Hohnke v. Com.

• Decision Date: 20 February 1970
• Citation: 451 S.W.2d 162
• Parties: Susan HOHNKE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 162

451 S.W.2d 162

Susan HOHNKE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Feb. 20, 1970.

Dissenting Opinion Feb. 27, 1970.

Roger B. Sledd, Lexington, for appellant.

John B. Breckinridge, Atty. Gen., David Murrell, Asst. Atty. Gen., Frankfort, for appellee.

DAVIS, Commissioner.

The appellant was convicted of the offense of unlawful possession of 'LSD,' and her punishment was fixed by the jury at confinement in the penitentiary for two years and a fine of $1. On this appeal she seeks reversal on the following grounds: (1) Possession of LSD was not unlawful in Kentucky; (2) the trial court improperly submitted to the jury the issue of the voluntariness of the appellant's consent to the seizure of the capsule containing LSD by a federal agent; (3) the court erred in receiving evidence obtained by a search of the appellant's premises, because she did not volunteer to any search and no search warrant was obtained; (4) the failure of the federal agent to warn appellant of her right to advice of counsel until after she had given him the capsule containing LSD violated her constitutional right to counsel; and (5) excessive prejudicial newspaper publicity deprived appellant of a fair trial.

The appellant was employed by the University of Kentucky Medical Center as a research assistant. She had been in that employment about four years prior to October 10, 1966, the day on which the opening events of the present case occurred. On that day just after lunch, the appellant was called to the office of Dr. Isbell, then the acting chairman of the Department of Medicine at the University of Kentucky Medical Center. Albert Cook, an enforcement agent of the United States Bureau of Narcotics, was in Dr. Isbell's office when the appellant arrived. He was identified to her in his official capacity and disclosed that he was conducting an investigation involving 'marijuana, mescaline, and LSD.' Cook said he advised appellant that 'anything she would discuss with me would be of her own free will, I was not going to force her into any conversation, and I must say she was most cooperative.' There followed a general discussion in which Dr. Isbell, Agent Cook, and the appellant participated for an hour or longer. According to the version for the Commonwealth, the appellant voluntarily disclosed that she had a vial containing LSD capsules at her home. Dr. Isbell, the federal agent, and appellant traveled to appellant's home in Dr. Isbell's automobile, and appellant unlocked the door of her residence and admitted Dr. Isbell and Cook and presented to Cook the vial containing about eighty LSD capsules. The appellant signed a consent-to-search form presented to her by Cook, after which she and the two men returned to Dr. Isbell's office and had some further conversation.

Although there is some dispute about it, it seems clear that Cook did not advise appellant respecting any of the 'Miranda rights' (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) until after he had obtained the capsules and the parties had returned to Dr. Isbell's office.

An analysis of the material in the capsules disclosed it to be LSD (lysergic acid diethylamide). About two weeks after her interview in the office of Dr. Isbell, appellant was discharged as an employee of the University and arrested on a warrant charging her with violation of KRS 218.020 which provides:

'It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound any narcotic drug, except as authorized in this chapter.'

The term 'narcotic drug' as used in KRS 218.020 is defined by KRS 218.010(14) which we quote:

"Narcotic Drugs' includes coca leaves, opium, isonipecaine (the substance identified chemically as 1-methly-4-phenylpiperidine-4-carboxylic acid ethyl ester, or any salt thereof by whatever trade name identified), cannabis, every other substance neither chemically nor physically distinguishable from them, and any drug having an addiction-forming or addition-sustaining liability similar to morphine or cocaine which is designated by regulation of the State Board of Health as a narcotic drug.'

On July 22, 1966, the State Board of Health promulgated in due form a regulation designating lysergic acid diethylamide (LSD) as a narcotic drug. The regulation became effective before the date of the offense for which the appellant has been convicted.

In her first assignment of error, the appellant contends that there was no valid law in Kentucky prohibiting possession of LSD on the date she is charged with possessing it. She premises this assault upon her conviction on a twofold front: (a) Kentucky Constitution Sections 27 and 28 forbid the delegation by the General Assembly to the State Board of Health of the power to enact criminal statutes in Kentucky, and (b) even if it is determined that the delegation provided by KRS 218.010 (14) is valid, the State Board of Health acted beyond the scope of the enabling statute in declaring LSD as a 'narcotic drug,' because LSD does not possess 'addiction-forming or addition-sustaining liability similar to morphine or cocaine.'

