Hall v. State

• Decision Date: 20 May 1980
• Docket Number: No. 779S184,779S184
• Parties: Larry Blane HALL, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1382

403 N.E.2d 1382

273 Ind. 425

Larry Blane HALL, Appellant, v. STATE of Indiana, Appellee.

No. 779S184.

Supreme Court of Indiana.

May 20, 1980.

David J. Colman, Colman, Lowenthal, Loftman & Richardson, Bloomington, for appellant.

Theodore L. Sendak, Atty. Gen., Philip R. Blowers, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

On November 24, 1976, Larry Blane Hall was charged by information with seven counts relating to possession and dealing in controlled substances as follows: Count I, delivery of LSD, Counts II, III, and IV, delivery of cocaine, Count V, Possession with intent to deliver cocaine, Count VI, Possession with intent to deliver marijuana and Count VII, conspiracy to deliver cocaine. Appellant was arraigned on February 1, 1977, and pleaded not guilty on all counts. He moved the court to dismiss Counts II, III, IV, V, and VI, of the information on August 12, 1977. The court heard evidence on his motion to dismiss and on October 24, 1977, this motion was denied. On October 31, 1977, the State moved to dismiss Count V, possession with intent to deliver cocaine, and this Count was dismissed. Hall had waived trial by jury and on November 9, 1977, the court found the defendant guilty of Counts I, II, III, and IV, and not guilty as to Counts VI and VII, of the Information. On December 8, 1977, Hall was sentenced to five (5) years imprisonment with all but one (1) year of that sentence suspended as to Count I; to five (5) years imprisonment with all but one (1) year of that sentence suspended as to Count III, to five (5) years imprisonment with all but one (1) year of that sentence suspended as to Count III; and to twenty (20) years imprisonment with the imposition and execution of that sentence suspended in total as to Count IV.

On appeal, appellant contends that the trial court erred in denying his motion to dismiss; in determining the sufficiency of the evidence, and claims that he was the victim of entrapment.

I.

In his motion to dismiss, appellant attempted to present a constitutional challenge to the Indiana Controlled Substances Act, Ind.Code § 35-24.1-4.1-1 and 2 (Burns 1975). This motion referred to Counts II, III, and IV of the charging information which involved delivery of cocaine on separate occasions to a police informant. Appellant contends that the classification and punishment scheme regulating cocaine is arbitrary and irrational, claiming that the classification is a violation of procedural due process and that the punishment is cruel and unusual. He also claims that because cocaine is improperly listed in Schedule II of the Controlled Substances Act, arbitrarily and capriciously defining it as a narcotic, the definition and classification therefore denied the appellant equal protection of the law and due process of law.

On September 6 and 9, 1977, hearing was held on the motion to dismiss during which the defendant and expert witnesses, Ronald Siegel, a psychologist, and Joel Fort, a physician specializing in drug abuse, testified at great length. Their testimony covered an immense amount of data, clinical findings, and technical discussions on the effects of various substances. In brief, both experts characterized cocaine as a stimulant drug rather than as a narcotic depressant. These experts have testified in other cases cited in this opinion. Much of the expert testimony was set out at length in those opinions. We find it unnecessary to do so here. We do note, however, that the evidence presented is focused on presenting the major point that cocaine is not a narcotic by definition and that cocaine is a stimulant rather than a depressant. We would note that the testimony focused on what is called social or recreational use with the claim that this kind of use does not have the abuses that heavy use does. Much of the testimony compared cocaine use to the use of alcohol, tobacco and barbiturates. It was stated that alcohol, tobacco, and barbiturates account for most deaths and disabilities and on an imaginary scale of 1-10 of danger, those drugs would be a 9 or a 10, caffeine would be a 1 and cocaine would be a 4. Social or recreational use was also distinguished from medical use and it was stated that in the opinion of Dr. Joel Fort, he would call daily users not psychologically dependent users or compulsive users, but that he would call them daily users.

On September 16, 1977, the State filed a response to the defendant's motion to dismiss accompanied by a memorandum of law in support of the constitutionality of the statute and the classification of cocaine.

