Petition — Ennis v. North Dakota

Supreme Court brief1983

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Office Supreme Court, U.S,

FILED

83-234 AUG 1 1983

No. ALEXANDER L. STEVAS,

CLERK

—

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER 1982 TERM

EDWARD ENNIS,

Petitioner,

vs.

STATE OF NORTH DAKOTA,

Respondent.

PETITION FOR WRIT OF CERTIORARI ON APPEAL

FROM THE NORTH DAKOTA SUPREME COURT

KENT REIERSON MARC G. KURZMAN

STATES ATTORNEY KURZMAN, SHAPIRO,

P.O, BOX 1247 MANAHAN & PARTRIDGE

Williston, N.D. 601 Butler Square

58801 Minneapolis, MN 55403

(612) 333-4403

SOLICITOR GENERAL SCOTT HARRIS

Department of Justice KURZMAN, SHAPIRO,

Washington, D.C. MANAHAN & PARTRIDGE

20530

Counsel for Petitioner

TABLE OF CONTENTS

Questions Presented for Review

Table of Authorities

Reports of Opinions Delivered in the

Courts Below

Jurisdictional Statement

Relevant Constitutional Provisions

and Statutes

Statement of the Case

Argument

I. BY IMPOSING ON PETITIONER THE

BURDEN OF PROVING THAT THE

SUBSTANCES UNDER EXAMINATION

WERE NOT MARIJUANA, THE NORTH

DAKOTA SUPREME COURT IMPROPERLY

SHIFTED THE BURDEN OF PROOF AND

THEREBY VIOLATED PETITIONER'S

DUE PROCESS RIGHTS GUARANTEED

BY THE FOURTEENTH AMENDMENT TO

THE UNITED STATES

CONSITITUTION,

Page

iii

vii

II. BY REQUIRING THAT THE EVIDENCE

RAISE MORE THAN A REASONABLE

DOUBT OF PETITIONER'S

INNOCENCE, THE TRIAL COURT

COMMITTED PLAIN ERROR AND

VIOLATED PETITIONER'S DUE

PROCESS RIGHTS UNDER THE

FOURTEENTH AMENDMENT TO THE

UNITED STATES CONSTITUTION,

Conclusion

APPENDIX INDEX

Opinion of the North Dakota Supreme

Court affirming the Order of the

Trial Court on four counts

TABLE OF AUTHORITIES

Bentley v. Crist, 469 F.2d 854

(Sth tir. 1972) 16

Brinegar v. United States, 338 .S.

160 (1949) 29

Chapman v. California, 386 U.S. 18

(1967) 30

Coffin v. United States, 156 U.S.

432 (1895) 15

Davis v. United States, 160 U.S. 304

T1881) 30

Davis v. United States, 160 U.S.

469 (1895) 25

Dunn v. Perrin, 570 F.2d 21

(lst Cir.), cert. denied,

437 U.S. 910 (1978) 24, 28

Estelle v. Williams, 425 U.S. 501

(1976) 16

Fahy v. Connecticut, 375 U.S. 85

(1963) 30

Government of Virgin Islands v. Lake,

362 F.2d 770 (3d Cir. 1966) 16

Grannis v. Ordean, 234 U.S. 385,

392° (1914) vi

iii

Hernandez v. Beto, 443 F.2d 634

(5th Cir.), cert. denied, 404 U.S.

897 (1971)

Johnson v. Bennett, 414 F.2d 50

(8th Cir. 1969)

Pregel v. Gies3, 231 N.W.2d 780

Lockhart v. O'Hara, 380 F.Supp. 379

W.D.Ark. )

Smith v. Smith, 454 F.2d 572

(5th Cir. 1971), cert. denied,

409 U.S. 885 (1972)

Speiser v. Randall, 357 U.S. 513

(1958)

State v. Olmstead, 246 N.W.2d 888

Dd, , cert. denied,

436 U.S. 918 (1978)

Stump v. Bennett, 398 F.2d 11l

(8th Cir.), cert. denied, 393 U.S,

1001 (1968)

Titaet v. Kentucky, 436 U.S. 478

United States v. Alvero, 470 F.2d

OSI (Sth Cir. I972)

United States v. engtens 347 F.2d

’ t Ce

Page

17,

2l,

16,

United States v. Flannery, 451 F.2d

880 (lst Cir. 1971)

United States v. Harrigan, 586 F.2d

860 (lst Cir. 1978)

United States v. Pine, 609 F.2d 106

(3d Cir. 1979)

United States v. Thoresen, 428 F.2d

654 (9th Cir. 1970) .

Wilbur v. Mullaney, 496 F.2d 1303

(lst Cir. 1974), affirmed, 421

U.S. 684 (1975)

In Re Winship, 397 U.S. 358

Woods v. Estelle, 547 F.2d 269

(Sth Cir. 1977)

U.S. CONST., Amend. XIV, Section 1

Page

17,

24,

vii,

13,

REPORTS OF OPINIONS DELIVERED

IN THE COURTS BELOW

The opinion of the Supreme Court of

North Dakota is not yet reported. It is

attached hereto as Appendix A.

JURISDICTIONAL STATEMENT

On Mey 26, 1983, the Supreme Court of

North Dakota filed its opinion in the instant

case. On June 24, 1983, the Supreme Court of

North Dakota entered its Order denying

Defendant's Petition for Rehearing. 28

U.S.C. § 1257 confers on this Court

jurisdiction to review the decision below by

Writ of Certiorari. See Grannis v. Ordean,

234 U.S. 385, 392 (1914).

RELEVANT CONSTITUTIONAL PROVISION

U.S. CONST. Amend. XIV, Section 1. All

persons born or naturalized in the United

States, and subject to the jurisdiction

thereof, are citizens of the United States

and of the State wherein they reside. No

State shall make or 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.

vii

IN THE

SUPREME COURT OF THE UNITED STATES

No.

OCTOBER 1982 TERM

EDWARD ENNIS,

Petitioner,

vs.

STATE OF NORTH DAKOTA,

Respondent.

PETITION FOR WRIT OF CERTIORARI ON APPEAL

FROM THE NORTH DAKOTA SUPREME COURT

STATEMENT OF CASE

On April 8, 1982 Petitioner Edward

Ennis was charged in five Complaints with

unlawful possession of marijuana with intent

to deliver, and unlawful delivery of hashish

and marijuana, in violation of North Dakota

law. Petitioner pleaded not guilty to all

charges, and the five Complaints were

consolidated for trial before the Honorable

Bert L. Wilson of the North Dakota District

Court. A bench trial commenced on July 29,

1982.

At trial, the State called as an expert

witness Mr. Aaron Rash, the supervisor of the

North Dakota Crime Laboratory, Bismark.

Through Mr. Rash, the State introduced into

evidence the lab report regarding the

Substances allegedly sold by, and seized

from, Petitioner, and Mr. Rash identified

these substances as Cannabis (T. yp 221-22,

268). Rash testified that he relied upon

four laboratory tests in identifying the

samples in question: microscopic examination

. "T." refers to the trial transcript.

of the plant materials for botanical

characteristics; Duquenois-Levine; thin-layer

chromatography; and infrared spectroanalysis

(T. 223).

On cross examination, the defense

established that Mr. Rash had received no

botanical training, whatsoever (T. 246).

Further, while Mr. Rash relied upon the

results of an infrared spectroanalysis to

reach his conclusion that there was Tetra-

hydrocannabinol (THC) present in the

materials examined, he could not explain the

theoretical or practical workings of the

infrared spectrophotometer used in obtaining

the analysis (T. 406).

