*1 P.2d Idaho, Plaintiff-Respondent, The STATE of COLLINSWORTH,
Orian Defendant- Appellant, al., King et
Thomas Defendants.
No. 11164.
Supreme Court of Idaho.
Aug.
9H plastic baggie containing had taken the he the agent had sold minutes before. was
Appellant alone Collinsworth delivery of the Count I “phencyclidine” controlled substance to the connection with sale he made Wayne Boise, Kidwell, Atty. Gen., L. agent; and the undercover Collinsworth Peterson, Atty. Gen., W. Asst. persons present of Jake two other at the time plainti f-respondent. f charged in Count the sale and arrest were possession II with with intent to deliver Webb, Tway, Johnson, William J. di- lysergic the controlled substance acid Tway, Greener, Boise, Redford & for de- ethylamide (LSD) in connection with fendant-appellant. taken table. evidence kitchen together The three defendants were tried McFADDEN, Justice. both and convicted on Collinsworth was jury trial, Collinsworth, After a Orian were two defendants counts. other defendant-appellant, was convicted of the acquitted single of the count with which delivery crime of of a controlled substance charged. had been and possession of the crime of con- appeal, assigns as error On Collinsworth trolled substance with intent to deliver. drug an- the introduction of of a appeals judgment Collinsworth from the when, alyst analysis of his as to the results counts; conviction on both we affirm. ultimately, exhibit objection an to the 1, 1971, Pruett, On December an C. sustained; the ad- analyzed he agent undercover City-Ada of the Boise pursuant of certain seized mission County Squad, Vice and Narcotics while warrant; . of the to a search the admission company drug user whose confi- Pruett; drug purchased the failure gained, dence had he private went to a res- grant acquittal; defendant’s motion for idence in city purpose of Boise for the giving of certain instructions. purchasing a quantity of the controlled assignments of error will be discussed substance tetrahydrocannabinols, which is in the order above. also known name street of “THC”. repre- note We Collinsworth According agent’s to the testimony, he was at trial (hereinafter sented counsel met by Collinsworth, there who him invited counsel) ferred to as trial other than coun- inside the house plastic and sold him a represents appeal. sel who Collinsworth on baggie which the officer believed representa- All references to Collinsworth’s tain agent THC. The then left resi- representation by tion at trial relate to later, dence. A few company minute counsel and do reflect police of other officers from the Vice representation by appeal. counsel on Squad, returned, Narcotics door, knocked on the entered the house argues Collinsworth that it was reversi- when opened door, Collinsworth permit testify ble error a chemist to help with the analysis who officers to his of state’s exhibit number also then entered the house arrested Collin- one when that subsequently exhibit was not sworth persons and two other had originally presented who admitted. As to the been in the agent court, house ar- since first exhibit number one consisted of a rived there. Thereafter the officers ob- plastic baggie clear containing 28 disk tained a search warrant and tablets, seized what shaped and a wooden mortar apparently drugs para- were pestle. related The chemist testified he ana- phernalia lying on the kitchen lyzed table and a tablets and on leather from which pestle mortar and and that both diethylamide argues “the trial court lysergic
stances were acid (LSD). point refusing At state offered the erred in not to admit evidence evidence; objection pursuant seized search warrant items into merely suppress was sustained a motion to introduction of the tablets because previously had not After that the tablets filed”. the de- *3 arrested, or fendants were ob- been connected to the defendants their the officers pestle were admit- tained a search warrant. As a result of arrest. The mortar search, the arrest ted as the state obtained exhibit 1A. subsequently intro- evidence which was the chem objects to 1A, duced into evidence as exhibit exhibit analysis of regarding ist’s his 3, 4 is (each exhibit of which described testimony was the tablets. The chemist’s above) green 2 and exhibit which was tablets relevant to the admission of the hydro- containing thus, evidence; al into it was not error to Although chloride. the record and the ex- testify low the chemist to at that time. sharp hibits suggest a conflict as to the le- request Trial counsel did not the trial court 2,1 gality of the seizure of exhibit trial instruct, court, to nor did the trial on its counsel suppress did not move to the evi- motion, jury disregard own instruct the to dence; rather, objected trial counsel to testimony regarding the chemist’s the tab introduction of the evidence at trial. The developed the lets