State v. Collinsworth

• Decision Date: 04 August 1975
• Docket Number: No. 11164,11164
• Citation: 96 Idaho 910,539 P.2d 263
• Parties: The STATE of Idaho, Plaintiff-Respondent, v. Orian COLLINSWORTH, Defendant-Appellant, and Thomas King et al., Defendants.
• Court: Idaho Supreme Court

Page 263

539 P.2d 263

96 Idaho 910

The STATE of Idaho, Plaintiff-Respondent, v.Orian COLLINSWORTH, Defendant-Appellant andThomas King et al., Defendants.

No. 11164.

Supreme Court of Idaho.

Aug. 4, 1975.

Wayne L. Kidwell, Atty. Gen., Boise, Jake W. Peterson, Asst. Atty. Gen., for plaintiff-respondent.

William J. Tway, of Webb, Johnson, Tway, Redford & Greener, Boise, for defendant-appellant.

McFADDEN, Justice.

After a jury trial, Orian Collinsworth, defendant-appellant, was convicted of the crime of delivery of a controlled substance and of the crime of possession of a controlled substance with intent to deliver.Collinsworth appeals from the judgment of conviction on both counts; we affirm.

On December 1, 1971, J. C. Pruett, and undercover agent of the Boise City-Ada County Vice and Narcotics Squad, while in the company of a drug user whose confidence he had gained, went to a private residence in the city of Boise for the purpose of purchasing a quantity of the controlled substance tetrahydrocannabinols, which is also known by the street name of 'THC'.According to the agent's testimony, he was met there by Collinsworth, who invited him inside the house and sold him a plastic baggie which the officer believed to contain THC.The agent then left the residence.A few minute later, in the company of other police officers from the Vice and Narcotics Squad, Pruett returned, knocked on the door, entered the house when Collinsworth opened the door, and with the help of the other officers who also then entered the house arrested Collinsworth and two other persons who had been in the house since the agent first arrived there.Thereafter the officers obtained a search warrant and seized what apparently were drugs and related paraphernalia lying on the kitchen table and a leather bank bag from which Collinsworth had taken the plastic baggie containing the substance he had sold the agent minutes before.

Appellant Collinsworth alone was charged in Count I with delivery of the controlled substance 'phencyclidine' in connection with the sale he made to the undercover agent; Collinsworth and the two other persons present at the time of the sale and arrest were charged in Count II with possession with intent to deliver of the controlled substance lysergic acid diethylamide (LSD) in connection with the evidence taken from the kitchen table.The three defendants were tried together and Collinsworth was convicted on both counts.The other two defendants were acquitted of the single count with which they had been charged.

On appeal, Collinsworth assigns as error the introduction of testimony of a drug analyst as to the results of his analysis when, ultimately, an objection to the exhibit which he analyzed was sustained; the admission of certain evidence seized pursuant to a search warrant; the admission of the drug purchased by Pruett; the failure to grant defendant's motion for acquittal; and the giving of certain jury instructions.The assignments of error will be discussed in the order above.

We note that Collinsworth was represented at trial by counsel(hereinafter referred to as trial counsel) other than counsel who represents Collinsworth on appeal.All references to Collinsworth's representation at trial relate to the representation by trial counsel and do not reflect upon the representation by counsel on appeal.

Collinsworth argues that it was reversible error to permit a chemist to testify as to his analysis of state's exhibit number one when that exhibit was not subsequently admitted.As originally presented to the court, exhibit number one consisted of a clear plastic baggie containing 28 disk shaped tablets, and a wooden mortar and pestle.The chemist testified that he analyzed the substance in the tablets and on the mortar and pestle and that both substances were lysergic acid diethylamide (LSD).At this point the state offered the items into evidence; an objection to the introduction of the tablets was sustained on the grounds that the tablets had not been connected to the defendants or their arrest.The mortar and pestle were admitted as exhibit 1A.

