*1
180,
affirming
preme Utah, Court of 2d Utah [26 1404], said:
P.2d the Court plainly
“There is a substantial statutory on
whether Utah scheme proc- procedural
its face affords the due required by
ess Bell v. Burson. This not, however, require
case does that we question.
address that The District appellant
Court fact afforded this procedural process. due That court
stayed suspension the Director’s order review, completion
pending judicial appel- hearing conducted opportunity
lant was afforded the
present evidence and cross-examine.” deprived
Licensee has not been rights
constitutional and she not at- Implied
tack our Consent Laws Consti- grounds.
tutional
Judgment reversed and remanded for proceedings
further
not inconsistent with
opinion
Application
Court
Baggett, Okl.,
(1974).
WILLIAMS, HODGES, J., J.,C. V. C. DAVISON, BERRY, LAVENDER, DOOLIN, JJ.,
BARNES and concur.
SIMMS, J., concurs in results. CORY, Appellant, Alan
Curtis Oklahoma, Appellee.
The STATE of
No. M-75-124. Appeals
Court Criminal of Oklahoma.
Nov.
Ranger joined Ranger Sanford Witt at they proceeded scene and to follow tracks leading away from the abandoned car, along down the river bottom into swampy yards area about 400 from the Ranger road. Witt testified it was at this time that Ranger he and Sanford first spotted the defendant. Two individuals stepped had out of the trees some distance 'from rangers, the two Ranger Witt was able to through observe the men binoculars and noted the defendant wearing camouflaged was hunting vest carrying and a .22 rang- rifle. As the two approached, ers the defendant and his com- panion stepped behind a small tree where the defendant gave took the vest off and to his companion. companion took the vest and began away to walk oppo- in the site direction. The defendant trotted to- Chew, City, appel- Rick for Oklahoma ward asking the rangers, they what want- lant. ed. The rangers two called for the de- Larry Atty. Gen., Derryberry, L. companion fendant’s stop, but he contin- James Lisle, Swartz, Gen., Atty. Le- Asst. Kenneth ued to move in opposite direction until gal Intern, appellee. for they repeated demand, their at which time complied
he spot returned to a where the other three men standing. were OPINION Ranger Witt asked the defendant for his BUSSEY, Judge: hunting license and the defendant could Appellant Cory, Curtis Alan hereinafter produce Ranger it. then Witt checked defendant, charged, referred to as was the hunting vest any type to determine if Court, tried and convicted in the District game was concealed therein and in the Kingfisher County, No. Case CRM-74-178 process investigating the vest he found offense of Possession of Marihua- zip bags lock containing what O.S.1971, 2^102(B- na violation of 63 § he believed to be rangers punishment jury His 2). fixed attempted then to follow the tracks of the county at a term of ten (10) months companion defendant and his theory jail, and judgment from said and sentence that the might tracks lead them back to the timely appeal perfected has been to this source of the marihuana. This venture Court. was not immediately successful so the stated, Briefly that on facts were rangers took their captives two back to the 14, 1974, Witt, an Oklahoma June Jack location where parked the cars were Ranger, patrolling in State Game radioed for assistance from the sheriff’s Kingfisher County, three miles north and department. Coye Barker arrived Dover, seven miles west of when he came on the scene and placed the defendant was parked county a vehicle on a road. under arrest and rights. advised Observing leading tracks from vehicle party The entire retraced the route of the bottom, Ranger into a river radioed Witt captives two back Ranger along requested Fred assist- the river bottom Sanford investigation ance in the wooded, of these tracks. brushy into a they area Q. they plots right. found what believed to be three All Did ascertain that marihuana, one of had re- been some had been removed from cently patches one of harvested. ? A. Yes. Barker testified he Q. You marijuana, identified that as pre- because of
able *3 did not ? police subject training ex- vious on the and the perience course with the substance A. Yes. police investigations. He further testi- of Q. And what happened bags? to those given on marihua- fied had lectures that he I bags, A. took the up. locked them previously and had been na identification Marked them up.” and locked them [Tr. expert in trials for the declared witness an 31]
