State v. Allesi

Decision Date27 March 1974
Docket NumberNo. 456,456
Citation216 N.W.2d 805
PartiesSTATE of North Dakota, Plaintiff-Appellant, v. Mario J. ALLESI, Defendant-Appellee. Crim.
CourtNorth Dakota Supreme Court

Syllabus by the Court

1. Section 19--03.1--02, N.D.C.C., applies only to te State Laboratories Department when it is considering an administrative designation which would add, delete, or reschedule substances. Before an authorized designation can initially be made by the Department, certain factors must be considered, such as potential for abuse and the pharmacological effect of such substances, including possible stimulant or depressent characteristics. When a designation is made by the Legislature such factors are deemed to have been considered.

2. In saying that 'Any substance which contains any quantity of methamphetamine' is a controlled substance under Section 19--03.1--09, Schedule III, N.D.C.C., the Legislature has determined that methamphetamine in any quantity has a 'potential for abuse associated with a stimulant effect on the central nervous system'.

3. The State is not required, under Section 19--03.1--09(2)(c), N.D.C.C., to prove either quantity, potential for abuse, or stimulant effect.

4. The double-jeopardy provision of the Fifth Amendment to the United States Constitution is applicable to the States through the due-process clause of the Fourteenth Amendment to the United States Constitution.

5. 'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; * * *' Amendment V, U.S.Const.

6. 'In criminal prosecutions in any court whatever, the party accused shall have the right to a speedy and public trial; to have the process of the court to compel the attendance of witnesses in his behalf; and to appear and defend in person and with counsel. No person shall be twice put in jeopardy for the same offense, * * *' § 13, N.D.Const.

7. The double-jeopardy clause does not prohibit retrial in every instance when the first trial has terminated prior to a verdict.

8. Each case in which a double-jeopardy violation is asserted must turn on its own facts.

9. When the defendant moved for an advised verdict of acquittal at the close of the State's case, on grounds not justifying the granting of such a motion, precipitating an erroneous dismissal of the charge against him, and did not object to the dismissal, the defendant waived his right to assert the defense of double jeopardy to the same charge at a new trial.

10. Constitutions and statutes must be construed to avoid ludicrous or absurd results.

11. Under the circumstances of this case, neither the Fifth Amendment to the United States Constitution, Section 13 of the North Dakota Constitution, Section 29--01--07, N.D.C.C., nor any other statute constitutes a bar to retrial of the defendant.

David R. Bossart, Asst. State's Atty., Fargo, for plaintiff-appellant.

Mark R. Fraase, Fargo, for defendant-appellee.

ERICKSTAD, Chief Justice.

This is an appeal by the plaintiff, State of North Dakota, from an order of the District Court for the First Judicial District, which dismissed the charge against the defendant, Mario J. Allesi, and discharged him from custody. In an earlier decision, State v. Allesi, 211 N.W.2d 733 (N.D.1973), Allesi made a motion for a dismissal of the State's appeal, which we denied. We held that the action of the district court in entering an order dismissing the charge and discharging the defendant was error, that such action in effect quashed the information, and that the State under Section 29--28--07, N.D.C.C., could appeal to this court.

As a result of information supplied by Jerome Dale Hanson, an agent of the State Crime Bureau, detective Robert Fahey of Fargo, on April 25, 1973, filed a criminal complaint charging Allesi with the delivery of the controlled substance methamphetamine, in violation of Sections 19--03.1--09 and 19--03.1--23, N.D.C.C.

The language of Section 19--03.1--09, dealing with methamphetamine, is material to the resolution of one of the issues on appeal.

'19--03.1--09. Schedule III.--

'1. The controlled substances listed in this section are included in schedule III.

'2. Any material, compound, mixture, or preparation which contains any quantity of the following substances having a potential for abuse associated with a stimulant effect on the central nervous system:

'c. Any substance which contains any quantity of methamphetamine, including its salts, isomers, and salts of isomers;

* * *' N.D.C.C.

Following a preliminary hearing conducted in Cass County Court on May 8, 1973, Allesi was bound over to district court on the delivery charge. His trial commenced on May 14, 1973, in Cass County District Court, Fargo, North Dakota.