Collinsworth objects to the chemist's testimony regarding his analysis of the tablets.The chemist's testimony was relevant to the admission of the tablets into evidence; thus, it was not error to allow the chemist to testify at that time.Trial counsel did not request the trial court to instruct, nor did the trial court, on its own motion, instruct the jury to disregard the chemist's testimony regarding the tablets when it later developed the tablets were inadmissible by a break in the chain of evidence.It would be better practice to have instructed the jury at this point, but failure to do so is not reversible error.There was other evidence-exhibit 1A, consisting of the mortar and pestle upon which a powder containing LSD was found, exhibit 3, consisting of a cup full of capsules containing LSD, and exhibit 4, consisting of a plate with powder containing LSD-which were properly admitted against Collinsworth and upon which the jury's determination of his guilt can be sustained.There is no indication in the record that either by argument of counsel or instructions by the court the jury was mislead into determining the appellant's guilt based upon evidence offered but rejected.State v. Moen, 94 Idaho 477, 491 P.2d 858(1971).

Collinsworth argues that 'the trial court erred in not refusing to admit evidence seized pursuant to the search warrant merely because a motion to suppress had not been previously filed'.After the defendants were arrested, the officers obtained a search warrant.As a result of the arrest and search, the state obtained evidence which was subsequently introduced into evidence as exhibit 1A, exhibit 3, exhibit (each of which is described above) and exhibit 2 which was a green bank bag containing phencyclidine hydrochloride.Although the record and the exhibits suggest a sharp conflict as to the legality of the seizure of exhibit 2, ¹ trial counsel did not move to suppress the evidence; rather, trial counsel objected to the introduction of the evidence at trial.The trial court admitted the evidence, ruling that the motion to suppress was not timely made.

Resolution of this issue is governed by ICR 12 which provides that motions to suppress evidence on the ground that it was illegally obtained must be submitted prior to trial ICR 12(b).Failure to make such a motion prior to trial 'shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver.'ICR 12(f).This issue is one of first impression for this jurisdiction.Inasmuch as ICR 12(f) is similar to Fed.R.Crim.P. 41(e), ²the cases interpreting the Federal Rules of Criminal Procedure are applicable.The question as to the timeliness of the motion to suppress made at trial is a question for the discretion of the trial court.United States v. Maloney, 402 F.2d 448(1st Cir., 1968).The purpose of such a rule is to avoid 'the serious inconvenience to jurors from unnecessary disruptions of trial to deal with issues that could and should have been raised in advance'.United States v. Bennett, 409 F.2d 888, 901(2d Cir., 1969).See, 3 Wright & Miller, Criminal§ 673, p. 115(1969).Trial counsel presented no reason as to why such a motion could not have been made prior to trial.A review of the exhibits and the affidavit for a search warrant, without reference to the testimony at trial, suggests factual conflicts which should have been apparent to counsel prior to trial and which should have been resolved by a hearing on a motion to suppress, not by a motion at trial.Thus, we conclude that the trial judge did not abuse his discretion when he denied the motion to suppress.

Collinsworth submits that the trial court erred in admitting exhibit number five.This exhibit was the phencyclidine hydrochloride purchased by the undercover agent from Collinsworth.Collinsworth agrues that the record is insufficient to link the exhibit with the sale.

At trial, the following testimony regarding the exhibit was adduced: The undercover agent, J. C. Pruett purchased a drug represented to be 'THC' from Collinsworth and gave the drug to Tom L. Taylor, the officer in charge of the investigation.Taylor 'placed it (the drug) into an Idaho Bureau of Narcotics envelope, sealed the same for deliverance to the safe in our office'.Taylor then took this article to the state laboratory for testing on December 6, 1972.Defendant's trial counsel introduced as exhibit 6 a laboratory report, numbered 3713, which contained a statement that Officer Taylor delivered to the state laboratory an envelope containing the substance sold to Officer Pruett by Collinsworth.The report indicated this substance was tested and no controlled substances were identified.Another officer, Robert Gholson, testified that he returned the envelope to the Vice Squad safe in the ordinary course of business, as indicated by his signature on the laboratory report (exhibit 6).Officer John L. Lyon testified that he removed the substance from the original envelope (number 3713), placed the substance in a different envelope (number 4658) and took the substance to the state laboratory again.The substance was tested again and found to contain phencyclidine hydrochloride.The substance contained in envelope number 4658 was introduced into evidence as exhibit 5.

The defendant argues that the chain of custody was broken at the point when the drug was taken to the laboratory for the first time; he submits that there is no evidence to link the substance purchased from Collinsworth with the substance Officer Lyon removed from envelope number 3713 and placed in envelope number 4658.However, the laboratory report (exhibit 6) provides the missing link.This exhibit was introduced by defendant's trial counsel and without any limitation as to what purposes the jury could consider the report.The admission of...