holding that scientific testing is not required to prove the contents or identity of a pillSummary of this case from State v. Russell
Decided June 25, 1975.
Criminal law — Possession of hallucinogen — Evidence — Drug identification without scientific analysis — By police officer with narcotics experience — Instructions to jury — Supplemental instruction urging jury to reach verdict.
1. The best evidence rule is without application to proof of the nature, appearance or condition of physical objects; such facts may be proved by parole evidence without the necessity of introducing the objects in evidence or accounting for their absence.
2. The admission in evidence of the testimony of a Cincinnati police officer that a substance was marijuana was not an abuse of discretion where the officer had 14 years experience as a member of the vice squad of the Cincinnati Police Department, had one and a half years experience as an undercover agent for the Federal Bureau of Narcotics, had made hundreds of arrests, including those for drug violations, and, during the course of drug investigations, he had occasion to see and observe marijuana.
3. A supplemental jury instruction urging a jury to make every reasonable effort to decide the case which is immediately followed by the admonition "if you can conscientiously do so" and is preceded in the general charge by instructions that deliberations should be with the object of reaching an agreement if it can be done without disturbing the individual judgment of the juror and that honest convictions should not be surrendered in order to be congenial or to reach a verdict solely because of the opinion of other jurors, is not prejudicially coercive.
4. The giving of a neutral supplemental instruction, urging the jury to attempt to reach a verdict, upon notification by the jury to the court that it was having difficulty reaching an agreement after deliberations of two hours and twenty-nine minutes, with no other circumstance present with the potential of coercion of the jury, is not an abuse of discretion.
APPEAL from the Court of Appeals for Hamilton County.
James Edward Maupin, appellant herein, was indicted in August 1971 for the offense of giving away an hallucinogen, in violation of R.C. 3719.44(D). Upon trial to a jury, appellant was found not guilty of violating R.C. 3719.44(D), but guilty of the offense of possession of an hallucinogen, proscribed by R.C. 3719.41. The latter offense was submitted to the jury as a lesser and included offense of R.C. 3719.44(D).
Neither appellant nor the state have, at any stage, entered any objection to the action of the trial court in its treatment of the offense of possession proscribed by R.C. 3719.41 as an offense included in R.C. 3719.44(D). We, therefore, assume, for purposes of this appeal and without deciding the question, that such inclusion was proper. Cf. State v. Agner, 30 Ohio App.2d 96 (1972). State v. Morris (1975), 42 Ohio St.2d 307.
At trial, testimony was given by Mary Hosinki, a Cincinnati policewoman, and Robert Walls, a Springdale, Ohio, police officer, on behalf of the state. Their testimony tended to establish that, while acting as undercover agents on May 15, 1971, they sought out and made the acquaintance of the appellant at a Cincinnati night club where he was employed as an entertainer; that in the early morning hours of May 18, 1971, they were invited by appellant to his apartment in Cincinnati; that, while in the apartment, inquiry was made to appellant by Patrolman Walls if he could smoke; that appellant secured a small leather pouch from a cabinet, and removed from the pouch a small plastic bag containing a substance that appeared to be marijuana; that appellant then removed a portion of the substance from the bag, placed it in the bowl of a corn cob pipe, lighted it, and gave it, together with the plastic bag, to Officer Walls. Appellant then left for the purpose of walking his dog. Upon appellant's return, the officers left, taking with them the small plastic bag and its contents. At trial, the state presented the testimony of a chemist that, based upon microscopic and chemical testing, the contents of the bag was cannibas. The plastic bag and contents were introduced in evidence.
Appellant presented witnesses, including character witnesses, and testified in his own behalf. His testimony, in substance, was that on the night in question the officers smoked marijuana cigarettes in his apartment; that Officer Hosinki handed him a marijuana cigarette she was smoking; that he took a couple of puffs and handed it back; that the cigarettes were brought into the apartment by the officers; and that he did not have any marijuana in his residence in the month of May. Additionally, defense counsel brought out before the jury, both by cross-examination of the state's witnesses and on direct examination of a defense witness, that on the night of appellant's arrest on May 25, 1971, at his place of employment, he was taken to his apartment and a search made pursuant to a search warrant.
