Com. v. Harrelson, No. 1998-SC-1048-DG.

• Decision Date: 23 March 2000
• Docket Number: No. 1998-SC-1048-DG.
• Citation: 14 S.W.3d 541
• Parties: COMMONWEALTH of Kentucky, Appellant, v. Woody HARRELSON, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 541

14 S.W.3d 541

COMMONWEALTH of Kentucky, Appellant, v. Woody HARRELSON, Appellee.

No. 1998-SC-1048-DG.

Supreme Court of Kentucky.

March 23, 2000.

COPYRIGHT MATERIAL OMITTED

A.B. Chandler III, Attorney General of Kentucky, Frankfort, Thomas P. Jones, Special Assistant Attorney General, Beattyville, for appellant.

R. Burl McCoy, Charles E. Beal II, Tonya S. Conner, McCoy & West, Lexington, for appellee.

WINTERSHEIMER, Justice.

This appeal is from a decision of the Court of Appeals vacating the judgment of the Lee Circuit Court which affirmed a ruling by the Lee District Court finding that the definition of marijuana in KRS 218A.010(12) is unconstitutionally overbroad. The Court of Appeals remanded the case to the circuit court with directions to dismiss the appeal on the ground that it was taken from a nonfinal order.

The major issue is whether the decision of the Lee District Court which held that KRS 218A.010(12) was unconstitutional is correct. Other questions presented are whether the circuit court erred in affirming the judgment of the Lee District Court; whether the circuit court erred in affirming a finding that a viable economic benefit could be derived from the nonhallucinogenic parts of the marijuana; whether the entire matter should be dismissed for territorial procedural defects and whether the appeal was taken from a nonfinal order of the district court.

The facts of this matter are not in dispute. On June 1, 1996, Woodrow Harrelson planted four hemp seeds on a tract of land in rural Lee County. He was cited and arrested for a violation of KRS 218A.1423(3), cultivation of marijuana, five or fewer plants, a Class A misdemeanor. The charge was later amended to possession of marijuana, KRS 218A.1422, also a Class A misdemeanor. He pled not guilty and moved to dismiss the charge contending that the hemp seeds did not come within a proper statutory definition of marijuana, or, if they did, that the statute was unconstitutionally overbroad and vague.

Harrelson specifically challenged the constitutionality of the 1992 amendment to KRS 218A.010(12), now subsection (14). After a hearing on the question of constitutionality, the district judge rejected the argument by Harrelson that the statute was void for vagueness but agreed that the statute is unconstitutionally overbroad by including the nonhallucinogenic parts of marijuana. The district court concluded that the statute violated Section Two of the Kentucky Constitution as an arbitrary exercise of state authority. He also found that an issue of fact remained concerning whether the seeds planted by Harrelson were capable of germination or producing plants that contain the hallucinogenic properties of marijuana. The matter was set for trial on that question. The Commonwealth filed an interlocutory appeal from the ruling of the district judge; the circuit court affirmed, and the Court of Appeals dismissed the appeal reasoning that it was taken from a nonfinal order. This Court granted discretionary review.

By agreement of the parties, a hearing on the motion to dismiss was held in Owsley County where both the Commonwealth and the defendant presented three witnesses each. The first witness for the Commonwealth was Sgt. James Tipton, a 24 year member of the Kentucky State Police who currently works for Special Operations as a Special Project Coordinator and member of the Governor's Marijuana Strike Force. It was not challenged that Sgt. Tipton had been involved in approximately one thousand drug investigations and that he had investigated all types of drug crimes, including marijuana. The witness held an undergraduate degree in police administration and was a graduate of the F.B.I. National Academy and the Southern Police Institute. He taught at the National Interagency Drug Institute in California as well as classes on drugs and crime at Eastern Kentucky University. He testified in hundreds of cases and had been permitted to give an expert opinion in both federal and state courts on marijuana and cocaine. He testified that his experience with countries in which hemp was legalized indicated that they were already having difficulties in the prosecution of marijuana cases because violators use hemp as a defense arguing that they thought they were growing lower-grade marijuana. He concluded that decriminalization of hemp would make it easy for the violators and difficult for law enforcement.