purpose identifying marihuana. Sheriff of bags prosecutor the plastic the After had Barker confiscated the established a hunting stored them chain custody bags vest the scene and of of up the to the date day trial, until the of the trial. of the attempted he to from elicit the Sheriff another identification of the green camouflaged Ranger identified Witt leafy plastic bags: substance the four as vest hunting in court worn vest “Q. is any question him And there whether when he first observed the defendant that is marijuana not ? day of the ar- through binoculars zip rest, plastic and he also identified object MR. I that. He TABOR: to vest taken from the bags as ones lock expert.” qualified hasn’t as an been defendant for he had asked the after [Tr. 34] further tes- hunting Ranger license. Witt Following objection, this Sheriff Barker bags back into put the tified that he had study testified that he made a had Coye it had Sheriff the vest and handed marihuana; given matter that he had of day the arrest. The vest of Barker on many subject made lectures on the and had as into evidence State’s was introduced investigations involving numerous mari- in- bags were the four Exhibit No. on to de- huana. Sheriff Barker went Exhibit No. together State’s troduced as peculiar scribe characteristics case completion State’s At plant, drawing board to using to the evidence. defendant demurred appearance of leaves and illustrate the went overruled and the case demurrer was testified, objection, that stems and he over jury. plant that he knew of there was no other He further that had those kind of leaves. assignment first The defendant’s stated he had learned how to did not be is that the error Institute marihuana at Southwestern identity yond a reasonable doubt the point the Training. At Police agree. alleged cannot marihuana. We state, quali- as to interrupted court “Just allowed to Coye Barker was Lee expert, defense fications answer as objection: testify without at this time.” may cross-examine go show I him to back “A. asked Barker On cross-examination he first started. This me where high botany he had taken testified that him. ranger first saw game studying botany-relat- had been school and got spot and when we went We since and was unaware ed materials on farther spot we trailed back exactly plants had patches. east which led to the He re- appearance same as patches of Q. And the what? a chemical he was aware that sponded that method microscopic analysis was one Marijuana. A. marihuana, expert testimony my had since witness but that he identifying was not able to be here. But outside removing some of made his examination objections have no to them.” bags and ex- I from the substance [Emphasis mari- acknowledged that amining He it. added] odor, but very huana had characteristic Instruction No. submitted to the sub- any of the that he did not burn stated jury, reads verbatim: identify. seeking he was stance “There has been introduced the testimo- examination consisted Redirect ny purports of a witness who to be exchange: following respective skilled in line of endeavor. witnesses are as ex- “BY MR. PRIEBE: Such known in law pert An witnesses. witness one nothing identify Q. You can art, who is skilled in certain business marijuana in that sack? *4 profession, possessed peculiar Yes. A. knowledge acquired by study, observation PRIEBE: That is all. MR. practice. and You are instructed that may cross examine You THE COURT: you may testimony consider the of such as to other matters.” [Tr. 42] expert witness, give and it such examination, counsel defense On recross weight you and value as think it should permission ask one specifically requested have, weight giv- but the and value to be quali- Barker’s question on further testimony you en to that is for to deter- identity as testify to the fications required mine. You are not to surrender and established that alleged marihuana your judgment any per- own to that of basic and advanced had taken both testifying expert, give son as an or to techniques, the enforcement courses law opinion controlling effect of an in Enid in completed last of which he expert, testimony expert, for the of an previously as an and had testified witness, like that of is to be witness in other trials. by you given weight received such you and value as deem it is entitled to tes- redirect examination the Sheriff
On receive.” that he of no other weed tified knew pros- collecting, and the someone would be Davenport State, Okl.Cr., In v. 510 P.2d concluded: ecution (1973), squarely 988 this Court faced the “Q. positive are and conclusive You question of whether identification of mari- marijuana? bags contain those by police huana officers on the basis of expertise gained through training and ex- identify when Right. It’s easier to A. perience was sufficient evidence take identify it it is can still fresh jury. the question identity in here now.” even [Tr. 46] pur- case two officers entered a house to the evi- The court overruled a demurrer suant to a search warrant observed a proceedings dence and later clear baggy containing green a lea- proposed instructions court distributed the fy substance. A further search page attorneys, and at 50 of to both premises stationery