As a part of its rebuttal evidence, the state presented the testimony of Sergeant Paul James Allen, one of the searching officers, that he found, in a grip under a bed, a tobacco pouch. Inside the pouch, in a small plastic bag identical to that introduced in evidence in chief, he found a substance which, he testified, was a form of marijuana. Neither the pouch nor its contents were introduced in evidence. A return of the search warrant listing the finding of the tobacco pouch and plastic bag containing cannabis was introduced in evidence by the state, without objection.
At the conclusion of the court's general charge, upon appellant's motion, the exact nature of the motion not appearing in the record, the court gave an additional instruction that the included offense of possession of marijuana could only relate to the incident occurring on or about May 17, 1971. A general exception was taken to the charge and, as to the marijuana found in execution of the search warrant, a specific exception that the court should have charged that "there has been evidence adduced in this case which contends that marijuana was found in the possession or in the household of the defendant on the 25th day of May. No evidence having been adduced to determine that that is marijuana, you are instructed to disregard that entirely as any proof whatsoever of possession of marijuana by this defendant, even as possible supportive proof in relation to the incident of May 17th."
The case was submitted to the jury on May 2, 1972, at 11:40 a.m. the exhibits and verdict forms being furnished the jury at 11:55 a.m. At 11:56 a.m., the jury recessed for lunch. Deliberations were resumed at 12:59 p.m. The jury returned at 2:59 p.m. to the court and requested a rereading of the portion of the charge upon entrapment. Deliberations resumed at 3:01 p.m. The jury buzzed again at 3:14 p.m. and were returned to the courtroom at 3:26 p.m. No inquiry was made of the jury nor was the purpose of their return stated to counsel. However, the court, stating that it had been advised that the jury was having difficulty in reaching a verdict, gave a supplemental instruction respecting the jurors duties toward reaching a verdict. The jury was returned to the jury room at 3:29 p.m., and a verdict of guilty was returned at 3:58 p.m. Trial time was approximately four days.
On March 29, 1973, imposition of sentence was suspended and appellant placed on probation for three years.
Upon appeal, the judgment of conviction was affirmed. The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. Simon L. Leis, Jr., prosecuting attorney, and Mr. Joseph G. Carr, for appellee.
Mr. James Allen Crary and Mr. Allen Brown, for appellant.
Appellant's assertions of error in this appeal relate (1) to the introduction of the rebuttal testimony of Sergeant Allen, (2) to a claimed refusal of the trial court to give proper limiting instructions to the use by the jury of the evidence of marijuana found in the May 25th search, and (3) to the instruction in response to the jury's indication of difficulty of agreeing upon a verdict.
Appellant's initial argument is that the admission of the rebuttal testimony in question was prejudicially erroneous. Such argument is premised, basically, upon the following grounds: (1) The substance found in the May 25, 1971, search and identified by Sergeant Allen as marijuana was not brought into court and introduced in evidence, (2) scientific analysis is required for the proper identification of marijuana and (3) such rebuttal testimony was introduced by the state for the purpose of showing appellant's bad character and reputation by a specific act committed after the time of the offense for which he was being tried.
The contention that the oral testimony as to the substance found is precluded unless the substance is brought into court and introduced in evidence is without merit. It is a rule of practically universal application that the best evidence rule is without application to proof of the nature, appearance or condition of physical objects; that such facts may be proved by parole evidence without their physical production in court or explanation of their non-production. 32A Corpus Juris Secundum 101, Section 782; 1 Underhill's Criminal Evidence (6 Ed.) 243, Section 103; 21 Ohio Jurisprudence 2d 275, Section 257. See 4 Wigmore on Evidence (Rev. Ed.), 419, Section 1181.
The rule has been applied in Ohio. Napolet v. Bd. of Liquor Control (1953), 67 Ohio Law Abs. 108, 119 N.E.2d 93. Outside Ohio, it has been applied in drug-violation prosecutions. Francis v. United States (1956), 239 F.2d 560; People v. Marinos (1968), 260 Cal.App.2d 735, 67 Cal.Rptr. 452; United States v. Gregorio (1974), 497 F.2d 1253; United States v. Irion (1973), 482 F.2d 1240; Straub v. United States (1965), 351 F.2d 304.
We also reject appellant's assertion that the parole identification of the substance found in the May 25th search was inadmissible for the reason that no chemical or scientific analysis was made of such substance. There is a serious question as to the sufficiency of appellant's objection in the record to preserve the question for review. However, resolving the question in favor or appellant, he still cannot prevail.
