Petition — Bushong v. Arkansas

“Rapreme Court, UL”

FILED

c)

MAR 12 1980 f,

Supreme Court Of The United States

no.—_£9 -1411

ee MI i oaina is 0 6k Ras 6 Pen oh bank awee Petitioner

vs.

NT OE TAN oo oki cee Cen i Tinh aniees Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT

OF THE STATE OF ARKANSAS

Bossy McDANIEL

400 South Main

Second Floor

Jonesboro, Arkansas 72401

Attorney for Petitioner

TREVATHAN PRINTING COMPANY, NEWPORT, ARKANSAS

INDEX

Page

eee e enhance vccesecesseners 1

eee EEL a wh sicvendcececsscesctes 2

PY MD cb ccc cece ssccecscvcnses 2

CONSTITUTIONAL PROVISIONS AND STATE

oe es a. 9 3

PEACE TCAD |... . 2.0.0.0... 4

REASONS FOR GRANTING THE WRIT .............. 6

RL rr 15

play - ) } Gy ai gay ai ass-aw sees A-1

i eee SEN ed esas sa scaccvensecs A-12

EE A-18

CES ash aes oe ne ceec cece A-19

CASE CITATIONS

Abie State Bank v. Bryan, 282 U.S. 765 (1931) .......... 7

Block v. Hirsh, 256 U.S. 135 (1921) ............... 0000 7

Chastleton Corporation v. Sinclair, 264 U.S. 543 (1924) ...7

Culonbe v. Connecticut, 367 U.S. 568 (1961) ........... 13

Leary v. United States, 395 U.S. 6 (1969) .............. 7

Malloy v. Hogan, 378 U.S. 1 (1964) ................... 13

People v. McCabe, 49 Ill. 2d 338, 275 NE2d 407 (1971) ... 10

People v. Sinclair, 387 Mich. 91, 194 NW2d 878 (1972) ... 10

ii

Ravin v. State, 537 P.2d 494 (Alaska 1975) ............

South Carolina Highway Department v. Barnwell

Brothers, 303. U.S. 177 (1938) ......cccccccccccccons

Smith v. State, 256 Ark. 67, 505 SW2d 504 (1974) ......

State v. Anonymous, 32 Conn. Supp. 324, 355 A.2d

ee Se ena ev at iy ab.

United States v. Carolene Products Company, 304

pee! Be | are errr eer ret er Pere eee ere

United States Department of Agriculture v. Moreno,

gw > Bee. BRE ae rer ree

Supreme Court Of The United States

NO.

PS Gh nn 050 kesh ok uveea eke anes Petitioner

Vs.

Se er SI is see ck ven sess caneaanas Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT

OF THE STATE OF ARKANSAS

Robert Bushong, prays that a Writ of Certiorari issue

to review the judgment of the Supreme Court of Arkansas

entered on November 13, 1979, and the Per Curiam Order

of the Supreme Court of Arkansas, entered on December 17,

1979, denying Petitioner’s application for rehearing.

OPINIONS BELOW

The opinion of the court below affirming petitioner’s

conviction is unreported and is reproduced in Appendix

“A” to this Petition.

Petitioner’s petition for rehearing and memorandur in

support thereof is reproduced in Appendix “B” to this

Petition.

2

The Per Curiam Order of the court below denying

Petitioner’s application for rehearing is unreported and

reproduced in Appendix “C” to this Petition.

The Per Curiam Order of the Supreme Court of

Arkansas granting a recall of the appellate mandate pending

disposition of this Petition is reproduced in Appendix “D”.

JURISDICTION

The judgment of the Supreme Court of Arkansas was

entered on November 13, 1979. The Per Curiam Order of

the Supreme Court of Arkansas denying Petitioner’s

application for rehearing was entered on December 17, 1979.

A recall of the mandate staying execution of judgment

pending disposition for his Petition for Certiorari was

entered by the Arkansas Supreme Court on January 28,

1980.

This Petition for Certiorari was filed less than ninety

(90) days from the date of the denial of Petitioner’s

application for rehearing in the court below. The jurisdic-

tion of this Court is invoked under 28 U.S C. §1257(3).

QUESTIONS PRESENTED

i.

If none of the four statutory criteria for placing a sub-

stance in Schedule VI applied to marijuana, (which is in

Schedule VI), did the enforcement of that criminal statute

deny Petitioner a fair trial implicit in the Fourteenth

Amendment to the United States Constitution?

II.

Was Petitioner denied « fair trial implicit in the

_ =

Fourteenth Amendment by the introduction of Petitioner’s

inculpatory statements where the State failed to call all

material witnesses present during Petitioner’s interroga-

tions and further, that such inculpatory statements were

induced by coercion, violence and threats of harm?

CONSTITUTIONAL PROVISIONS AND

STATE STATUTES INVOLVED

Section 1, Amendment 14 to the Constitution of the

United States in pertinent part: . . . No State shall make

and enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any

State deprive any person of life, liberty or property, without

due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

Petitioner was charged under Ark. Stat. Ann. §82-

2614.2 a statute of the Controlled Substances Act, which

classified marijuana as a Schedule VI substance. The

criteria for placing a substance within Schedule VI, as

enumerated in Ark. Stat. Ann. §82-2614.1, are as follows:

(a) The substance is not currently accepted for

medical use in treatment in the United States;

(b) That there is lack of accepted safety for use of

the drug or other substance even under direct medical

supervision;

(c) That the substance has relatively high psycho-

logical and/or physiological dependence liability; and,

(d) That the use of the substance presents a definite

risk to public health.

4

STATEMENT OF THE CASE

Petitioner, Robert Bushong, was convicted of possession

of marijuana with intent to deliver in Izard County Circuit

Court, Arkansas. During a pre-trial hearing on motion to

suppress any admission or confession, Petitioner testified

that his inculpatory statements were given as a result of

coercion, violence and threats of harm (R. 300). Another

police officer, Lloyd Martz testified at the pre-trial hearing

that a police officer, Doug Rogers, was present when the

acts of violence and coercion occurred (R. 403). Doug

Rogers did not appear to give testimony at either the pre-

trial hearing or at the trial. Petitioner did not testify at

trial.