Next, the Commonwealth called an extension professor for the University of Kentucky who had been employed for 25 years, who had a B.S., M.S. and Ph.D. from Purdue University in plant breeding and genetics. He testified about a plant called kenaf, which is free of THC and which can be used for anything that wood is used for, including making paper. The witness testified that kenaf produced higher quality products than hemp because of its shorter fiber.

Finally, the prosecution called a professor and chairman of the Department of Agronomy at the University of Kentucky. This witness had received a bachelor and masters degree in biology and soil science from Cornell University and a Ph.D. in soil microbiology from Michigan State University. He had also authored a large portion of the report of the Governor's Task Force on Hemp and Alternative Fiber Products. His testimony indicated that the opportunities for hemp as a crop in Kentucky were limited. He stated that at one time hemp was a major cash crop in central Kentucky but that its uses went by the wayside so it failed economically for market reasons.

The defendant, a television and motion picture actor, testified that he owned a company in California that produced textile products in clothing derived from hemp. He testified that the seeds planted were "French seeds" and that these were less than one percent THC. He stated that his company had sales of $1.5 million in the United States but that the hemp for their products had to be imported from Hungary and China and that the price of hemp would be lower if it could be grown domestically.

On cross-examination, Harrelson admitted that he knew he was breaking the law when he planted the seeds but that he was concerned about the cutting and replacement of trees as well as the sale of hemp. Harrelson, who presented no academic credentials, acknowledged that he had no experience in law enforcement and that the police sergeant would be better qualified to determine if law enforcement would be impeded from enforcing marijuana laws if hemp were legalized.

Another defense witness was a professor of biology who testified about the economic uses of hemp at the present time and the differences in appearance of hemp and marijuana to the naked eye. He stated that if legalized, it would greatly reduce the cutting of trees and be a tremendous asset to the agricultural base of Kentucky. He admitted on cross-examination that he did not have any training in agricultural economics. The defense also presented a professor of pharmacology and toxicology at the University of Louisville who testified that hemp was less potent than marijuana in its THC level.

Upon the conclusion of the hearing and the filing of briefs by both parties, the trial judge determined that the statute was constitutionally defective because of its overbroad application by including nonhallucinogenic plant parts. The trial judge further determined that the amendment to KRS 218A.010(9) had no rational basis for including the nonhallucinogenic parts of the marijuana plants in the definition. The trial judge determined that the statute violated Section Two of the Kentucky Constitution and that the defendant had established a viable economic benefit of nonhallucinogenic parts of marijuana. He further held that the statute was an intrusion into the economic benefit of the product without a rational basis by the government. The Court severed the statute in question as it related to the issue of including nonhallucinogenic plant parts of marijuana as a controlled substance.

I. Appealable Order

The Court of Appeals erred in determining that the appeal to the circuit court was taken from a nonfinal order. CR 54.01 states in part that a "final or appealable judgment is a final order adjudicating all the rights of all the parties in an action or proceeding ..." As noted in Commonwealth v. Taylor, Ky., 945 S.W.2d 420 (1997): "The fundamental rule is that for an order to be final and appealable, it must adjudicate all claims of the parties at the time the order was entered." Here, the principal question is a challenge to the constitutionality of the statute. The issue was fully adjudicated and subject to appeal.

The factual issue which the district court reserved on was spurious. The district court had no authority to add words to the statute and thereby create a question of fact as to whether the marijuana possessed "was capable of germination or producing plants which contained hallucinogenic properties of marijuana."

In this case, the district court impermissibly added new wording to the offense of the possession of marijuana because it indicated that it must now be proven that not only did the defendant possess marijuana but that he possessed marijuana which was capable of germination or producing plants which contained hallucinogenic properties of marijuana. Existing Kentucky law does not require that a sample of marijuana be produced at trial. Howard v. Commonwealth, Ky. App., 787 S.W.2d 264 (1990). Consequently, by remanding this question for trial, the defendant would be required to be tried under a statute which had been declared unconstitutional in part and to be tried under a statute with additional language supplied by the district court and not by the General Assembly. The judiciary lacks the authority to add new phrases to a statute to provide a new meaning necessary to render the statute constitutional. Musselman v. Commonwealth, Ky., 705 S.W.2d 476 (1986). The same is true when the judiciary...