By reason of its availability to prosecuting authorities, its reliability and persuasiveness to juries, the utilization of expert testimony based upon scientific testing is the traditional approach to drug identification. By the same token, there are a substantial number of authorities judicially approving drug identification other than by scientific analysis. Slettvet v. State (Ind. 1972), 280 N.E.2d 806; Pettit v. State (Ind. 1972), 281 N.E.2d 807; Locklayer v. State (Ind. 1974), 371 N.E.2d 868; Edwards v. Commonwealth (Ky.App. 1973), 489 S.W.2d 23; People v. Galfund (1968), 267 Cal.App.2d 317, 72 Cal.Rptr. 917; United States v. Gregorio, supra ( 497 F.2d 1253); People v. Robinson (1958), 14 Ill.2d 325, 153 N.E.2d 65; People v. Marinos, supra ( 260 Cal.App.2d 735); State v. Hutton (1972), 7 Wn. App. 726, 502 P.2d 1037; White v. Commonwealth (Ky.App. 1973), 499 S.W.2d 285.
Although it would appear beyond question that a drug may be identified circumstantially, it is also logically recognized that whether a given substance is or is not as claimed (here, marijuana), is beyond the common experience and knowledge of juries and that expert testimony in some form is required. State v. Johnson (1972), 54 Wis.2d 561, 196 N.W.2d 717; People v. Kenny (1972), 30 N.Y. 2d 154, 282 N.E.2d 295; Slettvet v. State, supra; State v. Hutton, supra. This court has recognized the indispensability of expert testimony in civil cases where determinations involve knowledge not ordinarily possessed by laymen. McKay Machine Co. v. Rodman (1967), 11 Ohio St.2d 77; Tully v. Mahoning Express Co. (1954), 161 Ohio St. 457.
The qualification of an expert is a matter for determination by the court on the facts, and rulings with respect to such matters will ordinarily not be reversed unless there is a clear showing that the court abused its discretion. Akron v. Pub. Util. Comm. (1966), 5 Ohio St.2d 237; Ohio Turnpike Comm. v. Ellis (1955), 164 Ohio St. 377.
Expert testimony by addicts experienced in drug use has been upheld. Pettit v. State, supra ( 281 N.E.2d 807); Edwards v. Commonwealth, supra ( 489 S.W.2d 23); United States v. Gregorio, supra ( 497 F.2d 1253); State v. Johnson (1972), 54 Wis.2d 561, 196 N.W.2d 717. Casual drug use, however, is insufficient for qualification as an expert. People v. Kenny, supra ( 30 N.Y. 2d 154 ); People v. McLean (1961), 56 Cal.2d 660, 365 P.2d 403. Likewise, expert testimony has been held properly admitted from experienced police officers. State v. Johnson (1971), 13 N.C. App. 323, 185 S.E.2d 423; People v. Marinos, supra ( 260 Cal.App.2d 735); Carter v. State (1960), 144 Colo. 475, 357 P.2d 93; Miller v. State (1959), 168 Tex.Crim. 570, 330 S.W.2d 466.
In 23 Corpus Juris Secundum 408, Section 864, the following is stated as to marijuana identification by police officers:
"Marijuana, not being an extract or preparation difficult or impossible to characterize without chemical analysis, but consisting of the dried leaves, stems, and seeds of a plant which anyone reasonably familiar therewith should be able to identify by appearance, it is not error to permit officers who have had experience in searching for and obtaining marijuana to testify that a certain substance is marijuana; and other police officers have also been held qualified so to testify."
The record discloses that Officer Allen had served on the vice squad of the city of Cincinnati for 14 years. Additionally, he had worked for a year and a half as an undercover agent for the Federal Bureau of Narcotics; he had made hundreds of arrests, including those for the possession and use of marijuana; and in the course of past drug investigations he had occasion to see and observe marijuana.
In light of the evidence, we conclude that no abuse of discretion was committed by the trial court in admitting Sergeant Allen's testimony.
Appellant's final contention that the rebuttal testimony in question was introduced for the purpose of showing appellant's bad character, subsequent to the offense charged and by specific acts, is likewise rejected. Appellee contended, both in the trial court and upon appeal, that such testimony was offered as evidence bearing upon appellant's credibility. On direct examination, appellant testified that he had no marijuana in his home in all of May 1971.