The defense called its own expert

witness, Dr. Dwight Fullerton, to testify

regarding drug identification. Dr. Fullerton

has obtained degrees in chemistry and

pharmacy, is a licensed pharmacist, and has

taken many courses in botany and

pharmacognosy, the study of drug-containing

plants. He has taught courses in forensic

analysis and has written articles on the

identification of unknown substances believed

to be marijuana (T. 323-33).

Through Dr. Fullerton's testimony and

the cross-examination of Mr. Rash, the

defense underscored Rash's incompetence to

render a conclusive identification of the

sample substances. With respect to

marijuana's botanical characteristics, Dr.

Fullerton testified that there are four

distinct hairs on the marijuana plant (T.

345), and that the glandular hairs appear on

the bottom side of the leaf while the

cystolith hairs are on the top of the leaf

(T. 345-46). Dr. Fullerton indicated that if

the cystolith and glandular hairs appear on

the same side of a plant's leaf, that piant

is not likely to be marijuana (T. 346). For

purposes of forensic analysis, Dr. Fullerton

testified that one cannot distinguish the top

of a leaf from the bottom simply by color,

but must refer to the volume of “stoma,” or

breathing holes, on each side of the sample,

or must do further microscopic analysis (T.

347).

Mr. Rash, having no botanical training,

testified that he observed the cystolith and

glandular hairs on the same side of the

leaves in the samples examined (T. 245), and

asse~ted that this positioning of the hairs

supported his contention that the substances

were marijuana (T. 245). He admitted that

the placement of hairs vis-a-vis the top or

bottom of the leaf is important in

identifying a plant as marijuana, claimed

that “most of the time” one could tell the

difference from the top and bottom just by

the color of the leaf, but admitted that he

did not know how the tops of the leaves had

been distinguished from the bottoms in the

case of these samples (T. 245-46).

Dr. Fullerton also testified that the

Duquenois~Levine test is nonspecific and

inaccurate because many plants contain the

chemical resorcinol, which triggers a

positive reaction in the test (T. 350).

Further, he stated that the four spectra

charts prepared from the infrared

Spectroanalysis on these samples were

inconsistent with the reference spectra for

THC, and that the four charts were themselves

internally inconsistent (T. 376-74).

Defense counsel raised objection to the

opinions of Mr. Rash, and sought a directed

verdict at the close of the State's case in

chief, claiming that Rash was incompetent to

render an expert opinion on the identity of

the substances in question and that Rash's

testimony was insufficient to establish the

offense (T. 222, 276-80). The trial court

rejected Petitioner's contentions (T. 222,

289).

At the conclusion of testimony and

argument, Judge Wilson found the Petitioner

guilty of all charges (T. 439). In rendering

his verdict, the Judge noted that "there is

doubt, but not beyond a reasonable doubt.

And my only doubt is in the chemical

analysis; that bothered me some, but it's not

beyond a reasonable doubt... ." (T. 439).

Following denial of Petitioner's motion

for a new trial, he was sentenced on August

9, 1982 to imprisonment for seven years with

four years suspended, and fined $5,000,

Petitioner's Notice of Appeal to the North

Dakota Supreme Court was filed on August 9,

1982,

On his appeal, Petitioner asserted,

inter alia, that the evidence introduced by

the State was insufficient to identify the

Substances in question as marijuana or

hashish (Appendix A, page 16), «14 that the

trial court had a reasonable doubt regarding

identification of the substances in question

which mandated a reversal under the Due

Process Clause of the Fourteenth Amendment

(Appendix A, page 3l, n. 5).

The Supreme Court of North Dakota

reversed Petitioner's conviction for unlawful

possession of marijuana with the intent to

deliver and affirmed his convictions for

unlawfully delivering hashish and marijuana.

State of North Dakota v. Ennis, Crim. Nos.

885, 895, 896, 897, 898 (May 26, 1983). The

court refused to overturn Petitioner's

conviction based on the drug identification

issue. With respect to Petitioner's

Constitutional claim that the trial court had

a reasonable doubt regarding identification

of the substances in question, the North

Dakota Supreme Court concluded that “the

testimony of defendant's expert, Dr.

Fullerton, created some question in the trial

court's mind; however, such conflicting

evidence did not create a ‘reasonable

doubt'." (Appendix A, page 3l, n. 5).

As for its own review of the evidence

concerning identification of the substances,

the court noted:

The defense presented strong

contradictory evidence, all of

which was directed toward proving

that Aaron Rash was inept and that

the tests performed in the State

Laboratory were both inadequate

and inconclusive. Defense

counsel, however, did not offer

evidence of independent tests

performed by an expert in which

the substances were shown to not

be marijuana or hashish.

Appendix A, page 19 (emphasis added). In

analyzing Petitioner's attack on the adequacy

of the identification evidence, the court

Stated:

The crux of Dr. Fullerton's

testimony was that, based on the

State Laboratory's analysis, it is

impossible to positively identify

the substances as marijuana or

hashish. However, on cross

examination, Dr. Fullerton

admitted that he was not stating

nor could he state that the

substances analyzed were not

marijuana or hashish.

Appendix A, pages 17-18 (emphasis added).

On June 6, 1983, Petitioner submitted

his Petition for Rehearing to the Supreme

Court of North Dakota. At page 5 of his

Petition for Rehearing, Petitioner raised the

following claim under the United States

Constitution:

This Court, in its opinion,

unfairly shifted the burden

of proof to the defendant.

At page 10 of this Court's

decision, it was twice mentioned

that the expert for the defense,

Dr. Fullerton, (a) was not stating

the substances were not marijuana;

and (b) did not offer evidence of

independent tests performed in

which the substances were shown to

not be marijuana.

It is respectfully submitted

that it is a denial of due

process, in violation of the

United States Constitution and the

North Dakota Constitution, to

require the defendant to produce

any evidence such as was noted

lacking by this Court in its

opinion.

es 2 2 8 @

Dr. Fullerton was fully

versed in the practical and

theoretical workings of the

infrared analytical device, as

well as being a trained botanist.

As the only "competent" expert to

render an opinion, therefore, upon

the exhibits produced, which

opinion without hesitation

indicated the evidence was

insufficient to identify the

substance, is all the burden this

Court can constitutionally put

upon a defendant [sic]. It is not

necessary that the defendant

conduct independent tests and

bring such data to the courtroom.

On June 24, 1983, the Supreme Court of

North Dakota entered an Order denying the

Petition for Rehearing. It is from the

decision of that court that the instant

petition arises.

ARGUMENT

I. BY IMPOSING ON PETITIONER THE

BURDEN OF PROVING THAT THE

SUBSTANCES UNDER EXAMINATION

WERE NOT MARIJUANA, THE NORTH

DAKOTA SUPREME COURT IMPROPERLY

SHIFTED THE BURDEN OF PROOF AND

THEREBY VIOLATED PETITIONER'S

DUE PROCESS RIGHTS GUARANTEED

BY THE FOURTEENTH AMENDMENT TO

THE UNITED STATES CONSTITUTION.

In refusing to overturn Petitioner's

conviction based upon his drug identification

argument, the North Dakota Supreme Court

placed great weight on the fact that

Petitioner did not disprove the State's

contention that the substances in question

were marijuana.

The crux of Dr. Fullerton's

testimony was that, based on the

State Laboratory's analysis, it is

impossible to positively identify

the substances as marijuana or

hashish. However, on cross-

examination, Dr. Fullerton

admitted that he was not stating

nor could he state that the

substances analyzed were not

marijuana or hashish.

Appendix A, pages 17-18 (emphasis added).