At a pre-trial hearing to dismiss the criminal informa-

tion charging Petitioner with possession of marijuana with

intent to deliver, Petitioner presented exhausted testimony

from Dr. Herbert Modlin, a psychiatrist from the Menninger

Foundation in Topeka, Kansas. Dr. Modlin testified that

the overwhelming weight of authority clearly indicates

that the classification of marijuana within Schedule VI of

the Arkansas Controlled Substances Act is erroneous (R.

182-234).

On appeal to the Supreme Court of Arkansas, Petitioner

argued Arkansas’ Controlled Substances Act relative to

marijuana was arbitrary, capricious and erroneous and

therefore denied the Petitioner due process of law and

equal protection of the laws in violation of the Fourteenth

Amendment.

Petitioner further argued on appeal to the Arkansas

Supreme Court that the Circuit Court erred in failing to

_ —

suppress Petitioner’s inculpatory statements, in that the

State failed to call all material witnesses present during

Petitioner’s interrogations, and that Petitioner’s inculpa-

tory statements were induced by coercion violence and

threats of harm.

REASONS FOR GRANTING THE WRIT

QUESTION |

The effects of marijuana use on both the individual

and society is a topic of national concern. Numerous

executive and legislative commissions have studied the

effects of marijuana use, and have compiled storehouses -

of empirical and sociological data. There is great confusion

in the public’s mind over marijuana use, with misinforma-

tion being disseminated on both sides of the issue.

Arkansas’ marijuana statute, Ark. Stat. Ann. §82-2614

et seq., is essentially a uniform state law which has been

adopted by many states throughout the country. Statewide

criminal penalties for marijuana use, must be both rational

and reasonable. Above all, the statutes must be founded on

a proper declaration of legislative facts.

Arkansas’ marijuana statute as written, is unconstitu-

tional. If marijuana remains impermissibly classified,

contemporary society will become further polarized. The

fundamental questions of marijuana classification must be

answered.

Petitioner challenged the constitutionality of Arkansas’

Controlled Substances Act as it applied to marijuana

Petitioner presented clear, cogent and authoritative evi-

dence that marijuana did not fit within any of the statutory

criteria which define a Schedule VI substance. The statute

on its face, therefore, is erroneous. Petitioner presented

further proof, equally convincing, that Arkansas’ marijuana

statute was arbitrary and capricious.

The issue thus becomes, whether marijuana may be

constitutionally classified as a Schedule VI controlled

7

substance under the criteria of Ark. Stat. Ann. §82-2614.2.

The standard of review in addressing this challenge to the

aforementioned legislative provision, is the “rational

relationship” test, wherein a legislative classification must

be sustained if the classification itself is rationally related

to a legitimate governmental interest. United States De-

partment of Agriculture v. Moreno, 413 U.S. 528 (1973).

An act of the Legislature carries a presumption of

validity, and will be upheld unless demonstrated to be

irrational. South Carolina Highway Department v. Barnwell

Brothers, 303 U.S. 177, 191 (1938). Nevertheless, that a

legislative declaration of facts appears to be reasonable

when enacted, does not insulate the statute from judicial

review. See, Chastleton Corporation v. Sinclair, 264 U.S.

543, 547-48 (1924); Abie State Bank v. Bryan, 282 U.S. 765,

772 (1931); Block v. Hirsh, 256 U.S. 135, 154 (1921); United

States v. Carolene Products Company, 304 U.S. 144, 153

(1938). The Court has recognized that “regulations under

the police power, although valid or presumed valid when

made, may become arbitrary and irrational in the light of

later events.” Chastleton Corporation v. Sinclair, 264 U.S.

543, 547-48 (1924). Moreover, the Court is “not at liberty

to shut its eyes to an obvious mistake, when the validity of

the law depends upon the truth of what is declared.” Id. at

547.

While arbitrariness and irrationality may not be

evident from the literal words of the statute, such arbi-

trariness and irrationality may be “demonstrated” by

scientific or other empirical evidence. The Supreme Court

reaffirmed this principle in Leary v. United States, 395 U.S.

6, (1969). There the Court was presented with a challenge

to 21 U.S.C. §176a, which provided that persons who

possessed marijuana in the United States would be pre-

sumed to know that the marijuana had been illegally

imported. After surveying a mass of reports, studies and

articles by experts on the cultivation, importation and dis-

tribution of marijuana, the Court concluded that it should

not be said that “at least a majority of marijuana possessors

have learned of the foreign origin of marijuana” Id. at 52.

Accordingly, the Court struck down the presumption as

invalid in light of the empirical data. The Court expressly

stated:

A statute based upon a legislative declaration of

facts is subject to constitutional attack on the

ground that the facts no longer exist; in ruling

upon such a challenge a court must, of course, be

free to re-examine the factual declaration. Id. at 38.

When such evidence is presented, the Court must take

it into account in determining the validity of the challenged

legislation. When such evidence is overwhelming, the Court

may not rely on a presumption of “reasonableness” to

sustain the legislation.

A highlight of the arbitrary, capricious and erroneous

classification of marijuana in Arkansas’ Controlled Sub-

stances Act is as follows:

(a) THE SUBSTANCE IS NOT CURRENTLY AC-

CEPTED FOR MEDICAL USE IN TREATMENT IN THE

UNITED STATES.

There are indeed certain medical uses for marijuana.

In fact, the value of marijuana in medical treatment has

been recognized for more than four thousand years. (The

report of the Canadian Commission of Inquiry into the

Non-Medical Use of Drugs, entitled “Cannabis” (1972)).

