Moore v. State, F-84-65

• Decision Date: 13 July 1987
• Docket Number: No. F-84-65,F-84-65
• Citation: 740 P.2d 731
• Parties: Carl Elliott MOORE, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 731

740 P.2d 731

Carl Elliott MOORE, Appellant, v. STATE of Oklahoma, Appellee.

No. F-84-65.

Court of Criminal Appeals of Oklahoma.

July 13, 1987.

Lee E. Witcher, Oklahoma City, for appellant.

Robert H. Henry, Atty. Gen., Tomilou Gentryt Liddell, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

PARKS, Judge:

The appellant, Carl Elliott Moore, was charged, tried and convicted in the District Court of Garfield County, Case No. CRF-82-531, for the following three offenses: Count I, Unlawful Possession of a Controlled Dangerous Substance; Count II, Unlawful Possession of a Controlled Dangerous Substance with Intent to Distribute; and Count III, Unlawful Possession of a Weapon in the Commission of a Felony. The jury assessed punishment at a term of nineteen (19) years imprisonment and a fine of Twenty-Thousand ($20,000.00) Dollars for Count I, a term of nineteen (19) years imprisonment and a fine Of Twenty-Thousand ($20,000.00) Dollars for Count II, and a term of ten (10) years imprisonment for Count III; Counts I and II to run consecutively, with Count III to run concurrently with Count II. We reverse.

On November 30, 1982, a police informant made two taped phone calls from the Bureau of Narcotics in Enid to the appellant in Tulsa. The phone conversations were in reference to the purchase of cocaine. The appellant agreed to sell the informant three ounces of cocaine at $2,000.00 an ounce. This transaction was to occur the following day.

On the next day, the informant went to the Bureau of Narcotics where he and his automobile were searched. A transmitter was placed on his chest and a tape recorder was placed in the glove compartment of the informant's vehicle. The informant was then given $6,600.00 in cash.

The informant drove to Garber where the transaction was to occur. The informant was followed by two narcotics agents, who monitored the transaction. Upon the informant's arrival at the predisclosed location, the appellant entered the informant's automobile. The appellant exchanged three ounces of a white, powdery substance, allegedly cocaine, for the predetermined price of $6,600.00 The appellant told the informant that he had a fourth ounce of cocaine if the informant needed it. He declined.

The appellant returned to his vehicle and drove away. A narcotics agent and a Garfield County Sheriff's unit apprehended the appellant nearby. Upon apprehension, the appellant was found carrying a handgun in his left coat pocket and his right coat pocket contained a blue sock. The sock held an ounce of a white, powdery substance, again allegedly cocaine, and sixty-six one-hundred dollar bills. The informant was also stopped nearby and three ounces of alleged cocaine were recovered. At trial, the State's expert witness described the white, powdery substance as cocaine.

I.

The appellant raises nine assignments of error before the Court. Since his first assignment has merit, we dispose of the case on that ground alone. In this assignment of error, the appellant contends that the trial court erroneously denied discovery of samples of the substance tested, test reports and the results of the State's scientific evidence. We agree. Discovery of such evidence was paramount to the appellant's theory of defense in this case. The appellant's defense rested upon the so-called "cocaine isomer strategy," see United States v. Ortiz, 610 F.2d 280 (5th Cir.1980), which is a sophisticated and technical scientific theory of defense based on the molecular chemistry of cocaine. Although this defense has been recognized for several years in the Federal Courts, this is apparently the first time the theory has been brought before this Court.

The defense arises from the somewhat cryptic language of the statute which defines the controlled substance. In Oklahoma, cocaine is defined in 63 O.S.1981, § 2-206(A)(4), to wit:

Coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extractions which do not contain cocaine or ecgonine.

This definition is almost identical to the federal statute which defines cocaine in Schedule II(a)(4) of 21 U.S.C. § 812(c) (1976). ¹

The appellant's expert witness' testimony was consistent with similar federal cases. ² These experts describe cocaine's chemical composition as C sub17 H sub21 NO sub4 which has several isomers. ³ We hold today that under our statute, all isomers of cocaine are not controlled substances. We arrive at this conclusion for three reasons. First, only one isomer, L-cocaine, is a derivative of the coca leaf, according to the testimony of both the State and defense experts (Tr. 510, 531, 535). See also United States v. Ross, 719 F.2d 615, 617 (2d Cir.1983). Any other "isomer" of cocaine is controlled by statute only if it is "chemically equivalent or identical" with the substance derived from the coca leaf. 63 O.S.1981, § 2-206(A)(4).

