State v. Meader
| Decision Date | 03 October 1979 |
| Docket Number | No. 14104,14104 |
| Citation | 184 Mont. 32,601 P.2d 386,36 St.Rep. 1747 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Gerald William MEADER, Defendant and Appellant. |
| Court | Montana Supreme Court |
John L. Adams, Jr. (argued), Billings, for defendant and appellant.
Mike Greely, Atty. Gen., Allen B. Chronister, Asst. Atty. Gen. (argued), Harold F. Hanser, County Atty., James D. Walen, Deputy County Atty. (argued), for plaintiff and respondent.
Defendant, Gerald William Meader, appeals from a conviction in the District Court, Yellowstone County, of two counts of possessing dangerous drugs in violation of section 45-9-102 MCA. Following denial of all of Meader's post-conviction motions by the District Court, Meader appeals.
The events leading to defendant's conviction begin on September 19, 1976, when a search warrant was issued to search a house located at 411 Terry Avenue, Billings, Montana. The record indicates that the house on Terry Avenue was being rented by Gerald Meader's girlfriend, Marsha Thill. The grounds for the issuance of the search warrant do not appear in the District Court file nor in the transcript. Defendant does not, however, challenge the validity of the search warrant.
Officer Brennan of the Yellowstone Drug Squad and Officers Sailer, Vogel, Damon, Desmul and Trimarco went to the Terry residence to execute the search warrant at approximately 9:00 p. m. on September 19, 1976. Officers Brennan, Vogel and Trimarco knocked on the front door of the Terry residence and were admitted by Marsha Thill. Officers Sailer, Damon and Desmul entered the residence through the rear door. Upon entering the house, Officer Trimarco observed defendant Meader standing in a bedroom located at the southeast corner of the residence. Officer Trimarco ordered Meader to come out of the bedroom with his hands on his head. Defendant complied, and was then searched for weapons by Officer Brennan. The search of defendant did not produce any weapons or drugs; however, a subsequent search of the southeast bedroom yielded 111/2 grams of methamphetamines, four tables of ascodeen, a man's shaving kit containing 62 hypodermic needles, and various other drug paraphernalia.
After discussing the methamphetamine and drug paraphernalia, the officers placed defendant Meader under arrest for possession of dangerous drugs. He was read his rights and transported to the county jail. Before leaving the residence, Meader exclaimed that Marsha Thill had nothing to do with the drugs found on the premises.
Further search of the premises by the officers uncovered 226 grams of marijuana and extensive drug-related items, including cultivation books, scales, and measuring droppers. The search also revealed a set of personalized license plates bearing the word "Devil" (Meader's nickname), a letter from the Employment Security Division addressed to Meader at "411 Terry Avenue" and various articles of men's clothing and personal effects. All of these items were seized. The officer later explained that they seized these items to show that defendant had dominion and control over the Terry Avenue residence.
Gerald Meader and Marsha Thill were both charged by information with three counts of criminal possession of dangerous drugs. Count I charged the defendants with criminal possession of 111/2 grams of methamphetamines; count II charged them with criminal possession of 226 grams of marijuana; and count III charged them with criminal possession of 4 ascodeen tablets (containing 120 grams of codeine). Defendants initially pled "not guilty" to all charges. Subsequently, they entered a guilty plea to count I of the information, but later withdrew their guilty pleas and entered pleas of "not guilty" to all counts.
The trial in this case was held from September 27 to September 30, 1977. Before submitting the case to the jury, the trial court dismissed count III of the information as to each defendant. The jury found both defendants guilty of counts I and II. Only defendant Meader appeals from the trial court's judgment of conviction on counts I and II.
Defendant raises several issues for our review. He first contends that it was not a crime for anyone to be in possession of nonprescription methamphetamines or marijuana on September 19, 1976, because the annual republication of dangerous drugs was not performed by the Department of Health. He next contends that the county attorney improperly charged him with committing two crimes in that contemporaneous possession of amphetamines and marijuana constitutes only one crime under Montana's dangerous drug statutes. His third issue is that the seizure of the personalized license plates was illegal, and that the District Court should not have admitted them into evidence. Finally, the defendant contends that the jury verdict is not supported by the evidence.
