Payne v. United States, 6095.

• Decision Date: 25 August 1972
• Docket Number: No. 6095.,6095.
• Parties: Frederick L. PAYNE, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

294 A.2d 501

Frederick L. PAYNE, Appellant, v. UNITED STATES, Appellee.

No. 6095.

District of Columbia Court of Appeals.

Argued April 5, 1972.

Decided August 25, 1972.

Jay S. Weiss, Washington, D. C., appointed by this court, for appellant.

Joseph F. McSorley, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and Peter C. Schaumber, Asst. U. S. Attys., were on the brief, for appellee.

Before REILLY, Chief Judge, and PAIR and YEAGLEY, Associate Judges.

REILLY, Chief Judge:

This is an appeal from a conviction on a charge of possessing marijuana in violation of D.C.Code 1967, § 33-402. Appellant waived a jury, and at the end of the Government's case moved for a judgment of acquittal which was denied. The only question before this court is whether sufficient evidence had been adduced to justify this ruling.

The principal witness for the Government was a park policeman whose testimony may be summarized as follows:

While on duty one night last summer in an outdoor amphitheater in Rock Creek Park, he smelled what he thought was marijuana and observed two individuals smoking and passing between them, a cigarette. As the officer approached the pair one of them disappeared into the crowd and the other — appellant here — discarded the butt of the cigarette and also a brown envelope. The officer retrieved both objects, discovered that the envelope contained an unspecified quantity of some leafy substance with seeds, and that the remains of the cigarette — burned down to an inch and a half — contained a similar substance and appeared to have been loosely handwrapped.

After arresting appellant and taking him to headquarters, the officer — and a colleague not produced as a witness — performed a preliminary field test on the contents of the cigarette stub and envelope. This consisted of putting the substance into a tube and adding a chemical ingredient called duquenois. The substance tested then gave off a "faint violet" color.

The only other Government witness was a Metropolitan Police officer classified as a plainclothes narcotics investigator. It was stipulated that he was qualified to testify as an expert. He testified that the test used by the park policeman involved application of the duquenois ingredients to the material under scrutiny and if marijuana was present, a purple color emerged. He conceded that a second part of the field test had not been utilized, viz., adding chloroform to the mixture. When this is done, a purple liquid rises to the top of the container if a substantial amount of marijuana is present. It was his opinion that where this phenomenon occurred (i. e., the chloroform sinking to the bottom and the color rising to the top), there was only one chance in a hundred that the test result was in error. He also alluded to a more elaborate technique employed by professional chemists which enabled them through certain mechanical devices to undertake a quantitative analysis of the substance to determine the weight or relative amount of marijuana present.

No evidence, however, was offered to show that in this instance the substance had ever been examined or tested by a professional chemist. Contrary to the customary practice in trials for narcotics possession, no chemist was called to the stand nor were the seized items introduced as exhibits at the trial. While the Government in its answering brief concedes that this was a deviation from usual prosecution procedure, it contends that this void in the record did not render its case fatally defective. We are inclined to agree, although there is some authority to the contrary.¹ It is fundamental that in passing upon a motion for acquittal, the trial judge must "assume the truth of the Government's evidence and give the Government the benefit of all legitimate inferences to be drawn therefrom", Curley v. United States, 81 U.S.App.D.C. 389, 392, 160 F.2d 229, 232, cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947). This record does contain evidence — the distinctive odor of the smoke and the color emerging from the duquenois test² — from which the trier of fact could have concluded that at least one of the ingredients in the cigarette stub and the contents of the envelope was marijuana.

We think that there is merit, however, in appellant's contention with respect to a failure of proof on the issue of possession of a usable quantity of the forbidden narcotic. While there is a conflict of authority among state courts as to whether any appreciable quantity is essential to a conviction for violating statutes forbidding the possession of narcotics or intoxicating liquors, this court has adopted the view prevailing in jurisdictions which have answered this question in the affirmative. In Edelin v. United States, D.C.App., 227 A.2d 395 (1967), where the...