when it later tablets evidence, ruling trial court admitted the by were a break in the chain inadmissible suppress timely that the motion to was not practice of evidence. It would be better made. jury point, have instructed the at but governed failure to do so is not reversible error. Resolution of this by issue is 1A, provides There was other evidence—exhibit ICR 12 which that motions to pestle upon suppress consisting of the mortar and ground evidence on the powder which a was containing illegally LSD was obtained must be submitted found, 3, cup prior consisting exhibit of a full of 12(b). trial ICR Failure to make capsules LSD, 4, prior and exhibit such motion to trial “shall consti- consisting plate powder thereof, of a contain tute waiver but the court for cause ing properly may grant LSD—which were admitted shown relief from the waiver.” against 12(f). Collinsworth and which the ICR This issue one of first im- jury’s pression guilt jurisdiction. determination of his can for this Inasmuch as 12(f) sustained. There no indication ICR is similar to Fed.R.Crim.P. by argument 41(e),2 record that interpreting either of counsel the cases the Federal Rules applica- instructions the court the of Criminal Procedure are determining question mislead into ble. appellant’s The as to the timeliness of guilt based suppress evidence offered but re the motion to made at trial is a jected. Moen, 477, State v. 94 Idaho 491 for the discretion of the trial P.2d (1971). 858 court. United States Maloney, v. 402 F.2d 1A, hearing opportunity 1. Exhibits 3 and which are relevant unless therefor did not the LSD count were seized from a exist or the table defendant was not aware of the motion, the kitchen where two defendants were arrest- for the but the court its probably may ed. these exhibits fall discretion within entertain the motion at plain exception hearing.” view as the officers were trial or See, in the kitchen incident to valid arrest. was deleted sentence 1972 Pontier, State v. 95 Idaho P.2d 969 518 Wright Miller, 3 amendment. & Criminal (1974). Nevertheless, we will not consider (1969). 12(f), 661 Fed.R.Crim.P. as amend- applicability “plain exception” view ed, identically 12(f) ; is worded how- ICR suppress as the motion to was ruled to be not ever, the effective date of this amendment was timely ruling. made and we affirm that postponed August 1, until 62 F.R.D. 1975. “* * * 41(e): (1974). 2. Rule The motion [to 287 suppress shall be evidence] made before
913 report laboratory signature on such his Cir., purpose of 1968). (1st testi- Lyon L. 6). (exhibit Officer serious inconven- “the a rule is to avoid John the substance disrup- he removed fied that unnecessary jurors from ience to 3713), envelope (number original issues that could tions of trial to deal with enve- in a different placed the substance in advance”. been raised should (number took the substance lope 4658) and 888, 901 Bennett, 409 F.2d United States sub- laboratory again. The Miller, the state See, Wright Cir., & (2d 1969). to con- again and found stance was tested coun- p. Trial Criminal § hydrochloride. tain why as to presented sel no reason envelope number contained in prior made motion could exhibit introduced into af- A trial. review the exhibits warrant, ref- without fidavit for search argues that The defendant *4 trial, suggests at erence to point custody broken at the chain factual which should conflicts laboratory drug when the was taken apparent prior to trial to counsel time; there is he submits that for the first by a which should been resolved purchased no evidence to link the by a suppress, a hearing on motion to the substance Offi with Collinsworth that Thus, we motion at trial. conclude envelope number Lyon cer removed from judge his discretion the trial did not abuse envelope 4658. placed in number 3713 and suppress. when he denied the motion However, laboratory report 6) (exhibit submits the trial that court exhibit provides missing link. This admitting erred in number five. exhibit counsel by trial was introduced defendant’s hydro- phencyclidine This exhibit was the pur as to what without limitation purchased agent chloride the undercover poses report. consider the could argues from Collinsworth. Collinsworth The admission evidence “is within of such that the record is insufficient link the of the trial court”. sound discretion exhibit with the sale. 433, Thomas, 430, 489 P. State v. 94 Idaho 1310, record, Upon 2d we (1971). 