Recent studies have reported usefulness in the treatment of

high blood pressure, Grinspoon, Marihuana Reconsidered

(1971); glaucoma, Helper and Frank, Marihuana Smoking

and Intraocular Pressure, 217 J. Amer. Med. Assoc. 1391

(1971); and asthma, Tashkin, et al, Acute Pulmonary Psy-

chologic Effects of Smoked Marijuana and Oral-Tetra

Hydrocannabinol in Healthy Young Men, 289 New Eng. J.

Med. 336 (Aug. 16, 1973).

Studies at UCLA and other research centers have

evaluated marijuana’s effects in alleviating various

symptoms of cancer and side effects of treatment. Cohen,

A Progress Report, Marijuana As Medicine, Psychology

Today, (1978).

Dr. Herbert Modlin, who testified at Petitioner’s pre-

trial hearing to dismiss the information, stated there were

some hundreds of articles and literature on the uses of

marijuana for a variety of things (R. 189).

(b) THAT THERE IS LACK OF ACCEPTED

SAFETY FOr USE OF THE DRUG OR OTHER SUB-

STANCE EVEN UNDER DIRECT MEDICAL SUPERVI-

SION.

Again, the evidence is overwhelming that there is no

lack of safety for the use of the drug, especially under

direct medical supervision. Recent studies indicate that the

use of marijuana is far from unsafe. The encyclopedic work

of Dr. Lester Grinspoon, Marihuana Reconsidered, 1971,

supra, was at the time it was written, the most comprehen-

sive survey and analysis on the use and effects of marijuana

available. Drawing upon hundreds of studies, as well as his

own research, Grinspoon documented the conclusions

10

reached by earlier researchers: moderate use of marijuana

causes no physical or psychological harm to users, Id. at

370-371; marijuana is not addictive, Id. at 223; has never

been shown to have caused death of any user, Id. at 227; and

does not produce psychosis, Id. at 253. Furthermore, mari-

juana can be used, and is being used, in some states now,

under direct medical supervision.

(c) THAT THE SUBSTANCE HAS RELATIVELY

HIGH PSYCHOLOGICAL AND/OR PHYSIOLOGICAL

DEPENDENCE LIABILITY.

In People v. McCabe, 49 Ill. 2d 338, 275 NE 2d 407

(1971), the Court compared the effect of marijuana with

those of narcotic and other dangerous drugs and concluded:

“Observations to be drawn on marijuana are that

it is not a narcotic and is not truly addictive. Its

use does not involve tolerance, physical depen-

dence or the withdrawal syndrome.”

In People v. Sinclair, 387 Mich. 91, 194 NW2d 878, 881

(1972), the Court stated:

“Comparison of the effects of marijuana use on both

the individual and society with the effects of other

drug use demonstrates not only that there is not

rational basis for classifying marijuana with the

‘hard narcotics’ but, also, that there is not even a

rational basis for treating marijuana as a more

dangerous drug than alcohol.” (Emphasis added).

(d) THAT USE OF THE SUBSTANCE PRESENTS

A DEFINITE RISK TO PUBLIC HEALTH.

Medical evidence clearly shows a contrary finding. In

Ravin v. State, 537 P.2d 494 (Alaska 1975), the Court stated:

11

“It appears that the use of marijuana, as it is

presently used in the United States today, does not

constitute a public health problem of any signifi-

cant dimensions. It is, for instance, far less

innocuous in terms of physiological and social

damage than alcohol or tobacco.”

In State v. Anonymous, 32 Conn. Supp. 324, 355 A.2d

729, 736 (1976), the Court concluded that “the overwhelm-

ing evidence presented to this Court indicates that

experimental intermittent and moderate use of marijuana

carries minimal risk to public health and ‘neither the mari-

juana user nor the drug itself can be said to constitute a

danger to public safety.” In the Jaffe Report, supra, a

summary of the effects of marijuana use in the standard

medical text or pharmacology reports that “there seems to

be a growing agreement within the medical community, at

least, that marijuana does not directly cause criminal be-

havior, juvenile delinquency, sexual excitement, or lead

inevitably to the use of other drugs.” The empirical data

discussed demonstrate that marijuana imposes little or no

danger either to the individual or society.

CLASSIFICATION OF MARIJUANA AS

ARBITRARY AND CAPRICIOUS

The criminal penalty for possession of marijuana with

the intent to deliver under the Controlled Substances Act

is a Class C Felony. Ark. Stat. Ann. §82-2217(1) (iii). This

classification includes marijuana with those substances

classified in Schedules IV and V in terms of criminal

penalties, Id. Under the aforementioned arguments in this

section, it has been conclusively demonstrated that as a

drug, marijuana is a relatively harmless substance. Classify-

12

ing marijuana with the severe and potentially harmful

drugs in Schedules IV and V, for the purpose of imposing

punishment is arbitrary, capricious and irrational and

therefore denies the appellant due process of law and equal

protection .* the laws.

The Shafer Commission Keport (Report of the National

Commission on Marijuana and Drug Abuse, March, 1972)

indicates that many of the drugs in Schedule IV are more

harmful than marijuana. Thus chloral betaine, chloral

hydrate, etchlorvynol, ehtinamate and others in that

Schedule:

“ .. have been shown to be capable of producing

barbituate-like intoxication and inducing tolerance,

dependence, and an abstinence syndrome strikingly

similar to that seen with alcohol and the barbitu-

ates. ... Excessive doses cause varying degrees of

drowsiness, confusion and motor incoordination

with slurred or thick speech, double vision, stag-

gering and falling.”

The statutory scheme which imposes harsh criminal

penalties for marijuana, a relatively harmless drug, equal

with drugs that pose substantial danger to the user and

society, denies the appellant the constitutional guarantee

of equal protection of the laws.

An equal protection violation also exists in that Ark.