Second, we have held that criminal statutes are to be strictly construed. Ritchie v. Raines, 374 P.2d 772 (Okl.Cr.1962). Cf. State ex rel. Thompson v. Ekberg, 613 P.2d 466 (Okl.1980). On its face, this subsection does not prohibit all isomers of cocaine, just those that are "chemically equivalent or identical" with the substance derived from the coca leaf. Therefore, we believe it is a reasonable construction of the subsection to hold that not all isomers of cocaine are controlled.

Third, this Court has held that statutory provisions may be regarded in pari materia, where they are part of the same statute. Ex Parte Higgs, 97 Okl.Cr. 338, 263 P.2d 752 (1953). Regarding subsection (A)(4) in the instant case, this subsection is most appropriately read in pari materia with the other subsections of section 2-206. We initially note that subsections (A)(2), (B), and (C) of section 2-206 all specifically mention the "isomers" of each individual controlled substance included within each subsection. ⁴ We therefore believe that the word "isomer" was intentionally omitted from subsection (A)(4).

As a practical matter, this reasoning is supported by the testimony of Robert H. Shapiro, Ph.D., Chairman of the Department of Chemistry at James Madison University. Dr. Shapiro testified that some isomers of cocaine are utilized in various over-the-counter products, such as cough syrup and cold tablets. Another isomer of L-cocaine is D-cocaine, an innocous powder, according to testimony. The physical properties of these isomers are different and distinct from L-cocaine, the controlled stimulant derived from the coca leaf. Therefore, the statute is appropriately limited to substances derived from the coca leaf and those which are chemically equivalent or identical thereto.

Based on this theory of defense, counsel for the appellant intended to show that the substance seized and evaluated by the State was not L-cocaine or its chemical eqivalent, but rather the substance was a harmless isomer of the controlled narcotic. Without the substances actually used by the State in making its evaluation, or the technical reports detailing the State's examination, the appellant could not successfully raise this defense. Therefore, the appellant contends the trial court erred in denying pre-trial discovery and production both of the substance analyzed by the State, and its technical reports. We agree.

A.

Surprisingly, this Court has never dealt specifically with the issue of whether the defense is entitled, on timely demand, to be provided with a sample of the alleged controlled dangerous substance for use in an independent chemical analysis. However, we have held that a defendant charged with a homicide is entitled to a pre-trial examination of a death weapon and other physical evidence recovered at the scene of a crime. Doakes v. District Court of Oklahoma County, 447 P.2d 461 (Okl.Cr.1968). We also have held that a defendant charged with exhibiting obscene movies is entitled to an inspection of the film. Melton v. State, 512 P.2d 204 (Okl.Cr.1973).

We note that many other jurisdictions have determined that refusal to furnish a defendant, who has been charged with possession of a controlled dangerous substance, with a sample of the alleged contraband, is error. See, e.g., Jackson v. State, 243 So.2d 396, 398 (Miss.1971) ("meaning of a " 'fair trial' requires that material, tangible evidence must not be concealed from the defendant who is accused of crime. There is no good reason why the defendant in a civil case should be entitled to more liberal right to tangible evidence in the possession of his adversary ... than is a person under a serious criminal charge"); Patterson v. State, 238 Ga. 204, 232 S.E.2d 233, 243 (1977) (where "acquittal is dependent upon the identification of the substances as contraband, due process of law requires that analysis of the substance not be left completely within the province of the state"); Warren v. State, 292 Ala. 71, 288 So.2d 826 (1973) (same); State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972) (defendant is entitled to be given an opportunity to examine contraband independently, as it may provide exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See also People v. Taylor, 54 Ill.App.3d 454, 369 N.E.2d 573, 12 Ill.Dec. 76 (1977); State v. Migliore, 261 La. 722, 260 So.2d 682 (1972).

The rationale used by these other jurisdictions would find support for a similar Oklahoma rule, under our prior precedent. We have said that "[p]rior to trial petitioner will be entitled to receive from the State any information that might tend to exculpate him or mitigate his punishment in the event of a conviction". Stafford v. District Court of Oklahoma County, 595 P.2d 797, 799 (Okl.Cr.1979). As noted by the West Virginia Supreme Court in State v. Smith, supra, a defendant charged with the illegal...