State v. Gellers

• Decision Date: 04 October 1971
• Citation: 282 A.2d 173
• Parties: STATE of Maine v. Don Cotesworth GELLERS.
• Court: Maine Supreme Court

Page 173

282 A.2d 173

STATE of Maine v. Don Cotesworth GELLERS.

Supreme Judicial Court of Maine.

Oct. 4, 1971.

Richard S. Cohen, Peter W. Culley, Asst. Attys. Gen., Augusta, for plaintiff.

Don Cotesworth Gellers, pro se.

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

POMEROY, Justice.

Seasonably after the return of a verdict of guilty of the crime of unlawful possession of Cannabis Sativa L, 22 M.R.S.A. § 2362, the defendant has appealed from the judgment entered thereon.

The indictment, which was the keystone of the prosecution, was originally in three Counts. Trial was had only on Counts I and II, each of which charged unlawful possession of Cannabis Sativa L at a different time.

The jury found the defendant not guilty of Count I and guilty of Count II.

We uphold the judgment for reasons which are hereafter stated.

The Points on Appeal are many. We choose to discuss only a few in detail.

Prior to the time trial was had, the defendant moved for a change of venue. He said in his motion and he now says before this Court, that because he has long championed the rights of a minority group in his County, ¹ prejudice which is directed at such minority group by many of the citizens of Washington County, is directed against him. He asks us to rule a fair trial was not had because of such prejudice.

He also argues that pretrial newspaper publicity made a fair trial impossible of accomplishment. A number of newspapers were placed in evidence in support of the motion for change of venue and are in the record now before us.

The Point which the defendant raises as to pretrial publicity was completely discussed and decided in State v. Beckus, Me., 229 A.2d 316 (1967). We do not view the rule there announced to be different from that position taken by the United States Supreme Court in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), and in Estes v. State of Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965).

We dispose of this Point by affirming what we said concerning it in State v. Beckus, supra.

The voir dire examination of prospective jurors in this case was much more extensive than that usually had, even in capital cases. A careful examination of this record reveals no pattern of prejudice directed at either the minority group or the defendant.

The motion for change of venue was denied and properly so, we hold. It seems to us, convincing evidence that he could and did get a fair trial was the fact that he was found not guilty of Count I of the two Counts on which he was tried.

We find no reasonable basis for his complaint as to the refusal to grant his motion for change of venue.

The evidence indicates that a police informer and a Maine State police detective joined forces in the investigation which led to the arrest and conviction of the defendant. The informer was well known to the defendant. The police detective posed as a man calling himself 'Burke.' The defendant's claim is that 'Burke' was represented by the informer to be a man who was wanted by the police for various crimes in Massachusetts and elsewhere. The informer had a counterfeit court summons for a traffic violation to explain why he had sought out the defendant. Evidence was produced to the effect that the informer let it be known to the defendant and others in his home that 'Burke' was 'a very tough guy' and represented that he, 'Burke,' had once shot a man in a parking lot in Massachusetts upon very little provocation.

The detective and the informer first appeared at the defendant's house while the defendant was absent. A man named Cox appeared at the defendant's door and invited them into the house. Several people were present. A few hours later, the informer and the detective left. As they were leaving, Cox told them to come back any time they wished. Six or seven visits to Gellers' home followed, prior to Gellers' return from a trip outside the State.

The testimony of the informer was that while he was in the Gellers home, Gellers drove up in his automobile and came into the house. The informer's testimony concerning the meeting was as follows:

'Q And if you know, did Mr. Gellers meet Detective Hall at that time?

A Yes, he did.

Q And who introduced Mr. Hall to him?

A I did.

Q What did you tell Mr. Gellers?

A Told him, 'I would like you to meet Larry Burke from Boston, tough guy.'

Q Did you have anything further to say about Detective Hall at this time to Mr. Gellers?

A Yes, sir.

Q What was that?

A I said, 'He knows Patriarca from Boston,' a guy all over the newspapers at the time.'

