State v. Gilman

• Decision Date: 09 June 1972
• Docket Number: Nos. 1041-E,s. 1041-E
• Citation: 110 R.I. 207,291 A.2d 425
• Parties: STATE v. Wayne GILMAN (two cases). x. and 1042-Ex.
• Court: Rhode Island Supreme Court

Page 425

291 A.2d 425

110 R.I. 207

STATE v. Wayne GILMAN (two cases).

Nos. 1041-Ex. and 1042-Ex.

Supreme Court of Rhode Island.

June 9, 1972.

Richard J. Israel, Atty. Gen., R. Raymond Greco, Sp. Asst. Atty. Gen., for plaintiff

Aram K. Berberian, Cranston, for defendant.

OPINION

KELLEHER, Justice.

A Superior Court jury found the defendant, Wayne Gilman, guilty of conspiring to deliver and the unlawful possession of a central nervous system stimulant. The charges which are contained in two separate indictments were consolidated for trial. We have consolidated the appeals and the bill of exceptions filed by the defendant in each case.

The charges arise out of an incident that occurred on the early evening of December 10, 1968. The jury was presented with two different versions of what transpired.

The prosecution's version was given by a state narcotics inspector who was working undercover posing as a college student.

The inspector said he met Gilman at approximately 6:00 p.m. on the day in question and informed Gilman of his desire to buy some marijuana. Gilman replied that he had none but he knew someone in Narragansett who sold 'speed' (amphetamine). Gilman entered the inspector's car and they proceeded to Narragansett. The inspector drove and Gilman gave the necessary directions. Within a matter of minutes, the group arrived at the home of Philip Greene and his wife. Upon entering the Greenes' home, the inspector was introduced to the Greenes and several others including a Craig King and a man by the name of Sherry. When Greene was told of the purpose of the inspector's visit, he said that he had only enough 'grass' (marijuana) for his own use but that a shipment of 'speed' was expected.

After a lapse of ten minutes, the gathering took on significance with the arrival of a Mr. Thomas who brought with him a clear plastic bag containing white powder. It is undisputed that the powder was amphetamine. All present gathered around the kitchen table and began to divide the 'speed' into small piles and then place each pile into a glassine packet. The inspector was asked if he wanted to buy some 'speed.' Gilman and Sherry ¹ vouched for his reliability and all present gave their approval to the transaction. King sold the inspector a packet for $20. Gilman and the inspector then left the Greenes' homestead and returned to a North Kingstown bowling alley where the two separated. The inspector rendezvoused with some of his fellow officers who had kept him under surveillance as he went to and from Narragansett. The packet was initialed and delivered to the state toxicologist. The defense did not cross-examine the inspector.

Gilman testified that he was at a North Kingstown bowling alley when he was approached by a friend and the inspector. They asked him if he wished to take a ride to Narragansett. Gilman's friend initiated the conversation by asking Gilman if he had any marijuana. Gilman answered in the negative whereupon the inspector remarked that he (the inspector) might be able to find some in Narragansett. The defendant said that the inspector asked him whether he had some 'grass' and he replied that he had no 'grass' and he knew of no one who had.

The defendant insisted that it was his friend who acted as the navigator on the trip which ended at the Greene residence. He conceded that he was present when the 'speed' was divided and at the time the sale took place. Gilman admitted that he knew the people who had gathered in the Greenes' home but he had no idea where they lived. He expressly denied that he did any separating or bagging of the 'speed' or that he had anything to do with the sale.

Another inspector testified that he had observed Gilman in the company of his alleged co-conspirators on several occasions prior to the Narragansett transaction. This witness also told the jury that two months earlier Gilman and the undercover agent were present when a sale of a 'spoon of speed' took place.

The defendant presses several exceptions. Those meriting consideration relate to the overruling of demurrers he had filed to each indictment, the adequacy of the testimony adduced by the state and the correctness of a portion of the charge given the jury.

The Indictments

The conspiracy indictment was drawn according to the provisions of G.L.1956, §§ 12-12-6 and 12-12-7. The relevant portions of the indictment read that Gilman and several others present when the amphetamine was divided and bagged '* * * conspired together with each other to deliver or caused to be delivered a central nervous system stimulant, to wit, amphetamine, in violation of the provisions of Title 21, Chapter 29, Section 3(a) of the General Laws of Rhode Island, 1956, as amended.'

