitous multiplicity of instructions argued for by the defendant is much to be preferred. The “cultivated and grew” language was used in the instruction aрproved in
State v. Netzer,
VI
Defendant complains of Instruction No. 8 which undertakes to define the word “manufacture.” It said: “Manufacture means the production, preparation, propogation, compounding or processing of a controlled substance.”
There is an MAI-CR2d instruction which defines the word “manufacture,” MAI-CR2d 33.01. Defendant’s specific complaint about this is that the instruction which was given omitted that language in the pattern instruction which says: “except that this term does not include the preparation or compounding of a controlled substance by an individual for his own use_” Defendant says that the instruction given by the court precluded the jury from considering the fact that defendant may have been preparing the marijuana for his own use.
This was not prejudicial to the defendant, however, because the personal use exception apрlies only to preparation and compounding and does not apply to cultivating and growing.
State v. Netzer,
YII
Defendant complains of the admission into evidence of photographs of the marijuana plants which were taken one month after their seizure by the officers. He says the photographs “did not depict conditions existing at the scene of the crime” and “an improper foundation was laid prior to their introduction into evidence”. Some of the plants had grown between the time of their seizure and the time the photographs were taken, and some had deteriorated from lack of care. The admissibility of photographs rests in the discretion of the court and any differences existing in the conditions between the time of the crime and the taking of the photograph may be developed in the evidence. Any such differencеs go only to the weight of the evidence.
State v. Johnson,
VIII
As his final point, defendant complains of the court’s omission to give MAI-CR2d 2.10 and 2.12. Defendant says that there was evidence that defendant may not have cultivated and grown the marijuana plants himself, but instead may have aided or attempted to aid his girl friend, LuAnn Fee, in doing so. If that is the case, the error was favorable to the defendant, in that the state assumed a greater burden
Judgment affirmed.
All concur.
Notes
. In
U.S.
v.
Arboleda,
Arboleda likewise is not helped by invocation of the hoary concept of "curtilage". Terming a particular area curtilage expresses a conclusion; it does not advance Fourth Amendment analysis. The relevant question is the one surveyed above, whether the defendant has a legitimate expectation of рrivacy in the area. See Wattenberg v. United States,388 F.2d 853 , 858 (9 Cir.1968). It seems decidedly questionable whether, under the Rakas analysis, a homeowner could insist upon a search warrant if he hurled a package of cocaine onto his front lawn where it could be plainly seen by anyone. In its recent decision in Payton v. New York, supra, 48 L.W. [4375] at 4380 [445 U.S. 573 at 590,100 S.Ct. 1371 at 1382,63 L.Ed.2d 639 ], the Supreme Court identified the line at which the requirement for an arrest warrant takes hold as "the entrance to the house” and the "threshold”. See also United States v. Santana, supra, 427 U.S. [38] at 42, 96 S.Ct. [2406] at 2409 [49 L.Ed.2d 300 ] (vestibule behind open door is public place).