revealed a white enve- following: transcript find the we lope substance, green leafy filled awith cop- During the recess “THE COURT: cigarettes two containing handrolled were proposed instructions ies of the green leafy pipes substance and two con- with prepared. like to discuss those I’d taining green leafy a burned residue. At counsel. the trial the officers identified the sub- objection to I have no MR. PRIEBE: stance discovered in the search marihua- them. na. The defendant was convicted for Ille- Operation gal none, Hon- of a Police Radio Your While I have MR. TABOR: Crime, Illegal Commission of to-wit: one on want to delete the or. You Marijuana, Possession of and one of the was convicted of the unlawfully offense of possessing defendant’s contentions was that there drug a narcotic on the strength not sufficient testimony police evidence of a officer that green leafy substance as substance contained in defendant’s jar There we held: fruit was marihuana. At the trial the witness, defendant called as a a chemist “Furthermore, the evidence of the State who testified that a visual examination of was sufficient the sub- a substance was insufficient to determine in defendant’s stances found house were whether it was marihuana and that marijuana. The introduced testi- proper test was analysis. chemical On mony arresting from the officers as to appeal probation conviction in specialized knowledge, acquired their revocation proceeding, the Court of Crimi- through study practice, in the field Appeals nal of Texas held: arresting narcotics. The officers opinion were of the that the substances expressing opinion “Before found in defendant’s house were mari- substance which he observed in jar juana. weight credibility the officer testified that testimony is a for determi- he had been with the Narcotics Bureau jury. nation See Harvell v. Department the Dallas Police (1964).” P.2d eighteen months and that he was ac- Davenport State, supra, squarely quainted with and had seen much mari- *5 point with the instant juana case and we deem it recognize marijuana and could controlling. to be The Sheriff stated that when he saw testimony it. The officer’s specialized his knowledge basis of was sufficient to qualifications show his inspection and a visual of the testify substance to as an opinion and the in plastic bags found expressed within the hunt- by him was sufficient to show vest, ing opinion it was his sub- appellant possess marijuana.” did stance was weight For all of the and foregoing above rea- credibility of a testimony is sons, we find assignment defendant’s first for by jury. determination of error to be without merit. Other states have reached same re- sult. In Ohio in Maupin, State v. 42 assignment Ohio Defendant’s second St.2d 330 (1975), N.E.2d 708 error is that prove Su- the State failed to preme beyond held: Court a reasonable doubt that the defend ant either physically constructively pos or “Marijuana, being not an extract or alleged sessed the marihuana. The defend
preparation impossible difficult or State, Okl.Cr., ant cites Brown v. 481 P.2d analysis, characterize without chemical (1971) 475 in support of his contention leaves, but consisting stems, of the dried that the in evidence the instant case will plant seeds of a anyone which rea- support possession conviction. The sonably familiar therewith should be able Syllabus opinion in the Brown contains an identify by appearance, it is not error accurate and concise statement of the rules permit experi- officers who have had * * * applicable of law to a fact situation such ence searching for and obtain- as the one we are confronted with in our ing marijuana testify that a certain present case: marijuana; substance is police and other officers have qualified also been held so “1. To possession convict unlawful testify.” of marihuana is necessary it State, The Texas case of presence Miller v. that the accused knew of the Tex.Cr.R. (1959) S.W.2d 466 is the marihuana and that the same was directly point. on There under his the defendant control and dominion. proved and held that defendant’s by circum- Brown test
2. Possession
presence of marihuana
evidence,
knowledge
stantial
but a
of the
conviction on cir-
presence
could
his
cannot
not be inferred
mere
cumstantial evidence
be sustained
phone
bag
where the
every
if the
not exclude
booth
does
found,
except
was later
but that the
hypothesis
that of
marihuana
reasonable
dropping
fact
guilt;
proof amounting only to a
that he was observed
some-
thing
phone
on
strong suspicion
probability
or mere
the floor of
booth cou-
pled with
that marihuana
insufficient.
the fact
was also
pocket
found in his
and former
coat
motel
present
person
premises
Where a
room,
requisite
up
added
additional
found,
but
marihuana
does not
independent
his
factors
showed
use,
access,
possession
have exclusive
knowledge and control.