Stat. Ann. §82-2602(e) of the Controlled Substances Act

specifically excluded alcohol and tobacco. The psychologi-

cal and physiological effects of the use of alcohol have long

been neglected or ignored. Alcohol operates in the body as

a central nervous system depressant; and its effects are

very similar to those produced by barbituates; Jaffe, supra,

13

at 289. What is called “alcoholism” is actually physical

addiction to the drug alcohol. J. Fort, Alcohol: Our Biggest

Drug Problem, 197 (1973).

Tobacco ranks with alcohol in widespread use among

Americans; it is also the single major cause of heart and

blood vessel disorders, and cancer, which are the two most

common causes of death in America accounting for more

than half of the deaths in Americans each year, Id. at 197.

Dr. Modlin testified that from a physiological stand-

point with regard to withdrawal symptoms, marijuana is a

safer drug than tobacco (R. 187). As mentioned earlier,

Dr. Modlin testified that marijuana was not even in the

.me class as a public health hazard as either alcohol or

tobacco (R. 189). Dr. Modlin testified that the effects of

alcohol are considerably more serious than the effect of

marijuana (R. 202).

QUESTION Il

Petitioner urges that his inculpatory statements were

involuntary and therefore inadmissible. The test of ad-

missibility is whether a confession is free and voluntary

and not extracted by any sort of threats or violence, nor

obtained by any direct or implied promises, however slight,

nor by the exertion of any improper influence. Malloy v.

Hogan, 378 U.S. 1, 84 S. Ct. 1489 (1964).

A confession obtained under duress or coercion based

upon the surrounding facts and circumstances is involuntary

and constitutionally inadmissible against its maker. See,

Culonbe v. Connecticut, 367 U.S. 568, 81 S. Ct. 1860 (1961).

In the case at bar, Petitioner testified that he was beaten,

threatened and coerced by law enforcement officers prior

to leaving the arrest site (R. 289). Petitioner was arrested

14

approximately 3:00 am. on August 1, 1977, and did not

give a formal confession until approximately 4:32 p.m. that

afternoon (R. 240). One alleged inculpatory statement

made by Petitioner took place immediately after Petitioner

was subjected to abuse at the arrest site (R. 496). Petitioner

testified that he did not sleep any the night prior to his

arrest and was not allowed to sleep prior to his formal

confession to state agents (R. 296, 297).

Petitioner further urges that the State’s failure to call

all material witnesses relative to the events preceding the

inculpatory statements, amounts to a constitutional viola-

tion of Petitioner’s rights under the due process clause of

the Fourteenth Amendment.

The requirement of the State to produce all material

witnesses surrounding an accused’s confession was set

forth in Smith v. State, 256 Ark. 67, 505 SW2d 504, 506

(1974), wherein the Court stated:

“We hold that whenever the accused offers testi-

mony that his confession was induced by violence,

threats, coercion or offers of reward, then the >

burden is upon the State to produce all material

witnesses who are connected with the controverted

confession or give adequate explanation for their

absence.”

Petitioner testified that threats, coercion, and abuse

were inflicted upon him at the arrest scene. In the instant

case, Doug Rogers was present when Petitioner claimed

the acts of coercion and physical violence occurred. If a

police officer is present during the time of alleged threats

or acts of physical violence, he is a material witness. The

Arkansas Supreme Court misapplied the holding in People

15

v. Simms, 21 Ill. 2d 425, 173 NE2d 494 (1961), cert. den. U.S.

861 (1962) in affirming the trial court’s ruling on the

inculpatory statements.

CONCLUSION

Petitioner contends that Arkansas’ Controlled Sub-

stances Act applicable to marijuana is unconstitutional and

violative of the guarantee of a fair trial implicit in the

Fourteenth Amendment. Petitioner further contends that

he was denied a fair trial implicit in the Fourteenth Amend-

ment by the introduction of Petitioner’s inculpatory

statements, where the State failed to call all material wit-

nesses present during Petitioner’s interrogations and

further that such inculpatory statements were induced by

coercion, violence and threats of harm.

Respectfully submitted,

Bossy McDANIEL

400 South Main

Second Floor

Jonesboro, Arkansas 72401

Attorney for Petitioner

A-l

Appendix

APPENDIX “A”

IN BANC

SUPREME COURT OF ARKANSAS

PACE ANSON Sas cee ivecescanctetees Appellant

VS. No. CR 79-161

x ey Be ge eS ee ere Appellee

Opinion Delivered: November 13, 1979

Appeal from Izard Circuit Court

Leroy Blankenship, Circuit Judge, affirmed

DARRELL HICKMAN, Associate Justice

Robert Bushong, the appellant, was convicted of posses-

sion of marijuana with the intent to deliver it and sentenced

to five years imprisonment and fined $5,000.00.

Bushong was charged in Fulton County, Arkansas, but

tried in Izard County, the court having granted a motion

for change of venue.

Bushong alleges four errors: First, there is a threefold

attack on his prosecution under Arkansas’ Controlled

Substances Act. Bushong alleges the Act amounts to an

invalid delegation of legislative authority; that the Com-

missioner of Narcotic and Toxic Substances has failed to

comply with the Controlled Substances Act and the Ad-

ministrative Procedure Act; and that the Controlled

Substances Act is unconstitutional because it is arbitrary,

capricious and unreasonable. Second, the State failed to

A-2

call a material witness who was present during the appel-

lant’s interrogation. Third, the court failed to suppress

Bushong’s statements which, allegedly, were induced by

coercion, violence and threats. Fourth, the court erred in

admitting an oral statement made by the appellant to

Trooper Bob Reynolds.

We find no merit to any of these arguments and affirm

the judgment of the trial court.

The appellant put on extensive proof that the Com-

missioner of Narcotic and Toxic Substances had failed “to

revise and republish” the schedules in the Controlled

Substances Act as required by Ark. Stat. Ann. §82-2614.3

(Repl. 1976).

