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September 11, 1980


The opinion of the court was delivered by: J. Waldo Ackerman, District Judge.


Richard J. Newell, currently incarcerated at Vienna Correctional Center, has petitioned this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He seeks relief from a judgment entered by the Circuit Court of Adams County, Illinois, and affirmed by the Appellate Court of Illinois, Fourth District. 77 Ill. App.3d 577, 33 Ill. Dec. 66, 396 N.E.2d 291 (1979). Leave to appeal to the Illinois Supreme Court was denied January 30, 1980. Petitioner alleges that he is being held in violation of his Constitutional right to due process because the evidence presented at his trial was insufficient to convict him beyond a reasonable doubt. This Court has carefully reviewed the record of the State Court proceedings and finds that the writ must be allowed for the reasons stated below.

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).

The standard which this court must apply in a federal habeas corpus proceeding when the claim is made that a person has been convicted in a state court upon insufficient evidence is whether any rational trier of fact could have convicted the defendant on the evidence presented. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). The court need not ask itself whether it believes that the evidence at trial established guilt beyond a reasonable doubt. Instead, the court must determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. Under this standard, invasion of the province of the jury by the federal district court under the provisions of Title 28 U.S.C. § 2254 is necessary only to guarantee the fundamental protection of due process of law. See Jackson v. Virginia, id.

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 ...

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