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People v. Park

OPINION FILED MAY 18, 1977.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

PEPPE PARK, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Lawrence County; the Hon. PHILIP B. BENEFIEL, Judge, presiding.

MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:

Defendant Peppe Park was found guilty by a jury in the circuit court of Lawrence County of the offense of unlawful possession of more than 2.5 but not more than 10 grams of a substance containing cannabis. Subsequently, the court sentenced the defendant to probation for one year, with the condition that defendant serve two months of periodic imprisonment. Defendant has served his sentence. He asks that we reverse his conviction because he was not proved guilty beyond a reasonable doubt and because the court erred in denying his motion to suppress evidence.

On April 25, 1974, Lawrenceville Police Chief D.S. Foster received an anonymous phone call that defendant would be participating in a transfer of marijuana at the Lawrenceville High School parking lot on that date. Foster and Patrolman Don Wolfe proceeded to the lot where they observed defendant and Barney Bass standing near Bass's automobile. Officer Wolfe ordered defendant to empty his pockets, but no contraband was found. While defendant was transported to city hall, Bass was allowed to drive his own car under the escort of Sheriff Richard Hunnicutt. Shortly after their arrival at city hall, Sheriff Hunnicutt discovered a package of "marijuana" lying at Bass's feet on the pavement.

At trial Officer Wolfe testified that after having been advised of his rights, defendant stated that he had taken the envelope from his pocket and thrown it into Bass's car as Wolfe had approached him. After the evidence was discovered, the officer took the envelope to a pharmacy where a pharmacist determined its weight to be 6 grams.

• 1 Defendant maintains that the State failed to prove that the substance in the envelope admitted as People's Exhibit No. 1 was cannabis. In a prosecution for unlawful possession of cannabis it is incumbent upon the State to prove beyond a reasonable doubt not only possession of a substance and the requisite mental state, but also that the substance was indeed cannabis. (People v. Sanford, 24 Ill.2d 365, 181 N.E.2d 118.) In the instant case we believe that the State did not meet its burden of proving that the substance in the envelope was in fact cannabis.

The only person called to identify the contents of People's Exhibit No. 1 was Deputy Sheriff Billy Carrico. He testified that on the day before trial, he was summoned to city hall to test the substance in question with his field narcotics testing kit which was used by the Sheriff's Department. Defense counsel objected to the results of the test kit. After a hearing in chambers on the authenticity and reliability of the kit and the qualifications of Deputy Carrico, the court ruled that the test results would not be allowed into evidence. In so ruling, the court did not hold that the results of tests conducted with all such field kits were per se inadmissible. Rather, the court reasoned that the State had failed to establish the reliability of its kit used by Deputy Carrico in this particular case. The prosecution made no further attempt to establish the reliability of the test kit, but instead sought to establish Carrico's independent ability to identify the substance contained in the envelope as cannabis.

• 2 Deputy Carrico explained to the jury that his opinion regarding the identity of the substance in question was based only on his experience of 3 1/2 years as a deputy sheriff. In that capacity, he had made approximately 40 arrests involving marijuana. What he failed to explain, however, was the outcome and circumstances of those arrests. While he did state that at least one of his previous opinions regarding marijuana had been subsequently confirmed by an expert, he failed to indicate how many other times he had been correct in his identification. His ability to identify based on this experience was thus not sufficiently established by reference to his prior arrests involving marijuana.

Deputy Carrico stated that he could identify the substance in question "by feel, smell, texture, and looks." On redirect, he added, "Marijuana has a sweetish, bitter, strong scent, retains its color more than other weeds of the variety we have around here. It remains greenish, has a strong, sweet, bitter odor." But on cross-examination, it was established that Carrico had no formal schooling or training in identifying leafy plants. Despite his dubious qualifications, the deputy also described the differences in smell and appearance between cannabis and other plants such as tea leaves, alfalfa, tobacco, sage, and rosemary.

• 3 Even if Carrico had been qualified to identify cannabis by sight and smell alone, the reliability of such an identification would be doubtful. We recognize that identification of cannabis based on gross morphological characteristics alone is highly prone to error. See Stein, Laessing, and Indriksons, An Evaluation of Drug Testing Procedures Used by Forensic Laboratories and the Qualifications of Their Analysts, Wis. L. Rev. 727, 770 (1973).

The only situation in which courts> have allowed a nonchemist or nonbotanist to identify cannabis in criminal prosecutions has occurred where the witness was personally familiar with the physical characteristics and effects of cannabis and had in fact seen and smoked some of the substance sought to be identified. (People v. Binkley, 25 Ill. App.3d 27, 322 N.E.2d 514; Ewing v. United States, 386 F.2d 10 (9th Cir. 1967).) In Binkley the identification of cannabis was made by a woman who had previously seen and smoked marijuana. On appeal this court deemed her testimony sufficient primarily because she had smoked the substance in question and, by virtue of her physical reaction, considered it to be marijuana. Furthermore, her testimony was corroborated by another person, who, although not having smoked the substance, was familiar with cannabis through prior experience, and testified as to its physical similarities. In Ewing a witness's conclusion that she had received marijuana was competent evidence where founded upon her prior experience, rolling the cigarette herself, seeing what it looked like and the fact that it made her "high." Hence, the exception established in Binkley, Ewing, and several other cases in accord with their holdings (see, e.g., People v. Robinson, 14 Ill.2d 325, 153 N.E.2d 65; Toliver v. United States, 224 F.2d 742 (9th Cir. 1955)) is inapplicable here where neither past personal experience with the effects of marijuana nor present experience with the substance in question have been established. Accordingly, we conclude that the prosecution did not prove beyond a reasonable doubt that the substance defendant possessed was cannabis. In view of this conclusion, it is unnecessary to consider defendant's other contentions.

For the foregoing reasons the judgment of the circuit court of Lawrence County is reversed.

Reversed.

CARTER, J., concurs.

Mr. JUSTICE JONES, ...


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