Also, the appellant put on evidence that the Commis-

sioner had not complied with the Administrative Procedure

Act. This argument relates to a requirement that certain

information be filed with the Secretary of State and the

clerks of the various circuit courts throughout the State.

See Ark. Stat. Ann. §5703(d) (Repl. 1976).

Finally, the argument is made that marijuana does not

belong in the classification in which it was placed, is not

a harmful substance that should »e in the Controlled

Substances Act, and, therefore, is unconstitutionally

controlled.

Because the appellant was prosecuted under a part of

the Controlled Substances Act which has not been changed

since it was enacted by the General Assembly, the appellant

is in no position to argue that he was aggrieved by any

failure on the Commissioner’s behalf to strictly follow the

Administrative Procedure Act. That failure to act would

be poor administration, not a defense in this case. For the

A-3

same reason, the appellant has no standing to attack the

Commissioner’s authority as an unlawful delegation of

legislative authority. United States v. Westlake, 480 F.2d

1225 (5th Cir. 1973). Neither do we believe that the Com-

missioner’s failure to revise and republish the schedules of

controlled substances, at least where no allegation of the

lack of actual notice was made, can be used as a defense to

a criminal prosecution under a part of the Act as passed by

the General Assembly. Compare Central Arkansas Auction

Sale, Inc. v. Bergland, 570 F.2d 724 (8th Cir. 1978).

The fact that the appellant offered some evidence that

marijuana does not belong in Schedule 6 does not mean

the General Assembly was wrong in its classification of

marijuana. Such legislation is presumed to be constitutional,

State v. Baker, 56 Haw. 272, 535 P.2d 1934 (1975), and will

be upheld if supported by any reasonable basis. Pridgeon v.

State, 266 Ark. 651, —— SW2d —— (1979).

While the appellant offered testimony that marijuana

was not as harmful as alcohol or tobacco, we cannot say

that the evidence presented by the appellant is so over-

whelming and uncontradicted as to convince us that the

legislative act in question is arbitrary, capricious and

unreasonable, and, therefore, violates the due process

clause and the equal protection clause of the United States

Constitution. See People v. Stark, 400 P.2d 923 (1965).

A pre-trial hearing was held, as required by Jackson v.

Denno, 378 U.S. 368 (1964), to determine if Bushong’s

statements were voluntary. He admitted to the police offi-

cers it was his marijuana. Bushong testified that he was

threatened, coerced, and intimidated by police officers for

several hours before he finally made a statement to two

Arkansas State Policemen in Salem about 4:30 p.m. on the

A-4

date he was arrested. Such an in-custody confession is pre-

sumed to be involuntary and the burden is on the State to

show that the statement was voluntarily made. Smith v.

State, 254 Ark. 538, 494 SW2d 489 (1973). We make an

independent determination of voluntariness of a confession

based upon the totality of the circumstances. However, we

do not overturn the finds of the trial court unless they

are clearly against the preponderance of the evidence.

Degler v. State, 257 Ark. 388, 517 SW2d 515 (1974).

In Smith v. State, supra, we adopted the rule that

whenever an accused offers testimony that his confession

was induced by violence, threats, coercion or offers of

reward, then the State has a burden to produce all material

witnesses who were connected with the controverted con-

fession or give adequate explanation of their absence.

Seven police officers were called to testify at the

Denno hearing regarding the voluntariness of Bushong’s

statements. The State did not call a possible witness, Doug

Rogers, who was 2 constable. The appellant objected to the

State’s failure to call Rogers as a material witness and the

State offered no explanation of his absence. The question

presented to us is, was Doug Rogers a material witness

connected with the confession; should he have been called

by the State or his absence explained?

In Smith v. State, supra, an Arkansas State Policeman

who was accused by the defendant of coercing him and

providing him leniency was not called as a witness. Neither

was the stenographer called who took down the defendant’s

statement and who was present during his interrogation.

We held these persons were material witnesses. In the case

of Smith v. State, 256 Ark. 67, 505 SW2d 504 (1974), the

State did not call one of two police officers who interrogated

A-5

the defendant. There was evidence the confession was

induced by violence, threats and coercion. Both police

officers were accused of physically abusing the defendant.

We held the absent police officer was a material witness.

That officer signed the statement as a witness and was

present when the defendant made his statement.

In Northern v. State, 257 Ark. 549, 518 SW2d 482

(1975), one of two police officers was not called by the

State. An allegation was made by the defendant that he

was physically abused by the absent officer. The State’s

explanation of the officer’s absence was not satisfactory and

we reversed the judgment. In Gammel & Spann v. State,

259 Ark. 96, 531 SW2d 474 (1976), the State failed to call

a witness who was in jail with the defendant. The argu-

ment was made that the cell mate, as well as police officers

or jailers who placed the witness in the cell, could shed

some light on the defendant’s argument of an involuntary

statement. We refused to extend the Smith v. State, 254 Ark.

538, 494 SW2d 489 (1973) decision beyond its specific

language.

It is no excuse that a defendant fails to call the material

witnesses. That burden is clearly upon the State. Northern

v. State, supra.

The Illinois Supreme Court has had extensive experi-

ence with this rule. In the case of People v. Simms, 21 Ill. 2d

425, 173 NE2d 494 (1961), cert. den. 369 U.S. 861 (1962),

that Court reviewed its previous decisions and discussed

the application of the rule.

Illinois had substantially the same rule that we adopted

in the Smith case. However, through the years they used

different language in describing the rule. For example, wit-

A-6

nesses that were required to be called by the state were

described as “All the Police Department men engaged or

present at the sweating,” “all the persons who had control

over the defendant and are allegedly involved in the use of

coercion,” and “every police officer and every other person

connected with taking the confession.”

