Coates v. CommonwealthCoates v. Commonwealth
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Appellant was convicted under
Appellant wаs stopped on a public highway for a traffic violation. Another police officer arrived who had been given information that appellant’s automobile contained marijuana. Upon aрpellant’s consent to a search, a canvas bag of marijuana was found in the car. Appellant testified that a friend had advised him that he knew of a field where this plant was growing and they had picked it there. Appellant asserted that he intended to turn this material over to his immediate superior in the Department of Corrections, where he worked, for some investigative purpose. Not finding his superior in the оffice, he was taking the material home to be brought back the next work day. While appellant denied that he knew he had marijuana in his possession, it is clear that that is what he was searching for and that is what he thought he had. The jury was instructed concerning his knowledge of the nature of the plant material in his possession, although such knowledge is not made an element of the crime prohibited by
Appellant’s first contеntion is that Chapter 218 of the Kentucky statutes is unconstitutional.
Appellant argues the statute is unconstitutional on the ground that it does not require any criminal intent or knowledge. He relies on Burnam v. Commonwealth, 228 Ky. 410, 15 S.W.2d 256 (1929), and Commonwealth v. O’Harrah, Ky., 262 S.W.2d 385 (1953). Those cases are not in point becausе they involved statutes which made criminal offenses of certain acts which a person might be forced innocently to commit because of his financial condition. It was recognized in the Burnam case that the legislature properly may prohibit the doing of an act which involves neither moral turpitude nor evil motive. In the area of drug regulation, guilty intent is not necessarily a prerequisite to the imposition of сriminal sanctions. United States v. Wiesenfeld Warehouse Company, 376 U.S. 86, 84 S.Ct. 559, 11 L.Ed.2d 536 (1964). See also State v. Boggs, 57 Wash.2d 484, 358 P.2d 124 (1961), and State v. Hames, 74 Wash.2d 721, 446 P.2d 344 (1968). In State v. Napolis, Mo., 436 S.W.2d 645 (1969), it was held that knowledge that a drug is a barbiturate or a stimulant is not a necessary element of the offense of possession or sale of drugs. Sеe also State v. Gibson, 92 N.J.Super. 397, 223 A.2d 638 (1966).
It is also contended that
We now turn to alleged trial errors. It is claimed that the Commonwealth’s attorney asked inflammatory questions on cross-examination of apрellant and made improper argument to the jury. It appears that appellant, in his official work in connection with problems of parole, had access to the State Reformatory at La-Grange. On cross-examination the Commonwealth’s attorney asked the following question, to which an objection was overruled:
“Q. 214. As far as you are concerned there is no problem at the Kentucky Statе Reformatory about bringing narcotics or drugs into it, is that correct?”
Immediately thereafter the following question was asked, to which objection was sustained:
“Q. 216. No one employed you, did they, to procure marijuana and bring it into the Kentucky State Reformatory?”
Thereafter appellant .moved for a mistrial, which was overruled. In his closing argument the Commonwealth’s attorney stated:
“It has been right difficult for our Police Offiсers, Don Powers, Trooper Slone, Lieutenant Watson, employees of the Commonwealth of Kentucky, who are trying to enforce the law, who are representing you against the element who wants to violate the law, who want to use narcotics, who want to use marijuana. They want to put into society for profit or gain or whatever may be their reason drugs, which are running prevalent throughout this Country today. You read about it in the newspapers in Louisville, in Shelbyville, and Shelby County. It’s there whether you want to believe it or not. It’s prevalent. It’s prevalent in that Kentucky State Reformatory, because I know. I’m Commonwealth’s аttorney in six counties, one of those counties is Oldham County.”
An objection was overruled and thereafter the Commonwealth’s attorney stated:
“Whether he was inside of the Penitentiary people, I don’t know.”
It is рlainly evident from this course of conduct in cross-examination and argument that the Commonwealth’s attorney was trying to influence the jury to believe that appellant was trafficking in narcotics. At the present time this is a highly inflammable matter and the public generally is incensed against those who induce the use of and supply drugs. There was no evidence whatever (which may or may not have been relevant) that aрpellant was participating in the dispensing of narcotic drugs to those in the penitentiary or anywhere else. A false issue was created which was highly prejudicial. In Rowe v. Commonwealth, Ky., 269 S.W.2d 247 (1954), the Commonweаlth’s attorney had exhibited a vicious looking knife to the jury which had no relevance to the prosecution. We said (page 249):
“The attorney for the Commonwealth may not deliberately inject into the case an issue prejudicial to the rights of defendant without some reasonable basis for the questions. Taylor v. Com., 269Ky. 656, 108 S.W.2d 645. It is rather apparent in this instance the prosecutor knew he could not connect appellant with the ownership or use of this knife, as he made no effort to do so. It occurs to us his only purpose in referring to the knife was to prejudice appellant before the jury. We have many times сondemned unfair methods of a prosecutor to obtain convictions because it brings the courts into disrepute and is disgusting to those who look upon courts and judges as symbols of justice. Two somewhat recent cases are Edwards v. Com., 298 Ky. 366, 182 S.W.2d 948 and Jackson v. Com., 301 Ky. 562, 192 S.W.2d 480.”
Similarly, in Woodford v. Commonwealth, Ky., 376 S.W.2d 526 (1964), the Commonwealth’s attorney in asking questions on cross-examination injected into the case the question of whether or not the defendant had been pursued by police officers. There was no evidence of such a chase. We held it reversible error to inject this false issue. Convictions should not be obtained by improper methods. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); Handford v. United States, 5 Cir., 249 F.2d 295 (1957); Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Turner v. United States, 5 Cir., 415 F.2d 1234 (1969).
The Commonwealth contends that the questioning and the argument were proper because on direct examination appellant had stated that he had never “trafficked, sold, handled, or done anything in an unlawful manner with referenсe to a narcotic drug”, and he also said he had never seen marijuana. In addition, the Commonwealth argues that since appellant admitted all of the elements of the crime and received the minimum sentence, he could not have been prejudiced.
We do not think appellant’s general statement justified the Commonwealth in attempting to induce the jury to believe, without any supporting evidencе, that appellant was actually guilty of a particularly obnoxious type of drug traffic, nor do we believe appellant can be said to have admitted all of the elements of the crime which necessarily justified conviction. He was entitled to a fair jury trial, and he did not receive it. We hold this was reversible error.
Another question we consider it necessary to pass upon is whether the court erred in dеclining to give an instruction tendered by appellant. By this instruction he sought to bring himself within an exemption provided by
Appellant did not provе at the trial, and in his brief he does not even assert, that his superiors had any official duties to perform which would involve investigative or other action in the narcotic drug field. If appellant’s position cоuld be sustained, any person could present as a valid defense to a charge of illegal possession of narcotic drugs the fact that he intended to transfer them to some public official. Obviously the exemption above quoted is not that broad. It certainly encompasses the concept that the possession must have a reasonable relationship to an authorized activity of a public official in this area. The facts in this case fail to establish that appellant’s possession was lawful possession under any of the exemptions provided by
In conclusion, appellant contends he was entitled to a directed verdict, which
The judgment is reversed.
All concur.