People v. Steed

• Decision Date: 05 August 1975
• Docket Number: No. 25961,25961
• Citation: 540 P.2d 323,189 Colo. 212
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Hubert STEED, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 323

540 P.2d 323

189 Colo. 212

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Hubert STEED, Defendant-Appellant.

No. 25961.

Supreme Court of Colorado, En Banc.

Aug. 5, 1975.

Modification Denied Sept. 2, 1975.

John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Robert C. Lehnert, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colo. State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Lee Belstock, Deputy State Public Defender, Denver, for defendant-appellant.

GROVES, Justice.

The defendant was convicted on two counts: (1) possession for sale of a narcotic drug (marijuana) with the intent to induce and aid another unlawfully to use and possess it; ¹ and (2) unlawful possession of a dangerous drug (amphetamine). ² We reverse, remanding for sentencing for a lesser included offense under the first count and for entry of acquittal under the second.

Shortly after midnight of September 18, 1971, officers appeared at Apartment #3 at 1618 Ogden in Denver to execute a search warrant. The defendant and his cousin, Goodson, were co-tenants of this apartment. The officers knocked at the door and the defendant opened it. The officers identified themselves and their purpose, and the defendant slammed and locked the door. The officers attempted to kick the door down but, it being of sturdy construction, they were unsuccessful. A minute or two later another male individual opened the door and admitted them.

The officers walked into the living room and found nine people--two females and seven males. In describing them, one of the officers testified:

'Well, seven of them, the two girls and--well, actually, all nine were what is commonly referred to as street people or hippies. Two of these were more clean-cut than the rest. Well, I know why--they were Marine Corps deserters.'

The persons in the living room were described as being 19 or 20 years of age and having the appearance of being 'under the influence' of depressants or amphetamines. Some of them had fresh needle injection marks on their arms. In the living room, the officers found a clear glass coaster containing amphetamine.

The officers proceeded into the bedroom and there found the defendant and Goodson. Goodson was on the bed, apparently quite ill. In the bedroom the officers found two baggies of marijuana underneath the dresser, 12 baggies of marijuana in a heating vent, a brass pipe, a spoon two syringes, needles, a small scale, a notebook and miscellaneous papers. All of the marijuana that was found weighed approximately 7.9 ounces.

The defendant was placed under arrest and given a Miranda warning. One of the officers testified that before they could ask him a question the defendant started talking. The officer testified:

'Well, the first statement he made was not in response to any question as such. Detective Tolte pulled the suspected marijuana . . . from inside the vent and at this time Defendant Tolte and myself were talking about arresting everyone and taking them down, and (the defendant) stated 'Don't arrest Frank,' who was Mr. Goodson, lying on the bed. 'It is my stuff. He is sick. Don't take him to jail. I'll take the blame for it.' And then I asked him who the people in the other room were, the other nine people that were there, and he stated he didn't really know, that they had just come over for a party and he could not tell us any of their names . . ..'

Prior to trial, the court granted defendant's motion for discovery for all 'statements, written, recorded, or otherwise transcribed, or summarized in writing, made by the defendant.' The defendant had not made any written statements but, as already indicated, made oral statements. In accordance with the discovery order the prosecutor answered as follows:

'. . . I am advised that on September 19, 1971, in the City Jail, Hubert Steed stated he had only been dealing drugs for two months and the marijuana the officers recovered he had purchased on the street some time ago.'

At the trial the police officer who testified as to the defendant's statements, stated:

'Well, he told me he was dealing in marijuana and--but it related more or less to a prior case, and so I didn't make specific notes of it for this case. It was another case we were interested in.'

The court immediately called an In camera session, after which he instructed the jury that the answer was being stricken and that the jury should completely disregard it.

In a 58-page opening brief, plus 32 pages of attachments, the defendant urges the following four points:

1. The statute relating to marijuana as a narcotic drug is unconstitutional.

2. The prosecutor committed reversible error in not complying with Crim.P. 16 in that he did not furnish in advance of trial the oral statements made by the defendant.

3. The court should have ordered a mistrial by reason of the testimony of the police officer.

4. The verdicts were not supported by the evidence.

I

The defendant has advanced several grounds supporting his position that the Act making marijuana a narcotic drug is unconstitutional. Those that have real merit were submitted to us in People v. Summit, 183 Colo. 421, 517 P.2d 850 (1974). There, a majority of this court indicated that, at least so far as the reasonableness of the classification of marijuana as a narcotic drug was concerned, it had some serious doubts as to constitutionality. The majority expressed the view, however, that for the moment the judiciary should defer to the General Assembly, with its fact finding processes, to consider evidence such as was presented to us and other evidence; and also, to reach a considered judgment as to whether the statute should be changed. On this basis, constitutionality was upheld.

One of our number wrote a dissent in Summit, supra, in which the author of this opinion joined, expressing the view that the statute should be declared unconstitutional in that it treated marijuana as a narcotic drug. Ten weeks ago our opinion in People v. Bennett, Colo., 536 P.2d 42 was announced. Again, constitutionality was raised. It was there written:

'Maintaining deference 'to the legislative body as the proper forum for the resolution' of how best to advance the public health, safety, and welfare, we (in Summit) upheld the statute in question. . . . At least for the time being, we adhere to our holding in that case.'

The two of us who dissented in Summit concurred in Bennett because of Canon 2 of the Colorado Code of Judicial Conduct which provides in part as follows: 'A judge should respect and comply with the law . . ..' Summit stated the law for the time being and the dissenters therein must recognize it. ³

Subsequent to the announcement in Bennett, House Bill No. 1027 has been adopted. This removes cannabis from the narcotic drug act (Section 12--22--301 Et seq., C.R.S.1973) and designates it as a dangerous drug (Section 12--22--401 Et seq., C.R.S.1973). We hold, therefore, that until House Bill No. 1027 became effective sometime in July 1975 the narcotic act embracing marijuana was constitutional, and on such effective date the question became moot as to subsequent conduct.

II

The defendant has given great emphasis to the failure of the prosecutor to comply with Crim.P. 16(h) by giving the defendant in advance a complete exposition of the oral statements of defendan...