Lee v. StateLee v. State
- Reporters:
- ,
- Before:
- Russell
Lead Opinion
OPINION
RUSSELL, Judge.Roger Lee appeals his conviction for possessing marihuana for purposes of resale, and penitentiary sentence of not less than one (1) nor more than three (3) years.
The State’s case is grounded upon the testimony of one Cameron, employed by the Morristown Police Department as an undercover officer, that on October 18, 1971, he purchased a quantity of marihuana from Lee for twenty dollars ($20.00).
The indictment charged that Lee “ * * * did unlawfully and feloniously sell and possess with the intent to sell * * * marihuana * * * He was found guilty of “possessing marihuana for purpose of re-sale”. The trial was conducted on March 16, 1972.
The Tennessee Drug Control Act of 1971,
As of the date of this offense, the amount of marihuana actually possessed did not control whether a felony or a misdemeanor was committed, but the issue was purely one of the intent with which the substance was possessed. It is true that a statutory inference of possession for purpose of sale is authorized if justified from the amount possessed, along with other relevant facts surrounding the arrest; and a contrary inference may arise “from circumstances indicating a casual exchange among individuals of a small amount of controlled substance”.
Lee challenges the sufficiency of the indictment on the ground that it failed to inform him whether or not he was
“Any person who violates subsection (a)(1)(F) of this section by distributing a small amount of marihuana, not in excess of one-half (½) ounce, [for no remuneration,] shall be subject upon conviction to the provisions of subsection (b) of this section.”
(Subsection (b) contains the provision by which mere possession is made a misdemeanor.) Implicitly, now (since March 30, 1972), one who “distributes” not in excess of one-half (½) ounce of marihuana for remuneration may be guilty of only a misdemeanor. (“Distribute”, under
Much of what has been hereinabove written is also relevant to the assignment of error which complains of the trial judge’s refusal to charge:
“It may be inferred from the amount of controlled substances possessed by an offender, along with other relevant facts surrounding the arrest, that the controlled substance or substances were possessed with the purpose of selling or otherwise dispensing. It may be inferred from circumstances indicating a casual exchange among individuals of a small amount of controlled substances that the controlled substances so exchanged were possessed not with the purpose of selling or otherwise dispensing of them in violation of the provisions of Section 25(a) of the Tennessee Drug Control Act of 1971.”
It is argued that this requested instruction was copied verbatim from
As mentioned earlier in this opinion, what the jury is seeking to determine in a proper case, by the assistance of these authorized inferences, is the true intent behind an illegal possession. For example, a large amount possessed by one person in a crowd of non-possessing potential users logically supports the inference that the
We hold that a charge upon these inferences is mandated by the statute, where the intent with which the controlled substance is possessed is an issue before the jury. In the case sub judice, there is no charge of mere illegal possession, and no proof of that offense. The State’s proof of possession is totally related to the possession at the time of the alleged sale, which is proof therefore of felony possession for purposes of sale. The defendant denied possession of the controlled substance altogether, saying that he never possessed nor sold marihuana. Hence, neither side postulated a case of mere illegal possession. We hold, therefore that the requested charge was not required to be given in this context, under the established rule that a charge is not required upon an offense not made out by the evidence. Mere illegal possession of a controlled substance is not necessarily an included offense under a charge of possession for purposes of sale, because controlled substances may sometimes be legally obtained but illegally sold, in which context the possession with intent to sell becomes felonious with the formation of the intent to sell. Because possession of a controlled substance is not always illegal, it cannot be said that mere illegal possession is always an included offense under a charge of possession for purposes of sale. See our opinion in the case of Cleve Cole v. State, filed at Knoxville on January 3, 1973; certiorari denied by our Supreme Court on February 20, 1973. We held in that case that it was not error to refuse to charge upon mere illegal possession, where the State’s evidence reflected a consummated sale and the defendant denied any possession for any purpose, under the rule stated in Black v. State, 1 Tenn.Crim.App. 373, 443 S.W.2d 523, as follows:
“[7, 8] The law is firmly established, and plainly runs through all the decisions of the Supreme Court of this State on the subject, that a charge on lesser included offenses is essential and indeed mandatory, even without any request therefor (T.C.A. § 40-2518 ), if and only if the proof raises such an issue. In other words, if the proof raises an issue as to whether the defendant was guilty of the offense charged or of some lesser offense embraced therein as a matter of law, then the court is required to instruct the jury with respect to all such lesser included offenses so raised. In the absence of any proof fairly raising such an issue for the consideration of the jury, if it is clear from the evidence that the lesser degree of guilt is not involved, if there is no evidence which would permit an inference of guilt of a lesser included offense upon any view that the jury might take of it, an instruction regarding lesser included offenses is not required. Bolin v. State, 219 Tenn. 4, 405 S.W.2d 768; Patterson v. State, 218 Tenn. 80, 400 S.W.2d 743.”
