Hohnke v. Commonwealth ( 1970 )

REED, Judge

(dissenting).

I dissent from that portion of the majority opinion which holds that the trial judge committed prejudicial error by refusing to afford the appellant the opportunity to make an avowal of evidence concerning whether the action of the State Board of Health in prohibiting the possession, use or distribution of LSD was erroneous. The record does not support the conclusion. I would affirm the judgment.

If KRS 218.010(14) had omitted marijuana (cannabis) and the State Board of Health under the delegation of power vested by the statute had declared marijuana to be an addictive drug, a more serious question would be presented. There are those who seriously advocate legalizing the use of marijuana and claim that its properties are not addictive, but I am aware of no advocacy of legalizing the drug LSD by any segment of society — expert or lay— users or nonusers. We are not dealing with peanut butter or marshmallow whip. We are confronted with a critically dangerous mind-destroying poison. See 22 A.L.R.3d pp. 1326, 1327.

The State Board of Health is composed in part of members of the medical profession and it is this board that made the judgment to classify LSD as an addictive drug prior to the time of the commission of the offense. The majority opinion recognizes that it would take a strong showing of evidence to induce a court to substitute its judgment concerning the qualities of LSD for that of a board consisting of persons knowledgeable in the field. Indeed the question is not whether Dr. X thinks LSD is addictive and Dr. Y thinks it is not. The question is whether the State Board was without any rational basis to so classify this drug. Only a showing that the State Board was without rational basis would qualify. Therefore, whether the trial judge erred or did not err in not listening to some unspecified evidence by some unspecified persons but instead regarding the finding of the State Board as conclusive could only be prejudicial if the defendant was prepared to show that there was no rational basis for the finding of the State Board of Health.

The majority reads the record as demonstrating that the trial judge refused the defendant an opportunity to place evidence in the record by means of avowal so that this court could determine the question. We do not so read the record. According to the majority opinion, a motion raising the specific question was filed on April 25, 1967. The case was assigned for trial on July 24, 1967. No hearing on the motion was held in the interim and the appellant does not remotely suggest that this was due to any fault on the part of the trial judge. RCr 8.22 provides that a motion before trial raising the type of defense made here shall be determined before trial. In this instance that rule requires that the issue of fact presented shall be determined by the trial judge with or without a jury on the basis of testimony, or on affidavits, or in such other manner as the court may direct. Therefore, it is clear that the appellant could have accompanied the April 25 motion by affidavits or could have later filed these affidavits up to trial time, incorporating the evidence upon which she relied to establish that the State Board illegally classified this drug. Appellant waited, however, until the trial jury had been partially selected before undertaking to seek an evidentiary hearing on the question. It was then too late.

Nevertheless, even if this procedural noncompliance could be excused, the appellant, in my view, is not supported by the record by reason of the statement quoted in the majority opinion — “and the defendant proffered the evidence by avowal and the evidence was refused by the court.” This indicates only that the appellant avowed that if permitted to do so she would introduce evidence before the judge, as she indeed attempted to introduce evidence before the trial jury, that LSD was not an addictive drug. The trial judge’s ruling excluding such evidence from the trial jury was clearly correct, even according to the majority opinion.

The avowal that evidence would be offered if the judge would hear it did not relieve appellant of the duty of preserving this evidence in the record by way of avowal for appellate review. RCr 9.52 incorporates the provisions of CR 43.10 concerning the proper manner of making an avowal. There is not one iota of evidence in this record that the appellant attempted to comply with these rules nor is there any evidence whatever that the trial judge prevented her from doing so. It has long been a rule of criminal appellate procedure that where exclusion of evidence is not followed by avowal as to what the witness would say, and indeed in this instance who the witness was, the defendant cannot complain of the exclusion of the evidence on appeal. See for example Huff v. Commonwealth, 248 Ky. 700, 59 S.W.2d 985; and particularly see an excellent discussion on the point under consideration in Robertson v. Commonwealth, 269 Ky. 317, 107 S.W.2d 292 at page 296.

Therefore, although appellant’s noncompliance with the rules of criminal procedure and with established principles of preservation of rejected evidence for appellate review is disregarded, it is still true that in this instance the defect is compounded because we have not been advised even by brief concerning what this proffered evidence was and who proposed to so testify. For all we know from the record, proffered evidence could consist of anything from an opinion by the world’s outstanding authority on the addictive properties of drugs to the recommendations and hopes of some street-corner guru. When one reflects about the quantum and character of evidence necessary to demonstrate that a state board of health, composed of members of the medical profession, acted with no rational basis, then one can only marvel at the futility of this whole result to the appellant and to society.

The fact of the subsequent change in classification of LSD by the legislature is of less significance than the circumstances surrounding the defendant and the extent of her contact with this drug. In any event, the penalty inflicted was the minimum so far as confinement is concerned under either the “addictive drug” section or the “dangerous drug” section of the same act. After all, the principal defense of appellant was based upon a plea of temporary insanity induced by her repeated use of this drug. I regard tljiat as not completely insignificant in considering its addictive properties.

In a recent case, the Supreme Court of the United States considered some of the aspects of the problems presented by this appeal. See Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (decided January 20, 1970). Mr. Justice Black dissented from the majority opinion (which had affirmed the conviction of a possessor of heroin) on the ground that a statutory inference in the Federal statute involved impinged upon the constitutional rights of the defendant. In the course of his dissenting opinion, however, the following telling description of the problem is stated in this language:

“Commercial traffic in deadly mind, soul, and body-destroying drugs is beyond doubt one of the greatest evils of our time. It cripples intellects, dwarfs bodies, paralyzes the progress of a substantial segment of our society, and frequently makes hopeless and sometimes violent and murderous criminals of persons of all ages who become its victims. Such consequences call for the most vigorous laws to suppress the traffic as well as the most powerful efforts to put these vigorous laws into effect.”

We are not dealing in this case with a youthful, susceptible victim of a seller or distributor of illicit drugs. We are dealing with a woman who had been employed for four years as a research assistant in a medical center and who was found to be in possession at the time of arrest of 80 LSD capsules. As pointed out by Mr. Justice White in the majority opinion in the Turner case, the possession of 275 glassine bags of heroin clearly showed that Turner was more than a mere user of heroin. The evidence demonstrated a high probability that he was engaged in the distribution of the drug. In the instant case, the possession of 80 capsules of LSD suggest more than a mere casual use. It demonstrates a strong probability toward both use and distribution by the appellant.

As to mere users who are the victims of distributors, a reasonable legislative approach may be lighter penalties or maybe only in certain cases required rehabilitative treatment, but as to probable distributors, the problem is quite different. It may well be that rehabilitative treatment at the time of and after incarceration is the best answer in this type of case. Thereby an attempt is made to save the defendant from further harm to himself and to save society from his influence in probable distribution of the drug. I would rather leave that question to the legislature and to the penal and parole system. To affirm this judgment is really more merciful to all concerned than by multiplying uncertainty and increasing opportunity for further harm which is the result, I fear, of the majority opinion.

I would affirm the judgment.

NEIKIRK and OSBORNE, JJ., join in this dissent.