432 F.Supp. 444 (W.D.Va. 1977), Civ. A. 76-0021, Davis v. Zahradnick

Docket Nº:Civ. A. 76-0021
Citation:432 F.Supp. 444
Party Name:Davis v. Zahradnick
Case Date:May 05, 1977
Court:United States District Courts, 4th Circuit
 
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Page 444

432 F.Supp. 444 (W.D.Va. 1977)

Roger Trenton DAVIS, Petitioner,

v.

Robert F. ZAHRADNICK, Director Department of Corrections and R. M. Muncy, Superintendent Powhatan Correctional Center, Respondents.

Civ. A. No. 76-0021.

United States District Court, D.C. Virginia

May 5, 1977

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[Copyrighted Material Omitted]

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Edward L. Hogshire, Charlottesville, Va., for petitioner.

K. Marshall Cook, Asst. Atty. Gen., Richmond, Va., for respondents.

MEMORANDUM OPINION

TURK, Chief Judge.

In March of 1974, the petitioner, Roger Trenton Davis, was convicted by a jury in the Circuit Court of Wythe County, Virginia of possession of marijuana with the intent to distribute, and of distribution of marijuana. Although the total quantity of marijuana involved in the two offenses was less than nine ounces, he was fined Ten Thousand Dollars ($10,000) and sentenced to 20 years of imprisonment for each offense, the sentences to be served consecutively. Petitioner Davis appealed his convictions to the Supreme Court of Virginia. However, by order dated October 23, 1974, the Supreme Court of Virginia denied Davis's petition for a Writ of Error. Davis is now

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before this court, seeking habeas corpus relief pursuant to 28 U.S.C. s 2254.

The petitioner asserts that his conviction is constitutionally infirm for the following reasons:

1) He was denied trial by an impartial jury.

2) He was subjected to an illegal search and seizure.

3) He was denied due process by the trial court's failure to strike the evidence after the prosecution failed to prove his possession of marijuana beyond a reasonable doubt.

4) He was denied due process in that the evidence failed to establish that the substance involved was cannabis sativa L.

5) The sentence imposed constitutes cruel and unusual punishment.

The first four grounds are of little moment and need not long detain the court.

Davis' first claim, that he was denied a trial by an impartial jury, is founded on the trial court's refusal to strike a member of the jury panel for cause. The juror, John M. Shaffer, indicated during voir dire that he had read a newspaper account of an earlier drug-related charge against Davis. Counsel for Davis objected to Shaffer, and the following exchange then took place:

THE COURT: Let me ask you one final question, Mr. Shaffer. Do you think you can give each side in this case a fair and impartial trial?

MR. SHAFFER: Yes, sir.

THE COURT: Based solely upon the law and the evidence that you will hear in this courtroom:

MR. SHAFFER: That's right.

THE COURT: And not upon what you have heretofore heard or read or upon any outside influence whatever?

MR. SHAFFER: That's right.

THE COURT: Is there any doubt in your mind? Because if there is, I want you to tell me.

MR. SHAFFER: No. (Record 35-36).

The objection was overruled, and Shaffer was accepted as a panel member. He did not serve on the jury, however; he was struck by defense counsel in one of their four peremptory challenges.

It is petitioner's contention that the trial court erred in not striking Shaffer and that the error was not cured by the exclusion of Shaffer through peremptory challenge. He argues that the trial court's refusal to remove Shaffer for cause operated so as to prejudice the defense's ability to make full and effective use of its peremptory challenges. However, this court does not agree. The United States Constitution guarantees a criminal defendant the right to be tried by " . . . a panel of impartial, 'indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). It is clear that a juror's knowledge of prior offenses of a defendant will not disqualify that juror, if the juror is able to set aside all preconceptions and render a fair and impartial verdict based solely on the evidence presented in court. Irvin v. Dowd, supra; Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); United States v. Gay, 522 F.2d 429 (6th Cir., 1975). The voir dire examination of Shaffer, by the court and counsel, revealed no apparent bias or predetermination resulting from his prior knowledge. Moreover, Shaffer unequivocally stated that he could make an impartial judgment based solely on the evidence presented. Given such circumstances, this court can perceive no constitutional error in the trial court's refusal to discharge Shaffer. Furthermore, even if the refusal to discharge was erroneous, the error was clearly so harmless as to preclude any claim for habeas relief. United States v. Tweed, 503 F.2d 1127 (7th Cir., 1974); see Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