The defendant argues that: (a) this fraud and deception violated the defendant's constitutional rights ² and (b) that the defense of entrapment is available to him by reason of conduct of the informer and the undercover detective.

We see no basis for the claim of entrapment.

The crime with which the defendant was charged was not selling Cannabis Sativa L. Rather, it was charged only that he did 'possess and have under his control' Cannabis Sativa L. If Gellers possessed and controlled the marijuana, he did so independently of the police activity, so there is no room for argument that the crime, i. e., 'possess and have under his control' marijuana (Cannabis Sativa L), was in any way induced by police activity.

In State v. Calanti, 142 Me. 59, 46 A.2d 412 (1946), our Court adopted the view that whenever the State by scheme, device, subterfuge or lure induces one to pursue a course of conduct upon which he would not otherwise have entered and he commits a criminal act which he would not have committed but for the action of the State's agent, conviction for such crime is against public policy. We held that where the criminal intent originates in the mind of the accused and the offense is completed, the mere fact that the accused is furnished an opportunity to commit a crime or was aided in the commission thereof by an agent of the State in order to secure evidence necessary to the prosecution, constitutes no defense.

This rule is in accord with the position taken by the Supreme Court of the United States in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), and later in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958).

The Appellant asks us to go far beyond the position we took as to the defense of entrapment, and declare on the facts in this case, the conduct of the police requires that the judgment of guilty be set aside.

As to the claim of violation of constitutional rights, a quotation from Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966), is particularly apt.

'Were we to hold the deceptions of the agent in this case constitutionally prohibited, we would come near to a rule that the use of undercover agents in any manner is virtually unconstitutional perse. Such a rule would, for example, severely hamper the Government in ferreting out those organized criminal activities that are characterized by covert dealings with victims who either cannot or do not protest.' 385 U.S. 206, 210, 87 S.Ct. 424, 427.

In Lewis the facts were: A federal narcotics agent, acting under cover contacted Lewis and represented himself as 'Jimmy the Pollack.' He then informed Lewis that a mutual friend had told him a supply of marijuana might be obtained from Lewis. In that case, as here, the Appellant argued there was a violation of Appellant's rights arising under the Fourth Amendment of the Constitution of the United States, resulting from the entry into the Appellant's premises, accomplished by means of fraud and deception.

The United States Supreme Court found there was no such violation.

In that case, as here, the Appellant placed principal reliance on Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed 647 (1921), as authority for his position. The Court, speaking through Mr. Chief Justice Warren, easily distinguished between Gouled and Lewis on the facts.

We find the distinction there made is here applicable.

We are unable to see any constitutional issue presented by the State's conduct. ³

The statute under which the Appellant was prosecuted is the Uniform Narcotic Drug Act, 22 M.R.S.A. § 2362. It was first adopted in Maine by Public Law, 1941, chapter 251. Sec. 2362 of the Act, under which this Appellant was convicted, reads as follows:

'It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense or compound any narcotic drug, except as authorized in this chapter.'

Specifically, the State alleged this defendant possessed and had Cannabis Sativa L under his control. At the time this offense was alleged to have been committed, to possess and have marijuana (Cannabis Sativa L) under one's control was a felony. ⁴

The State does not claim the Appellant was ever found to be in personal exclusive possession of marijuana. Rather, the State's position is that the Appellant had marijuana under his control and in his constructive possession.

In order to convict one of the offense of possession of a narcotic drug, it is necessary to show that such defendant was aware of the presence and character of the drug and was intentionally and consciously in possession of it, either exclusively, jointly with others, or constructively.

Physical possession which gives a defendant immediate and exclusive control is, of course, always sufficient if the other elements of a crime are present. The possession, however, need not always be exclusive nor need it be actual physical possession. It is sufficient proof of possession if it be established beyond a reasonable doubt that the drugs involved were subject to his dominion or control.

No short generalized answer can ever be given to the question: What constitutes sufficient external relationship between the defendant and the narcotic property to complete the concept of possession? ⁵

This Court has often discussed...