Viewed in its entirety, the opinion reveals

an improper shifting of the burden of proof

to the Petitioner which violated his due

process right to a presumption of innocence.

While there is general, boiler-plate language

regarding the Court's unwillingness to

substitute its own judgment for a trial

judge's determination supported by

substantial evidence, Id. at 18, the court

pointed to no specific substantial evidence

in the record before it. Where it did refer

to Mr. Rash's testimony that his laboratory

tests identified the substances as marijuana

and hashish (Appendix A, page 16), at the

same time the court noted that:

[t]he defense presented strong

contradictory evidence, all of

which was directed toward proving

that Aaron Rash was inept and that

the tests performed in the State

Laboratory were both inadequate

and inconclusive.

Id. at page 19 (emphasis added). Again,

however, the court made perfectly clear its

view that Petitioner was obliged to do more

than attack the substantiality of the State's

evidence:

Defense counsel, however, did not

offer evidence of independent

tests performed by an expert in

which the substances were shown to

not be marijuana or hashish.

Id. (emphasis added)

The presumption of innocence and the

harsh burden of proof plawed on the State in

criminal cases are two of the oldest and most

fundamental rights protected under the

Constitution, see, e.g., Coffin v. United

States, 156 U.S. 432 (1895), and are basic

components of a fair trial under our criminal

justice system. Estelle v. Williams, 425

U.S. 501, 503 (1976). The presumption of

innocence has been specifically recognized as

a requirement of due process. Hernandez v.

Beto, 443 F.2d 634 (5th Cir.), cert. denied,

404 U.S. 897 (1971); United States v.

Thoresen, 428 F.2d 654, 661 (9th Cir. 1970);

Government of Virgin Islands v. Lake, 362

F.2d 770, 774 (3d Cir. 1966); Bentley v.

Crist, 469 F.2d 854, 855 (9th Cir. 1972).

This presumption in favor of the accused is

undoubted law, axiomatic and elementary, and

lies at the foundation of the administration

of our criminal law. Taylor v. Kentucky, 436

U.S. 478, 483 (1978). It follows from this

presumption that the accused has no burden of

presenting evidence. Woods v. Estelle, 547

F.2d 269, 271 (Sth Cir. 1977).

[I]t is technically possible for a

criminal defendant to enter a plea

of not guilty, introduce little or

no evidence in his own defense,

and rely exclusively on his

presumption of innocence and the

possible inability of the

17 .

prosecution to prove his guilt

beyond a reasonable doubt.

United States v. England, 347 F.2d 425, 431

(7th Cir. 1965).

These principles are fundamental and

demand strict adherence. Even the imposition

of the slightest burden of proof on a

defendant cannot be sustained under our

Constitution. See, Smith v. Smith, 454 F.2d

572, 577-78 (5th Cir. 1971), cert. denied,

409 U.S. 885 (1972). "The burden of proof

must be on the state throughout; not

sometimes on the state, and sometimes on the

defendant." Wilbur v. Mullaney, 496 F.2d

1303, 1307 (lst Cir. 1974), affirmed, 421

U.S. 684 (1975) (emphasis added). In United

States v. Harrigan, 586 F.2d 860 (lst Cir.

1978), the First Circuit Court of Appeals

ruled that it was plain error for the trial

judge to instruct the jury as follows: "I

say the only question with respect to the

defendant's evidence is whether it creates a

reasonable doubt." The First Circuit

concluded that such an instruction improperly

Suggested to the jury that the defendant was

obliged to present evidence of his innocence.

586 F.2d at 862-63. In Stump v. Bennett, 398

F.2d lll (8th Cir.), cert. denied, 393 U.S.

1001 (1968), the Eighth Circuit held that a

jury instruction which required the defendant

to establish his alibi by a preponderance of

the evidence improperly shifted the burden of

proof, conflicted with the presumption of

innocence, and violated due process. 398

F.2d at 116; accord, Johnson v. Bennett, 414

F.2d 50 (8th Cir. 1969); Smith v. Smith, 454

F.2d 572 (5th Cir. 1971), cert. denied, 409

U.S. 885 (1972).

In its review of the record before it,

the North Dakcta Supreme Court failed to bear

in mind the presumption of innocence in favor

of Petitioner. While the reviewing court's

function with respect to factual findings is

limited, under North Dakota law such a court

is empowered to overturn factual

determinations which are not supported by

Substantial evidence. State v. Olmstead, 246

N.W.2d 888, 890 (N.D. 1976), cert. denied,

436 U.S. 918 (1978); accord, Kresel v. Giese,

231 N.W.2d 780, 791 (N.D. 1975). Here, the

language of the opinion indicates that no

matter how insubstantial an accused reveals

the State's evidence to be, the appellate

court will not overturn his conviction unless

the accused has affirmatively presented

contrary evidence. Such an interpretation at

the appellate level thoroughly undermines the

presumption of innocence at the trial stage.

Through the cross examination of Mr.

Rash and the expert testimony of Dr.

Fullerton, Petitioner established the

incompetence of the State's expert witness to

make a conclusive identification of the

relevant substances. Mr. Rash's testimony

was the only evidence presented by the State

to establish an essential element of the

offense charged -- the identity of the

substance obtained as that prohibited by

Statute. On appeal, it was the duty of the

North Dakota Supreme Court to review the

trial record and determine whether the

defense so clearly established Mr. Rash's

incompetence as an expert as to render the

identification evidence "insubstantial."

Such an effort by the defense did not require

the presentation of evidence regarding the

specific identity of the substance under

examination.

There is always in litigation a

margin of error, representing

error in fact finding, which both

parties must take into account.

Where one party has at stake an

interest of transcending value --

as a criminal defendant his

liberty -- this margin of error is

reduced as to him by the process

of placing on the other party the

burden of .. . persuading the

fact finder at the conclusion of

the trial of his guilt beyond a

reasonable doubt. Due process

commands that no man shall lose

his liberty unless the Government

has borne the burden of...

convincing the fact finder of his

guilt.

Speiser v. Randall, 357 U.S. 513, 525-26

(1958).

The opinion by the Supreme Court of

North Dakota reflects a shifting of the

burden of proof. Because Petitioner did not

present evidence which affirmatively

identified the substance in question, the

court refused to adequately consider his

claim that the drug identification evidence

was insufficient. Such an approach

undermined the presumption of innocence in

favor of Petitioner and denied to him his due

process rights under the Fourteenth Amendment

to the United States Constitution.

Il,

BY REQUIRING THAT THE EVIDENCE

RAISE MORE THAN A REASONABLE

DOUBT OF PETITIONER'S

INNOCENCE, THE TRIAL COURT

COMMITTED PLAIN ERROR AND

VIOLATED PETITIONER'S DUE

PROCESS RIGHTS UNDER THE

FOURTEENTH AMENDMENT TO THE

UNITED STATES CONSTITUTION.

At the close of testimony and argument,

the trial judge entered his verdict, stating

that the Petitioner was guilty beyond a

reasonable doubt of the offenses charged.

Further, Judge Wilson specifically reflected

on the issue of the drug identification:

[T]here is doubt, but not beyond a

reasonable doubt, and my only

doubt is in the chemical analysis;

that bothered me some, but it is

not beyond a reasonable doubt. .

T. 439 (emphasis added). While Judge Wilson

raised the talisman of "guilt beyond a

reasonable doubt" in rendering his verdict,

his comments regarding the chemical analysis

reflect his misapplication of that standard.

Those comments reveal that the Petitioner was

convicted of the crimes charged because the

evidence failed to raise more than a

reasonable doubt in the mind of the judge

that the substances under examination were

not marijuana.