Petitioner's next contention is that certain evidence introduced at his trial was obtained as the result of an unconstitutional search of his home. The court need not reach the merits of this claim since the question was fully litigated at trial and on appeal. In Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) the United States Supreme Court held that a state

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prisoner may not obtain federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was used in his trial, if the state provided an opportunity for full and fair consideration of the Fourth Amendment claim. Davis raised and litigated this claim before his state trial. (Record 15-21). He later presented the claim in his appeal to the Supreme Court of Virginia. Consequently, the propriety of the search and seizure cannot now constitute a ground for relief in this court.

As his third contention, Davis alleges that the prosecution failed to prove, beyond a reasonable doubt, this possession of a 168 gram bag of marijuana, which served as the basis for the conviction of possession with intent to distribute. 1 As respondents noted in their brief, this question essentially concerns the sufficiency of the evidence, and the appropriate standard of review on federal habeas corpus is whether there is any evidence at all to support the conviction. Holloway v. Cox, 437 F.2d 412 (4th Cir., 1971); Williams v. Peyton, 414 F.2d 776 (4th Cir., 1969).

Clearly, the evidence in this case meets the sufficiency standard. The bag of marijuana involved was found in the backyard of Davis' home during a search by state police. Although Davis was in the house along with several other people at the time of this search, there was unrebutted testimony that the bag was found approximately 15 feet behind a window at the back of the house. The window was found open and was in what Davis described as his room. There was further testimony by one of the officers that, immediately after entering the building, he discovered Davis alone in this room, hiding in a closet. A scale, cigarette papers, and a bag containing roughly 8 grams of marijuana were also found in the room. Finally, Danny Ray Eads, a police informer who testified that he had purchased marijuana from Davis on the day prior to the search, stated that the transaction took place in that room. Eads indicated that Davis took the marijuana which he sold to Eads from a bag lying in the middle of the floor. Thus, there is evidence to support petitioner's conviction of possession with intent to distribute.

Davis also asserts that the evidence presented at his trial failed to establish beyond a reasonable doubt that the substances which he was charged with selling and possessing were cannabis sativa L. At the time of petitioner's trial, the Code of Virginia defined "marijuana" as " . . . any part of the plant cannabis sativa L. . . . " Ch. 94, s 54-524.2(b)(16), Va. Acts of Assembly, 1971 Spec.Sess. Davis argues (1) that cannabis consists of more than one species, i. e., that it is polytipic, (2) that cannabis sativa L was the only species prohibited by the Virginia Code provisions under which he was prosecuted, and (3) that it was not shown that the substances involved in his convictions were cannabis sativa L instead of some other species of cannabis. Obviously, this contention also raises a question of sufficiency of the evidence. 2 See Holloway v. Cox, supra; Williams v. Peyton, supra.

Both sides presented their own expert witness at the state trial. Dr. James I. Reveal, an assistant professor of botany at the University of Maryland, testified for the defense. He stated that there are four species of cannabis in addition to cannabis sativa L, and that the species are impossible to differentiate once they are cut up. However, he conceded on cross-examination that

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this opinion is not universally accepted and that some botanists continue to believe that only one species of cannabis exists. Mr. Leon Reynolds, an analytical chemist in the State's Bureau of Forensic Science, appeared for the prosecution. He related that he had tested the substances allegedly possessed and sold by Davis and that they were marijuana. He stated that he was familiar with the controversy regarding the number of species of cannabis, but that he was of the opinion that cannabis sativa L constituted the only species. Consequently, the court must find that there was evidence from which the jury could conclude that the substances were cannabis sativa L.

Petitioners final contention concerns the severity of his punishment. As noted above, Davis was fined a total of $20,000 for both offenses and sentenced to two, twenty year terms to be served consecutively. Petitioner urges that such penalties are so excessive as to contravene the Constitutional prohibition against cruel and unusual punishment.

The Eighth Amendment to the Constitution of the United States provides that "(e)xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted." In...

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