State v. Dunn, No. 13771

• Court: Supreme Court of West Virginia
• Writing for the Court: McGRAW
• Citation: 162 W.Va. 63,246 S.E.2d 245
• Parties: STATE of West Virginia v. Jesse James DUNN.
• Decision Date: 11 July 1978
• Docket Number: No. 13771

Page 245

246 S.E.2d 245 162 W.Va. 63 STATE of West Virginia
v.
Jesse James DUNN. No. 13771. Supreme Court of Appeals of West Virginia. July 11, 1978.

Page 247

Syllabus by the Court

1. A judgment of conviction will not be reversed because of improper remarks made by a prosecuting attorney in his opening statement to a jury which do not clearly prejudice the accused or result in manifest injustice.

2. "As a general rule photographs of persons, things, and places, when duly verified and shown by intrinsic evidence to be faithful representations of the objects they purport to portray, are admissible in evidence as aids to the jury in understanding the evidence; and whether a particular photograph or groups of photographs should be admitted in evidence rests in the sound discretion of the trial court and its ruling on the question of the admissibility of such evidence will be upheld unless it clearly appears that its discretion has been abused." Syl. pt. 1, Thrasher v. Amere Gas Utilities Co., 138 W.Va. 166, 75 S.E.2d 376 (1953), Appeal dismissed, 347 U.S. 910, 74 S.Ct. 478, 98 L.Ed. 1067 (1954).

3. Only an "intentional" or "knowing" delivery of a controlled substance is prohibited by statute, although the statute fails to expressly require criminal intent.

4. "(A)fter a witness has testified from notes used to refresh his recollection, the defense is absolutely entitled to inspect the notes from which the witness testified and must be given a reasonable opportunity to prepare a cross-examination." Syl. pt. 1, State v. Dudick, W.Va., 213 S.E.2d 458 (1975).

[162 W.Va. 64] Pinsky, Barnes, Watson, Cuomo & Hinerman, Frank Cuomo, Jr. and Charles E. DeBord, II, Wellsburg, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Claude A. Brown, Asst. Atty. Gen., Charleston, for defendant in error.

McGRAW, Justice.

Defendant was indicted on January 17, 1975, by the Grand Jury of Ohio County, for the delivery of ten tabs of lysergic acid diethylamide (L.S.D.), a Schedule I controlled substance. On July 2, 1975, he pleaded not guilty to the charge. A jury returned the verdict finding the petitioner guilty as charged. He was sentenced to a term of one-to-five years and, thereafter, filed this timely appeal.

The State's case at trial consisted of an Officer McCormick, who testified that he made the buy from the defendant, and three police officers who were charged in the chain of custody with possession of the alleged controlled substance. The defendant, Frank Dunn, his brother, and Victoria McDonald, his co-habitant, testified on his behalf.

Defendant appeals his conviction on the grounds that:

1) The court failed to instruct the jury on intent necessary for the defendant to be found guilty of delivering a controlled substance;

Page 248

2) The Court failed to instruct the jury that it was necessary for the defendant to have knowledge that the substance delivered was a controlled substance at the time of delivery;

3) The Court refused to permit the defense to examine notes of Officer William McCormick from which he testified to refresh his recollection, and which represented the only contemporaneous records of the evidence surrounding the alleged sale;

[162 W.Va. 65] 4) The Court refused to admit a relevant picture showing the physical appearance of the defendant at or around the time of the alleged sale, which photograph contradicted identification in the testimony of Officer William McCormick;

5) The statute under which the defendant was indicted is unconstitutional because it delegates legislative powers to the executive branch, being the Board of Pharmacy, and which board prohibits the controlled substance pursuant to said delegation under which the defendant was indicted and tried, the court failing to uphold the demurrer of the defendant to the indictment;

6) The defendant was prejudiced by the opening statement of the prosecuting attorney who stated that it was up to the defendant's attorneys to dispute evidence of the state, thus placing the unconstitutional burden on the defendant to rebut the evidence of the state and of placing the burden on the defendant to testify, and in refusing to grant defendant's Motion for Mistrial on this ground; and

7) The defendant was prejudiced by closing remarks of the state informing the jury of the expense and procedure of the state to have a police officer go underground and infiltrate the drug culture, thus classifying the defendant as a member of a drug cult without evidence of the same.

I

Defendant assigns as error certain remarks made by the Prosecuting Attorney in his opening and closing statements. In his opening statement, the Prosecuting Attorney said:

There are three roles to be played here today. The attorneys play an important role. It is my responsibility to present the evidence from the State of West Virginia. It is defense attorney's responsibility to try and dispute this and present their side.

[162 W.Va. 66] Defense counsel objected and moved for a mistrial upon the making of the statement. The court overruled the motion and refused to instruct the jury to disregard the comment. Defendant maintains the opening remark had the effect of erroneously informing the jury that a burden of proving innocence was upon him.

Our leading case on opening statement by prosecuting attorneys is State v. Painter, 135 W.Va. 106, 63 S.E.2d 86 (1950) wherein the general rule is set out in syllabus point 1:

A judgment of conviction will not be reversed because of intemperate language used by a prosecuting attorney in his opening statement to a jury, which does not clearly prejudice the accused or result in manifest injustice.

Upon careful examination of the opening remark, we conclude that while the prosecutor's remark might have been potentially misleading in some sense, it neither clearly prejudices the accused nor results in a manifest injustice. Since it is conceivable that the jury could have entertained the wrong impression about the burden of proof and the presumption of innocence as a result of the remark, the better course of action would have been for the court to have admonished the jury that the burden is not on the defendant to disprove the State's case. But, the failure to so instruct the jury or declare a mistrial does not, in the context of this case, constitute reversible error.

In closing argument the prosecutor referred to Officer William McCormick, chief witness of the State, in this manner:

He went undercover at the behest of the Bureau of Police to attempt to make some penetration of the drug culture existing in Ohio County, West Virgina.

Page 249

Defense counsel objected to this statement, but the court overruled the objection. The closing remark, defendant contends, was calculated to inflame the passions [162 W.Va. 67] of the jury against a so-called "drug culture" and to identify him as a member of the same. State v. Lewis, 133 W.Va. 584, 57 S.E.2d 513 (1949) shows that reversible error can occur in closing argument when a prosecutor directs personal attacks toward a defendant in a manner calculated to prejudice and inflame the passions of the jurors.

The State points out that the prosecuting attorney did not say the defendant was a member of a drug culture but was merely referring to the basis for Officer McCormick's involvement in local undercover police work. Contrary to defendant's assertions, this is not a case like Peck v. Bez, 129 W.Va. 247, 40 S.E.2d 1 (1946) where a personal attack was deliberately directed against a party's character in order to prejudice the jury. We find that the closing remarks objected to did not prejudice the defendant or result in manifest injustice and, hence, we will not interfere with the trial court's ruling on this point.

II

Defendant's argument that the statute under which he was indicted is unconstitutional has no merit. He was indicted under the Uniform Controlled Substances Act, enacted as W.Va.Code § 60A-1-101 Et seq. The original act in § 60A-2-201(a) delegated to the West Virginia Board of Pharmacy the power to designate, reschedule or delete controlled substances from the schedules set forth in the Code. Effective March 9, 1975, this section was amended so as to...