State v. McNeal
| Decision Date | 15 January 1980 |
| Docket Number | No. 79-251-CR,79-251-CR |
| Citation | 288 N.W.2d 874,95 Wis.2d 63 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Cleoothur McNEAL, Defendant-Appellant. * |
| Court | Wisconsin Court of Appeals |
William J. Tyroler, Asst. State Public Defender, submitted briefs for defendant-appellant.
E. Michael McCann, Dist. Atty., and Pamela Magee-Heilprin, Asst. Atty. Gen., submitted brief for plaintiff-respondent.
Before DECKER, C. J., MOSER, P. J., and CANNON, J.
Defendant was convicted on September 20, 1978, after trial to a jury, of possession of marijuana with intent to deliver contrary to secs. 161.14(4)(k) and 161.41(lm)(b); possession of cocaine contrary to secs. 161.16(4) and 161.41(3); and possession of amphetamines, contrary to secs. 161.16(5)(a) and 161.41(3), Stats. He was sentenced to two years in the state prison on the first count, and six months each on the second two counts. The sentences on the second two counts were to run concurrently with each other and the first count.
The above-mentioned controlled substances and several items associated with the sale of marijuana were discovered by police officers in defendant's apartment upon execution of a search warrant. The warrant was issued pursuant to information supplied by an informant who claimed that he had purchased controlled substances from defendant's apartment. Defendant was linked to a possessory interest in the apartment by several bills and identification cards.
At trial, the state introduced the testimony of a chemist from the Department of Justice regarding the identification of the substances seized. On appeal, defendant challenges the sufficiency of the proof adduced at trial regarding the identification of the cocaine. Defendant argues that the tests performed, I. e., cobalt triocyanate color test, gas chromatography and mass spectrometry, were insufficient because they did not distinguish the cocaine at issue as l-cocaine rather than its isomer d-cocaine. Defendant cites State ex rel. Huser v. Rasmussen, 85 Wis.2d 441, 270 N.W.2d 62 (1978, Rehearing ) for the rule that not all forms of cocaine are proscribed under sec. 161.16(4), Stats. This decision was a per curiam on a motion for a rehearing in an earlier case, State ex rel. Huser v. Rasmussen, 84 Wis.2d 600, 267 N.W.2d 285 (1978). The court on rehearing held that d-cocaine and l-cocaine are not chemically equivalent, and that because the abuse potential of d-cocaine has not been determined, it does not fall within Schedule II of the Controlled Substances Act. The court had earlier held that it was not necessary to prove the existence of a particular form of cocaine to support a conviction. Defendant maintains that without proof of the type of cocaine involved here he cannot be convicted of possessing a controlled substance.
Defendant's reliance on the Huser rehearing opinion at 85 Wis.2d 441, 270 N.W.2d 62 (1978) is misplaced, for the decision was not filed until October 2, 1978. Defendant's trial occurred on September 18, 1978, and he was found guilty on September 20, 1978. Thus, the state could not have been aware of the necessity of introducing proof as to the existence of d-cocaine or l-cocaine in the substances seized from defendant's apartment. The law at the time of defendant's trial was determined by the earlier Huser opinion found at 84 Wis.2d 600, 267 N.W.2d 285 (1978), wherein both isomers of cocaine were held to be proscribed controlled substances. Defendant's conviction is, therefore, affirmed.
While defendant's reliance on the Huser rehearing opinion is misplaced in this particular fact situation, his arguments are well taken. We hold that in the future it will be incumbent upon the state to offer into evidence proof that will enable the trier of the fact to reasonably determine that the defendant had possession of l-cocaine as distinguished from d-cocaine. In the absence of such proof, the state will have failed to meet the burden of proving the identity of the cocaine beyond a reasonable doubt. A conviction for possession of cocaine could not then be supported.
Defendant also alleges that the trial court coerced a verdict by instructing the jury that it should not consider the lesser included offense of possession of marijuana until it had acquitted the defendant of the greater offense of possession with intent to deliver.
We find defendant's allegation to be without merit for several reasons. First, there was no objection at the instruction conference. Section 805.13(3), Stats., requires that any objection be made at the instruction conference or it is waived:
805.13 Jury Instructions; form of verdict.
(3) Instruction and verdict conference. At the close of the evidence and before arguments to the jury, the court shall conduct a conference with counsel outside the presence of the jury. At the conference, or at such earlier time as the court reasonably directs, counsel may file written motions that the court instruct the jury on the law, and submit verdict questions, as set forth in the motions. The court shall inform counsel on the record of its proposed action on the motions and of the instructions and verdict it proposes to submit. Counsel may object to the proposed instructions or verdict on the grounds of incompleteness or other error, stating the grounds for objection with particularity on the record. Failure to object at the conference constitutes a waiver of any error in the proposed instructions or verdict.
The record before us clearly indicates that while defense counsel objected to one of the instructions, he specifically indicated his approval of the jury charge found in Wis. J I Criminal 6035, I. e.., "Possession with Intent to Deliver a Controlled Substance (Wis.Stat. § 161.41(lm)) with Lesser Included Offense of Possession of a Controlled Substance (Wis.Stat. § 161.41(2r)(a))." This standard instruction...
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