Stillwell v. Com.

• Decision Date: 31 August 1978
• Docket Number: 771527 and 771526,Nos. 771528,s. 771528
• Citation: 219 Va. 214,247 S.E.2d 360
• Parties: Jerry Dean STILLWELL v. COMMONWEALTH of Virginia. Jerry Dean LOWERY v. COMMONWEALTH of Virginia. Jackie Wade PHILLIPS v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 360

247 S.E.2d 360

219 Va. 214

Jerry Dean STILLWELL v. COMMONWEALTH of Virginia.

Jerry Dean LOWERY v. COMMONWEALTH of Virginia.

Jackie Wade PHILLIPS v. COMMONWEALTH of Virginia.

Record Nos. 771528, 771527 and 771526.

Supreme Court of Virginia.

Aug. 31, 1978.

Emmitt F. Yeary, Mary Lynn Tate, Abingdon (Yeary, Lohman & Tate, P. C., Abingdon, on brief), for appellants.

Thomas D. Bagwell, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

HARRISON, Justice.

Jerry Dean Stillwell, Jerry Dean Lowery and Jackie Wade Phillips contend that Virginia Code Sections 18.2-248 and 18.2-263 unconstitutionally shift the burden of proof of the offenses with which they have been charged away from the Commonwealth and onto the defendants. They also assert that the statutes are unconstitutionally vague in that they fail to state any standard of proof.

Stillwell, Lowery and Phillips were tried in the lower court, without a jury, but not as codefendants. Stillwell was convicted of three separate offenses of selling marijuana in January, 1976, to an undercover police officer. Lowery and Phillips were each convicted of two separate offenses of selling marijuana to an undercover police officer in March, 1976. The same officers testified in all cases, stating that the respective defendants each sold them marijuana. The sales were not denied. All three defendants presented evidence that the sales were made for accommodation. The trial court found each guilty as charged and sentenced each to a term in the state penitentiary. Their appeals to this Court have been consolidated to consider the common issue involved.

The sections of the Virginia Code challenged by the appellants are §§ 18.2-248 and 18.2-263, which, at the time of the offenses, read, in part, as follows:

§ 18.2-248. Penalties for manufacture, sale, gift, distribution or possession of a controlled drug. Except as authorized in The Drug Control Act, chapter 15.1 (§ 54-524.1 et seq.) of Title 54 of this Code, it shall be unlawful for any person to manufacture, sell, give, distribute or possess with intent to manufacture, sell, give or distribute a controlled substance.

"(a) Any person who violates this section with respect to a controlled substance classified in Schedules I, II or III shall upon conviction be imprisoned for not less than five nor more than forty years and fined not more than twenty-five thousand dollars; . . . and provided further, that if such person prove that he gave, distributed or possessed with intent to give or distribute marijuana or a controlled substance classified in Schedule III only as an accommodation to another individual and not with intent to profit thereby nor to induce the recipient or intended recipient of the controlled substance to use or become addicted to or dependent upon such controlled substance, he shall be guilty of a Class 1 misdemeanor.

§ 18.2-263. Unnecessary to negative exception, etc.; burden of proof of exception, etc. In any complaint, information, or indictment, and in any action or proceeding brought for the enforcement of any provision of this article or of The Drug Control Act (§ 54-524.1 et seq.), it shall not be necessary to negative any exception, excuse, proviso, or exemption contained in this article or in The Drug Control Act, and the burden of proof of any such exception, excuse, proviso, or exemption shall be upon the defendant. . . ."

The predecessor to Code § 18.2-248 was Code § 54-524.101:1, enacted by the General Assembly in 1972 (replacing Code § 54-524.101). See 1972 Acts, c. 798. In 1973, Code § 54-524.101:1, as it related to marijuana and Schedule III substances, was amended to insert therein the language "if such person prove", and to lower the maximum sentence for an accommodation sale of marijuana to twelve months and a $1,000 fine. See 1973 Acts, c. 479. In 1975, the section number was changed from 54-524.101:1 to the current 18.2-248, but there were otherwise no substantive changes in the statute as it related to the distribution of marijuana. 1975 Acts, chs. 14, 15, and 589. ¹

The contention of the defendants is that a sale of marijuana as an accommodation is a lesser included offense of a sale of marijuana for profit. The defendants argue that this lesser included offense of accommodation, by virtue of the provisions of Code §§ 18.2-248 and 18.2-263, applies to them if they "prove" the sale was an accommodation sale; that due process of law dictates that no burden of proof shall be placed on a defendant to prove any element of the offense; and that the criminal statutes under which they were charged must be construed strictly.

