People v. Flynn, Cr. 6296

• Citation: 166 Cal.App.2d 501,333 P.2d 37
• Decision Date: 23 December 1958
• Docket Number: Cr. 6296
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Phillip Errol FLYNN, Defendant and Appellant.

Page 37

333 P.2d 37

166 Cal.App.2d 501

The PEOPLE of the State of California, Plaintiff and Respondent, v. Phillip Errol FLYNN, Defendant and Appellant.

Cr. 6296.

District Court of Appeal, Second District, Division 1, California.

Dec. 23, 1958.

As Modified Jan. 12, 1959.

Hearing Denied Feb. 18, 1959.

J. Thomas Russell, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., William E. James, Asst. Atty. Gen., for respondent.

WHITE, Presiding Justice.

In an information filed by the District Attorney of Los Angeles County, defendant was accused of a violation of Section 11714 of the Health and Safety Code in that he did on or about August 19, 1957, furnish marijuana to Kathleen Briggs, a minor. Defendant was also charged with a prior conviction of the crime of Rape. He pleaded not guilty to the charge and denied the prior conviction, which was dismissed because the prior conviction was reduced to a misdemeanor by the imposition of a county jail sentence therein. Trial by jury resulted in a conviction of the crime charged in the information. Defendant's motion for a new trial was denied and he was sentenced to state prison. From the judgment of conviction and the order denying his motion for a new trial, defendant prosecutes this appeal.

As to the factual background of this prosecution the record reveals that Kathleen Briggs testified she was seventeen years of age. On August 19, 1957, she accepted the invitation of one Mickey Russell 'to get high on marijuana'. Russell, whom the witness had known for some time, said he knew where they 'can get some', and escorted her to the defendant's apartment, where they arrived about 2:30 a. m. The witness had met defendant only once before some weeks prior. Defendant was entertaining another young lady with whom the witness was acquainted. Defendant led the witness and her escort into his bedroom where he got into bed. After a brief conversation, 'Mickey (Russell) said to Flynn (defendant) that he wanted to get high' and asked defendant if he had any 'pot' (marijuana). Defendant replied, 'It's under the dresser'. Thereupon, 'Mickey walked over to the dresser and reached underneath the dresser and brought a package out'. According to the witness, the package was 'a brown paper bag', which contained 'a brownish-green leafy substance * * * stems like from a plant and * * * seeds'. Mickey handed the bag to defendant who removed some white cigarette papers from it and glued two of them together. Defendant 'took some of the material out of the bag' and used the papers to roll a cigarette, the ends of which were 'tucked in'. All four of those present in the room smoked the cigarette, each taking one or two puffs, inhaling, and then passing it to another. While they were smoking 'a couple of the seeds popped'. Defendant rolled three or four cigarettes and the parties smoked two. The witness gave the following description as to how defendant made a 'cocktail' out of the first butt or 'roach': 'He took the tobacco out of one end of a regular size cigarette and put the roach inside of the cigarette and rolled the end back up and lit the cigarette and smoked it.'

The cigarette had an odor like 'burning weed or leaves burning'. The witness became 'high', 'thirsty', 'hungry'; her mouth got 'dry'; she 'felt relaxed'.

The witness further testified she had commenced smoking marijuana about June of 1957 and prior to the occasion here in question, she had smoked approximately twenty or twenty-five such cigarettes. Over the objection of defendant on the ground of the incompetency of Miss Briggs to testify on the subject of marijuana, she was permitted to testify that on the aforesaid previous occasions, the cigarettes were rolled in the same fashion as on the morning with which we are here concerned, that she had heard 'that pop noise'; had smelled the same odor of 'burning leaves', and had experienced the same sensations of getting 'high', dryness of mouth, thirst, hunger and relaxation. That she would generally start to feel 'high' in three to six minutes and the effects would last from an hour to an hour and a half depending on how much she smoked. She experienced a feeling of depression as she was 'coming down from the marijuana'.

After about an hour and a half to two hours the witness and Russell left defendant's apartment.

On cross-examination Miss Briggs testified that she was arrested on August 29 by Officer Allen; that she had not been prosecuted; that no promise of any kind had been made to her by any member of the police department in consideration of her testifying; that she had made twelve to thirteen visits to the juvenile bureau of narcotics on each of which she had seen Officer Allen and 'about every officer that is down at Georgia Street in the Narcotics Division'; that she had given three statements to police officers, that no promise of immunity had been made by any officer in consideration of her testifying in any other case.