As the United States Supreme Court observed in Harris v. New York (1971), 401 U.S. 222, a criminal defendant is privileged to testify in his own behalf or refuse to do so. If he takes the stand he is under an obligation to speak truthfully and accurately. We hold that the rebuttal at least was properly admitted as bearing on appellant's credibility.
The evidence respecting the marijuana found in the May 25th search was presented to the jury without limiting instructions as to its purpose or use. We deem it unnecessary to decide whether, as appellant now claims, limiting instructions should have been given, for, as will subsequently be seen, no such request was made to the trial court.
Finally, we observe, with respect to the admissibility of such testimony, that since appellant, in effect, and for strategic reasons, stipulated introduction of the search warrant bearing the disclosure that marijuana was found in the May 25th search, any error in the introduction of the oral testimony could not have prejudiced the appellant.
Appellant's remaining contention with respect to the rebuttal testimony is that the court failed to give limiting instructions with respect to its use by the jury. A limiting instruction presupposes the evidence is properly before the jury for some purpose. The only requested instruction not given was that, set forth above, wherein counsel noted a special exception to the charge. That request, in effect, would have the jury instructed that because the marijuana was not identified as such to disregard the evidence completely upon whether appellant possessed marijuana. For the reasons set forth herein, such request was properly refused.
Aside from the above request, the record is silent as to any other requests limiting the use of that evidence. Such absence forecloses appellate review.
This court has consistently and uniformly held that an appellate court will not consider any error which counsel for a party complaining of the trial court's judgment could have called, but did not call, to the trial court's attention at a time when the error could have been avoided or cortected by the trial court. The decisions of this court applying that principle are enumerated in State v. Gordon (1971), 28 Ohio St.2d 45, in which the court applied the rule to a claim of the failure of the trial court to give limiting instructions when no request for it appeared in the record.
Appellant next asserts that the verdict returned by the jury was the result of coercion induced by the supplemental instruction, which appellant describes as an "Allen or dynamite charge," urging the jury to reach a verdict. Appellant's challenge is two-fold. It is argued that the wording of the instruction is itself coercive and, also, that it is coercive by prematurity in its timing. The term, "Allen charge," derives from Allen v. United States (1896), 164 U.S. 492, wherein a supplemental instruction respecting jurors' duties in attempting to reach a verdict was approved. Although Allen has never been overruled or modified by the United States Supreme Court, it has been increasingly criticized. The principle and most frequent reason advanced is that it lacks balance; that the thrust of the Allen instruction is directed to the minority jurors only and is potentially coercive upon them to agree with those jurors constituting the majority. State v. Patriarca (R.I. 1973), 308 A.2d 300; State v. Marsh (1971), 260 Ore. 416, 490 P.2d 491; Fields v. State (Alas. 1971), 487 P.2d 831; United States v. Fioravanti (1969), 412 F.2d 407; United States v. Bailey (1972), 468 F.2d 652.
The supplemental instructions read as follows:
"The Court: Ladies and gentlemen of the jury: The court is advised that you have indicated difficulty in reaching a verdict. Now, the court suggests to you that since the trial of this case means a great deal to the parties and to the public, and has been expensive in time, effort, and money, the court urges you to make every reasonable effort to agree on a verdict.
"You may consider that this case must at sometime be decided, and that you were selected in the same manner and from the same source from which any future jury must be selected.
"There is no reason to suppose that the case will ever be submitted to twelve individuals more intelligent, more impartial, or more competent to decide it, or that additional evidence will be produced by either side.
"It is your duty to make every reasonable effort to decide the case if you can conscientiously do so. The court instructs you to return to the jury room and continue your deliberations."
The Supreme Court, at page 501, summarized the instruction in Allen thusly:
"* * * that in a large proportion of cases absolute certainty could not be expected; that although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the question submitted with candor and with a proper regard and deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be convinced, to each other's arguments; that, if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the majority was for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority."
Listing of jurisdictions wholly abandoning the Allen charge or adopting in its place the ABA Standards Relating To Trial By Jury, Sec. 5.4, may be found in State v. Martin (1973), 297 Minn. 359, 211 N.W.2d 765; People v. Sullivan (1974), 392 Mich. 324, 220 N.W.2d 441. The federal circuits are summarized in United States v. Bailey (1972), 468 F.2d 652, 667.
