State v. Hutton
| Citation | 502 P.2d 1037,7 Wn.App. 726 |
| Decision Date | 02 November 1972 |
| Docket Number | No. 632--II,632--II |
| Court | Washington Court of Appeals |
| Parties | The STATE of Washington, Respondent, v. Robert Louis HUTTON, Appellant. |
Lembhard G. Howell, of Howell & Watson, Seattle, for appellant; Edward E. Gibson, Seattle, of counsel.
Smith Troy, Pros. Atty., Ed Schaller, Jr., Deputy Pros. Atty., Olympia, for respondent.
Defendant, Robert Louis Hutton, appeals from a judgment and sentence entered subsequent to a jury verdict of guilty as to each of three counts in an information filed against him. Count 1 charged that on December 23, 1969 he distributed an amphetamine to another. Count 2 charged that on January 18, 1970 he had an amphetamine in his possession. Count 3 charged him with having committed the crime of second degree assault on January 18, 1970 by assaulting the town marshall of the town of Rainier, Washington 'with a weapon or instrument likely to produce bodily harm, to-wit: a garden rake, and further did prevent and resist the lawful apprehension and detention of himself.'
The defendant contends (1) with respect to counts 1 and 2, that the state has failed to prove the corpus delicti because there is insufficient evidence in the record to establish the substance allegedly distributed or possessed was, in fact, an amphetamine; and (2) with respect to count 3, that there is insufficient evidence in the record to establish the arresting officers had probabe cause to arrest him without a warrant. We agree--and conclude, therefore, that this cause should be remanded with instruction to dismiss all three counts of the information.
We note, preliminarily, that a challenge to the sufficiency of the evidence admits the truth of the evidence of the party against whom the challenge is made and all inferences that can reasonably be drawn from that evidence, and requires that the evidence be interpreted most strongly against the challenger and in the light most favorable to the opposing party. State v. Etheridge, 74 Wash.2d 102, 443 P.2d 536 (1968). On the other hand, the existence of a fact cannot rest upon guess, speculation or conjecture. State v. Carter, 5 Wash.App. 802, 490 P.2d 1346 (1971). In order to support a determination of the existence of a fact, evidence thereof must be substantial, I.e., it must attain that character which would convince an unprejudiced, thinking mind of the truth of the fact to which the evidence is directed. State v. Zamora, 6 Wash.App. 130, 491 P.2d 1342 (1971). Whether or not there is substantial evidence is a question of law for the court. State v. Zamora, Supra.
In order to establish the corpus delicti in counts 1 and 2 the state presented two witnesses: One, an informant to whom the alleged contraband had been distributed; the other, a psychiatrist who had no personal knowledge of any of the circumstances or events involved in counts 1 and 2.
Considering the testimony in the light most favorable to the state, Peggy Slaughterback, the informant, testified that on December 23, 1969, the defendant gave her--and she ingested into her system both by swallowing and sniffing--a wine bottle cap full of a white, flaky substance which had been in a plastic bag; that she initially became tired for about 10 to 15 minutes and thereafter experienced a 'tingling feeling'; that she did 'not really' know what the substance was, only that she had 'heard' it was speed. When asked to describe the tingling sensation, she said This sensation, she said, lasted 12 to 15 hours. Further, she testified, on January 18, 1970 she met the defendant, asked him 'for some speed', and he gave her a substance which had been in a plastic bag. She ate a quantity of the substance which she described as 'Not very much, just about a bottom of a beer capful' (sic). After she ate the substance she got 'a little high' and experienced feelings similar to what she had experienced on December 23, 'but not as bad.' She believed she was taking speed.
Dr. James Bremner, a board certified psychiatrist, testified that an amphetamine has a distinctive stimulant effect upon the nervous system; that a typical effect includes stimulation where dosage is not excessive; that when taken in excessive dosage, which occurs in cases of illicit usage, it causes an extreme state of excitation, restlessness, cardiac palpitation, inability to relax, rest or sleep over long periods of time, thus leading to exhaustion; and that after effects include depression, even suicidal depression. Physical appearance of amphetamine in its raw state, he testified, can be a white, powder form. A common term for amphetamines, he said, is 'speed.' He had never examined Peggy Slaughterback and does not know of his own knowledge whether or not she had any drugs. He was never asked to express an opinion--indeed, we have no way of knowing whether or not he had an opinion--as to whether or not the substance which she allegedly received from the defendant on either December 23, 1969 or January 18, 1970, was an amphetamine. By way of a somewhat negative opinion he did state, however, that an average person who ingested a wine bottle cap full of caffeine would experience a stimulant effect for a few hours, but the stimulant effect would not be extreme nor would it include a tingling sensation.
