Cory v. State

BRETT, Presiding Judge

(dissenting).

I dissent to this decision, because I believe it lessens the requirements for proof beyond a reasonable doubt in this type case. I concede that the Sheriff’s identification of marihuana by its morphological characteristics is sufficient to show probable cause for arrest, and it may even be sufficient for purposes of the preliminary examination, but I cannot agree that such identification is sufficient to constitute proof beyond a reasonable doubt at trial.

Likewise, I question the trial court’s action in permitting the Sheriff to qualify himself as an expert witness for the purpose of identification of the substance. He maintained the substance in his possession for five months without sending any portion of it to the Oklahoma Bureau of Investigation for chemical analysis, because he considered himself to be an expert. However, his expertise did not include knowledge of the name of the Du-quenois chemical test for verification of the substance. That test is commonly utilized for field testing purposes. Also, I do not consider the fact that he testified that he has lectured on the subject of marihuana to be sufficient to qualify him as an expert, as does the majority decision.

No explanation was offered by the Sheriff as to why he did not send the substance to the Oklahoma State Bureau of Investigation for chemical analysis during the five month period. The trial court and this Court are left to presume that because of the Sheriff’s belief that marihuana can be identified by its morphological characteristics, such proof is beyond a reasonable doubt. For the purpose of trial, this belief is erroneous. The following is reported in the Wisconsin Law Review, Vol. 3, 1973, in an article entitled, “An Evaluation of Drug Testing Procedures Used by Forensic Laboratories and the Qualifications of Their Analysts:”

“Statistics from the Wisconsin Crime Laboratory confirm that marihuana identification based on gross morphological characteristics is highly prone to error. *573 During the period March 1970 to March 1971, 1674 samples of marihuana, morphologically identified as such, were submitted to the Wisconsin Crime Laboratory for confirmatory testing. Only 85.6 percent of these were in fact marihuana. Therefore, 14.4 percent, or one in every seven samples, turned in as suspected marihuana were not marihuana. This large percentage of error may be due to the over-zealous enforcement of marihuana laws or the fact that a number of plants that either grow wild in Wisconsin or are sold in florist shops resemble marihuana fairly closely at some stage of their development. In any event, it indicates that macroscopic identification is an unreliable testing technique.” 1

While the Sheriff no doubt possessed more knowledge concerning marihuana than the jury, I believe he still lacked the expertise and skill required to make a determination beyond a reasonable doubt that the substance confiscated was, in fact, marihuana. He also testified that burning marihuana emits a peculiar and distinguishable odor, but he failed to make even that simple test of the substance. Consequently under the facts of this case, it cannot be said that the substance alleged to be marihuana was proved to be marihuana beyond a reasonable doubt.

In an effort to sustain its position that the Sheriff was an expert witness in identifying marihuana, the State relies on two cases from other jurisdictions and one from this Court, but none of those cases are applicable to the facts of the instant case. In the first case cited, State v. Hutton, 7 Wash.App. 726, 502 P.2d 1037 (1972), that court stated, “[T]he normal method of proof is through the opinion of an expert who has either examined the substance or who otherwise is presented with a factual foundation upon which to base an opinion. . . .’’In the instant case, Sheriff Barker testified only as to his conclusions based upon visual observation. The Hutton case was reversed and dismissed as to two counts charged because of a lack of expert proof offered to identify amphetamines. The second citation, People v. Tipton, 124 Cal.App.2d 213 , 268 P.2d 196 (1954), stands for the proposition that the corpus delicti in any case may be proved by circumstantial evidence. The case from this jurisdiction, Davenport v. State, Okl.Cr., 510 P.2d 988 (1973), also cited in the majority opinion, can be distinguished from the instant case because other circumstantial evidence was found at the scene in addition to the marihuana testified to as being present in the house. However, in Earley v. State, Okl.Cr., 479 P.2d 594 (1971), this Court determined that the admission of testimony “as to the other pills and tablets, without identification as to their chemical content” was prejudicial to the defendant.

It is evident from even a cursory review of the record before this Court that Sheriff Barker’s testimony was nothing more than his conclusions which were not based upon any scientific analysis whatsoever. Such evidence is not sufficient to prove beyond a reasonable doubt the nature of the substance placed into evidence. Unless there is a stipulation between the parties that the substance in question is marihuana, the law should require scientific analysis of the substance by a qualified chemist to constitute proof beyond a reasonable doubt, except where other circumstantial evidence exists sufficient to constitute proof beyond a reasonable doubt that the substance is in fact marihuana.

With reference to the two cases from other jurisdictions cited in the majority decision, the Texas case, Miller v. State, supra, and the Ohio case, State v. Maupin, supra, neither is persuasive to chánge the requirements of the law as I perceive it.

Therefore, for the reasons stated, I dissent to this decision.

. Two plants native to Oklahoma often mistaken for marihuana are Vitex and Giant Ragweed. “Autocycnum Cannibium” commonly called Indian Hemp is likewise often thought to be marihuana because of its name.