In discussing the first issue, we must review the provisions of Montana's Dangerous Drug Act.
Addressing the first issue, we observe that section 45-9-102 MCA provides that "a person commits the offense of criminal possession of dangerous drugs if he possesses any dangerous drug, as defined in section 50-32-101 MCA. Section 50-32-101 MCA states that " 'Dangerous Drug' means a drug, substance, or immediate precursor in Schedules I through V hereinafter set forth." The actual schedules of dangerous drugs are found in sections 50-32-222, -224, -226, -229, and -232 MCA. The various schedules list specific drugs and substances which the legislature has designated as dangerous. These schedules have remained relatively static since their initial adoption in 1969.
Also included in the Dangerous Drug Act is section 50-32-209 MCA, which states:
The "Board" referred to in section 50-32-209 MCA is the Board of Pharmacists, and the "Department" is the Montana Department of Health.
Defendant contends that the Board and the Department failed to carry out their duties under section 50-32-209. He further contends that this failure to republish and revise had the effect of decriminalizing marijuana and methamphetamines during the period when the Department and the Board neglected to carry out their statutory duties. While it is true that the schedules were not annually revised or republished, we cannot accept the argument that this failure to republish and revise resulted in decriminalization of marijuana and methamphetamines.
Defendant's position is based on a strict interpretation of one section of the Dangerous Drug Act section 45-9-104 MCA. This interpretation would totally defeat the legislative intent behind the enactment of the Dangerous Drug Act. We have consistently stated that "(t)he cardinal principle of statutory construction is that the intent of the legislature is controlling." Baker National Ins. Agency v. Mont. Dept. of Rev. (1977), Mont., 571 P.2d 1156, 1160, 34 St.Rep. 1379, 1384. In construing legislative intent, statutes must be read and considered in their entirety and legislative intent may not be gained from the wording of any one particular section or sentence, but only from a consideration of the whole. Vita-Rich Dairy, Inc. v. Dept. of Bus. Reg. (1976), 170 Mont. 341, 348, 553 P.2d 980. It is out duty to interpret individual sections of an act in such a manner as to insure coordination with the other sections of the act. Hostetter v. Inland Development Corporation of Mont. (1977), Mont., 561 P.2d 1323, 34 St.Rep. 147, 150.
Here, the legislature directed the Board to republish the schedules of dangerous drugs annually which the Board failed to do.
However, the Dangerous Drug Act does not indicate that the legislature intended the Board of Pharmacists to have the power, by inaction, to decriminalize the possession of all type of drugs and substances. Rather, we find that the legislature intended the original five schedules to be effective until such time as the Board and the Department took steps to carry out their statutory duties to revise and republish. Thus substances designated in the five schedules could not be legally possessed on September 19, 1976, even though the schedules of dangerous drugs had not been revised or republished. Accordingly, the defendant violated Montana law by having any of those drugs in his possession.
In his second issue, defendant argues it was error for the prosecuting attorney to charge him with three counts of possessing dangerous drugs. He contends that possession of different types of prohibited drugs constitutes only one violation of section 45-9-102 MCA, and therefore, that he could only be charged with one count a single violation of section 45-9-102 MCA.
We note, however, that State v. Meadors (1978), Mont., 580 P.2d 903, 35 St.Rep. 690 is directly in point and is dispositive of this issue. In Meadors, we held that the legislature intended to provide a distinct crime for each of the drugs listed in schedules I through IV. It was proper, therefore, for the county attorney to charge defendant with three separate counts of possession.
We turn now to the seizure of the personalized license plates. As previously stated, the officers conducting the search of the Terry Avenue residence seized a set of personalized license plates which bore the word "Devil". These plates were found in plain view, lying on the living room floor. One of the officers conducting the search testified that he had known Gerald Meador since 1972, and knew that Meader used the nickname "Devil". On this basis, the officer seized the license plates and the prosecution introduced the plates as circumstantial evidence tending to show that Gerald Meador had dominion and control over the Terry Avenue residence. They were introduced at trial over defendant's objection.
Defendant claims the license plates were not particularly described in the...
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