In support of proposition (a) that the Kentucky Constitution prohibits the delegation of the Legislature's power to enact criminal statutes, the appellant relies upon McCown v. Gose, 244 Ky. 402, 51 S.W.2d 251; Bloemer v. Turner, 281 Ky. 832, 137 S.W.2d 387; Goodpaster v. Foster, 296 Ky. 614, 178 S.W.2d 29; Dicken v. Kentucky State Board of Education, 304 Ky. 343, 199 S.W.2d 977; and Robertson v. Schein, 305 Ky. 528, 204 S.W.2d 954. Without undertaking a detailed analysis of the cited cases, none of which may be regarded as completely apposite, it is appropriate to note that Butler v. United Cerebral Palsy of Northern Kentucky, Inc., Ky., 352 S.W.2d 203, recognized that much of the language employed in the decisions dealing with delegation of legislative authority is inaccurate and inapplicable in determining whether a particular act of the Legislature runs afoul of constitutional proscriptions against delegation of authority. As noted in Butler, many of the cases advert to the necessity for 'standards' when the real need is not for standards but for safeguards. In Commonwealth v. Moyers, Ky., 272 S.W.2d 670, this court upheld the validity of a regulation of the Department of Fish and Wildlife Resources prohibiting possession of certain types of fishing equipment.

The General Assembly denounced possession of any narcotic drug of KRS 218.020 and prescribed a penalty for violation by KRS 218.210(2)(a). By KRS 218.010(14) the Legislature defined narcotic drugs and specifically recognized that in this day of rapid scientific developments other substances could and probably would appear in the market which would need to be regulated. By entrusting the State Board of Health with the duty of keeping abreast of the narcotic drug menace, the Legislature adopted a course peculiarly proper and expedient in the complicated responsibilities of governmental activities. There can be no doubt that the Legislature fixed adequate 'standards' by which the State Board of Health must be guided in carrying out the functions committed to it by KRS 218.010(14). We find no merit in (1)(a) of the appellant's assertions of error.

The more difficult question arises as respects appellant's contention (1)(b), the substance of which is that the State Board of Health exceeded the authority granted to it by KRS 218.010(14), because LSD is not a drug 'having an addition-forming or addiction-sustaining liability similar to morphine or cocaine.'

On April 13, 1967, the appellant moved the court to dismiss the indictment for unlawful possession of LSD 'for the reason that same is not in violation of any of the laws of the Commonwealth of Kentucky as properly enacted and that the statute is in violation of the Fifth and Fourteenth Amendments of the United States Constitution.' On April 15, 1967, the trial court overruled the motion to dismiss the indictment, pointing out that the regulation of the State Board of Health designating LSD as a narcotic drug was adopted pursuant to KRS 218.010(14) and that the state possesses broad powers to regulate the traffic of narcotic drugs within its borders. On April 25 another motion to dismiss was filed in which the court was requested to dismiss the indictment on the ground that: '* * * the drugs allegedly found in the possession of the defendant are not narcotic drugs and have no addiction-forming or addiction-sustaining liability similar to either morphine or cocaine and, therefore, the State Board of Health had no authority to determine LSD * * * (a) narcotic drug.'

The case was assigned for trial on July 24, 1967, and the parties began the qualification of jurors. On the next day, and before the proceedings to seat a jury had been completed, the appellant moved the court to set a date for a hearing at which she would introduce evidence 'as to the nature and qualities of * * * LSD * * * for the purpose of determining whether the State Board of Health properly acted in determining' LSD to be a narcotic as defined by statute.

The court denied appellant's motion for opportunity to present evidence respecting the nature and qualities of LSD and further recited in the order denying that motion: 'And the defendant proffered the evidence by avowal and the evidence was refused by the court.' It appears that the order just mentioned was entered while the parties were still in the process of selecting a jury.

This brings us face to face with the question of whether reversible error was committed in denying appellant the opportunity to present evidence, even by avowal, pertaining to the qualities of LSD and looking toward demonstrating that it does not have the qualities prescribed for narcotic drugs by the statute. It may not be doubted that a judicial review to test the validity of an...