"(T]he Due Process Clause protects the

accused against conviction except upon proof

beyond a reasonable doubt of every fact

necessary to constitute the crime with which

he is charged." In Re Winship, 397 U.S. 358,

364 (1970). Under this standard, the State

bears the burden of persuading the fact

finder at the conclusion of the trial that

every element of the crime with which the

accused is charged has been established

beyond a reasonable doubt. Id.; see Speiser

v. Randall, 357 U.S. 513, 525-26 (1958). The

First Circuit has noted that the discussion

of the reasonable doubt standard is perhaps

the most important aspect of the closing

instruction to the jury in a criminal case,

Dunn v. Perrin, 570 F.2d 21, 25 (lst. Cir.),

cert. denied, 437 U.S. 910 (1978), and this

Court emphasized the constitutional

importance o* the reasonable doubt standard

in Taylor v. Kentucky, 436 U.S. 478 (1978).

The standard provides concrete substance for

the presumption of innocence, the bedrock

axiomatic and elementary principle which lies

at the foundation of the administration of

our criminal law. In Re Winship, 397 U.S. at

363.

Under this principle, it follows that

the accused is entitled to an acquittal of

the specific crime charged if there is, in

the mind of the fact finder, a reasonable

doubt with respect to any fact necessary to

constitute the crime. See, Davis v. United

States, 160 U.S. 469, 484, 493 (1895).

Because application of the correct

burden of proof is so essential to the proper

administration of our criminal law, there is

no room for the slightest deviation from the

Standard. In United States v. Alvero, 470

F.2d 981 (5th Cir. 1972), use of the phrase

"very substantial doubt" to explain

reasonable doubt to the jury was deemed

reversible error, not overcome by an

otherwise proper explanation in the charge

and a curative instruction. See also, United

States v. Flannery, 451 F.2d 880 (lst Cir.

1971) (erroneous use of phrase "strong and

abiding conviction" to define reasonable

doubt). In United States v. Pine, 609 F.2d

106 (3d Cir. 1979), the Third Circuit

rejected an instruction which said that the

case involved a question of fact, and that

the basic question was to determine who was

telling the truth, concluding that such an

approach ran counter to the requirement of

proof beyond a reasonable doubt. 609 F.2d at

108.

In the instant case, Judge Wilson

served as fact finder. In the trial of a

case to the court without a jury, the trial

judge must follow the principles set forth in

the instructions that would be applicable

were the case being tried to a jury.

Lockhart v. O'Hara, 380 F.Supp. 379 (W.D.Ark.

1974). It is quite clear from his comments

that Judge Wilson misapplied the reasonable

doubt standard in rendering his guilty

verdict, and in the face of those comments,

the North Dakota Supreme Court erred in

concluding that he had nonetheless applied

the proper standard of proof. It is not

enough to argue that Judge Wilson simply

chose his words carelessly, as evidenced by

his reference elsewhere to “guilt beyond a

reasonable doubt." In United States v.

Harrigan, 586 F.2d 860 (lst Cir. 1978), the

First Circuit refused to find that an

erroneous instruction was rendered harmless

because the charge elsewhere did state the

burden of proof standard correctly. "This

was not an obvious misstatement or the

careless use of words. The district court

was convinced at the time of the correctness

of its statement." 586 F.2d at 863. See

Dunn v. Perrin, 570 F.2d 21, 25 (list Cir.),

cert denied, 437 U.S. 910 (1978).

Read within their context, Judge

Wilson's comments indicate that the testimony

of Dr. Fullerton, Petitioner's expert, raised

reasonable coubts in the judge's mind

regarding the identity of the incriminating

substances, but that the Judge believed those

doubts had to be more than reasonable in

order to acquit:

It was a very well-tried lawsuit. I

enjoyed listening to it and presiding

over it. You both [the attorneys]

acted like gentleman and lady, the way

they should, and very educational as

well [sic]; particularly, Dr.

Fullerton. It was an education itself

just listening to his testimony, and

the other witnesses as well. I think

they all tried to tell the truth as

they remember the truth.

It is my judgment that the defendant

is guilty of the charge of delivery of

controlled substance, marijuana, on

the second of September, 1981,

Criminal Case Number 4071. He's also

guilty of the charge of delivery of a

controlled substance, hashish,

Criminal Case Number 4068, on the 28th

day of September, 1981. He's also

guilty beyond a reasonable doubt,

there is a doubt, but not beyond a

reasonable doubt. And my only doubt

is in the chemical analysis; that

bothered me some, but it's not beyond

a reasonable doubt of the offense

charged on the 23rd day of September,

T. 439 (emphasis added).

By demanding that the evidence raise

questions "beyond a reasonable doubt," Judge

Wilson subjected petitioner to "a dubious and

unjust conviction, Brinegar v. United States,

338 U.S. 160, 174 (1949), thereby violating

his fundamental right to due process of law.

When a trial error infringes on

constitutional rights, the appellate court

must reverse unless it finds that the error

was harmless beyond a reasonable doubt.

Chapman v. California, 336 U.S. 18, 24

(1967). Such doubt can be raised by a

"reasonable possibility that the evidence

complained of might have contributed to the

conviction." Fahy v. Connecticut, 375 U.S.

85, 86-87 (1963).

In the case at bar, Judge Wilson's

misapplication of the reasonable doubt

Standard with respect to a fact necessary to

constitute the crime not only contributed to,

but produced Petitioner's conviction. This

plain error violated Petitioner's due process

rights and dicates that his conviction be re-

versed. In Re Winship, 397 U.S. 358 (1970);

Davis v. United States, 160 U.S. 304 (1881).

CONCLUSION

For the reasons set forth above, this

Court should reverse the judgment of the

Supreme Court of North Dakota.

Respectfully submitted,

MARC G. KURZMAN

SCOTT G,. HARRIS

KURZMAN, SHAPIRO,

MANAHAN & PARTRIDGE

601 Butler Square

Minneapolis, MN 55403

(612) 333-4403

Attorneys for Petitioner

A-1

APPENDIX A

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

State of North Dakota,

Plaintiff and Appellee

(Filed by Clerk

Supreme Court

May 26, 1983]

Edward Ennis,

Defendant and Appellant

Crim. Nos. 885, 895, 896, 897, 898

Appeal from the District Court of

Williams County, Northwest Judicial District,

the Honorable Bert L. Wilson, Judge.

REVERSED IN PART AND AFFIRMED IN PART,

Opinion of the Court by Erickstad,

Chief Justice.

Kent Reierson, States Attorney,

Courthouse, P. O. Box 1247, Williston, ND

A-2

58801, for plaintiff and appellee; argued by

Kent Reierson.

Kurzman, Shapiro, Manahan & Partridge,

601 Bulter Square, 100 North 6th Street,

Minneapolis, MN 55403-1579, and Bijella,

Neff, Rathert, Wahl and Eiken, P.O. Box 1526,

Williston, ND 58801, for defendant and

appellant; argued by Marc G. Kurzman and

Richard G. Carver.

State v. Ennis

Crim. Nos. 885, 895, 896, 897, 898

ERICKSTAD, Chief Justice.