The second difficulty judicially noted with Allen arises from modification and variations, with resultant appeals, in language utilized by trial courts which either omits parts of the Allen charge which tend to avoid any coercive effect or the utilization of language which has the effect of enhancing its potential for coercion. E.g., "you have got to reach a decision in this case," Jenkins v. United States (1965), 380 U.S. 445; "with that admonition you are directed to continue your deliberations until you arrive at a unanimous verdict," Fields v. State, supra ( 487 P.2d 831); omission from the instruction that no juror should yield his conscientious convictions, United States v. Rogers (1961), 289 F.2d 433; imputations of stubbornness to minority jurors, Green v. United States (1962), 309 F.2d 852.
Although this court has expressed views in Davis v. State (1900), 63 Ohio St. 173, similar to those set forth by the United States Supreme Court in its reasoning approving charges with respect to the duty of each juror to decide the case, but only after conferring with and listening to the views of other jurors, the original Allen charge has never been a part of Ohio jurisprudence. The supplemental instruction considered here, which bears little resemblance to the pure Allen charge, is essentially that approved by the Circuit Court of Franklin County in Andrews v. State (1912), and Huffman v. State, 15 C.C. (N.S.) 241, 252. Exceptions were taken and appealed to this court by the Attorney General and the prosecuting attorney from decisions of the Court of Common Pleas in Huffman. State v. Huffman (1912), 86 Ohio St. 229. Although the paragraph by Justice Brown in Allen as to the duties of jurors is fully set forth in Huffman, Huffman related only to voir dire examination of jurors.
Here, in holding the supplemental instruction to be noncoercive, the Court of Appeals properly noted the phraseology included therein that "it is your duty to make every reasonable effort to decide the case if you can conscientiously do so." (Emphasis added.) Equally important, in our view, is the following portion of the charge to the jury:
"Consult with one another, consider each other's views, and deliberate with the objective of reaching an agreement if you can do so without disturbing your individual judgment.
"Each of you must decide this case for yourself. But you should do so only after a discussion and consideration of the case with your fellow jurors. Do not hesitate to change your opinion if you are convinced that it is wrong. However, you should not surrender honest conviction in order to be congenial or to reach a verdict solely because of the opinion of other jurors."
We conclude that the supplemental instruction is without the coercive effect appellant asserts. First, because it was an instruction directed to all members of the jury, it was neutral. Secondly, it is difficult to perceive how the jury might interpret the instruction as a direction to reach a verdict by the surrender of conscientiously held views when they had been expressly instructed in the general charge not to surrender honest convictions because of the opinion of other jurors, and, additionally, instructed to decide the case only if they could conscientiously do so. In concluding the instruction noncoercive, we have given consideration to appellant's specific complaint to that part of the instruction stating, "this case must at some time be decided."
In deciding Allen, the court recognized derivation of the instruction as being from Commonwealth v. Tuey (1851), 62 Mass. 1. However, in Tuey, as here, and apparently unlike Allen, the jury was informed that the case must at sometime be decided. Recognizing that such statement, if interpreted to mean a future jury either must convict or acquit, was technically inaccurate, the Tuey charge was recently modified by the Supreme Judicial Court of Massachusetts in Commonwealth v. Rodriquez (1973), 300 N.E.2d 192, to eliminate such statement. It described the mistatement as a "slight one," and held the instruction containing it to be nonprejudicial. We agree. Other courts have recognized the undesirability of such phraseology, although holding its use to be nonprejudicial. United States v. Gordon (1952), 196 F.2d 886; United States v. Barnhill (1962), 305 F.2d 164. In Fulwood v. United States (1966), 369 F.2d 960, Justice Burger, now Chief Justice, at page 963, stated, with reference to an instruction that "some jury sometime will have to decide this case," followed by wording the court hoped they would be able to do so, the following:
"* * * The statement that some other jury would have to decide the case if this one could not was accurate as a generality and, in any event, could have had no coercive impact on the jury. If they already knew what would likely happen if they deadlocked, it was surplusage; if they did not know, this information, far from being coercive, would have had the effect of reducing the pressure on them to reach a verdict."
However, in United States v. Harris (1968), 391 F.2d 348, such an instruction was held prejudicial where the jury was also informed that a previous jury was unable to agree.
The remaining aspect of appellant's attack upon the supplementary instruction rests upon the assertion that it was prematurely given. Appellant concedes the fundamental rule that when an instruction shall be given rests in the discretion of the court, claiming, however, that discretion was abused here.