The Illinois court in Simms reviewed its rule and dis-

cussed in detail its decisions. In one case where a defendant

was grilled constantly over an extended period of time, the

State called only one police officer whose testimony

covered only one-tenth of the period of time involved, and

he did not specifically deny the alleged facts of the defen-

dant. People v. Holicl:, 337 Ill. 333, 169 NE 269 (1929). In

another case, a State’s Attorney to whom the defendant

complained concerning the tactics of the police was not

called. People v. Sloss, 412 Ill. 61, 104 NE2d 807 (1952).

These absent witnesses were determined to be material by

the Illinois Court.

On the other hand, a State’s Attorney who questioned

the accused and took his confession was found not to be a

material witness. The accused in that case said he was

promised leniency. However, those promises were not made

by the State’s Attorney but by a sheriff and his deputy at

a time when the State’s Attorney was not present. There

was no claim that the State’s Attorney made any improper

inducement or that the State’s Attorney was present when

it occurred. The State’s Attorney was not declared a

material witness. People v. Scott, 401 Ill. 80, 81 NE2d 426

(1948).

In another case, several witnesses who had been present

at various stages of the interrogation process were not

found to be material witnesses. The court concluded, “every

A-7

person who could be considered a material witness . . . was

produced ...” People v. Jennings, 11 Ill. 2d 610, 144 NE2d

612 (1957). It was found unnecessary to call some police

officers who were present in the police station at the time

of interrogation, but who did not participate in the ques-

tioning. People v. Gavurnik 2 Ill. 2d 190, 117 NE2d 782

(1954).

The Illinois Court concluded that its decisions were con-

sistent and that the principle involved was the same. It said:

The principle that emerges clearly from all

these cases is that the persons who must be called

as witnesses or whose absence must be explained

are those persons whose testimony would be ma-

terial on the issue of the voluntary nature of the

confession. People v. Simms, 21 Ill. 2d 425, 432, 173

NE2d 425 (1961).

There is no doubt each case can differ in some respect

and it becomes a question of applying the rule to facts in

each case.

Bushong does not claim that any coercion or improper

inducement occurred when he actually made the statement

about 4:30 p.m. on the day he was arrested. That statement

was taken by two Arkansas State Policemen, Officers

Talley and Turner. It was not disputed that they properly

advised Bushong of his rights and that he admitted to them

that the marijuana was his. Bushong claims that the

coercion occurred after he was arrested early on the morn-

ing of the 1st of August, 1977.

At about 3:00 a.m. on August Ist, Bushong and two

others were surprised in the woods southwest of Mammoth

Spring, Arkansas, by two officers, Bob Slayton and Ernie

A-8

Rose, deputy sheriffs of Fulton County. These two officers

had a “stakeout” observing marijuana plants that were hung

in trees to dry. Three other officers arrived shortly there-

after, Sheriff Barker, Trooper Martz and Constable Rogers.

Bushong and the others were held at the scene until about

9:00 a.m.

Bushong testified that he was abused physically by

Deputy Sheriff Slayton and Sheriff Barker. He said that

Slayton grabbed his beard and struck him. He said Sheriff

Barker observed this. At the time he was in a police vehicle.

When asked if anyone else observed it, he said that Trooper

Martz was sitting in his police car, immediately behind the

car in which Bushong was sitting. He did not say any other

witness observed this mistreatment. Bushong testified

that he observed one of the other defendants being abused

in the trooper’s car by Sheriff Barker. He said that one of

the other defendants was taken down the road by the

sheriff and it sounded to him as if the sheriff beat that

defendant.

Trooper Martz testified that he arrived shortly after

the arrest and left about 9:00 a.m. During cross-examination

he testified that Constable Rogers accompanied him to the

scene and was there throughout this period of time and left

with him. Bushong never testified that Constable Rogers

observed any mistreatment of him, coerced him in any way

or abused any of the other defendants in any way.

All of the police officers except the constable testified

and denied the allegations of coercion and mistreatment.

That is, six officers testified.

Was Rogers a material witness or was he a casual wit-

ness? We cannot conclude that he was a material witness.

A-9

If we decide that he was a material witness, then we might

as well say all witnesses who could possibly have witnessed

anything must be calied by the State. That is an unreason-

able burden to place upon the State. There must be some

connection between the witness and the alleged acts of

coercion or any opportunity to observe the alleged coercion.

This record gives no indication that Rogers would have

been a material witness in any regard except he happened

to be present on the scene and might have observed

something.

Bushong never mentioned Rogers in his testimony.

One of the other defendants, who was called as a witness,

did mention Rogers and it might be inferred from that

witness’ testimony that the constable, along with Martz and

some others, harrassed that defendant. But that would

require some speculation on our part. It is not alleged that

all the police officers abused the suspects or that they were

all in a position to observe each alleged act of abuse.

We conclude, therefore, that the trial court did not

err in failing to require the State to produce Rogers, nor

can we say that the trial court’s decision regarding the

voluntariness of the statements was clearly erroneous.

Trooper Bob Reynolds testified during the trial that

Bushong made a statement to him when he was transporting

Bushong from the woods to Mammoth Spring. It is argued

that the admission of this statement was erroneous because

it surprised the appellant. (The Prosecuting Attorney said

he was surprised, too.) The appellant also argues a proper

Miranda warning was not given and the trooper’s testimony

was totally inconsistent with what he had previously told

the appellant’s lawyer.

A-10

Reynolds testified during the Denno hearing and when

asked if Bushong made any statements to him he replied

“ves” but nobody asked him what the statements were.

Later, before trial, the attorneys for Bushong took a state-

ment from Reynolds which was recorded and in that

statement Reynolds said “The man didn’t tell me anything.”

Reynolds testified that he gave the Miranda warning

orally to Bushong when he got in the car. However, ap-

parently he failed to tell Bushong that interrogation must

cease if at any time during the questioning the defendant

wished to remain silent.

Bushong did not deny that he was given his Miranda

warning at the time he was arrested earlier that morning.

