State v. Donovan

• Decision Date: 29 September 1975
• Citation: 344 A.2d 401
• Parties: STATE of Maine v. Patrick DONOVAN.
• Court: Maine Supreme Court

Page 401

344 A.2d 401

STATE of Maine v. Patrick DONOVAN.

Supreme Judicial Court of Maine.

Sept. 29, 1975.

Thomas E. Delahanty II, Dist. Atty., Coleman G. Coyne, Jr., Asst. Dist, Atty., Auburn, for plaintiff.

Platz & Thompson by Philip K. Hargesheimer, Lewiston, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

WEATHERBEE, Justice.

The defendant, Patrick Donovan, was indicted by the Androscoggin grand jury, in successive counts, for the sale and the attempted sale of Cannabis in violation of 22 M.R.S.A. § 2384. The persons to whom the indictment charged the defendant with selling and attempting to sell Cannabis were the police officers working as undercover agents for the Androscoggin Regional Special Investigations Unit. The case was tried by jury on October 1, 1974 at the Androscoggin Superior Court. The defendant's motion for acquittal on the second count of the indictment was granted at the conclusion of the State's case. The jury returned a verdict of guilty on the first count of the indictment charging sale.

The jury could have found these facts:

On October 24, 1973, at his apartment in Lewiston, defendant agreed to sell two pounds of Cannabis to the two undercover agents. The officers returned to the defendant's apartment at about 6 p.m. on the following day where defendant gave them a shopping bag containing two plastic bags of Cannabis, which one of the officers carried out of the apartment and placed in the trunk of the automobile. Detective Perham, head of the Lewiston Police Department's Narcotic Division, observed this from a car parked directly behind the officer's automobile. Shortly thereafter, the officers left the defendant's apartment and drove to a nearby motel. In their motel room, the undercover officers marked the shopping bag and the plastic bags with their initials and with a notation of the time and place of the sale. All the bags were then turned over to Detective Perham, who had followed the officers back to their motel. Detective Perham returned to the police station and placed the two plastic bags in a safe. On November 2, both bags were given to a State chemist who analyzed the contents as Cannabis.

On appeal, defendant raises the following points:

(1) Because the indictment charged the defendant with the sale of Cannabis and not with the sale of Cannabis sativa L., it failed to charge an offense and the trial court therefore erred in denying defendant's motion to dismiss it;

(2) 22 M.R.S.A. § 2384 is unconstitutionally vague because the statute is unclear as to the type of Cannabis prohibited;

(3) The trial court erred in denying defendant's motion for appointment of an expert witness whose testimony would tend to establish the existence of several types of Cannabis;

(4) The trial court erred in admitting the Cannabis into evidence because the State did not prove that the substance was Cannabis sativa L.;

(5) and (6) The trial court erred in denying the defendant's motion for acquittal at the conclusion of the State's case and again at the conclusion of all the evidence because there was no evidence that the substance sold by the defendant was Cannabis or Cannabis sativa L.;

(7) 22 M.R.S.A. § 2384 unconstitutionally denies due process and equal protection of the laws;

(8) The substance sold by the defendant was erroneously admitted into evidence because no chain of custody was established;

(9) 22 M.R.S.A. § 2384 unconstitutionally provides cruel and unusual punishment;

(10) The trial court erred in ordering the results of tests performed by an independent chemist be made available to the State's attorneys.

Points 1-6 are interrelated, being bottomed upon defendant's assertion that 22 M.R.S.A. § 2384 proscribes the sale of only Cannabis sativa L., but does not prohibit traffic in other types of marijuana. In support of this contention, defendant cites the definition of 'Cannabis' in 22 M.R.S.A. § 2382(1) which reads in part:

'1. Cannabis. 'Cannabis,' sometimes called marijuana or marihuana, includes all parts of the plant Cannabis sativa L., whether growing or not . . . .'

Thus, the defendant argues, the statutory language, by identifying a specific type of Cannabis, bespeaks a legislative intent to exclude all other species from the statutory prohibition.