Instructions urging the jury to reach a verdict, proper and noncoercive, may, under given circumstances and conditions, be deemed coercive. Timing is a relevant consideration, 100 A.L.R. 2d 177, 208, Section 7. Other than the complaint as to time and the wording of the instruction, appellant urges no other circumstances present that were potentially coercive. We note the absence of any aggravating circumstances, such as inquiry as to the numerical division of the jury which the United States Supreme Court held coercive per se in Brasfield v. United States (1926), 272 U.S. 448, the fixing of any set time limit for further deliberations condemned in Goff v. United States (1971), 446 F.2d 623; Burroughs v. United States (1966), 365 F.2d 431, or the giving of the instruction at a late hour to a tired and exhausted jury.
In retrospect, it may have been sounder judgment to defer giving the supplemental instruction. It is apparent, however, from the initial statement in the supplemental instruction, that the jury had advised the court that it was having difficulty in reaching a verdict. The method of communication with the court, however, was not disclosed in the record. Courts in similar circumstances, and where the jury had deliberated a lesser period of time than here, have forthwith proceeded to give supplemental instructions, and such action has been upheld. In United States v. Barnhill, supra ( 305 F.2d 164), where after only one-half hour deliberation, the jury advised the court that it was deadlocked and the court gave a supplemental instruction, it was stated, at page 165, that such "was a normal and proper way to handle the matter," and that "the shortness of the time interval was the action of the jury, not chargeable to the trial judge." In United States v. Hynes (1970), 424 F.2d 754, the jury advised the court shortly before lunch that it was deadlocked after deliberation of two hours and forty-five minutes. After lunch, a supplementary, basically Allen, instruction was then given by the court. A claim of prematurity was rejected and the conviction affirmed even though the jury returned a guilty verdict five minutes after the supplemental instruction was given.
In Andrews v. United States (1962), 309 F.2d 127, supplemental instructions were held proper when given after only one hour and five minutes, with no communication from the jury it was unable to agree. Likewise, in United States v. Martinez (1971), 446 F.2d 118, with no prior communication from the jury and without any request of counsel, the giving of supplemental instructions was held not to be unduly coercive or an abuse of discretion, after about three hours of deliberation following a three-day trial.
Giving consideration to the simplicity of the issues for jury determination, the neutral and noncoercive language of the jury instruction, and in light of other attendant circumstances, we conclude it to be speculative, at best, that the timing of the instruction had such a coercive effect upon the jury that it forced an agreement that would not have otherwise been reached. Hence, we hold that no abuse of discretion occurred.
For the foregoing reasons, the judgment of the Court of Appeals is affirmed.
O'NEILL, C.J., HERBERT, CELEBREZZE and P. BROWN, JJ., concur.
STERN and W. BROWN, JJ., dissent.
STEPHENSON, J., of the Fourth Appellate District, sitting for CORRIGAN, J.
The apparent holding of the court today is that the state may prove that a substance is a drug solely on the basis of the testimony of an expert witness that the substance looked like a drug, even though the police have actual custody of the substance itself and no reason is given why a definite chemical test could not be performed. Such a sweeping dismissal of the need for positive proof is neither warranted by the facts of this case nor is it supported by the authorities cited by the majority. For that reason, and because I believe the defendant was unfairly prejudiced by the state's rebuttal testimony, I would reverse the judgment and remand the cause for a new trial.
The majority opinion states in dicta that drug identification may be proved circumstantially and without expert testimony based upon scientific analysis. Standing alone, this statement is not objectionable, for in many cases circumstantial evidence will be both substantial as proof and be the only evidence available. Many of the cases cited by the majority, for example, involve prosecutions for sale of narcotics where a frequent drug user actually took the drug and was sufficiently expert to make an identification. E.g., People v. Robinson (1958), 14 Ill.2d 325, 153 N.E.2d 65; United States v. Gregorio (C.A. 4, 1974), 497 F.2d 1253. Cf. State v. Hutton (1972), 7 Wn. App. 726, 502 P.2d 1037.
In others, circumstantial evidence was held sufficient when the substance itself was excluded from evidence, People v. Galfund (1968), 267 Cal.App.2d 317, 72 Cal.Rptr. 917, or had been thrown away by the defendant and lost. People v. Marinos (1968), 260 Cal.App.2d 735, 67 Cal.Rptr. 452. In these cases, the testimony of a properly qualified expert has been held to be sufficient identification. But none of the cases cited by the majority support the argument that expert testimony can replace an actual scientific test when the substance in question is in the custody of the police, and when no adequate reason is given why it should not be positively identified. (See State v. Ciesieleski, 18 Ohio App.2d 85, 247 N.E.2d 321.) Conceivably, the effect of the majority opinion could even be taken to mean that the police need not perform any tests on purported drugs and need not preserve a seized substance once they have decided to their own satisfaction that it is a narcotic drug.
