The opinion of the court was delivered by: J. Waldo Ackerman, District Judge.
Defendant was convicted of unlawful possession of more than
500 grams of cannabis by a jury and sentenced to four years in
the Illinois State Penitentiary. For that conviction and his
present incarceration to stand, the State must have proven
beyond a reasonable doubt that defendant possessed over 500
grams of a substance containing cannabis. The Illinois statute
which defines cannabis, Ill.Rev.Stat. ch. 56 1/2 § 703(a),
excludes from that definition the mature stalk of the cannabis
plant. Therefore, the mature stalk may not be included in the
weight determination, and the State must bear the burden of
proving that the defendant possessed more than 500 grams of
cannabis without the weight of the mature stalks. The State
failed in this burden.
On January 8, 1979, Newell was tried in the Circuit Court of
the Eighth Judicial Circuit, Adams County, Illinois, for the
possession of cannabis. The evidence indicated that on August
8, 1978, two deputy sheriffs for Adams County executed a
warrant to search Newell's home. Record of Proceedings
(hereinafter R.) at 48. On property adjacent to his backyard,
separated from his property by a fence, the officers found a
twenty-by-forty foot garden plot (R. 53, 54). They seized
approximately 200 plants, characterized at trial by one of the
investigating police officers as "marihuana," from the plot
(R. 48). The officers then placed the material seized in three
plastic bags and took them to a prescription shop to be
weighed (R. 49, 50). The total weight of the material in the
bags at that time was 609.1 grams (R. 49).
The material was then taken for testing to Michael Cravens,
a chemist employed by the Illinois Department of Law
Enforcement (R. 64, 79). Cravens removed the root portions of
the plants, dried them and weighed the contents (R. 81). After
the drying and the removal of roots, the total weight of the
plants seized was 87.1 grams (R. 81). Cravens did not know how
many plants were in the bags and did not test each plant (R.
82). Rather, he tested a sample from each of the three plastic
bags and concluded that the portions tested were cannabis (R.
80). Cravens "really couldn't say" whether the plants not
tested by him were cannabis, (R. 82) and admitted that it was
possible that there was other plant material in the bags aside
from the portion of plants which he determined to be cannabis
(R. 83). In addition, Cravens admitted that approximately 20%
of the weight of the plants tested could be attributed to the
main stalks and branches, and that he had made no
determination as to how much of the material tested consisted
of stalks and branches (R. 83, 85). Cravens did not know the
age of the plants tested, nor did he know whether the plants
were mature. (R. 85).
On January 9, 1979, the jury found defendant guilty of the
possession and production of cannabis and determined the
amount in his possession to have been over 500 grams (R. 175),
a Class 3 felony under Illinois law. Ill.Rev.Stat. ch. 56 1/2
§ 704(e).*fn1 The trial court entered a judgment only on the
offense of possession of cannabis and, on February 14, 1979,
sentenced defendant to four years in the Illinois Department of
Corrections (C. 56, 61).
Defendant was convicted of possession of more than 500 grams
of marihuana under the provisions of the Illinois Cannabis
Control Act (Ill.Rev.Stat., ch. 56 1/2 § 701 et seq.,
(hereinafter cited as Cannabis Control Act), which prohibits
the possession of cannabis and fixes the penalty by the weight
of the substance containing marihuana. These penalties range to
a maximum of five (5) years' imprisonment.*fn2
In defining cannabis, the Illinois legislature specifically
exempted the mature stalk of the cannabis plant. Cannabis is
statutorily defined as follows:
(a) `Cannabis' includes marihuana, hashish and
other substances which are identified as
including any parts of the plant Cannabis Sativa,
whether growing or not; the seeds thereof, the
resin extracted from any part of such plant; and
any compound, manufacture, salt, derivative,
mixture, or preparation of such plant, its seeds,
or resin, including tetrahydrocannabinol (THC)
and all other cannabinol derivatives, including
its naturally occurring or synthetically produced
ingredients, whether produced directly or
indirectly by extraction, or independently by
means of chemical synthesis or by a combination
of extraction and chemical synthesis; but shall
not include the mature stalks of such plant,
fiber produced from such stalks, oil or cake made
from the seeds of such plant, any other compound,
manufacture, salt, derivative, mixture, or
preparation of such mature stalks (except the
resin extracted therefrom), fiber, oil or cake,
or the sterilized seed of such plant which is
incapable of germination.
Ill.Rev.Stat., ch. 56 1/2 § 703(a). Because "cannabis" does not
include the mature stalk, the stalk may not be included in the
weight determination under Illinois law.
In its opinion the court in People v. Newell, 77 Ill. App.3d 577,
33 Ill.Dec. 66, 396 N.E.2d 291 (1979), found that the
stalks which were included in the weight of over 500 grams were
"immature". If that be true, then it follows that a rational
trier of fact could have returned a verdict based on the
reasonable doubt standard, since the statute only excludes
"mature" stalks. The State strenuously argues that this factual
determination must be presumed correct in the habeas proceeding
before this court by reason of 28 U.S.C. § 2254(d). However, a
presumption of correctness would not ordinarily attach to
appellate court factual determinations when these
determinations are supported neither by specific findings made
by the trial court judge nor by the evidence. See White v.
Finkbeiner, 7 Cir., 570 F.2d 194, 201 (1978). A federal court,
in fact, has a duty to assess the facts, as they appear in the
record, when called upon to
apply a Constitutional standard to a conviction obtained in a
state court. Jackson v. Virginia, 443 U.S. at 315, 99 S.Ct. at
2787.
Ascertaining the standard by which maturity of the plant
must be judged is difficult, for neither Illinois statute nor
case law defines the phrase found within the Illinois
definition of cannabis, ". . . the mature stalks of such
plant." In addition, the sole testimony in the record as to
the maturity or immaturity of the plants was, at best,
inconclusive. The state's ...