We resolved this issue recently in State v. Shaw, Me., 343 A.2d 210 (1975) after the Court had had the benefit of this defendant's brief and argument on the issue as well as those of the defendant Shaw. Shaw involved the precise issue now urged by this defendant, and its decision squarely holds that the legislature, in enacting 22 M.R.S.A. § 2384, intended to proscribe the sale of all species of Cannabis. In examining the probable intent of the legislature, the Shaw Court noted:

'The legislature, considering its general enactments in the area of illicit drugs, has demonstrated a definite purpose of prohibiting all but the scientifically or medically necessary use of narcotics. Common sense dictates that it would never be so irrational as to legalize the sale of one species of cannabis, while proscribing the sale of another, both equally potent in terms of THC, the euphoriant element of marijuana.'

The Court's construction of 22 M.R.S.A. § 2384 in State v. Shaw is therefore dispositive of defendant's points 1-4:

The indictment need charge no more than the sale of Cannabis. As the statute prohibits the sale of all types of Cannabis, it does not appear that the testimony of the expert witness as to the existence of several types of Cannabis would have been material to the issue being tried even if relevant. See United States v. Rothberg, 351 F.Supp. 1115 (E.D.N.Y. 1972). We find no unconstitutional vagueness resulting from the fact that Cannabis is defined (22 M.R.S.A. § 2382(1)) as specifically including 'sativa L.'. Moreover, the use of the generic term 'marijuana' in section 2384 is sufficiently informative to a person of 'common understanding' (the constitutional standard by which the precision of criminal statutes is measured) to clearly describe the substance prohibited. State v. Alley, Me., 263 A.2d 66 (1970).

The trial court did not err in denying defendant's motion for appointment of an expert witness whose testimony would tend to prove the polytypicality of Cannabis. Because section 2384 proscribes the sale of all species of marijuana, such testimony would have been irrelevant and was properly excluded. See United States v. Rothberg, supra.

Points 5 and 6 raise separate issues. In addition to his contention that the State failed to identify the substance sold by him as Cannabis sativa L., defendant challenges the sufficiency of the State's evidence in proving that the substance was Cannabis. Although this motion was made at the close of the State's case, it was renewed at the close of all evidence and, hence, preserved. State v. York, Me., 324 A.2d 758 (1974). Once, however, his motion is overruled and the defendant presents evidence in his own behalf, the issue on appeal is whether the total evidence is sufficient to justify a conviction. State v. Hanson, Me., 331 A.2d 375 (1975).

The State's principal evidence on the identity of the substance in question was the testimony of William Blake, a chemist employed by the Public Health laboratory. Mr. Blake performed four separate tests on the Cannabis; a thin layer plate test; a modified Duquenois test; and two microscopic examination tests. Based upon the results of these tests, the witness testified that it was his opinion that the substance examined was Cannabis.

Because, upon cross-examination, the witness testified that no single test by itself is sufficient to make a conclusive identification and because the witness was unable to state positively whether the specimen of Cannabis against which the evidence was compared was in perfect condition, defendant contends that a reasonable jury could not conclude that the substance in question was Cannabis.

Defendant does not contest the witness's qualifications as an expert; his contentions go only to the probative value of that witness's testimony. The defendant did not, however, introduce any evidence suggesting that the tests used by the expert were not valid methods for identifying Cannabis. At least one of these tests, the modified Duquenois, has been recognized as a standardized chemical procedure by this Court. State v. Carvelle, Me., 290 A.2d 190 (1972). When an expert uses established chemical procedures with which he has become familiarized by training and experience, the effect of his testimony is a matter for jury evaluation. State v. Appleton, Me., 297 A.2d 363 (1972).

Defendant further argues that his motion for acquittal should have been granted at the conclusion of the evidence because no reasonable jury could have concluded that the defendant was guilty beyond a reasonable doubt. Defendant bases this contention upon the fact that his testimony directly contradicted that of the two undercover agents. The weight and credibility of witnesses' testimony, however, is a matter for jury resolution and that determination will not be disturbed unless there is insufficient evidence to justify the verdict. State v. Worrey, Me., 322 A.2d 73 (1974).

The seventh point raised by defendant is that 22 M.R.S.A. § 2384 denies due process and equal protection of the laws. In his brief defendant does not attempt to differentiate between these issues but presents issues appropriate only to an equal protection argument. This opinion, therefore, addresses only equal protection. The equal protection clause measures the rationality of statutory classifications and is offended only if those classifications rest on grounds wholly irrelevant to the protection of the public health, safety, morals or welfare. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); State v. Rush, Me., 324 A.2d 748 (1974).

Laws duly enacted by the legislature are...