1313 trial, At the following testimony regard- its cannot find that the trial court abused ing the exhibit was adduced: The under- by ruling that the evidence was discretion agent, cover purchased C. drug to link Collin sufficient the substance represented to be “THC” from Collin- agent sworth sold to the undercover gave sworth and drug Tay- to Tom L. See, the substance as exhibit 5. introduced lor, the officer in charge investiga- McFarland, 527, v. State Idaho 401 P.2d 88 Taylor tion. “placed it drug] into an [the 437, Coburn, (1965); 824 State Idaho 82 Idaho Bureau of envelope, Narcotics sealed 354 751 (1960). P.2d the same for deliverance the safe in our Taylor office”. then took this article to Next defendant contends that the trial laboratory state testing for on Decem- court granting erred the defendant’s ber in- Defendant’s counsel for judgment acquittal, arguing motion troduced as exhibit laboratory report, 6 a requires 37-2709(c) I.C. § numbered which contained a state- phencyclidine hydrochloride was of ment that Officer Taylor delivered to quantity phencyclidine hydro- sufficient state laboratory envelope an containing potential chloride such that it had a for substance sold to Officer Pruett Collin- depressant abuse associated with effect report sworth. The indicated this sub- system, to the central nervous and that the stance was tested and no essence, proof. in appel- state failed its stances were officer, identified. Another argument lant’s two raises issues: does I. Gholson, Robert testified he returned require C. 37-2709(c) the state to § the envelope to Squad the Vice safe that the quantity defendant delivered a ordinary business, course of phencyclidine indicated a substance
914 drug should classified deliv- whether the amount
*5 phencyclidine such instance, and, III, in the second Schedule abuse associated potential had a for ered guideline the Board administrative to the central depressant effect with a words, Pharmacy by the board decides does I.C. system (in other drug from whether to add delete quantity impose a usable 37-2709(c) § Bureau, Accord, State v. and, 37-2709(c) Schedule III. test?); does I.C. § See, Wash.App. phencyclidine 509 P.2d prove that quire state to U.L.A., Substances Uniform Controlled is a form of p. (1), Note hydrochloride has Act Commissioner’s such that such, 37-2702, (1973); with a de- 37-2708. associated I.C. As potential for abuse §§ sys- phrase state to require central nervous pressant effect to the possessed a usable tem. possessed quantity quantity statute, identical passed in a form abuse; legisla- if the Substances that of the Controlled Uniform quantity require ture intended to a usable Act, provides: test, so that the statute would be drafted phrase “quantity” and at issue modified The con- (a) Schedule “37-2709. III. — not “substances”. in this section listed trolled substances III. included schedule are Moreover, phrase pressant any tential preparation system,: [*] (c) Unless material, following substances for [*] effect abuse associated with which listed [*] compound, on contains in another the [*] central nervous having any quantity mixture, [*] schedule, a de- [*] a po- or port the sentence. the substance Collinsworth ed that the clidine abuse. Such substance Collinsworth with the hydrochloride, require state a If the grammatical requirement the state to be required legislature had delivered, phency delivered, phen a construction does not com prove to potential had intend prove that that the for ** [*] (7) Phencyclidine; [*] 3 (Emphasis [*] [*] added.) [*] [*] drafted so that the ified abuse, cyclidine hydrochloride, “material, then the statute compound, phrase would have been in a mixture, potential mod for or issues, the preparation”, look to the All To both we must not “substances”. resolve as requires regard of the statute statute in this grammatical construction a statute to delivered legislature intended the state that Collinsworth accepted generally drug which contains a which according construed substance See, Pharmacy has principles grammar. legislature Na English or the Board po “having a Hammond, gel v. Idaho 408 P.2d determined to be a substance depres a indicates associated with reading A of the statute tential for abuse system”. potential phrase “having a sant on the central nervous effect depressant effect that Collinsworth a indicates abuse associated with The evidence system”, phencyclidine hydrochloride modifies delivered central “quanti is a sub phencyclidine hydrochloride modify not “substances” does Phency mixture, “material, phencyclidine. ty” compound, or stance a sub in to be preparation”. phrase provides, been determined clidine has instance, abuse. Ac- legislative guideline having as a first changed supplement pocket S.L.1971, has Oh. enacted I.C. Code § 37-2709 ap- law, punctuating (c) following The version into this colon to subsection semicolon. pearing system” used in the in the session laws is the words “central nervous colon, punctuation' opinion. which in text of this is the used compilation in the Idaho Uniform Act. First, proved cordingly, only find that the evidence we state reasons. in statutory required phrase elements which conviction for question.4 improperly count be based was ad- could mitted; secondly, did prosecution