In our opinion, the foregoing recital of the testimony, most favorable to the state, together with any reasonable inferences therefrom, falls considerably short of the quantum of proof necessary to permit a jury to consider whether or not to convict as to counts 1 and 2 of the information. Whether or not a given substance is an amphetamine is not within the ordinary ken of a layman. See State v. Hink, 6 Wash.App. 374, 492 P.2d 1053 (1972). Hence the normal method of proof is through the opinion of an expert who has either examined the substance or who otherwise is presented with a factual foundation upon which to base an opinion. Clearly, in this case, Dr. Bremner, although qualified, was not asked to express any opinion as to the identity of the substance. Such failure invites a motion to strike. State v. Golladay, 78 Wash.2d 121, 470 P.2d 191 (1970). Miss Slaughterback had no expertise which would in any sense qualify her to express an opinion. See State v. Emmett, 77 Wash.2d 520, 463 P.2d 609 (1970). Indeed, she specifically disavowed any expertise in this field.
The fact that Miss Slaughterback Believed she was taking speed, or that she had Asked the defendant for speed is not evidence that the substance she received or ingested Was speed. We have already alluded to her testimony that she 'heard' the substance was speed. The probative quality of that testimony is extremely suspect. Indeed, we deem it valueless. The testimony arose during direct examination by the prosecutor. An objection to a question, asking her if she had an opinion as to what she was taking, was sustained by the trial court. A second attempt, which however, followed immediately after the initial, successfully challenged effort, resulted in the following testimony:
Q Do you Know what the substance was?
A No, not really. I can't say that I did--only from what I heard, and seeing it then.
Q What did you hear?
A That it was speed.
(Emphasis added.) Objection to this latter testimony was not specifically reasserted, but it followed immediately after the trial court refused to permit her to express an opinion. The distinction, if there is one, between whether she had an 'opinion' and whether she 'knew' what the substance was, would appear in this context to be a distinction without a difference. Previously, in her testimony, the trial court had sustained an objection to similar testimony on the basis that it was hearsay evidence. The fact that someone had told her the substance was speed does not in any manner qualify her to testify that it was speed. Her statement was neither the opinion of a qualified expert nor was it a layman's conclusionary statement. See State v. Wigley, 5 Wash.App. 465, 488 P.2d 766 (1971); State v. Zamora, Supra. It should never have been permitted to remain for consideration by the jury. People v. McLean, 56 Cal.2d 660, 16 Cal.Rptr. 347, 365 P.2d 403 (1961). Furthermore, neither the state nor the defendant urge its consideraton by this court. Both parties appear to consider it as not having been available for consideration by the jury.
Notwithstanding the failure of the state to produce any 'opinion' of an expert that the substance was an amphetamine, the state, in its brief and at oral argument, insists that the totality of the chain of circumstantial evidence leads to the reasonable inference, which the jury could permissibly draw--that the substance allegedly distributed and possessed by the defendant was an amphetamine. In support of this position the state directs our attention to two cases from other jurisdictions. People v. Robinson, 14 Ill.2d 325, 153 N.E.2d 65 (1958); People v. Tipton, 124 Cal.App.2d 213, 268 P.2d 196 (1954). These cases do not support the state's contention. In each case the identity of the drug or poison was established by the use of opinion evidence.
There is, of course, ample authority for the proposition that the identity of the drug, in a possession or distribution case, can be established by circumstantial evidence. People v. Chrisman, 256 Cal.App.2d 425, 64 Cal.Rptr. 733 (1967) (); People v. Kenny, 36 A.D.2d 477, 320 N.Y.S.2d 972 (1971); People v. Robinson, Supra. Ordinarily, however, not only prudence but necessity as well would dictate that some expression of opinion through expertise, acquired through education or experience, be expressed to support the identity of the substance possessed or distributed. A rare exception to this rule of necessity is People v. Nelson, 82 Ill.App.2d 236, 225 N.E.2d 820 (1967). In Nelson, the defendant was charged with acquisition of drugs...
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