premises, may
of the
not be inferred
that a
knowledge
presence
urges
that he had
Defendant
fact situation
present
even
and had
of it un-
closer to our
case occurred in
control
independent
Staples
less there
are additional
fac-
what Yes, “THE FOREMAN: we had one scene, page appearing at 7 of the question here, get we didn’t it in in- transcript: any person structions but he said for the the individuals backtracked first “A. We offense and a conviction line, thereof, the fence found period back down shall be convicted for a and went into a they year. crossed the fence of time not more than one We wooded, brushy It is an oxbow area. old didn’t know whether this was his first they type and where crossed area or offense whether it wasn’t and we plot fence exactly there didn’t know whether we were the size of a growing. supposed put It was about time and stuff like pickup. hood of a just that on this what the deal It is. says any person violating It this. investigation, Under further we found say person doesn’t had had plots fifty growing two more within prior— yards other, approximately all each plots, containing dif- the same size THE (Interrupting) COURT: If the plants. ferent sized bring bailiff will the instructions to the bench.” plots heavily one of that had been picked reduced, there were tracks point At this was sent back jury to the that matched the shoes that the defend- jury attorneys agreed room and the two wearing.” ant was problem interpretation could be resolved if court would strike the These facts clearly constitute additional in- words “for the first offense” from Instruc- dependent factors which this Court re- jury tion disregard No. 3 advise the quires knowledge before defendant’s matters relating charge to the control may be inferred from fact that the jury Information. When returned to plastic bags of marihuana were found following exchange the courtroom the took hunting in a vest which defendant was place: wearing sighted by when first authorities. case, in this although evidence circum- “THE Let the COURT: record show stantial, is inconsistent with other rea- present the defendant is with hypothesis sonable but that defendant was represented by counsel. The guilty beyond a reasonable doubt. Priebe, Mr. the Assistant District Attor- ney, jury present. and the Members *7 assignment The defendant’s third jury, of the regrets the Court the inclu-
of jury appears error the verdict words, sion offense’, of the ‘for the first given have been under the influence of in Instruction No. members of passion prejudice due to remarks made jury provided copy the will be with a of by response question the trial court in to a the information filed in this case which by jury the foreman. The defendant’s alleges possession marijuana of and it is apparent contention relates jury’s to the this information which was read to confusion wording over the of the last beginning jury the of this trial. The paragraph of Instruction No. should not consider the issue a first of- originally : read as follows fense or second offense or matters other “Any person violating provision this than: Is there a violation of the law guilty shall principle part be deemed of a misdemeanor the of the law as set out upon for the first offense conviction Instruction No. 3. The of members punished by imprison- jury thereof shall be the are not free to make all of County period ment in the for a of these decisions on Instruction No. 3 I Jail year.” (1) previously time not more than one have you. instructed You BRETT, Presiding Judge (dissenting). of these must consider all instructions. you receive But these instructions when decision, I dissent to this because I be- back, you relating see that to the will requirements proof lieve it lessens the for paragraph Instruction last of No. beyond type in this reasonable doubt ‘Any person reads: instruction now vio- I case. concede identifi- Sheriff’s shall lating provision guilty be of a by morphological cation its of marihuana misdemeanor and conviction there- proba- characteristics is to show sufficient punished imprisonment of shall for arrest, and it suf- ble cause for even be period of not time more than one purposes preliminary ficient ex- for year.’ that answer the Does amination, agree I that such cannot jury? identification is sufficient to constitute THE I don’t know proof beyond FOREMAN: wheth- at trial. a reasonable doubt completely. er it does nor not In other Likewise, question the trial I court’s ac- words, tell it still doesn’t us whether it is qualify tion in permitting the Sheriff to his first or second offense. In other pur- himself as witness an words, you asking us to mark are down pose of identification the substance. guilty. if he is how much time found He posses- maintained in his the substance How can determine that when we we sion sending for five months without first, it is don’t know whether second portion of it to the Bureau of Oklahoma or third or time he fourth has been Investigation analysis, for chemical be- caught using on I’m this. this for cause he himself an ex- considered to be example. pert. However, expertise in- did not Well, jury THE knowledge COURT: is free to clude name of the Du- quenois consider issue violation of chemical test for verification of possession relating law commonly test is substance. That uti- marijuana. jury is Also, not free to lized testing purposes. con- for field I do sider is offense this a first or second of- consider the fact that he testified that fense or a third or subject other.” he has lectured marihua- qualify na to be sufficient to him as an ex- Considering the facts defense counsel pert, majority as does the decision. object did not trial to the court’s resolution problem of the foregoing jury explanation and that No was offered the Sher- imposed a sentence of ten (10) months in iff as why he did not send the substance jail which within was well their discretion to the Bureau Oklahoma State of Investi- proscribed under gation a statute which a maxi- analysis during for chemical penalty year mum jail of one period. for the of- five month The trial court and fense of which the defendant presume was convict- this Court are left that because ed, we cannot reach the conclusion that the that marihuana Sheriff’s belief can defendant prejudiced by by morphological confusion be identified its charac- surrounding teristics, beyond instructions. For the rea- a reasonable stated, sons trial, we find defendant’s third doubt. purpose For the this belief assignment of error to be following reported without merit. is erroneous. The Review, 3, 1973, the Wisconsin Law Vol. conclusion, we observe the record is in an “An entitled, Evaluation of article *8 free of which justify error would Drug Testing Procedures Used Forensic modification or reversal. The judgment Qualifications Laboratories and the accordingly sentence is affirmed. Analysts:” Their “Statistics from Wisconsin Crime BLISS, J., concurs. Laboratory confirm that marihuana iden- gross morphological tification based on BRETT, J., P. dissents. prone characteristics highly is to error.