Defendant/Appellant, Edward G. Ennis,

was charged with and ultimately adjudged

guilty in a bench trial of five separate

offenses: possessing a controlled substance,

five pounds of marijuana, with the intent to

deliver, § 19-03.1-23(1)(b), N.D.C.C., §

A-3

19-03.1-05(4)(0), N.D.C.C.; unlawfully

delivering a controlled substance, hashish,

to Kevin Ostberg on September 23 and 28,

1981, § 19-03.1-23(1)(b), N.D.C.C., §

19-03.1-05(4)(1), N.O,C.C.? unlawfully

delivering a controlled substance, marijuana,

to Rene' Ostberg on September 2, 1981, §

19-03.1-23(1)(b), N.D.C.C., §

19-03.1-05(4)(0), N.D.C.C.; and, unlawfully

delivering a controlled substance, hashish,

to Rene' Ostberg on September 9, 1981, §

19-03.1-23(1)(b), N.D.C.C., §

19-03.1-05(4)(1), N.D.C.C. Subsequent

thereto, a judgment of conviction, dated

August 9, 1982, was entered by the District

Court of Williams County from which Ennis now

appeals. For the reasons hereinafter stated,

we reverse Ennis' conviction of unlawfully

possessing marijuana with the intent to

A-4

deliver and affirm his convictions with

regard to delivering hashish and marijuana to

Rene' and Kevin Ostberg.

I. SUPPRESSION MOTION

On April 7, 1982, the County Judge of

Williams County issued a warrant to search

Ennis’ home. The sole basis for this warrant

was a sworn affidavit submitted to the county

judge by Jim Quickstad, a lieutenant

detective in the Williams County Sheriff's

office. The pertinent part of Quickstad's

affidavit!

is paragraph four:

4. March of 82, a Confidential

informant who has given information

in the past leading to under cover

purchases of drugs and who has

given information known by Jim

Quickstad to be true and reliable

about Drug Dealers told to Jim

Quickstad that Ed Ennis had 10lbs

[sic] of Marijuana in his home on

April 7, and has been selling

Marijuana from this 10 lbs. Ed

Ennis told the confidential

informant that the 10 lbs of

A-5

marijuana were at his home at 1309

24th stW and could be bought there"

Pursuant to this warrant, the Williams

County Sheriff's office searched Ennis' home

and found five zip-lock bags

containing a

substance alleged to be marijuana. The Crime

Laboratory Division of the State Laboratories

Department subsequently determined that the

plant material in these five bags was

marijuana. Evidence of these facts was

received in Ennis‘ trial.

However, prior to Ennis' trial, defense

counsel filed a written motion to suppress

the five bags of plant material discovered

during the search of Ennis' home on the basis

that the affidavit underlying the search

warrant contained a number of material

misrepresentations and that the information

in such affidavit was stale. At a subsequent

hearing on this motion, counsel orally

A-6

requested an evidentiary hearing to challenge

the veracity of Quickstad's affidavit. The

court granted counsel's request.” Subsequent

to these hearings, the trial court denied

Ennis' motion to suppress the evidence.

At the evidentiary hearing, Quickstad

testified that he had no knowledge as to how

the informant concluded that ". . . Ed Ennis

had 10lbs [sic] of Marijuana in his home on

April 7, and has been selling Marijuana from

this 10 lbs." Quickstad admitted that he did

not question the informant as to whether he

obtained his information by either seeing the

marijuana or hearing of the marijuana

firsthand from Ennis. upon scrutinizing the

record, we are of the opinion that Quickstad

had worked with the informant on prior

occasions, believed him to be reliable, and

consequently accepted his conclusory

A-7

Statement that Ennis had marijuana in his

home which was for sale without inquiring as

to the basis of the informant's knowledge.

The questions presented by this factual

Situation are:

Whether or not the affiant's statement

in the search warrant affidavit with

regard to how the informant obtained

his information should be set aside;

and, if so, whether or not the

affidavit's remaining content is

sufficient to establish probable

cause.

The veracity of an affiant's statements

in a warrant affidavit can be challenged

pursuant to the guidelines set forth in

Franks v. Delaware:

"(W)here the defendant makes a

Substantial preliminary showing that a

false statement knowingly and

intentionally, or with reckless

disregard for the truth, was included

by the affiant in the warrant

affidavit, and if the allegediy false

Statement is necessary to the finding

of probable cause, the Fourth

Amendment requires that a hearing be

held at the defendant's request. In

the event that at that hearing the

A-8

allegation of perjury or reckless

disregard is established by the

defendant by a preponderance of the

evidence, and, with the affidavit's

false material set to one side, the

affidavit's remaining content is

insufficient to establish probable

cause, the search warrant must be

voided and the fruits of the search

excluded to the same extent as if

probable cause was lacking on the face

of the affidavit." 438 U.S. 154,

155-56, 98 S.Ct. 2674, 2676, 57

L.Ed.2d 667, 672 (1978).

For the purpose of applying the test

enunciated in Franks, a false affidavit

Statement is a statement which misleads the

neutral and detached magistrate into

believing that the stated facts exist, which

facts in turn affect his evaluation of

whether or not there is probable cause.

State v. Groff, 323 N.W.2d 204, 210 (Iowa

1982).

Upon reviewing the record in the case

at bar, we believe Quickstad's testimony at

the evidentiary hearing reveals that he

A-9

knowingly and intentionally asserted that his

informant told him that Ennis had told the

informant that Ennis had marijuana for sale

when in fact Quickstad had failed to ask the

informant how he obtained such information.

Specifically, Quickstad testified as follows:

"BY MR. KURZMAN:

", « « What do you claim the informant

told you the morning of April 7?

"A. Since I didn't write the

conversation down verbatim, I can only

Speculate that he came in and told me,

‘Mr. Ennis has ten pounds for sale.

He has it at his house.'

"Q. And you, of course, then said,

"How do you know that information?'

Right?

"A. I don't recall whether I did or

not.

ca * * *

"BY MRS. SCHMITZ:

"Q. What was the conversation, Mr.

Quickstad?

"A. Again, as far as I can recollect,

he said that Ed Ennis had the ten

A-10

pounds of marijuana for sale. I don't

recall asking him or whether he had

seen it or whether Mr. Ennis had told

him personally. He said, 'Mr. Ennis

has the ten pounds for sale.'"

Thus, the statement in question which

Quickstad attributed to the informant was

merely an assumption on his part and not a

Statement by the informant. This statement

is false because it is a bald assertion

devoid of factual support which mislead the

magistrate into believing that he knew the

underlying circumstances from which the

informant concluded that ". . . Ed Ennis had

10lbs [sic] of Marijuana in his home on April

7, and has been selling Marijuana from this

10 lbs." Hence, in accordance with the

dictates of Franks, we are required to set

this statement aside and ascertain whether or

not the remainder of the affidavit is

sufficient to establish probable cause.

A-11

In making this determination, we will

not consider affidavit paragraphs (1), (2),

and (3) inasmuch as the information presented

in such paragraphs was approximately six

months old at the time the warrant was issued

and, therefore, stale. Upon eliminating both

the stale information and the false

information, the sole statement remaining in

the affidavit is:

"March of 82, a Confidential

informant who has given information in

the past leading to under cover

purchases of drugs and who has given

information known by Jim Quickstad to

be true and reliable about Drug

Dealers told to Jim Quickstad that Ed

Ennis had 10lbs [sic] of Marijuana in

his home on April 7, and has been

selling Marijuana from this 10 lbs."

The foregoing statement consists of informa-

tion relayed to Quickstad by his informant.

When an affidavit is based on hearsay

information as in this instance, probable

cause must be determined in accordance with

A-12

the dictates of Aguilar v. Texas:

"Although an affidavit may be based

on hearsay information and need not

reflect the direct personal

observations of the affiant, Jones v.

United States, 362 U.S. 257, the

magistrate must be informed of some of

the underlying circumstances from

which the informant concluded that the

narcotics were where he claimed they

were, and some of the underlying

circumstances from which the officer

concluded that the informant, whose

identity need not be disclosed, see

Rugendorf v. United States, 376 U.S.

ove was ‘credible’ or his information

‘reliable.'" (Footnote omitted). 378

U.S. 108, 114, 84 S.Ct. 1509, 1514, 12

L.Ed.2d 723, 729 (1964).