Finally, argues prove that delivered the sub- in giving the trial court in erred certain had been with deliver- stance he in structions on the these third, ing; prosecution failed to structions were not a correct statement of Collin- Essentially, I.C. 37-2709(c). defendant § sworth delivered to the undercover officer arguments regard raises the same green or the substance found in the bank regard as instructions he raised in bag a controlled defined dis 37-2709(c) construction I.C. § by I.C. 37-2709. arguments regard cussed His above. First, evidentiary The state issues. con instructions are answered our introduced into two exhibits thus, statutory phrase; struction of the we witness, which the state’s Richard will specifically consider them. Groff, employed by a forensic chemist event, not ob defendant’s counsel did Department Health, State testified con- ject to the instructions at trial and so Col phencyclidine hydrochloride. tained These linsworth is er assigning foreclosed from green were exhibit contain- ror giv basis the instructions powder ing baggies of containing phency- en. ICR 30. hydrochloride, clidine which was seized Judgment affirmed. cupboard from a closet Collinsworth’s residence, baggie and exhibit contain- McQUADE, J.,C. and DONALDSON ing powder phencycli- which contained and SHEPARD, JJ., concur. dine and which the state contends Collinsworth sold the under- BAKES, (concurring part *6 Justice cover officer C. Pruett. dissenting in part) : majority that, point “Although out I concur in the conclusion of the Court the suggest record the exhibits a sharp upholding appellant’s the conviction conflict as to the legality seizure of II, Count possession of the controlled sub- 2, exhibit trial counsel did not move to LSD, although I would reach suppress evidence; rather, trial counsel search and presented seizure issue with objected to the introduction of the evi- spect to introduction of the exhibits con- 265, dence at trial.” Ante p. at (footnote nected with that count and ex- hold that the omitted). majority dispose of Collin- hibits seized from he kitchen table were argument sworth’s 2 that exhibit was im- properly seized by police they because admitted, properly though even the evi- were plain within arresting view of the presented dence legality of the officers who to enter to the kitchen exhibits, by the seizure of stating: make an Pontier, State arrest. 95 Idaho 707, 518 (1974). P.2d 969 presented “Trial counsel no reason as to cannot, however, I concur in the Court’s why such a motion not could have been result affirming judgment convic- prior made to trial. A review of the ex- I, tion in Count for delivery hibits and the affidavit for a search trolled for three warrant without reference to the testi- argue phency- 4. argument made, does not we would be forced phen- clidine cyclidine is a form of to examine statute in terms of the ad- problems which does not have a ministrative law the consti- and/or is, 37-2745; abuse. also, issues. tutional See I.C. § argue Segovia, 208, the substance for which he is State v. 93 Idaho 457 P.2d delivery drug. with is If harmless 905 916 trial, . . . factual con- suggests suggests factual conflicts warrant
mony at apparent apparent flicts which should have been to should been have prior should counsel to trial and which should and which prior counsel hearing by hearing been on a mo- resolved on have been resolved suppress, at at suppress, by a motion tion to a motion trial.” motion Thus, regard the trial This is not true to exhibit 2. we conclude with trial. warrant, de- when The for a his discretion affidavit search judge did not abuse B, Ante fendants’ exhibit suppress.” the motion to shows that he denied Officer magistrate appeared before the at p. at 12:55 on the morning a. m. of December statements, nor agree I cannot with these warrant, to obtain the search while pointed majority what has the out listed on 2 time exhibit itself shows it one of Collin- conflicts are. Counsel for being logged in at morning. 1:15 a. m. that following sworth’s co-defendants made The times listed 3 and on exhibits explanation for a motion failing to make logged show them in at 12:10 a. m. suppress prior to trial: exhibit search affidavit warrant do not suggest that exhibit was Honor, I would at “Your this time warrant, although seized without a suppress No. move Court times listed on exhibits 3 and 4 show ground for the rea- through 4 on the were seized without a warrant. during developed son that evidence However, Lyon Officer L. of the surprise as a course of this trial comes John City Department Boise Police Vice and sup- motion to to counsel and that no Squad gave following Narcotics testi- anticipated press could mony regard the search of the stated inaccuracies house and the within it: seizure items support of the search war- affidavit I the Court rant. ... would move “Q. you participate Did in the search suppress time to that evidence on at this evening? of the on that residence given that has been Yes, I “A. did. af- Pruett that the admissions Officer “Q. you What did or observe recover support search warrant fidavit recovered ? actually was not accurate from what “A. observed I the items on table place took and also the evi- based Marcum observed Officer given way dence take these I ob- into evidence. *7 entry in which the was made violation Agent McCoy served Detective requiring statutes an officer Idaho Attorney Office the General’s pres- only not knock but announce his bowl, a wood bowl secure kind of entry.” purpose ence and the of his in plunger I deal it believe with a Tr., (Rptr. pp. 150-151). with some inside. I also Trial counsel stated that evidence devel- Agent find a observed C. Pruett oped during the trial came course bag bag green bank which —a surprise to them could not and that in had in it individual suppress have earlier made a be- motion packages. pos- they had cause first become aware “Q. you these arti- What did do with sup- sible inaccuracies in affidavit cles? port only of the search after the warrant definitely began. very trial Trial counsel peo- “A. I took these articles from presented why a reason such a motion them, ple they indicated who found prior could not been trial. have made by hollering them they had found go and I to them and take majority say also that a “review of would items, took it the exhibits and the affidavit for a search down to Detective take it into “A. The first item I received from Of- Marcum and he would Tr., pp. 81-82). bag (Rptr. ficer Pruett was I believe evidence.” marijuana. bag, testimony This indicates that the bank “Q. you anything Did receive else from cup- upstairs contained in an was Officer Pruett at this time? board, was at the same time as seized evidence, “A. The item I received was long before Pruett obtained second bag pinkish type sub- testimony conflicts small of a a search warrant. Pruett, out purchased that had testimony who Officer sold to him not until of a residence and was testified that exhibit was seized magistrate’s presented— from the he had returned as— home with a search warrant. Trial coun- development and surprised by sel was this “Q. you package did do with What from examination of exhibits could after it ? receiving anticipated be evi- that there would placed I it into an Idaho Bureau of “A. dence to indicate that the bank envelope, the same Narcotics sealed pursuant search warrant. seized to the for deliverance to safe in our support Neither the affidavit office. search warrant nor the notations on the “Q. you Did occasion to see that gave any exhibit itself that ex- indication again? article pursuant
hibit 2 was not seized to the war- No, Tr., (Rptr. pp. “A. I have not.” rant; therefore, testimony when at trial 70-71). indicated that there was some' prepared While he did indicate he concerning whether the exhibit was seized (cid:127) envelope delivery safe, to the Offi- pursuant warrant, judge to á the trial Taylor cer never testified that he took by ruling abused his discretion given item Pruett had and re- Officer him suppress timely motion to had not been police depart- turned it to safe in made and that the defendant had waived contrary, ment. On the he testified that rights suppress his the evidence. Given he did not have occasion to see that article circumstances, the trial court should again. happened It is unclear what to the have considered whether there was cause item; thus, this is the first break grant shown to relief from the waiver But, evidentiary chain. even if the item rather than denying the motion on safe, was taken gap there is another of untimeliness. in the chain. argues Collinsworth also that there is a gap in evidentiary and that chain gap The second occurs after Officer proven was never item he sold Taylor purportedly took what was the item undercover the same Officer had sold Pruett from the of- item introduced as state’s exhibit laboratory testing. fice safe to the state gaps believe there are two the evidentia- given There was no at ry chain and that the state has failed to which showed that the item offi- another *8 show that the item Collinsworth sold to cer, Gholson, Robert retrieved from the Officer Pruett item intro- was the same laboratory, and state which the evidence at First, duced as state’s exhibit 5. the evi- trial indicates was the same item that was pur- dence is clear that the item Pruett introduced as state’s exhibit in fact was chased from Collinsworth was turned over Taylor the same item that had tak- Officer Taylor. Taylor gave Officer Tom. L. laboratory. majority says en to the The following testimony the concerning materi- laboratory report, that a state’s exhibit al he received from Pruett: Officer apparently provides missing the It is link.
