Summary
knowing possession is the critical element to be proven by the prosecution where defendant was arrested after picking up package addressed to himself containing marijuana
Summary of this case from People v. CejaOpinion
No. 24853
Decided June 26, 1972.
Defendant was found guilty of possession of narcotic drugs and appealed.
Affirmed
1. DRUGS AND DRUGGISTS — Airline Freight Agent — California — Independent Search — Information — Police — Denver — Not Tainted — Probable Cause — Arrest — Seizure. Independent search of package made by airline freight agent in California based on suspicion of freight personnel was a lawful private inspection, and information obtained by police, after they had been notified by agent that package contained marijuana, was not "tainted" and could serve as a foundation for probable cause to make arrest and seizure at destination in Denver to which package was addressed.
2. ARREST — Air Freight — Marijuana — Out-of-State — Denver Police — Probable Cause — Search — Freight Terminal. Denver police — which were notified by officers in out-of-state city from which certain package was being sent by air freight that such package contained marijuana — had probable cause to make warrantless arrest and search when defendant claimed package at freight terminal in Denver.
3. CRIMINAL EVIDENCE — Narcotic Drugs — Possession Proof — Circumstantial — — Proper. Knowing possession of narcotic drugs may be established by circumstantial evidence.
4. Narcotic Drugs — Possession — Circumstantial — Exclusion — Innocence — Submission to Jury. Where the evidence of possession of narcotic drugs is wholly circumstantial, the trial judge must be satisfied that it excludes every reasonable hypothesis of innocence before he can submit the case to the jury.
5. Denial — Acquittal — Circumstantial — Consistent — Guilt — Innocence — Negative — Jury. When trial court denied defendant's motion for acquittal, it, in effect, ruled that circumstantial evidence presented by the People was entirely consistent with defendant's guilt and that upon any reasonable hypothesis, this evidence as not also consistent with defendant's innocence; and on this premise it was solely the jury's function to determine whether all the evidence established the guilt of the defendant beyond a reasonable doubt.
6. DRUGS AND DRUGGISTS — Circumstantial Evidence — Support — Verdict — Guilt. In prosecution for possession of narcotic drugs circumstantial evidence amply supports jury's guilt verdict of defendant beyond a reasonable doubt.
7. WITNESSES — Qualification — Expert — Discretion of Judge — Review. The matter of qualification of an expert witness is within the sound discretion of the trial judge and his ruling will not be disturbed on review absent a clear showing of abuse.
8. DRUGS AND DRUGGISTS — Officers — Testify — Experts — Identification of Marijuana — Proper. In prosecution for possession of narcotic drugs, where trial court allowed two police officers employed in the crime laboratory to testify as experts, held, in so doing, trial court did nor err; especially, where record shows that both technicians had qualifications as experts in identification of marijuana based on technical training and pre-trial experience, and jury was adequately instructed on weight to be given expert testimony and opinion evidence.
9. ENTRAPMENT — Officers — Creative Force — Instigating the Offense. Entrapment exists only where police officers have been the creative force in instigating the offense, the commission of which was not in the mind of the accused prior to the entrapment.
10. Narcotic Drug — Name on Package — Instigate — Negative. In prosecution for possession of narcotic drugs, where police officers did not place defendant's name on the package of marijuana or instigate shipping of such package, held, under such circumstances, they did not entrap defendant.
11. Police Conduct — Instigation — Negative. So long as police conduct falls short of actual instigation of a crime, an entrapment claim cannot be maintained.
12. INSTRUCTIONS, CRIMINAL — Separate — Credibility — Reversible Error — Negative. While it is unnecessary and poor practice to give the jury a separate instruction on the credibility of the defendant as a witness, the giving of such instruction does not constitute reversible error.
13. Circumstantial Evidence — Convey — Essence — Whole — Omission — Lack of Prejudice. In prosecution for possession of narcotic drugs, where instruction conveyed the essence of the law to be applied in regard to circumstantial evidence when all instructions were read as a whole, held, under such circumstances, defendant was not prejudiced by instruction on circumstantial evidence because of omission of language that "circumstances relied upon must be consistent with guilt and inconsistent with any reasonable hypothesis of innocence."
14. CRIMINAL PROCEDURE — Narcotic Drug — Conviction — Reversal — Negative — — Preliminary Hearing — Not Required — Rules. In prosecution for possession of narcotic drugs, a reversal of conviction was not required because of trial court's failure to grant defendant's motion for a preliminary hearing where at time of trial the criminal rules did not require a preliminary hearing upon request.
Appeal from the District Court of the City and County of Denver, Honorable Mitchel B. Johns, Judge.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, Aurel M. Kelly, Assistant, for plaintiff-appellee.
Harry L. Hellerstein, for defendant-appellant.
Defendant Daniel Hankin was found guilty of possession of narcotic drugs. On appeal, he urges reversal on several grounds. We do not find any of them to be meritorious and therefore affirm.
United Airlines personnel in San Francisco became suspicious of a package shipped to the defendant from San Francisco. A freight supervisor opened the package and discovered what appeared to be marijuana. After reclosing the package, the freight agent notified the San Mateo County Sheriff's Department and a deputy came to the freight terminal.
I.
[1,2] Defendant first argues that his motion to suppress the physical evidence should have been granted because the "search" in California was not pursuant to a valid search warrant. Also, he contends that his arrest in Colorado was illegal because it was made without an arrest warrant. The defendant's arguments were rejected by this court in this recent similar cases of People v. Hively, 173 Colo. 485, 480 P.2d 558 (1971).