The arresting officers said it was given. Reynolds testified

that he knew that Bushong had been advised of his rights

and, in fact, did not question Bushong, but Bushong simply

voluntarily told him about the marijuana. Bushong’s

attorney was given the opportunity to introduce into evi-

dence the transcript of the tape recording of Reynolds’

statement and Reynolds admitted that he had made the

statement that the man didn’t tell him anything. He

explained during redirect examination that he did not have

his notes when he was examined by the lawyer.

The appellant argues that a continuance should have

been granted so that the appellant’s attorney could get the

tape recording of Reynolds’ statement to impeach Reynolds’

testimony.

A hearing was held on the voluntariness of the

statement and the court concluded that it was voluntary.

Nobody asked Reynolds what the statement was. There is

no requirement that the Denno hearing must involve the

A-1l1

details of the statement, only its voluntariness, with ample

opportunity for the defense to test the burden of the State.

See Jackson v. Denno, supra; Silliman v. People, 114 Colo.

130, 162 P.2d 793 (1945). The trial court found that Bushong

was properly warned of his rights and that the statement

he made to Reynolds was admissible. The trial court granted

Bushong’s attorney a full opportunity to impeach Reynolds’

testimony and a continuance to obtain the tape would not

have materially aided the defense. We cannot say the trial

court’s findings were clearly erroneous.

A-12

APPENDIX “B”

IN THE

SUPREME COURT OF ARKANSAS

SOUEENE DRM, Sak adc ek bins none unas’ Appellant

vs. No. CR 79-161

pe ve fe gee)! Greer ree Appellee

APPEAL FROM

IZARD COUNTY CIRCUIT COURT

PETITION FOR REHEARING

|

THE COURT ERRED IN FAILING TO DISMISS THE

INFORMATION CHARGING DEFENDANT WITH POS-

SESSION OF MARIJUANA WITH INTENT TO DELIVER

ON THE FOLLOWING GROUNDS:

A. The failure of the Commissioner of Narcotic

and Toxic Substances to comply with the requirements

of the Controlled Substances Act, Ark. Stat. Ann. §82-

2601 et seq. (Repl. 1976) and the Administrative Pro-

cedure Act, Ark. Stats. Ann. §§5-701 — 5-714 (Repl.

1976) rendered the criminal penalities with regard to

marijuana invalid.

The decision of this Court handed down November 13,

1979, states that the failure of the Commissioner to strictly

follow the Administrative Procedure Act amounted to poor

administration and did not amount to a defense in this case.

A-13

The Court misinterpreted the effect of the Administrative

Procedure Act on administrative rules such as the controlled

substances schedules herein in issue. The failure to comply

with the Administrative Procedure Act renders an adminis-

trative rule invalid.

Ark. Stat. Ann. §5-703(e) specifically states, “No rule

hereafter adopted shall be valid unless adopted and filed in

substantial compliance with this Section 3.” Appellant in

his Brief in Chief clearly showed that the Commissioner of

Narcotic and Toxic Substances did not come close to sub-

stantial compliance with the Administrative Procedure Act

requirements. Such failure rendered the Controlled

Substances schedules invalid and unenforceable as law for

the year 1977. The legislature required that the Controlled

Substances Act be controlled by the procedures of the

Administrative Procedure Act. Ark. Stat. Ann. §82-2602 (a).

To now state that the Administrative Procedure Act re-

quirements are not mandatory clearly contravenes legis-

lative directive.

The Court further states that the Commissioncr’s

failure to revise and republish the schedules of Controlled

Substances is not a defense, at least where the lack of

actual notice was made. Within his argument on that issue,

Appellant challenged the Controlled Substances Act on two

grounds. First, that the Commissioner of Narcotic and

Toxic Substances failed to republish the schedules (i.e., °

failed to give proper notice of its actions). Secondly, Appel-

lant challenged the decision making process of the Commis-

sioner of Narcotic and Toxic Substances in the revision of

the controlled substances schedules.

The Court cites the case of Central Arkansas Auction

Sales, Inc. v. Bergland, 570 F.2d 742 (8th Cir. 1978) to be

A-14

compared on the above issues of republication and revision.

It is important to note the conclusion of that case at Page

731, on the comparable issue of the administrative decision

making process. There the Court stated:

We are convinced that the Secretary’s findings

are supported by the evidence and proper legal

standards have been applied. See Citizens to Pre-

serve Overton Park v. Volpe, 401 U.S. 402, 413-16,

91 S. Ct. 814, 28 L. Ed. 2d 136 (1971); Burlington

Northern, Inc. v. United States, 549 F.2d 83, 88-89

(8th Cir. 1977). We are also satisfied that substan-

tial evidence on the record as a whole supports the

administrative decision. See Giles Lowery Stock-

yards, Inc. v. Department of Agriculture, 565 F.2d

321, 326-27 (5th Cir. 1977).

Using that language as a standard of review for

administrative rules, the schedules of controlled substances

for the year 1977 must be declared invalid. The findings

of the Commissioner of Narcotic and Toxic Substances with

respect to marijuana for the year 1977 were not based on

proper legal standards. Her findings relative to marijuana

were based upon the improper notion that the legislature

controlled marijuana and not the Commissioner of Narcotic

and Toxic Substances. In essence, with regard to revision

of marijuana, she not only failed to apply the proper legal

standard, she applied no standard whatsoever since she

erroneously thought it was not her duty to do so. (Appel-

lant’s brief page 95).

Furthermore, under the standard set forth in Central

Arkansas Auction Sales, Inc. v. Bergland, supra, there is

no evidence to support the Commissioner’s controlled sub-

stances schedules revision, since she did not make a deci-

A-15

sion on any evidence her agency had gathered. (Appellant’s

brief, page 95). The record on the whole does not support

the administrative decision.

C. The Controlled Substances Act under which

the Defendant was charged was unconstitutional in that

it was arbitrary, capricious and erroneous, and there-

fore denied the defendant due process of law and equal

protection of the laws, in violation of the Fourteenth

Amendment to the United States Constitution.

