Coates v. Com.

• Decision Date: 02 July 1971
• Citation: 469 S.W.2d 346
• Parties: Paul F. COATES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 346

469 S.W.2d 346

Paul F. COATES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

July 2, 1971.

Rudolph V. Binus, W. David Klingman, Louisville, for appellant.

John B. Breckinridge, Atty. Gen., James H. Barr, Asst. Atty. Gen., Frankfort, for appellee.

CLAY, Commissioner.

Appellant was convicted under KRS 218.020 of possessing marijuana, and was fined $100 and sentenced to two years in the penitentiary. He asserts several grounds for reversal which will be considered after a brief statement of the facts.

Appellant was stopped on a public highway for a traffic violation. Another police officer arrived who had been given information that appellant's automobile contained marijuana. Upon appellant's consent to a search, a canvas bag of marijuana was found in the car. Appellant testified that a friend had advised him that he knew of a field where this plant was growing and they had picked it there. Appellant asserted that he intended to turn this material over to his immediate superior in the Department of Corrections, where he worked, for some investigative purpose. Not finding his superior in the office, he was taking the material home to be brought back the next work day. While appellant denied that he knew he had marijuana in his possession, it is clear that that is what he was searching for and that is what he thought he had. The jury was instructed concerning his knowledge of the nature of the plant material in his possession, although such knowledge is not made an element of the crime prohibited by KRS 218.020.

Appellant's first contention is that Chapter 218 of the Kentucky statutes is unconstitutional. KRS 218.020 declares, among other things, that it shall be unlawful to possess any narcotic drug, and, at the time this offense was committed, marijuana was defined as a narcotic drug. KRS 218.120 provides certain exceptions which will be later discussed.

Appellant argues the statute is unconstitutional on the ground that it does not require any criminal intent or knowledge. He relies on Burnam v. Commonwealth, 228 Ky. 410, 15 S.W.2d 256 (1929), and Commonwealth v. O'Harrah, Ky., 262 S.W.2d 385 (1953). Those cases are not in point because they involved statutes which made criminal offenses of certain acts which a person might be forced innocently to commit because of his financial condition. It was recognized in the Burnam case that the legislature properly may prohibit the doing of an act which involves neither moral turpitude nor evil motive. In the area of drug regulation, guilty intent is not necessarily a prerequisite to the imposition of criminal sanctions. United States v. Wiesenfeld Warehouse Company, 376 U.S. 86, 84 S.Ct. 559, 11 L.Ed.2d 536 (1964). See also State v. Boggs, 57 Wash.2d 484, 358 P.2d 124 (1961), and State v. Hames, 74 Wash.2d 721, 446 P.2d 344 (1968). In State v. Napolis, Mo., 436 S.W.2d 645 (1969), it was held that knowledge that a drug is a barbiturate or a stimulant is not a necessary element of the offense of possession or sale of drugs. See also State v. Gibson, 92 N.J.Super. 397, 223 A.2d 638 (1966).

It is also contended that KRS 218.210 is unconstitutional because it imposes a more severe penalty upon the possession of a narcotic drug than upon the use of such drug. It is argued that this is arbitrary and unreasonable and discriminatory and deprives appellant of the equal protection of the law. We can find no supporting basis for this argument. That the legislature reasonably may make a distinction between possession and use has been recognized. 25 Am.Jur.2d, Drugs, Narcotics, and Poisons, § 17, n. 3. Different penalties do not violate the constitutional principle of equal protection of the law. State v. Reed, 34 N.J. 554, 170 A.2d 419 (1961); State v. Reid, 66 Wash.2d 243, 401 P.2d 988 (1965).

Appellant also contends that the statute is unconstitutional in delegating to the Commonwealth's attorney discretion to determine whether to induce the grand jury to indict for either possession or use. We have difficulty understanding his argument in view of the fact that appellant's acts did not involve use of marijuana. No discretionary act of the Commonwealth's attorney affected this prosecution. Appellant presents an abstract question which does not affect him in this case. The authority he relies on, Olsen v. Delmore, 48 Wash.2d 545, 295 P.2d 324 (1956), involved different punishments for the same crime, which is not involved here. Even if appellant could have been prosecuted for either of two different crimes, no constitutional invalidity is apparent. See Reed and Reid cases, supra.

We now turn to alleged trial errors. It is claimed that the Commonwealth's attorney asked inflammatory questions on cross-examination of appellant and made improper argument to the jury. It appears that appellant, in his official work in connection with problems of parole, had access to the State Reformatory at LaGrange. On cross-examination the Commonwealth's attorney asked the following question, to which an objection was overruled:

'Q. 214. As far as you are concerned there is no problem at the Kentucky State Reformatory about bringing narcotics or drugs into it, is that correct?'

Immediately thereafter the following question was asked, to which objection was sustained:

'Q. 216. No one employed you, did they, to procure marijuana and bring it into the Kentucky State Reformatory?'

Thereafter appellant moved for a mistrial, which was overruled. In his closing argument the Commonwealth's attorney stated:

'It has been right difficult for our Police Officers, Don Powers, Trooper Slone, Lieutenant Watson, employees of the Commonwealth of Kentucky, who are trying to enforce the law, who are representing you against the element who wants to violate the law, who want to use narcotics, who want to use marijuana. They want to put into society for profit or gain or whatever may be their reason drugs, which are running prevalent throughout this Country today. You read about it in the newspapers in Louisville, in Shelbyville, and Shelby County. It's there whether you want to believe it or not. It's prevalent. It's prevalent in that Kentucky State Reformatory, because I know. I'm Commonwealth's attorney in six counties, one of those counties is Oldham County.'

An objection was overruled and thereafter the Commonwealth's attorney stated:

'Whether he was inside of the Penitentiary people, I don't know.'

It is plainly evident from this course of conduct in cross-examination and argument that the Commonwealth's attorney was trying to influence the jury to believe that appellant was trafficking in narcotics. At the present time this is a highly inflammable matter and the public generally is incensed against those who induce the use of and supply drugs. There was no evidence whatever (which may or may not have been relevant) that appellant was participating in the dispensing of narcotic...