State v. Carufel, 782-E

• Decision Date: 24 March 1970
• Docket Number: No. 782-E,782-E
• Citation: 263 A.2d 686,106 R.I. 739
• Parties: STATE v. Phillip D. CARUFEL. x.
• Court: Rhode Island Supreme Court

Page 686

263 A.2d 686

106 R.I. 739

STATE v. Phillip D. CARUFEL.

No. 782-Ex.

Supreme Court of Rhode Island.

March 24, 1970.

Herbert F. DeSimone, Atty. Gen., Donald P. Ryan, Asst. Atty. Gen., for plaintiff

Aram K. Berberian, Cranston, for defendant.

OPINION

JOSLIN, Justice.

An indictment filed in the Superior Court charged the defendant with possession of 'a certain narcotic drug, to wit, cannabis' in violation of G.L.1956, § 21-28-31, as amended by P.L.1962, chap. 110, sec. 1. His pretrial motions to quash the indictment on constitutional grounds and to suppress certain evidence allegedly obtained unconstitutionally were denied. At his trial to a judge and jury, some cannabis, the subject of the motion to suppress and the evidence necessary to convict, was admitted into evidence over his objection. The jury found him guilty as charged, and he was sentenced to serve two years in the Adult Correctional Institutions. He is now here on his exceptions to the denial of the motion to quash and to certain evidentiary rulings.

The Motion To Quash

In the pretrial motion to quash the indictment, ¹ defendant challenged the constitutionality of the statute upon which the indictment is based. He claimed that it violates:

(1) Article XIV of the amendments to the Constitution of the United States because it seeks to control activity which 'the weight of scientific evidence' shows does not pose a serious and immediate danger to the public health, safety or morals, and because it fails to distinguish between marijuana and the so-called 'hard narcotics'; and

(2) Article IX of the amendments to the Federal Constitution because there is no compelling state interest justifying an abridgement of his 'right to smoke' marijuana; and

(3) Article VIII of the amendments to the Constitution of the United States and article I, section VIII of the state constitution because it provides for an excessive, cruel and unusual punishment ² for the state of drug addiction which is not proportionate to the offense.

These challenges require no extended discussion. The first two suffer from a common failing. While defendant repeats those challenges in his brief, he does not support them there or in oral argument with any analysis, discussion or citation of authority. A contention, like an exception, if it is to be meaningful, requires briefing and argument. These challenges are, therefore, at least for the purpose of this review, deemed to have been waived. State v. Mandella, 79 R.I. 476, 478-479, 90 A.2d 423, 425.

There is an alternative ground for rejecting the first challenge. While the motion asserts that cannabis is distinguishable from 'hard narcotics,' and that the 'weight of scientific evidence' indicates that it poses no danger permitting an exercise of the police power, the record contains not even a scintilla of evidentiary substantiation for these factual assertions. That void alone precludes consideration inasmuch as an old and deeply imbedded principle in our jurisprudence presumes constitutionality and imposes upon one attacking it the burden of demonstrating unconstitutionality beyond a reasonable doubt. Chartier Real Estate Co. v. Chafee, 101 R.I. 544, 549, 225 A.2d 766, 769; Opinion to the House of Representatives, 99 R.I. 377, 381, 208 A.2d 126, 128; State v. Edwards, 89 R.I. 378, 387, 153 A.2d 153, 159; In the Matter of Dorrance Street, 4 R.I. 230, 240. Moreover, to prescribe penalties for possession of cannabis, and to classify it with other 'hard narcotics,' are legislative judgments and they are 'presumed to be supported by facts known to the legislature unless facts judicially known or proved preclude that possibility.' South Carolina State Highway Department v. Barnwell Bros., 303 U.S. 177, 191, 58 S.Ct. 510, 517, 82 L.Ed. 734, 743. The record in this case is devoid of any evidentiary basis which would justify a disregard of the legislative judgment.

The defendant's final challenge to the indictment is also inadequate. He argues that cannabis has been legislatively classified as a narcotic, that being a narcotic it must be assumed to be addictive, that a user of an addictive is afflicted with a disease, and that to criminally punish for an affliction is constitutionally impermissible. Whatever the validity of this argument might be if defendant had been indicted for using cannabis, it has none and is completely inapposite here where there is no evidence that defendant is a user and where he is charged, not with using, but with possession of cannabis.