The Basis of Knowledge Prong of this

analytical framework, known as the Aguilar

Two-pronged Test, requires that the

magistrate be informed of how the informant

obtained his information. State v. Schmeets,

278 N.W.2d 401, 406 (N.D. 1979).

It is evident that the statement which

we found to be false and eliminated from the

search warrant affidavit details the

A-13

circumstances from which the informant

concluded that Ennis had marijuana in his

home which was for sale. Without this

Statement, the affidavit fails to satisfy the

Aguilar Basis of Knowledge Test. As the

magistrate was mislead, the warrant was not

issued upon probable cause and, accordingly,

the contraband seized during the search of

Ennis' home should have been suppressed

pursuant to defense counsel's motion. 4

Evidence of the five pounds of marijuana was

necessary to convict Ennis of possession of

marijuana with intent to deliver. We

therefore reverse Ennis' conviction on this

count.

II, INSUFFICIENCY OF EVIDENCE TO

SUSTAIN ENNIS' CONVICTION OF

DELIVERING CONTROLLED SUBSTANCES

A-14

At Ennis' trial, Rene' and Kevin

Ostberg testified that Ennis supplied them

with the marijuana and hashish which they

ultimately sold to special agent Paul Bazzano

on September 2, 9, 23, and 28, 1981.

Subsequent thereto, Ennis was charged with

and convicted of delivering controlled

substances, hashish and marijuana, to Rene'

and Kevin Ostberg on the aforementioned

dates. Ennis was not charged with delivering

marijuana or hashish to special agent

Buzzano.

Ennis contends that the evidence

introduced by the State was insufficient to

Sustain his convictions of delivering

marijuana and hashish to Rene' and Kevin

ostberg on the dates in question. His

argument in this respect is twofold. First,

he argues that Rene' and Kevin Ostberg were

A-15

accomplices of Ennis; and, second, that the

evidence adduced at trial was insufficient to

corroborate their testimony as accomplices.

to adjudicate this issue, we must first

ascertain whether or not Kevin and Rene’

Ostberg were accomplices of Ennis. The test

to determine whether or not one is an

accomplice of a defendant on trial is ".. .

whether or not he could be indicted and

punished for the crime for which the

defendant is charged." State v. Dwyer, 172

N.W.2d 591, 596 (N.D. 1969); State v. Noel,

66 N.D. 676, 680, 268 N.W. 654, 656 (1936).

In the case at bar, Rene' and Kevin

Ostberg could be charged with delivering

marijuana and hashish to special agent

Buzzano. However, common sense dictates that

they could not be charged, as Ennis was, with

delivering controlled substances to Rene' and

A-16

Kevin Ostberg. Hence, Ennis' assertion

fails.

Ennis also contends that the evidence

introduced by the State was insufficient to

identify the substances delivered as

° The record is

“marijuana” or “hashish.”

replete with conflicting expert-witness

testimony concerning identification of the

Substances. The State's expert witness,

Aaron Rash, Supervisor of the Crime

Laboratory Division of the State Laboratories

Department, testified that he performed four

laboratory tests upon the samples in

question: microscopic identification;

Duquenois-Levine; thin layer chromatography;

and infrared spectroanalysis. According to

Rash, each of these tests indicated that the

substances were marijuana or hashish.

The defense attempted to undermine

A-17

Rash's testimony by emphasizing that Rash has

limited botanical training; and, therefore,

he was not qualified to make a conclusive

microscopic identification when numerous

plants have the same characteristics as the

plant Cannabis from which marijuana is

derived. In addition, the defendant's expert

witness, Dr. Fullerton, testified that the

Duquenois-Levine test is nonspecific and

inaccurate because numerous plants contain

the chemical resorcinol which triggers a

positive reaction in the test. Dr. Fullerton

also stated that the four spectra charts used

in the infrared spetroanalaysis were neither

internally consistent nor consistent with the

reference spectra.

The crux of Dr. Fullerton's testimony

was that, based on the State Laboratory's

analysis, it is impossible to positively

A-18

identify the substances as marijuana or

hashish. However, on cross-examination, Dr.

Fullerton admitted that he was not stating

nor could he state that the substances

analyzed were not marijuana or hashish.

We are reluctant to reverse the factual

findings of a trial court with regard to

disputed questions of fact. State v.

Olmstead, 246 N.W.2d 888, 890 (N.D. 1976),

cert. denied, 436 U.S. 918, 98 S.Ct. 2264, 56

L.Ed.2d 759 (1978). We will not substitute

our judgment for that of the trial court if

the trial judge's factual determinations are

supported by substantial evidence. Olmstead,

Supra, 246 N.W.2d at 890; State v. Champagne,

198 N.W.2d 218, 226 (N.D. 1972); State v.

Larson, 61 N.W.2d 274, 275 (N.D. 1953).

Determining whether or not the

substances in question were marijuana or

A-19

hashish was the exclusive function of the

trier of fact, the trial judge. The defense

presented strong contradictory evidence, all

of which was directed toward proving that

Aaron Rash was inept and that the tests

performed in the State Laboratory were both

inadequate and inconclusive. Defense

counsel, however, did not offer evidence of

independent tests performed by an expert in

which the substances were shown to not be

marijuana or hashish.

Where the trial court heard the experts

testify, observed their demeanor, and judged

their credibility, and where there is

substantial competent evidence to support the

court's factual determination, we conclude

that the defendant failed to leave us"...

with a definite and firm conviction that a

mistake has been committed." Olmstead,

rea

A-20

supra, 246 N.W.2d at 890. That is the

situation in this case as to the existence of

the controlled substance.

III. CONSTITUTIONALITY OF CLASSIFYING

MARIJUANA AS A SCHEDULE I DRUG

Ennis’ final contention is that the

trial court erroneously denied his motion to

dismiss on the basis that classifying

marijuana in Schedule I of the Uniform

Controlled Substances Act, Chapter 19-03.1,

N.D.C.C., violates his Fifth Amendment rights

to equal protection and due process.

Defendant's constitutional challenge is

premised on the theory that, pursuant to

Statutory definition, it is permissible to

classify marijuana as a Schedule I drug only

if it "has [a] high potential for abuse” and

"has no accepted medical use... or lacks

A-21

accepted safety for use in treatment...

06 Specifically, Ennis asserts that

classifying marijuana as a Schedule I drug is

arbitrary and irrational as the

classification no longer bears a rational

relationship to a legitimate governmental

interest because: (1) governmental studies

conducted subsequent to the enactment of the

Uniform Controlled Substances Act reveal that

marijuana does not have a “high potential for

abuse"; and, (2) marijuana is currently used

safely in the treatment of cancer and

glaucoma. Ennis relies upon case authority

which stands for the proposition that: “the

constitutionality of a statute predicated

upon a particular state of facts may be

challenged by a showing to the court that

those facts have ceased to exist." United

States v. Carolene Products Co., 304 U.S.

A-22

144, 153, 58 S.Ct. 778, 784, 82 L.Ed. 1234

(1938).

Recent studies may have dispelled the

myths that marijuana is an addictive narcotic

and generally a stepping-stone to more

serious drugs.’ See, Nat. Org. for Reform of

Marijuana Laws v. Bell, 488 F.Supp. 123, 129

(1980). However, as the United States

District Court said in Nat. Org. for Reform

of Marijuana Laws v. Bell: "Studies indicate

that marijuana may impair the circulatory,

the endocrine, and the immunity systems of

the body, alter chromosomes and change cell

metabolism.°® 488 F.Supp. at 136.

