State v. Shaw
| Decision Date | 11 August 1975 |
| Citation | 343 A.2d 210 |
| Parties | STATE of Maine v. Joseph B. SHAW. |
| Court | Maine Supreme Court |
Thomas E. Delahanty II, Dist. Atty., Coleman G. Coyne, Jr., Asst. Dist. Atty., Auburn, for plaintiff.
John L. Hamiltion, Lewiston, for defendant.
Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.
Joseph B. Shaw was indicted for selling cannabis in violation of 22 M.R.S.A. § 2384. 1 Having waived trial by jury, the case was presented to a single Justice of the Superior Court who found the defendant guilty and sentenced him accordingly. We deny the appeal from that judgment.
A motion for discovery had been filed in which Shaw sought to obtain a sample of the substance claimed to be cannabis for the purpose of an independent analysis by a defense expert, Professor Richard E. Schultes, 2 'in a laboratory of his choice.' The Court, assuming the defense expert to be a 'chemist,' authorized the independent analysis but restricted it to the Maine State Public Health Laboratory in Augusta, specifically ordering that no substances be removed therefrom and that results 'of any and all tests' be made available to the State. No objection was made to the form of the discovery order.
The defendant also moved and was granted the right to take the deposition of Professor Schultes.
The record on appeal was abbreviated by an agreed statement of facts which admitted (1) the sale, and (2) a test performed by a State chemist identified the substance as cannabis. It was further agreed that, although the State chemist did not share the view that there was more than one species of the genus cannabis, he had testified, assuming the contrary, that his tests would not distinguish between species since 'all varieties (species) have the same tetrahydrocannabinol (THC).'
The deposition of Professor Schultes was properly taken but it was not admitted in evidence before the single Justice who ruled:
'Now, Defendant's Exhibit 4 for identification, which is the deposition of Richard Schultes . . . (which) would be to the effect there is more than one type of the plant, the genus cannabis and, I gather, that you cannot distinguish by chemical analysis Sativa-L or other types of genus cannabis. Is that the testimony?
Initially, we are urged to hold that it was manifest error to limit the analysis requested by the defendant to one which must necessarily be made in the State laboratory. Rule 52(b), M.R.Crim.P. In ruling on this motion the Justice assumed (and no facts contrary to that assumption were made known to him) that the analysis requested was to be done by an expert qualified in the field of chemical analysis. Although Professor Schultes was familiar with the type of chemical tests necessary to identify cannabis, he himself held no degrees in chemistry, had never personally performed such tests, and did not pretend to be qualified to do so. It was his deposed posed testimony that although there are three species of the genus cannabis, all chemically identified by the presence of THC, such tests cannot distinguish between the species. Additionally, if any one species has lost its forensic characteristics by age, drying, or fragmentation, its identification by a taxonomist becomes impossible. With particular reference to the exhibit involving this defendant, Professor Schultes stated:
We reject appellant's belated challenge to the restrictive nature of the Justice's order. Even if we assume that it was error to limit the place and scope of the requested analysis, viewed in retrospect this error becomes harmless because (1) Professor Schultes is not a qualified chemist, and (2), as a taxonomist he would have been unable to identify what species was contained in the exhibit in any event. Thus, on these facts the defendant has not shown that the restrictive order was in any respect unreasonable or prejudicial. We reaffirm the ad hoc standard of reasonableness approved in State v. Cloutier, 302 A.2d 84 (Me.1973), dealing with the scope of discovery and inspection orders issued pursuant to Rule 16(a), M.R.Crim.P.
The real issue which is urged on appeal is that 22 M.R.S.A. § 2384, proscribing the...
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