“Q. you did the that the laborato- majority’s What receive from Officer contention ry report item
Pruett? shows the Officer laboratory tying gave Taylor was link item retrieved the the Gholson given the same the item item Pruett had retrieved from the state Gholson report laboratory. Therefore, Taylor. laboratory The the failed to state laboratory linking supply missing this establish a chain of exhib- link. evidence report state’s it with a convic- contains statement the Orian Collinsworth and analyzed upon the chemist that contents tion based this exhibit be sus- he cannot envelope evidence which contained tained. I inad- believe that exhibit 5 was description: following missible. m., p. only December 1971 at 4:00 De-
“On which the Taylor City-County tective Boise may Tom conviction in Count is be sustained Squad pertaining Assuming Vice Narcotic delivered ar- to exhibit 2. sealed, laboratory De- guendo bag this standard that exhibit the bank con- partment admissible, envelope taining of Health evidence baggies, is in fact marked, ‘Case No. Boise City 113-696 becomes whether the conviction Agency Date Time PM 12-1-71 11:45 be can sustained chemist’s testi- Analysis County Requesting City & mony Vice baggies contained con- Intelligence Col- 1: Orion Defendant(s) Collin- trolled substance. I think not. lingsworth King 2: Thomas E. possession of charged Address sworth was not with 1032 Floral Boise 2 # 2 St : 207 N. 17th phencyclidine; he the controlled substance Charge Boise Poss of Control Substance delivery of the con- with delivery (T.H.C.) held for Arresting pos- phencyclidine. If he trolled substance Of- Pruett, Marcum, Taylor, Thomp- baggies sessed a controlled ficers son, Evidence, Heaton, McCoy Lyons stance, baggie he that is Agent where Sold to Wit- delivered substance. contained controlled found JC by Taylor, Marcum, McCoy, nessed Indeed, witness, in dis- expert the state’s Lyons, Heaton, Thompson Evidence cussing why he had mixed contents itemised Baggie cont white Plastic three baggies of the nine contained powder represented Substance be T. bag analyze bank of the the contents (Synthetic Grass).” (State’s H.C. Ex- following explanation for baggies, gave the 6). hibit procedure: Taylor But when Officer was asked what things because are clandestine “[T]hese was written envelope in which he baggie essentially will sometimes one placed given the item that Pruett had zero twice and the other one will have him, gave he following testimony: supposed amount it Tr., . (Rptr. p.211). . . .” “The case number writ- would envelope, ten on the the name Orian Col- Thus, the state’s own-witness testified that linsworth envelope, was on the date it is not baggie among uncommon for one ’72, 12-1 of the time 11:36 PM that many zero,” e., “essentially to contain i. address, I received envelope substance, none of a an- while Lane, Boise, Idaho, 1032 Floral other will contain twice amount charge narcotics, sale of arresting supposed to. if the myself, officers McCoy were Officer tained baggies which the con- contained Tr., (Rptr. p. Officer C. Pruett.” substance, testimony of trolled 72). state’s that this own witness shows Taylor’s testimony concerning guarantee what was baggie is no delivered written on envelope contrasts to Officer Pruett also the con- contained description envelope contained charge trolled substance. Because *9 laboratory report: the times brought against delivery differ Collinsworth was the arresting substance, officers differ. this of the controlled it was es- laboratory report missing prove cannot be sential element the state’s case to hy- phencyclidine phencyclidine sider baggie that the Collinsworth delivered so substances to be distinct the controlled substance. drochloride Pruett contained named, and thus distinctly testimony long state’s ex- are light of the of the introduced pert baggie that one there was no evidence witness that the fact delivery the con- sub- in a a controlled which a conviction for batch could phencyclidine also trolled guarantee stance is no that another substance does, baggie that the sustained. the burden substance contained a controlled
delivered
that
Even if it is assumed
that the
cannot be sustained
charged
delivery of the substance
with
baggies
were not delivered
which
phencyclidine hydrochloride, the state nev-
substance, if indeed
contained a controlled
proved
hydrochloride
er
phencyclidine
that
they did contain a controlled substance.
was a controlled
The Uniform
substance.
explicitly
evidentiary
ig- Controlled
Act
de-
Even if these
matters are
Substances
phencyclidine
nored and it is
for the
clares
to be a controlled
assumed
sake
;
explicitly
for
this
it nowhere
refers to
discussion
the remainder of
dissent
However,
phencyclidine hydrochloride.
properly
that exhibits
and 5 were
admit-
ted,
provide
state Act
does not mean that
does
as follows:
proved its
are
reasons
case. There
two
(a)
“37-2709. SCHEDULE
III. —
first,
for this:
Collinsworth was
substances
sec-
listed
delivery
of the controlled substance
tion are included in schedule III.
phencyclidine,
but
of the
expert
state’s
witness indicated that he de-
schedule,
in another
“(c) Unless listed
phencyclidine hydro-
livered the substance
material,
mixture,
compound,
chloride. There is a
variance be-
material
preparation
any quantity
which contains
charge
evidence,
tween the
following
having
po-
of the
substances
therefore no conviction can be sustained on
tential for abuse
with a de-
associated
People Williams,
that count.