Furthermore, a recent bulletin from the

United States Department of Justice reveals

that "a fourth of all burglaries and roughly

a fifth each of all robberies and all drug

offenses were committed under the influence

A-23

of marijuana." Bureau of Justice Statistics

Bulletin, Prisoners and Drugs (March 1983).

Thus, without attempting to restate all the

arguments pro and con on this subject, we

conclude, based on the record before us and

our research, that the experts strongly

disagree as to whether or not marijuana “has

[a] high potential for abuse." Furthermore,

we do not believe that the questions of

whether or not marijuana "has no accepted

medical use .. . or lacks accepted safety

for the use in treatment" can be resolved by

the simple fact that some states may now be

experimenting with the use of marijuana as a

prescriptive drug under very limited

circumstances. See, State v. Whitney, 96

Wash.2d 578, 637 P.2d 956 (1981).

In Carolene Products Co., the United

States Supreme Court unequivocally said that

A-24

when a court is asked to review the judgment

of a legislative body, it should exercise a

policy of judicial restraint:

"({I]nquiries, where the legislative

judgment is drawn in question, must be

restricted to the issue whether any

State of facts either known or which

could reasonably be assumed affords

support for [the classification].

Here the demurrer challenges the

validity of the statute on its face

and it is evident from all the

considerations presented to Congress,

and those of which we may take

judicial notice, that the question is

at least debatable. ... As that

decision was for Congress, neither the

findings of a court arrived at by

weighing the evidence, nor the verdict

of a jury can be substituted for it."

304 U.S. at 154, 58 S.Ct. at 784-85.

Our court has on prior occasion recognized

and followed this policy of judicial

restraint: "This court will not substitute

its judgment for that of the legislative body

which has the primary duty and responsibility

of determining a question where the question

is fairly debatable." State v. Boushee, 284

A-25

N.W.2d 423, 432 (N.D. 1979).

Accordingly, because the issue of

whether or not marijuana is properly

classified as a Schedule I drug is fairly

debatable, we will not usurp the

legislature's factfinding function. In

essence, we conclude as did the three United

States District Judges in Nat. Org. for

Reform of Marijuana Laws v. Bell, that "“[t]he

continuing questions about marijuana and its

effects make the classification rational."

488 F.Supp., supra at 136.

Finally, pursuant to Section

19-03,1-02, N.D.C.C.,+! the North Dakota

State Laboratories Department has the

authority to reclassify marijuana. This

statutory provision provides a sensible

mechanism for ". . . dealing with a field in

which factual claims are conflicting and the

A-26

State of scientific knowledge is still

growing." United States v. Kiffer, 477 F.2d

349, 357 (2d Cir. 1973), cert. denied, 414

U.S. 831, 38 L.Ed.2d 65, 94 S.Ct. 165 (1973).

As the Second Circuit further stated in

Kiffer:

", . . [T]he very existence of the

Statutory scheme indicates that, in

dealing with this aspect of the ‘'drug'

problem, Congress intended flexibility

and receptivity to the latest

scientific information to be the

hallmarks of its approach. This ..

- is the very antithesis of the

irrationality appellants attribute to

Congress." 477 F.2d supra at 357.

Incidentally, a reasonable argument can

be made and has been made that the statutory

criteria asserted by Ennis are not intended

to be exclusive. =?

We conclude that it cannot reasonably

be said that classifying marijuana as a

Schedule I drug bears no rational

relationship to the legitimate State interest

A-27

of controlling drug abuse. Boushee, supra,

284 N.W.2d at 432.

In accordance with the foregoing

opinion, we reverse Ennis' conviction for

possessing marijuana with the intent to

deliver and affirm the remaining four

convictions.

[Signed by:]

Joseph J. Erickstad, C.J.

Gerald W. Vande Walle

Vernon R. Pederson

H. L. Paulson

The probable cause section of

Quickstad's affidavit reads in its entirety

as follows:

*i.

"2.

"4,

In the Fall of 1981 Renae Ostberg

Stated to Drug Enforcement Agent

Buzzano that Ed always has good

hash.

Ed Ennis was seen by Police

Officers comming [sic] to the

Ostbergs home just pryor [sic] to

Agent Buzzano buying Hashish.

A search of Ed Ennis home Revealed

mumerous bottles of Counterfeit

Drugs.

March of 82, a Confidential

informant who has given

information in the past leading to

under cover purchases of drugs and

who has given ii:.cormation known by

Jim Quickstad to be true and

reliable about Drug Dealers told

to Jim Quickstad that Ed Ennis had

10lbs [sic] of Marijuana in his

home on April 7, and has been

selling Marijuana from this 10

lbs. Ed Ennis told the

confidential informant that the 10

lbs of marijuana were at his home

at 1309 24th stW and could be

bought there"

. The bags weighed 454.2, 455.2, 454.6,

454.1, and 454.5 grams respectively.

; The following colloquium between Mr.

Kurzman, defense counsel, Mrs. Schmitz,

Assistant State's Attorney, and the trial

court, indicates that the trial court granted

Mr. Kurzman's request for an evidentiary

hearing to challenge the veracity of

Quickstad's sworn statements:

"MR. KURZMAN: .. . we have a

Statement here in Paragraph Four... .

‘Ed Ennis told the confidential

informant thet ten pounds of marijuana

were at his home and could be bought

there.’ Actually, Lieutenant

Quickstad says, this is when he

testified under oath on April 20,

1982, at Page Eight of that

transcript, he said he didn't know

what the basis was. He didn't know

how the informant came to the

knowledge that there was allegedly

marijuana at Ennis‘ house. .. .

"At Pages 18, 19, and 20, he says

he has no idea of the basis of

knowledge for the informant, .. .

"(U}nder the Franks case, the

defendant must show first, the like-

lihood of material misrepresentations

of fact or reckless disregard for the

truth; and then, if the defendant can

show that, the which constitute those

misrepresentations of fact or which

evidence reckless disregard for the

truth are taken out of the Affidavit,

and it is then read to see if probable

cause exists without those statements.

We would submit without the statements

that we have indicated to this Court,

- « « [T)here is no probable cause

upon which the warrant could be

issued, .. -»

* * * * *

"We would request, therefore, a

hearing, and, if the State wishes to

call witnesses relative to these

alleged misstatements or statements in

reckless disregard of truth, of

course, we will cross-examine at that

time. «.« « e«

"MRS. SCHMITZ: .. .

"I would be happy to call the

affiant, Quickstad, and he is present;

"I would submit to the Court that

One, Two, anc Three, possibly, and

relate on their face, that these One,

Two, and Three are old. They are

things that have happened in the past.

* * * * x

"MR. KURZMAN: Your Honor, we would

Submit . . . that the sworn testimony

of Lieutenant Quickstad which are

directly contrary to the search and

the Affidavit is sufficient offer of

proof as to the possibility of the

misstatements or fabrications.

* * * * *

"THE COURT: Do you wish to call

Mr. Quickstad?

"MRS. SCHMITZ: I'll call him, Your

Honor."

The State does not contend that the trial

court erred in granting Ennis' request for an

evidentiary hearing; therefore, we will not

address that point on appeal.

a The affidavit and search warrant in

question were prepared by the Williams County

Sheriff's Office independent of the Williams

County States Attorney.