Edwin O. Hall testified that he had been a police officer of the City of Los Angeles continuously from 1941 to the time of the trial, except for approximately three years of military service. Since January of 1949 he had been assigned exclusively to the narcotics division. During his first year and a half in that division he had been 'Day Watch Commander' assigning cases and interviewing all persons involved in narcotic matters. He had spent two and one-half years as head of the 'Addict Squad' which investigated users of narcotics and filed use or addiction reports. With respect to his experience with and knowledge of marijuana, he testified:

'My training in the effects, appearance, and so forth, of marijuana has been field training by veteran narcotic officers, by reading various governmental publications and pamphlets, and some other publications. I have discussed it with some medical authorities, and then field investigations.'

He had also taught and lectured at various colleges and junior colleges throughout the local area and had instructed at the Los Angeles Police Academy. He had lectured to the graduating interns at the College of Osteopathy at General Hospital and had been on a forum, attended by many prominent psychiatrists from throughout the United States, including Dr. Victor Vogell, whom Officer Hall considered to be the foremost authority on narcotics in the United States. Officer Hall had assisted in the writing of a pamphlet entitled 'Youth and Narcotics' which was published by the Los Angeles Police Department. He had observed more than one hundred individuals actually smoking marijuana and had discussed with certain of them the effects therefrom. He had testified in connection with similar matters in approximately 300 other cases.

Officer Hall testified that in the jargon of the marijuana user, the term 'pot' means marijuana; that the color of the marijuana depends on the age and manner of drying of the plant, in the earlier stages the leaves are green, and in the latter it becomes a dark brown; that usually two overlapping cigarette papers are used to roll a marijuana cigarette in order to get 'a tighter wrap'; that the ends of a marijuana cigarette are usually 'tucked in'; that the marijuana smoker takes 'a long, show drag on the cigarette and holds it within the lungs as long as possible' to get the 'maximum effect'; that the odor of a burning marijuana cigarette is similar to that of burning leaves or grass; and that the term 'cocktail' signifies a tobacco cigarette containing the marijuana roach in one end. Hall testified that the effects of smoking marijuana were dryness of the throat and mouth, hunger, 'light-headedness or, as they say, high', abnormal behavior, thirst, then '(a)s he comes down' a feeling of depression. The intensiveness and duration of these sensations depend upon the tolerance of the smoker and the quantity smoked.

In response to a hypothetical question based upon the testimony of Miss Briggs, Hall expressed the opinion, over the objection of defendant on the ground of Hall's 'lack of experience', that the 'person did receive and smoke marijuana'.

On cross-examination, Officer Hall testified in effect that when he entered the narcotics division there was no course offered anywhere on narcotics, therefore a school was started by the police department to train police officers in this field. He eventually 'took over' the school which now furnishes men 'to teach in the various universities on all phases of narcotics'. Defendant's counsel subsequently asked Officer Hall: 'Q. You are dean emeritus then of (that school)', to which Hall replied: 'A. I like to think so, sir.'

On re-direct examination Hall stated that there was no local physician and surgeon known to the police department who had sufficient experience with marijuana, as distinguished from opiates, to testify as an expert on marijuana addiction.

Sworn as a witness for the defense, Doctor M. A. Seymon testified that he was a physician and surgeon licensed to practice in this state. The witness testified: 'I am a specialist in the treatment of alcoholics and drug addicts'. Dr. Seymon was shown the hypothetical question theretofore propounded to the witness, Officer Hall, and when asked if he had an opinion on said question, replied, 'My opinion is that this doesn't prove anything at all'. Having read the symptoms referred to in the aforesaid question, the witness was asked to approximate from how many other substances those symptoms might emanate or result. He replied, 'From many other drugs which have an effect on the sympathetic nervous system'. When asked to approximate the number of drugs, if possible, he stated that 'it could be ten or twelve drugs that could do the thing, at least'.

'Q. Doctor, there is no specific for the test of smoking marihuana, is there? A. No, there is none.

'Q. Just from judging, observing the conduct of a person? A. No, there is not.'

On cross-examination, the witness testified as follows:

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