The trial court made findings of fact among which were that cocaine is actually a stimulant, not a depressant, and that on that basis, cocaine is not a narcotic and therefore is improperly classified as such under Ind.Code § 35-24.1-1-1(p)(4) (Burns 1975); that narcotic substances create physical dependence and withdrawal symptoms and that cocaine is not physically addictive, but physical dependence is a factor in its use and abuse; that cocaine is a psychoactive substance and that scientific knowledge is limited in that the actual and potential hazards of cocaine use have not been fully explored. The court found that death from abuse can occur without a high degree of predictability. It was noted that desire to use the substance is especially strong, although it was not apparently physically addictive.

The trial court upheld the statute, the classification and the charges on the basis of the police power of the State to regulate potentially abusive substances and found that any mis-classification did not result in a violation of due process of law or of equal protection of the law, nor did any subsequent punishment result in cruel and unusual punishment. The court found that the legislature may attach such penalty or regulation as they may determine to be appropriate in furtherance of the purpose of proscribing the use and distribution of this substance.

The law of this State clearly holds that the legislature has broad latitude in controlling conduct which is deemed dangerous to the general welfare of the community. In Ross v. State, (1977) Ind.App., 360 N.E.2d 1015, in rejecting a constitutional challenge to the classification of marijuana with "hard narcotic drugs" the Court of Appeals commented that since no facts were in evidence demonstrating conclusively that there was no rational basis for the classification of marijuana with certain other controlled drugs and substances, the court would defer to the expressed judgment of the legislature. Appellant, in this case has presented much evidence at trial in an attempt to present evidence that would prove that there was no rational basis for the classification of cocaine as a narcotic drug.

It appears that Indiana has not addressed the cocaine classification scheme directly. However, the appellate courts of Illinois have fully addressed the issue of classification of cocaine among the narcotic drugs and have explicitly held that classification to be valid and constitutional despite the fact that, pharmacologically, cocaine is not a narcotic. In People v. Villanueva, (1977) 46 Ill.App.3d 826, 5 Ill.Dec. 218, 361 N.E.2d 357, the court held that there was no basis for the conclusion that classification of cocaine as a "narcotic" in that State's controlled substances act was either unreasonable or unconstitutional. The Illinois court relied on People v. McCabe, (1971) 49 Ill.2d 338, 340-341, 275 N.E.2d 407, 409, in which the court assessed the relevant, scientific, medical and social data and found that classification of marijuana as a narcotic was not a reasonable classification. However, in that decision the Illinois Supreme Court discussed cocaine and in doing so noted that: cocaine was a powerful stimulant and that it did not have the effects of tolerance or physical dependence and that abstention does not cause acute withdrawal symptoms. However, the court stated:

"Cocaine, which is placed with marijuana and the opiates in the Narcotic Drug Act, is a powerful stimulant, whereas the morphine-type drugs have a depressing action. Too, cocaine is further unlike the opiates in that it does not have effects of tolerance or physical dependence and abstention does not cause acute withdrawal symptoms. However, because of its potent nature, it induces intense physical and mental excitation and a marked reduction in normal inhibitions which often results in aggressive and even violent behavior. Intense hallucinations and paranoid delusions are common and, because of this, cocaine users frequently attempt to dilute the experience with a depressant such as heroin or morphine."

Id. at 410. In conclusion, the Court in Villanueva found that:

"In light of the determination and statements in the McCabe case as to the relevant scientific, medical and social data, we find no basis in the record for the conclusion that the classification of cocaine in the Illinois Controlled Substances Act is unreasonable and unconstitutional or violates the equal-protection clauses of the Federal and Illinois Constitutions."

Villanueva was followed by People v. Vernor, (1978) 66 Ill.App.3d 152, 22 Ill.Dec. 891, 383 N.E.2d 699, which held that even though cocaine is not a narcotic in the chemical sense that because of its debilitating nature it is "properly a subject of criminal sanction and that the legislative intent underlying classification is much broader than pharmacological assessment and includes considerations of a drug's harmful effect on society. In People v. Vernor, supra, Dr. Joel Fort, and Dr. Ronald Siegel testified on behalf of the defendant. These two witnesses are the same witnesses who testified in the present case before us. Much of the testimony presented is identical to that set out in Vernor.

The conclusions of the Vernor court were as follows:

"Evidence was presented showing that prolonged cocaine usage can result in psychological...