The Court is in error when it states that Appellant’s

evidence .that marijuana does not belong in Schedule 6,

applies to the General Assembly’s decision to place mari-

juana in Schedule 6. The General Assembly placed

marijuana in Schedule 6 in 1973 when it enacted Ark. Stat.

Ann. §82-2614. Since that date, the classification of mari-

juana has been strictly under the control of the Commis-

sioner of Narcotic and Toxic Substances, Ark. Stat. Ann.

§82-2601. Appellant introduced clear, cogent and over-

whelming evidence through expert testimony, that for the

year 1977, marijuana did not fit any of the four criteria for

Schedule 6, contained in Ark. Stat. Ann. §82-2614.1.

Appellant’s evidence challenged the decision making

process of the Commissioner, not the General Assembly.

II.

THE COURT ERRED IN FAILING TO SUPPRESS

DEFENDANT’S INCULPATORY STATEMENTS IN THAT

THE STATE FAILED TO CALL ALL MATERIAL WIT-

NESSES PRESENT DURING DEFENDANT'S INTER-

ROGATION.

This Court discusses the persuasive case of People v.

Simms, 21 Ill. 2d 425, 173 NE2d 494 (1961), cert. den. 369

A-16

U.S. 861 (1962), in the application of the rule that the State

must call all material witnesses to a confession by an

accused. Under the facts in the case at bar, the Court mis-

applied the rule of law set out in People v. Simms. In Simms,

Id. at page 432, the Illinois Court states the proposition that

the persons who must be called as witnesses or whose

absence must be explained are those persons whose testi-

mony would be material on the issue of the voluntary

nature of the confession.

The holding in Simms, clearly stands for the proposition

that a police officer who is present when threats or physical

abuse is alleged to have been applied against an accused, is

a “material” witness. On that particular issue, the Court in

Simms found ample authority for the rule. In People v.

Arendarczyk, 367 Ill. 534, 12 NE2d 2, the State called only

one witness, despite the fact that others were present at

the time of the alleged coercion. In People v. Spranger, 314

Ill. 602, 145 NE 706, one of the police officers present at the

time of the alleged threats was not called and in People v.

Sweeny, 304 Ill. 502, 136 NE 687, there was a failure to call

some officers who were charged with brutality or who were

present at the time of the alleged brutality. The Court in

Simms, at pages 496 and 497, held that each of the above

cited cases involved a failure to produce one or more wit-

nesses whose testimony would have been material to the

issue of the voluntary nature of the confession.

In the instant case, Doug Rogers was present when Ap-

pellant claimed the acts of coercion and physical violence

occurred. The rule of law set forth in Simms and in Arkan-

sas case law, is both clearly defined and applicable to the

case at bar. If a police officer is present during the time of

alleged threats or acts of physical violence, he is a material

A-17

witness. The Court misapplied the holding in Simms and

other Arkansas cases in point in affirming the trial court’s

ruling.

CONCLUSION

Appellant states that the Court misinterpreted the

application of the statutory requirements of the Controlled

Substances Act and the Administrative Procedure Act.

Appellant argues that the Court should re-examine both the

conduct of the Commissioner of Narcotic and Toxic Sub-

stances and the empirical evidence relative to the sche-

duling of marijuana as a Schedule 6 controlled substance.

The failure to call Doug Rogers was error, and to so

hold, would not extend the rule of law this State has

established on the issue of calling all material witnesses

connected with a controverted confession. The appellant

respectfully submits that this case should be reversed.

Respectfully submitted,

McDANIEL & Gott, P.A.

Attorneys at Law

400 South Main

Second Floor

Jonesboro, Arkansas 72401

By: PHILLIP WELLS

Attorney for Robert Bushong

A-18

APPENDIX “C”

STATE OF ARKANSAS

IN THE SUPREME COURT

BE IT REMEMBERED, that at a term of the Supreme

Court of the State of Arkansas, begun and held at the Court

Room in the City of Little Rock, on the lst day, being the

first Monday of October, A.D). 1979, amongst others were the

following proceedings, to-wit:

On the 17th day of December, A.D., 1979, a day of said

term

ROBERT BUSHONG,

Appellant Appeal from

Izard Circuit Court

No. CR 79-161

‘ Criminal District

STATE OF ARKANSAS,

Appellee Rehearing denied.

IN TESTIMONY, that the above is a true copy of the

Order of said Supreme Court, rendered in the case therein

stated, I, JIMMY H. HAWKINS, Clerk of said Supreme

Court, hereunto set my hand and affix the Seal of said

Supreme Court, at my office in the City of Little Rock, this

25th day of February, A.D., 1980.

/s/ Jimmy H. Hawkins, Clerk

By: /s/ Bruce H. Bokony, D.C.

A-19

APPENDIX “D”

STATE OF ARKANSAS

IN THE SUPREME COURT

BE IT REMEMBERED, that at a term of the Supreme

Court of the State of Arkansas, begun and held at the Court

Room in the City of Little Rock, on the lst day, being the

first Monday of October, A.D., 1979, amongst others were

the following proceedings, to-wit:

On the 28th day of January, A.D., 1980, a day of said

term

ROBERT BUSHONG,

Appellant Appeal from

No. CR 79-161 Izard County Circuit Court

Criminal District

STATE OF ARKANSAS,

Appellee

Appellant’s Motion to Recall Mandate is granted.

IN TESTIMONY, that the above is a true copy of the

Order of said Supreme Court, rendered in the case therein

stated, I, JIMMY H. HAWKINS, Clerk of said Supreme

Court, hereunto set my hand and affix the Seal of said

Supreme Court, at my office in the City of Little Rock,

this 25th day of February, A.D., 1980.

/s/ Jimmy H. Hawkins, Clerk

By: /s/ Bruce H. Bokony, D.C.