Error is assigned upon the Court’s refusal to charge the statutory definition of marihuana. The State’s expert proof was unequivocal in describing the substance sold in this case as having been marihuana, and there was no proof to the contrary. The statutory definition sets out what is marihuana and what part of the plant and product is not. In the absence of any relevant issue, there was no error in refusing the charge.
A related assignment contends that Lee was denied a portion of the confiscated substance for purposes of analysis. The record does not bear out this contention. When the question was first raised, it was directed toward obtaining a delay. Bad weather forced a trial delay, but no further request for a specimen was made prior to trial, although the court had clearly stated that the defendant had a right to a specimen for purposes of testing.
The chain of custody and identification of the controlled substance is questioned;
The legal sufficiency of the convicting evidence is questioned; but we find it to be adequate to support the jury’s verdict. That being so, then certainly the assignment complaining of the trial court’s refusal to direct a verdict is without merit.
The Drug Control Act of 1971 is said to be unconstitutionally vague, over-broad, and lacking in sufficient notice as to what constitutes a criminal offense under its provisions; and it is contended that the indictment should have been quashed because the Act violates the due process and equal protection clauses of the U.S. Constitution and Article I, Section 8 of the Tennessee Constitution by “invalidly delegating purely legislative powers”. We hold the Act, as it applies to the proscription of the possession of marihuana for purposes of sale, to be in all respects constitutional.
The next assignment has to do with Lee’s motion for a preliminary hearing, filed after he had already been indicted. We overrule the assignment. See State v. Hudson, Tenn.Crim.App., 487 S.W.2d 672.
We hold, contrary to defendant’s contention, that the indictment was not vague and lacking in sufficient information for him to be able to prepare his defense. Neither the name of the buyer nor the quantity sold was essential in this case.
Lee’s counsel sought to quash the jury panel, simply because some of the jurors who subsequently were accepted and served had apparently been spectators in the courtroom during earlier drug cases. Nothing appears that tends to show that any juror was unable to give Lee a fair trial. See Brown v. State, 220 Tenn. 709, 423 S.W.2d 493, which approves the rule that previous jury service upon an issue merely similar to the one on trial does not disqualify; and even service in the same case upon a different issue will not disqualify.
Another assignment is based upon the trial judge’s refusal to grant a defense motion that the testimony of one Eddie Allison, a fugitive who was present when this sale was made, be secured under the provisions of
Finally, error is assigned upon the trial court’s alleged refusal to allow defense counsel to develop on cross-examination the exact status of Cameron, the undercover agent, as to whether or not he was a police officer. We find the facts to be clearly in the record, and the only real dispute is in their legal effect. Cameron was a paid, sworn officer; but not hired in the prescribed routine way set out in the municipal code for civil service police officers, nor paid on the regular payroll. He was not in any sense an accomplice of Lee in the possession of marihuana for purposes of sale. The jury had all of the facts on the issue before it, and the learned trial judge did not improperly limit cross-examination on the subject.
We affirm the conviction.
MITCHELL, J., concurs. DWYER, J., dissents.
Dissenting Opinion
(dissenting).
I respectfully disagree with my learned colleagues in their treatment of this case.
My disagreement is predicated upon the sole assignment of error pertaining to the
It is my position that the defendant, Roger Lee, had to possess the marihuana in order to sell it. He could not have sold the marihuana without possessing it. Hence, the evidence has clearly raised the issue of possession; and it is for the jury, in its wisdom, to determine with what intent the marihuana was possessed. When the evidence raises the issue it is then incumbent on the trial court to instruct the jury on the law applicable to the issue raised. See Taylor v. State, 212 Tenn. 187, 191, 369 S.W.2d 385. Here we not only have an issue raised by the evidence requiring an appropriate instruction; but we also have statutory wording, “shall”, making the instruction mandatory. See T. C.A.
The failure of the learned trial judge to charge the request limited the jury in its power to assess, if they so desired, a lighter term of imprisonment. It certainly denied the defendant the right to have the jury make the determination from the amount possessed, of whether the substance was possessed with the intent to sell it or the intent to casually exchange it.
I cannot agree that Lee, by denying the sale, forfeits his right to the charge, anymore than would an alibi defense forfeit a person’s right to a charge on all the degrees of homicide included in a first degree murder indictment.
In short, my construction of the act, T. C.A.
I would reverse for the failure of the learned trial court to charge the requested instruction.