The only case cited in which the best evidence rule is considered with respect to drug identification is Francis v. United States (C.A. 10, 1956), 239 F.2d 560. In that case, the issue was whether the testimony of a chemist was sufficient evidence that certain marijuana seeds were capable of sprouting. The chemist testified that he had raised seedlings from the seeds, and the objection was that the seedlings themselves were the "best evidence." The court properly ruled that the only real proof as to the results of the experiment was the testimony of the experimenter himself, since the probative value of any seedlings depended wholly on his testimony and that their admission would only be cumulative. In the instant case, the issue is the identity of the substance itself, not one of its properties, and no valid test of any kind was offered as evidence.
If the court's opinion applies only to identification of marijuana, I would require more proof than a quote from Corpus Juris Secundum that marijuana is so unmistakable, in all its forms, that expert testimony can be an adequate substitute for scientific tests, or that if tests are to be carried out, the burden lies on the defendant to do so for rebuttal, assuming he is even afforded such an opportunity.
If the majority opinion is based upon a procedural distinction between evidence introduced as part of a case in chief, and that introduced for rebuttal, I must also disagree. Here, one sample of marijuana was properly identified by chemical tests and admitted in evidence as part of the state's case in chief. The dispute in this case is whether the rebuttal testimony of a police officer that he saw the contents of a pouch, seized by the police in defendant's apartment on May 25th, was sufficient as identification evidence to prove the contents to be marijuana. That testimony was offered solely for the purpose of challenging the credibility of the defendant's testimony, since the defendant is not here charged with any offense arising out of the May 25th incident. Defendant testified that he had no marijuana in his apartment during May. If the substance in the pouch was marijuana, it would rebut that testimony and would be admissible under Harris v. New York (1971), 401 U.S. 222. If the substance was not marijuana, the rebuttal failed to rebut.
It appears to me that in this case fundamental fairness requires that the identity of the substance be as conclusively proven as in a case in chief. The state's failure to produce evidence in its custody inevitably reduces the possibility of effective cross-examination by the defense. Perhaps even more importantly, the admission of such testimony must strongly influence the jury. Any weak or doubtful case could be propped up by the charge that on a different occasion the defendant committed the same offense. The danger of prejudice from this sort of charge is so great and so apparent that simple fairness requires that the vital evidence of such charge at least be produced in court, and that the limited relevance of such evidence be carefully explained to the jury. The instant case is a clear example. Defendant may very well have been effectively convicted of possession of marijuana, not on the basis of the incident for which he was charged, but because of the testimony of an officer that a particular pouch contained marijuana, based solely upon the observation of that officer, while the pouch itself presumably lay somewhere in the police evidence locker. Simple fairness seems to me to require that the substance itself or a scientific test of it be presented in court, unless some good reason for not producing it is given by the state, regardless of whether as a procedural matter the evidence relates to the state's case in chief or to rebuttal.
For the same reasons, the jury instruction requested by the defendant should have been allowed. That instruction asked both that the jury disregard the rebuttal testimony because of the state's failure to prove the substance to be marijuana, and that the jury not consider the incident on the 25th of May as supportive proof of the charge that the defendant possessed marijuana on the date charged, the 17th of May.
It requires little reflection to see that the admission in evidence of the testimony as to the May 25th incident could be highly prejudicial. Even assuming that the testimony was admissible at all absent a positive scientific test, the testimony was relevant solely for the purpose of rebuttal. It did not qualify as evidence of a similar act under R.C. 2945.59 and was not substantive evidence of the offense charged. Defendant was entitled to have the jury carefully instructed as to this difficult distinction, and that was substantially the import of the proferred instruction. Indeed, the defendant was entitled to a fuller instruction than was in fact requested, because the dangers of prejudice and confusion were so great.
Both for the admission of the unsupported identification testimony and for the failure to charge the jury as to the limited relevance of that testimony, the conviction in this case should be reversed.
W. BROWN, J., concurs in the foregoing dissenting opinion.