27 Cal.2d
pressant effect on the central nervous
220, 163
692 (1945);
P.2d
see State v.
system;
Love,
(1955).
76 Idaho
However, assuming pleading even for purposes charging majority says phencyclidine hy- defendant with delivery phen- be- controlled substance drochloride is a controlled substance cyclidine proving requires delivery (1) of a dif- cause statute “[a] ferent phencyclidine hydro- prove that is that the state Col- substance— variance, chloride—is not a material linsworth delivered substance which has drug legislature state nevertheless tains a failed to phensyclidine hydrochloride Pharmacy Board of has determined to be a is a controlled ‘having potential substance. abuse as- substance depressant sociated with a effect on the First, expert the state’s witness never sytem,’” central and that “[t]he phencyclidine present testified that deliv- evidence indicates analyzed. substances he always He phencyclidine hydrochloride and that ered ferred to phen- he found as hydrochloride phencyclidine cyclidine hydrochloride. There was no ba- ev- containing phencyclidine.” There no sis which the jury could conclude support assumptions. idence to phencyclidine Collinsworth delivered latter, when state’s need regard witness testified the state With that he found merely that a substance contains exhibits; state’s must con- that substance to have *10 legislatively been determined to be a con- mean that necessarily harmful does not harmful, trolled 37-2709(c) compounds g., substance. I.C. of- its all are e. § quires the state to substance gas a harmful chlorine when combined containing 37-2709(c) a controlled sub- relatively with sodium becomes the harm- § be a phencyclidine compound such as must less of is table salt. “material, mixture, compound, prepara- or apparent no means hydrochloric tion” of the in that section. is a having poten- substance listed a “Material, compound, mixture, prepara- merely tial phencyclidine, or for abuse because technical, tion” are the which the majority chemical terms and assumes its is one of components, fact may anoth- has contain been determined to have potential er a substance does not mean that the former for Accordingly, abuse. “material, mixture, compound, prep- “potential is a of necessary or for abuse” is example, “material, aration” of the latter. For con- order to that a establish com- water, pound, very mixture, crete contains preparation” but much or any sub- doubt that concrete be stance listed 37-2709(c) would described I.C. ais § “material, mixture, compound, prepa- or trolled substance included within schedule ration” of III. The water. The state’s wit- critical language of 37-2709 § which hy- ness never testified that leads conclusion follows: “material, compound, drochloride awas “37-2709. (a) SCHEDULE III. — mixture, preparation” phencyclidine, or controlled substances listed in this sec- is there no basis which the tion are included schedule III. could have is so concluded. And there ab- solutely support majori- no evidence to “(c) schedule, Unless listed in another ty’s phencyclidine hydro- conclusion “that any material, mixture, compound, or phency- chloride is a substance preparation which any quantity contains clidine.” following po- substances having tential abuse associated with a de- for Finally, assuming that there been pressant on the central nervous expert testimony phencyclidine hydro- effect ” system: . . (Emphasis . supplied). material, compound, chloride is a mixture phrase or preparation phencyclidine, I do not “having potential for abuse merely depressant believe that because a substance is associated with a effect on the mixture, “material, compound, prepa- system” or central nervous appear would refer modify “material, ration” of a III controlled sub- schedule the words compound, compound mixture, preparation” stance that such a itself nec- or rather than essarily a schedule III controlled substance. word “substances” since the sub- stances in already legis- such a case the state must material, compound, prepa- latively mixture or determined to be schedule III con- substances, trolled only ration of the schedule III (c) and subsection “potential stance has a concerns itself abuse associated with whether or not depressant with a the central compounding effect on mixture or of the controlled system” nervous in order to show that the substance with other renders the matters compound compound is itself a schedule III controlled mixture or to also a con- substance. The fact that a substance is trolled substance.1 .analysis (c) supported ingredients having 1. of subsection dicinal or stimulant (f), gives depressant sys- I.C. 37-2709 the State effect the central nervous on any Pharmacy authority tem, Board of compound, to