> Ennis asserts that the trial court had

a reasonable doubt regarding identification

of the substances in question which doubt

mandates a reversal. However, we must remind

counsel of the exact language utilized by the

trial court:

"He's also guilty beyond a reasonable

doubt, there is a doubt, but not

A-32

beyond a reasonable doubt. And my

only doubt is in the chemical

analysis; that bothered me some, but

it's not beyond a reasonable doubt. .

Upon analyzing this statement, we believe the

testimony of defendant's expert, Dr.

Fullerton, created some question in the trial

court's mind; however, such conflicting

evidence did not create a "reasonable doubt.”

6 The statutory provision in question is

Section 19-03. 1-04, N.D.C.C.3

"19-03.1-04. Schedule I tests.

The department shall place a substance

in schedule I if it finds that the

substance:

1, Has high potential for abuse;

and

2. Has no accepted medical use in

treatment in the United States

or lacks accepted safety for use

in treatment under medical

supervision.”

7 Marihuana & Health: Fifth Annual

Report to the United States Congress from the

Secretary of Health, Education, and Welfare 3

(1975), at 91; Decriminalization of

Marihuana: Hearings Before the House Select

Committee on Narcotics Abuse & Control, 95th

Congress, lst Sess. 423-38 (1977).

. See pp. 128-130 of Nat. Org. for Reform

of Marijuana Laws v. Bell, ~SUpp. 123

(1980) for a full discussion of marijuana's

effects.

, In Whitney, the Washington Supreme

Court said that removing marijuana from

Schedule I and placing it in Schedule II for

the purpose of researching its effect on the

treatment of cancer and glaucoma patients ".

» does not mean that the legislature has

found that the drug does not have a high

potential for abuse or that it has an

accepted medical use and is safe for use in

treatment under medical supervision."

Whitney, 96 Wash. 2d, supra at 583, 637 P.2d,

Supra at 960. The court further stated that

"(t]he retention of the drug in schedule I

for purposes other than the research program

cannot reasonably be said to bear no rational

relation to a legitimate legislative

purpose.” Whitney, 96 Wash. 2d, supra at

583, 637 P.2d, supra at 960.

" It is interesting to note that the

federal Controlled Substances Act enacted in

1970 and upon which the North Dakota

Controlled Substances Act is based classified

marijuana as a Schedule I drug. 21 U.S.C. §

812. FURTHERMORE, THE U.S. ATTORNEY GENERAL

HAS NOT SEEN FIT TO RECLASSIFY MARIJUANA

PURSUANT TO ITS STATUTORY AUTHORIZATION, 21

U.S.C. §§ 811-812.

The statutory provision in question

reads in relevant part as follows:

"19-03.1-02. Authority to control.

The North Dakota state

laboriatories department shall

administer this chapter and may

add substances to or delete or

reschedule all substances

enumerated in the schedules in

sections 19-03.1-05, 19-03.1-07,

19-03.1-09, 19-03.1-11l, or

19-03.1-13 pursuant to the

procedures of chapter 28-32. In

making a determination regarding a

substance, the department shall

consider the following:

a. The actual or relative

potential for abuse;

b. The scientific evidence of its

pharmacological effect, if

known;

c. The state of current scientific

knowledge regarding the

substance;

d. The history and current pattern

of abuse;

e. The scope, duration, and

significance of abuse;

f. The risk to the public health;

g- The potential of the substance

to produce psychic or physio-

logical dependence liability;

and

"2.

"4,

h. Whether the substance is an

immediate precursor of a

substance already controlled

under this chapter.

After considering the factors

enumerated in subsection 1, the

department shall make findings

with respect thereto and issue a

rule controlling the substance if

it finds the substance has a

potential for abuse.

* * * *

If any substance is designated,

rescheduled, or deleted as a

controlled substance under

federal] law and notice thereof is

given to the department, the

department shall similarly control

the substance under this chapter

after the expiration of thirty

days from publication in the

federal register of a final order

designating a substance as a

controlled substance or

rescheduling, or deleting a

substance, unless within that

thirdy-day period, the department

objects to inclusion,

rescheduling, or deletion. In

that case, the department shall

publish the reasons for objection

and afford all interested parties

an opportunity to be heard. At

the conclusion of the hearing, the

department shall publish its

decision, which shall be final

unless altered by statute. Upon

publication or objection to

inclusion, rescheduling, or

deletion under this chapter by the

department, control under this

chapter is stayed until the

department publishes its

decision.” § 19-03.1-02, N.D.C.C.

12 In Nat. Org. for Reform of Marijuana

Laws v. Bell, the United States District

Court said:

"The House report states that '[a]side

from the criterion of actual or

relative potential for abuse,

subsection (c) of section 201 [21

U.S.C. § 8ll(c)) lists seven other

criteria . . . which must be

considered in determining whether a

substance meets the specific

requirements specified in section

202(b) [21 U.S.C. § 812(b))] for

inclusion in particular schedules .

- «' 1970 House Report, supra at 35,

reprinted in [1970] U.S.Code Cong. &

min. s at 4602. The criteria

listed in section 8ll(c) include the

state of current knowledge, the

current pattern of abuse, the risk to

public health, and the significance of

abuse. These more subjective factors

Significantly broaden the scope of

A-37

issues to be considered in classifying

a drug. Given these other concerns,

Congress might well want marijuana in

Schedule I for regulatory purposes.

Such a classification carries heavier

penalties for sale, distribution, and

importation, thus aiding law enforce-

ment officials in their effort to

reduce the supply of marijuana."

(Footnote omitted). 488 F.Supp. at

140-141.

A-38

Criminal Nos. 885, 895-898

State v. Ennis

SAND, Justice, concurring specially.

While the majority opinion correctly

identifies the United States Supreme Court

case law on search and seizure which we are

obligated to follow, I have reservations

regarding the manner those principles of law

have been applied to the facts of this case.

The principal issue is whether or not

probable cause existed for the search of the

home and the seizure of the alleged

marijuana. The opinion correctly points out

that the statement by the informant does not

disclose how the informant obtained the

information, whether it was the result of

personal observation, or whatever, and

A-39

neither did the officer to whom the statement

was given ask the informant the basis for his

Statement. While the statement may not

provide probable cause for a search warrant,

it is not false merely because it is a “bald

assertion devoid of factual support."

According to the briefs, the record does not

reflect that the statement was knowingly and

intentionally given with reckless disregard

for the truth. The statement may not be

reliable or sufficient for a search warrant

because it was inadequate and was not

followed up with appropriate questions and

the officer's recollection was poor, but that

does not make it false under the holding of

Franks v. Delaware, cited in the majority

opinion.

The majority opinion, in discussing the

issue of probable cause, makes frequent

A-40

reference in one form or another to the

contents of the informant's statement; “Ed

Ennis had 10 lbs. of Marijuana in his home on

April 7, and has been selling Marijuana from

this 10 lbs." [Emphasis added.] This,

without any qualification, may suggest that

in establishing probable cause valid

information must be submitted that marijuana

is at a certain place and is being sold. If

selling is an integral part of the rule of

law the opinion tends to convey, then I must

disagree because the opinion would be adding

unnecessary criteria to the probable cause

requirement. In my opinion, the sale or

sales need not be established to justify the

issuance of a search warrant for a controlled

substance. Mere possession of marijuana, a

controlled substance, in violation of NDCC §

19-03.1-23(3) is a crime. However, I agree

A-41

that the statement by the informant does not

disclose how or on what basis he acquired the

information and as such the information is

questionable and is legally inadequate to

justify the issuance of a search warrant. If

the informant had been properly questioned,

it is possible that the informant may have

had the necessary information and would have

provided appropriate enswers which would have

made the information sufficient to justify a

search warrant. But this was not done.

[Signed by:]

Sand, Justice

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.