II.
The defendant maintains that his motion for judgment of acquittal should have been granted at the close of the People's case because knowing possession of the narcotics had not been proven.
Under the circumstances of this case, knowing possession was the critical element to be proven by the People. To prove it, the prosecution presented the following circumstantial evidence. A piece of paper found in the defendant's pocket contained the name and address of the send in California. The name and address corresponded to the sender's name and address on the package and on the airbills accompanying the package. The freight agent who called the defendant to inform him of the package's arrival, and two police officers who heard the call, testified that the agent did not disclose the information to the defendant. The prosecution also introduced evidence showing that flakes of marijuana were found in defendant's pants pocket at the time of his arrest.
[3-6] Knowing possession of narcotic drugs may be established by circumstantial evidence. People v. People, 167 Colo. 240, 447 P.2d 217; Mickens v. People, 148 Colo. 237, 365 P.2d 679. Where the evidence of possession is wholly circumstantial, the trial judge must be satisfied that it excludes every reasonable hypotheses of innocence before he can submit the case to the jury. Petty v. People, supra. See generally Pieramico v. People, 173 Colo. 276, 478 P.2d 304. In our recent case of Nunn v. People, 177 Colo. 87, 493 P.2d 6 (1972), we used the following language, which, in our view, is particularly applicable to the circumstantial evidence presented by the People in the instant case:
"When the trial court denied the defendant's motion for acquittal, it, in effect, ruled that the circumstantial evidence presented by the People was entirely consistent with the defendant's guilt and that upon any reasonable hypothesis, this evidence was not also constitute with the defendant's innocence. On this premise, it was therefore solely the jury's function to determine whether all the evidence established the guilt of the defendant beyond a reasonable doubt. This conforms to our view of this evidence which amply supports the jury's verdict."
III.
The defendant's next assignment of error is that the trial court abused its discretion in allowing police officers employed in the crime laboratory to testify as experts. We do not agree.
[7,8] The matter of qualification of an expert witness is within the sound discretion of the trial judge and his ruling will not be disturbed on review absent a clear showing of abuse. Stork v. People, 175 Colo. 324, 488 P.2d 76; White v. People, 175 Colo. 119, 486 P.2d 4. Defendant's assertion, that the police technicians who testified were not experts, is based on what these witnesses did not know rather than what they did know. The record shows that both technicians had qualifications as experts in identification of marijuana based on technical training and pre-trial experience. The trial judge did not abuse his discretion in allowing them to testify as experts. Moreover, the jury was adequately instructed on the weight to be given expert testimony and opinion evidence.
IV.
[9] The defendant claims that he was entrapped into the commission of this crime and therefore his conviction should be set aside. We find no merit to this argument. Entrapment exists only where police officers have been the creative force in instigating the offense, the commission of which was not in the mind of the accused prior to the entrapment. Mora v. People, 172 Colo. 261, 472 P.2d 142; Gonzales v. People, 168 Colo. 545, 452 P.2d 46; Reigan v. People, 120 Colo. 472, 210 P.2d 991.
[10, 11] The police officers did not entrap this defendant; they did not place defendant's name on the package or instigate the shipping of the package. So long as the police conduct falls short of actual instigation of a crime as in this case, the entrapment claim is completely lacking in support. Patterson v. People, 168 Colo. 417, 451 P.2d 445.
V.
[12] The defendant states that the court's Instruction No. 7 on credibility of witnesses unfairly singled out the defendant. This court has repeatedly held that while it is unnecessary and poor practice to give the jury a separate instruction on the credibility of the defendant as a witness, the giving of such an instruction does not constitute reversible error. Fernandez v. People, 176 Colo. 346, 490 P.2d 690; Hinton v. People, 169 Colo. 545, 458 P.2d 611, cert. denied, 397 U.S. 1047, 90 S.Ct. 1375, 25 L.Ed.2d 659.
VI.
[13] The defendant also asserts that the trial court failed to properly instruct the jury on circumstantial evidence. The court's Instruction No. 12 reads in pertinent part:
"In order to convict a defendant upon circumstantial evidence, the jury must be satisfied beyond a reasonable doubt of the guilt of the defendant, or, in other words, the circumstances proven must not be consistent with the innocence of the defendant within a reasonable doubt."
The defendant's objection to this instruction is that it did not include the language that "the circumstances relied upon must be consistent with guilt and inconsistent with any reasonable hypothesis of innocence." In various cases, this court has approved of both the inclusion and the omission of the language sought here. See e.g., Pieramico v. People, 173 Colo. 276, 478 P.2d 304 (language omitted). Instruction No. 12 is not a model of clarity, and the language contended for by the defendant is perhaps a better statement of the law. However, in our view that this instruction did convey the essence of the law to be applied in regard to circumstantial evidence, and that when all the instructions are read as a whole, the defendant was not prejudiced by the omission of the requested language.
VII.
[14] Our recent decision in Sergent v. People, 177 Colo. 354, 497 P.2d 983, is fully dispositive of the defendant's contention that reversal is required because of the trial court's failure to grant his motion for a preliminary hearing. It is noteworthy to state that at the time of this change our criminal rules did not, as they do now, require a preliminary hearing upon request. See also Falgout v. People, 170 Colo. 32, 459 P.2d 572 and Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387.
Judgment affirmed.
MR. JUSTICE ERICKSON not participating.