remove and if the are admixtures included there- preparation proportion, combinations, quantity, mixture or in in or legislature the substances determined concentration that vitiate the be schedule III abuse controlled substances I.C. of the substances which have stimu- (c) compound, mixture, depressant § 37-2709 “if the lant effect on the central preparation supplied). system.” (Emphasis contains one or more active me- *11 rors, that laymen therefore conclude where who are of fields Pharmacy previously chemistry pharmacy, has not listed Board and no basis have hydrochloride upon phencyclidine in schedule phency- which to determine whether III, proper hydrochloride a I.C. 37- construction of clidine is a schedule III § 2709(c) requires my that drug.3 opinion, the state to a conviction “material, phencyclidine hydrochloride expert testimony is a based on be such should mixture, of compound, preparation” or set aside. potential
phencyclidine for abuse “having a Accordingly, because the state introduced depressant a on the associated with effect no evidence which a conviction system” in central nervous to show order delivery of a controlled substance in Count phencyclidine hydrochloride that is a con- I could upheld, and if the because even under III.2 trolled schedule improperly admitted exhibits are consid- expert of Without the introduction testimo- ered, the state has failed to that ny phencyclidine on the of matter whether exhibits contained the substance that Col- hydrochloride may depressant have ef- a linsworth was accused of if delivering, or and, fect on the if system central nervous did, that this substance was a con- so, potential whether there is for abuse a substance, trolled I would set aside the effect, ju- associated with that and judges conviction for Count I. (f) recognizes compounding necessary. or Subsection that If is mixing explicitly of in controlled substances described included within the controlled sub- may (c) ingredients acting pursuant § I.C. 37-2709 with other stances the Board to its potential authority, question “vitiate the for abuse of the sub- of whether it de- is may (c) stances” and that by therefore Board scribed I.C. § 37-2709 would become except any compound rule such or moot. mixture though from schedule III. even 3. Meyers, Pharmacology Review of Medical legislature specifically provided has in I.C. (3d 1972), phencyclidine, Ed. refers to compounds (c) phency- § 37-2709 that chemical structure of which is more accurate potential having clidine a for abuse are con- ly phenyl-cyclohexyl-piperidine as described substances, provided trolled it has also (NH (CeHj CgHio)), which also is (f) may CeHu' § I.C. 37-2709 the Board veterinary known as POP tranquilizer a and is sold as any compound phency- move or mixture of Serylan, under the name “an as clidine from the if schedule it determines that agent veterinary practice used im compounding potential has “vitiate [d] the primates drug commonly, mobilize a if [phencyclidine].”' for abuse of illegally, by ingestion smoking pro used or Also, I.C. 37-2702 § authorizes the Board euphoria fantasizing duce At state.” pro- to add substances to the schedules under refer, however, any 194. The text does not 67, chapter 52, cedures established in title compounds phencyclidine, phency such as Code, Idaho “if it finds the substance has hydrochloride, clidine or describe whether potential (b). for abuse.” § I.C. 37-2702 compounds such similar effect § I.C. 37-2708 sets forth the standards system. textbook, the nervous adding III, in- schedule examined, other reference works we have such cluding may that “abuse of the substance lead Hackh, Dictionary (4th Chemical Ed. physical dependence to moderate to low or 1969), compound phency do not refer to the high psychological dependence.” I.C. 37- § hydrochloride, clidine com 2708(c). This further confirms the conclu- pounds phencyclidine. Although one compounds sion of the substances de- issues in this case is whether it was (c) scribed I.C. are 37-2709 controlled proven phencyclidine hydro only if is substances demonstrated that potential chloride has for abuse associated compounds potential “a for abuse depressant awith effect on the central nervous depressant associated effect on the system, may not whether we ascertain this system.” central pharmacy fact examination of various chemistry works, mean, however, pur- reference if examination
2.This authority granted of these works indicates that to it under I.C. one unschooled suant chemistry pharmacy, -04, -08, 37-2702, -06, -12, -10 and even with access §§ Pharmacy field, easily works in reference adds cannot Board State ascertain hydrochloride to the list of the answer to this for abuse issue essential. stances