Gilman, in demurring to this indictment, claims that the quoted language is conclusory and violative of his constitutional right to due process in that it fails to reasonably apprise him of the nature of the charge lodged against him. We recognized such a right in State v. Brown,97 R.I. 115, 196 A.2d 133 (1963), and at the same time reaffirmed the Legislature's right to prescribe the form or manner of stating a charge in a criminal process.

The indictment under inspection alleges a conspiracy which is an offense at common law and then goes on to refer to the specific statutory offense which is the subject of the conspiracy. The state has fulfilled its constitutional obligation. In State v. Smith, 56 R.I. 168, 184 A. 494 (1936), the attack, identical to the one lauched by Gilman, was made upon a conspiracy indictment. We see no need to repeat here what was said in the Smith case. It is obvious from a reading of the indictment that Gilman stands charged with conspiring with others to perpetrate an illegal delivery of a central nervous system stimulant. If defendant wished further information as to the delivery, he could have filed a motion for a bill of particulars as was his right under § 12-12-9. His failure to do so is, we believe, some indication as to Gilman's true realization as to the nature of the charges made against him.

Before us, Gilman claims that the indictment is duplicitous in that it alleges that he conspired 'to deliver or caused to be delivered' the amphetamine. ² The fallacy in defendant's reasoning is that he confuses the crime with which he is charged (conspiracy) with its goal. It is well settled that conspiracy is a single offense even though the argeement upon which the charge is founded envisions the performance of several criminal offenses or acts. Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942); People v. Bradley, 169 Colo. 262, 455 P.2d 199 (1969); State v. Spence, 36 N.J.Super. 314, 115 A.2d 585 (1955). Moreover, an indictment charging conspiracy need not set forth the object of the conspiracy with the same particularity that would be required for an indictment alleging the commission of the crime which is the object of the conspiracy. Wong Tai v. United States, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545 (1927); Brown v. United States, 403 F.2d 489 (5th Cir. 1968); State v. Smith, 240 So.2d 807 (Fla.1970). A conspiracy indictment is not duplicitous because the allegation of acts which would amount to substantive offenses is merely descriptive of diverse objects of the conspiracy.

The second indictment charges Gilman with violating § 21-29-3(d). In pertinent part this section states: 'The following shall be unlawful: * * * (d) The actual or constructive possession or control of a barbiturate or a central nervous system stimulant by any person * * *.' The sole basis for the demurrer to this charge is Gilman's contention that the statute violates his due process rights because it penalizes the possessor without any necessity of a showing that the possessor knew of the nature of the contraband. The trial justice, in overruling the demurrer, held that the statute implicitly required a showing of knowledge by the possessor. We agree.

Read literally § 21-29-3(d) imposes a strict criminal liability without regard as to whether the accused knew the prohibited substance was in his possession. This section cannot be construed as merely relating to circumstances which give rise to a prima facie case sufficient to establish guilt. (Compare the policy-lottery slip statute discussed in State v. Tutalo, 99 R.I. 14, 205 A.2d 137 (1964).) At common law, knowledge of the illegal character of the act was an essential ingredient of a criminal offense. State v. Labato, 7 N.J. 137, 80 A.2d 617 (1951). The Legislature may, however, make criminal an act regardless of the awareness, or lack thereof, on the part of the responsible party of the factors that make his conduct criminal and, in such a case, only the doing of the proscribed act need be shown. United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604 (1922); ³ Speidel v. State, 460 P.2d 77 (Alas.1969); Commonwealth v. Buckley, 354 Mass. 508, 238 N.E.2d 335 (1968); State v. Labato, supra; Packer, Mens Rea and The Supreme Court, The Supreme Court Review at 107 (1962); Sayre, Public Welfare Offenses, 33 Colum.L.Rev. 55 (1933). Since the turn of the century, there has been an increasing tendency to impose criminal sanctions without regard as to whether the accused knew his actions were prohibited or illegal. This has come about by the legislative regulation of various industries, trades or activities that affect the public's health and safety. Typical objects of such legislative attention are the food and liquor industries.

Such regulations are described as 'public welfare offenses.' In Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), Mr. Justice Jackson, in discussing 'public welfare' or 'strict liability' offenses, indicated that the penalties for such behavior are 'relatively small' and the 'conviction does no grave damage to an offender's reputation.' 342 U.S. at 256, 72 S.Ct. at 246, 96 L.Ed. at 297. Later, in Smith v....