573 upon period to March conclusions based During the March 1970 visual observation. marihuana, mor- The Hutton case was 1971, samples reversed and dis- 1674 such, sub- missed as two counts phologically charged identified as were to because of expert proof a lack Laborato- mitted to Wisconsin Crime offered to amphetamines. citation, confirmatory testing. Only 85.6 ry second Peo- ple Tipton, v. 124 percent Cal.App.2d of these were in fact marihuana. 268 P.2d every in 196 Therefore, percent, or one stands for (1954), proposition 14.4 that suspected corpus samples, in as delicti in any may turned case be seven proved by This were not marihuana. circumstantial marihuana evidence. The percentage jurisdiction, Davenport be due case from this large error v. mari- 510 (1973), the over-zealous enforcement P.2d also 988 majority opinion, number of cited in the huana laws or the fact that a can be distin- grow guished from the plants either wild in Wiscon- instant case oth- that because er shops in resemble circumstantial sin or are sold florist evidence was found stage the scene in addition to fairly closely at some the marihuana tes- marihuana event, development. being present tified to in of their the house. However, State, macroscopic Earley Okl.Cr., identification v. indicates that 479 1 technique.” (1971), P.2d this testing unreliable determined is an Court testimony that the admission of “as possessed more no the Sheriff doubt While tablets, pills other without identifica- knowledge concerning marihuana than prej- tion as to their chemical content” was expertise he still jury, I believe lacked udicial to the defendant. required to make a determination and skill It is cursory evident from even a review sub- beyond a reasonable doubt of the record before this Court Sher- was, fact, marihuana. stance confiscated testimony iff nothing Barker’s more burning marihuana also testified He than his conclusions which were not based odor, peculiar distinguishable emits a upon any scientific analysis whatsoever. simple test failed to make but he even evidence is not Such sufficient Consequently under of the substance. beyond a reasonable doubt the nature of case, it that the of this cannot be said facts placed the substance into evidence. Unless alleged to marihuana substance stipulation parties there is between the a reason- proved beyond to be marihuana that the substance is marihua- able doubt. na, require analy- the law should scientific position In an effort sustain its sis substance qualified chemist expert an in iden- witness proof to constitute beyond a reasonable marihuana, the on two tifying relies State doubt, except where circumstantial other jurisdictions other and one cases from evidence exists sufficient to constitute Court, but cases from this none of those proof beyond a that the reasonable doubt instant applicable to the facts of the are is in fact substance cited, Hut- In the first case case. reference to With the two cases from ton, Wash.App. 502 P.2d jurisdictions majority cited in de- stated, normal (1972), that court “[T]he cision, case, State, Texas su- Miller v. opinion of through method of pra, case, Maupin, and the Ohio State v. an has who either examined supra, persuasive chánge neither is presented substance or who otherwise requirements perceive I it. law as with a factual foundation Therefore, stated, instant for the dis- opinion. . . reasons I base .’’In case, sent Barker as to decision. testified Hemp monly plants likewise often called Indian native often 1. Two to Oklahoma thought its name. to be marihuana because of are Vitex and Giant mistaken for Ragweed. *9 “Autocycnum com- Cannibium”