Continuing, defendants argue that when a defendant, charged with making a sale or distribution of marijuana, takes the stand and testifies that the sale or distribution was made as an accommodation, then, by virtue of the statutory provisions, the burden immediately shifts to the defendant to negate an intent to profit or to induce use, addiction or dependency. They say that such a burden is expressly prohibited by Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). Further, defendants contend that not only does the burden to show accommodation shift to a defendant but also that the statute delineates no "standard of proof" by which the evidence they are required to produce may be measured, I. e., whether by a preponderance of the evidence, beyond a reasonable doubt, or by clear and convincing evidence. They contend the statute is unconstitutionally vague and poses a great danger to due process of law.

The Commonwealth's position is that Code § 18.2-248 establishes a two-stage process for the trial of controlled drug sale and distribution cases, the first being the determination of guilt, and the second being a determination of punishment, and that the extent of punishment depends on aggravating or mitigating factors.

In its enactment of the Drug Control Act the General Assembly recognized that, except in very rare and most unusual cases, there can be no lawful possession, sale or distribution of drugs by anyone, particularly of those drugs classified in Schedules I, II and III, and listed in Code §§ 54-524.84:4, -84:6, -84:8. With few exceptions, enumerated by statute, no one can lawfully manufacture, possess, sell or distribute such drugs. The manufacture of drugs is strictly controlled and regulated by the state. The possession of drugs is confined to a small group of professionals who are required to dispense the drugs under restricted and controlled conditions. By and large, it can be said that the lawful possession of drugs is restricted to licensed manufacturers, licensed pharmacists, and to individuals who have possession as a result of a prescription given by an authorized physician.

The General Assembly recognized that seldom, if ever, except in these authorized instances, could there be any explanation for the sale or possession of drugs. It concluded that the sale, possession and distribution of drugs, which in some places had reached epidemic proportions, was being carried on as a commercial enterprise and for a profit. The legislature therefore, with few authorized exceptions, made it Unlawful for Any person to manufacture, sell, give, distribute or possess with intent to manufacture, sell, give or distribute A controlled substance. And it defined marijuana as a controlled substance. It was a logical and reasonable assumption that a person who committed any of these acts was engaged in a commercial venture and for profit. Marijuana is not traded in the legitimate market place. It is an unlawful drug for which there is a large demand, and in its trafficking huge profits are reputedly made. There was therefore a rational and reasonable connection and relation between the fact of sale or distribution and the conclusion that it was with intent to profit hence the rebuttable presumption against an accommodation sale or distribution.

However, the General Assembly was cognizant of the fact that in some instances a sale or distribution of a drug would be made, not by a dealer in drugs, a pusher or one who was normally engaged in the drug traffic, but by an individual citizen who was motivated by a desire to accommodate a friend, without any intent to profit or to induce or to encourage the use of drugs. Therefore, Code § 18.2-248, involved here, provides for the mitigation of punishment for those who are less culpable. And Code § 18.2-263 takes note of the fact that a defendant is the person with the greatest knowledge and easiest access to evidence to show that his sale or distribution was one of accommodation and not a commercial transaction, and therefore relieves the Commonwealth of what would amount to an impossible burden of affirmatively negating every exception, excuse, proviso or exemption claimed by a defendant.

In Walker v. Commonwealth, 212 Va. 289, 183 S.E.2d 739 (1971), the defendant was convicted by a jury of selling heroin. He did not testify and introduced no evidence in his own behalf. The trial court gave an instruction, pursuant to then Code § 54-524.108 (now § 18.2-263), that the defendant had the burden of proving that his possession, sale or dispensing of the narcotic drug was lawful as an exemption to the Uniform Narcotics Drug Act. We found no evidence that any drug was involved other than heroin, and the defendant made no claim that it was legal, or that he came into possession of it in a legal manner. We held that there was no exception, excuse, proviso or exemption involved in the case to be negated by the Commonwealth, and therefore no occasion for any resort to the statute, or for the court to give the instruction. We made it clear that the defendant "was under no burden to prove anything. He could rely upon his plea of not guilty".

Jefferson v. Commonwealth, 214 Va. 432, 201 S.E.2d...