Finally, it should be observed that other courts reaching the merits of a challenge to the validity of a marijuana statute, so called, have with apparent unanimity rejected substantially the same constitutional arguments as are urged here. People v. Stark, 157 Colo. 59, 400 P.2d 923; Spence v. Sacks, 173 Ohio St. 419, 183 N.E.2d 363; State v. Mendoza, 104 Ariz. 395, 454 P.2d 140; Reyna v. State, Tex.Cr.App., 434 S.W.2d 362; State v. Robinson, Wash., 450 P.2d 180; Commonwealth v. Leis, Mass., 243 N.E.2d 898; Bailey v. United States, 5 Cir., 386 F.2d 1.

The Evidentiary Rulings

Leo J. Gracik, Jr., senior narcotics inspector in the Department of Health, was the only person to testify concerning the search and seizure. He, together with other enforcement officials, had Mary Sweetland's first-floor premises [106 R.I. 744] at 733 Pine Street in Central Falls under surveillance for about three weeks. Their surveillance culminated on the night of March 29, 1968, when, at about 11:45, they executed a warrant ³ authorizing a search of the Sweetland apartment. After opening the apartment door, Gracik stood in the doorway, identified himself and those with him to the approximately 28 people present, and then announced that he had a search warrant for the premises and that 'everybody in the place would be taken to the station after they were searched.'

The defendant was the first to be searched. Inspector Gracik took him by the arm, and as the inspector was situating him next to a wall preparatory to searching his person, defendant discarded a small aluminum foil packet which he had in his hand. Gracik retrieved the packet, and tentatively identified its contents as hashish. He then patted defendant down and had him empty his pockets. Nothing of an incriminating nature was found. Subsequent tests revealed that the aluminum foil packet contained cannabis.

Thereafter defendant was indicted, tried and convicted for possessing cannabis. Prior to trial he moved to suppress the packet and its contents. His principal objection was that the standards governing the use of information obtained from informants had not been satisfied. Whether any additional grounds were urged is not known because, for some unexplained reason, no transcript of the preliminary proceedings is included in the record before us. ⁴ The record does, however, include a copy of the written decision denying defendant's motion. That decision makes clear that the motion justice refused to suppress the packet and contents because he believed the complaint upon which the warrant had been issued satisfied our own as well as federal standards. The defendant does not press his exception to this ruling, but concedes instead that it was correct.

At the trial, defendant, by then represented by private counsel rather than by the assigned counsel who had appeared in his behalf at the suppression hearing, attempted while cross-examining inspector Gracik to ascertain whether the seizure of the cannabis could be justified upon some basis other than the warrant. The trial justice sustained the state's objections to these questions and also overruled defendant's objection to the admission into evidence of the aluminum foil packet and its contents. Although the trial justice did not state the theory which prompted his rulings, it is plain that he acted in the belief that the pretrial denial of the motion to suppress was binding upon him, and that there was therefore no reason why he should pause during the course of a criminal trial to redetermine whether the possession of the evidence tendered had been illegally obtained. ⁵

Regrettably, defendant did not when he pressed his objection to admissibility follow established procedures and advise the trial justice that the purpose and scope of his inquiries were to establish a possible violation of his constitutional right to be free in his person and effects against an unreasonable search and seizure, and that he was objecting for reasons other than those advanced, argued or decided at the suppression hearing. If that advice had been given, the trial justice would have known why defendant was attempting to show that there was no probable cause for his arrest, and the justice would have been aware that defendant, rather than attempting to relitigate what had already been decided, was instead advancing a new ground-and one more constitutionally tenable-as the basis for his objection to the introduction of the cannabis. Whether defendant, by failing to advise the trial justice of his new position, was being somewhat less than forthright or was inviting error, or whether instead he was then unaware of the legal principles which he now asserts (and to which we shall shortly advert) is not clear. Whatever defendant's reasons may have been, however, are not decisive unless his failure to state clearly the pertinency of his proposed line of cross-examination and the new grounds upon which he was objecting to the admissibility of the cannabis constituted a waiver or a deliberate bypass of established procedural rules respecting the reception or rejection of evidence, and there is nothing in this record which establishes either.

Aside from the fact that defendant's failure in these respects is at the root of what is clearly a procedural hodgepodge, it creates two legal problems. One is whether in the circumstances the trial justice, if properly made aware of defendant's position,...