A jury was duly empaneled and sworn to hear the case. The State called three witnesses, Jerome Dale Hanson, detective Robert Fahey, and David Shelton, a chemist with the North Dakota State Toxicology Laboratory. Hanson testified as to the details of the alleged delivery and the subsequent turning over of the suspected controlled substances to detective Fahey. Detective Fahey testified as to his receipt and marking of the substances and his subsequent delivery of such substances to David Shelton at the State Toxicology Laboratory. Shelton testified as to the chemical tests he performed before identifying the substances as methamphetamine. Shelton testified that methamphetamine is used as a stimulant and that it stimulates the central nervous system, including the brain and other organs. On cross-examination he said that he had made no quantitative tests to determine the amount of methamphetamine present and that he could not state that there was sufficient methamphetamine present in the packages he examined to stimulate a human being. At the conclusion of Shelton's testimony, the State rested.

After the State had rested and out of the presence of the jury, the defendant, through his attorney, made a motion for an advised verdict of acquittal on the grounds that the State failed in its burden of proof and failed to prove a prima facie case. Instead of ruling on that motion, the trial court dismissed the case, saying in effect that Section 19--03.1--09(2)(c) required the State to prove: (1) the quantity of methamphetamine in the drugs sold, (2) that methamphetamine has a potential for abuse, and (3) that methamphetamine is a stimulant to the central nervous system, and that the State had failed to so prove.

Having previously determined that the trial court erred in dismissing the case, we must now determine whether the reasons it gave would have justified the granting of the motion for an advised verdict.

Shelton testified he found methamphetamine in the substances delivered to him and that methamphetamine is a stimulant. No testimony was received establishing the quantity of methamphetamine or that the methamphetamine actually had a potential for abuse.

The State contends that under Section 19--03.1--09(2)(c), N.D.C.C., methamphetamine in any quantity has been declared a controlled substance and that it is illegal to deliver it in any quantity under Section 19--03.1--23(1) (b), N.D.C.C. The latter section reads:

'1. Except as authorized by this chapter, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance. Any person who violates this subsection with respect to:

'b. any other controlled substance classified in schedule I, II, or III, is guilty of a crime and upon conviction may be imprisoned for not more than ten years, or fined not more than five thousand dollars, or both;'

With this contention of the State we agree.

The State asserts a prima facie case of delivery of a controlled substance was established through the testimony of its witnesses. Hanson testified that Allesi sold and delivered drugs to him for $58. Fahey testified that he delivered those drugs to Shelton for examination. Shelton testified that he analyzed the drugs delivered to him by Fahey and found that they contained methamphetamine.

The Uniform Controlled Substances Act, Chapter 19--03.1, N.D.C.C., was enacted by the Legislature in 1971. Methamphetamine was initially included by the Legislature in Schedule III, Section 19--03.1--09(2)(c), N.D.C.C. That section has not been amended, nor has the North Dakota State Laboratories Department deleted or rescheduled methamphetamine pursuant to Section 19--03.1--02, N.D.C.C. The Legislature initially determined which substances were to be controlled and placed them in respective schedules, with Schedule I containing the most dangerous and Schedule IV containing the least dangerous drugs.

Section 19--03.1--02 reads:

'Authority to control.--

'1. The North Dakota state laboratories department shall administer this chapter and may add substances to or delete or reschedule all substances enumerated in the schedules in sections 19--03.1--05, 19--03.1--07, 19--03.1--09, 19--03.1--11, or 19--03.1--13 pursuant to the procedures of chapter 28--32 of the North Dakota Century Code. In making a determination regarding a substance, the state laboratories department shall consider the following:

'a. the actual or relative potential for abuse;

'b. the scientific evidence of its pharmacological effect, if known;

'c. the state of current scientific knowledge regarding the substance;

'd. the history and current pattern of abuse;

'e. the scope, duration, and significance of abuse;

'f. the risk to the public health;

'g. the potential of the substance to produce psychic or physiological dependence liability; and

'h. whether the substance is an immediate precursor of a substance already controlled under this chapter.

'2. After...

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