State v. Philpot

365 A.2d 122, 1976 Me. LEXIS 378
CourtSupreme Judicial Court of Maine
DecidedOctober 22, 1976
StatusPublished
Cited by3 cases

This text of 365 A.2d 122 (State v. Philpot) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Philpot, 365 A.2d 122, 1976 Me. LEXIS 378 (Me. 1976).

Opinion

POMEROY, Justice.

As we did in State v. Shaw, Me., 343 A.2d 210 (1975), with respect to “cannabis”, we now have occasion to interpret the “drug” statute with respect to the extent of the proscriptions of the possession and sale of hallucinogenic drugs described in 22 M. R.S.A. §§ 2212-B and 2212-E.

The appellant was charged by indictment with having sold an hallucinogen in violation of 22 M.R.S.A. § 2212-E.1 This appeal was seasonably filed after a judgment entered on a jury verdict of guilty.

We deny the appeal.

At trial, prosecution witness, agent Wayne Viger of the Division of Special Investigations, testified that on July 16, 1974, at 7:30 p. m., he and another agent entered a Waterville discotheque to investigate trafficking in illicit drugs. About three hours after entering the establishment, agent Viger approached a group of patrons and asked where he might buy some “dope.” Upon being told he could make such a purchase at the discotheque, he returned to his seat to await a contact. Agent Viger testified further that presently the defendant appeared at his table and, after a brief exchange, the two agents accompanied the defendant outside where he sold agent Viger a quantity of LSD known as “window pane acid” for $100.

The appellant’s assignments of error fall into two broad categories: the adequacy of the indictment, and the sufficiency of the State’s evidence regarding his entrapment defense. He begins by questioning the adequacy of the indictment in two ways. First, he asserts that the term “lysergic acid diethylamide (LSD)” used in the indictment is a generic term which subsumes legal as well as illegal forms of the drug. The indictment’s failure to specify an illegal form, he submits, renders it fatally imprecise.2 Expanding his argument, the defendant contends that lysergic acid diethylamide has four distinct forms.3 Only two of these forms, he maintains, are proscribed by 22 M.R.S.A. § 2212-B.4

A specific reference to D-lysergic acid diethylamide is found in the statute. In the opinion of the State’s expert, 1-lysergic acid diethylamide is an optical isomer. Possession of optical isomers is expressly prohibited by the statute.

[124]*124The appellant avers, however, that the two remaining forms “l” and “d” isoly-sergic acid diethylamide, are not proscribed by the express terms of the statute. For this reason, he says, their possession and sale are not illegal. The failure of the indictment to differentiate the legal form from the illegal, the appellant concludes, is a legal error which makes the indictment defective.

As the validity of the appellant’s contention must be determined by reference to the breadth of the statute, we must analyze the statute. Recently, we considered the chemical composition of lysergic acid diethylamide [State v. Clapp, Me., 335 A.2d 897 (1975)]. There we expressly reserved opinion as to whether possession of 1-ly-sergic acid diethylamide was proscribed by 22 M.R.S.A. § 2212-B. The appellant’s contention pertaining to the possession of the two forms of isolysergic acid diethyla-mide was not considered by us in Clapp. The appellant does not dispute the classification of 1-lysergic acid diethylamide as an “optical isomer.” Therefore, we need only determine whether “Z” and “d” isolysergic acid diethylamide are included within the proscriptions of 22 M.R.S.A. § 2212-B.

The Legislature’s prohibition in express terms of the possession of the “optical isomers” of lysergic acid diethylamide is the Legislature’s acknowledgment of the particular chemical composition of lysergic acid diethylamide as scientifically established. This chemical composition is most clearly expressed in The Hallucinogens5 under the heading, “The Chemistry of LSD.” It is diagramically displayed as reproduced below:

The diagram is followed by this explanation: “Carbon numbers 5 and 8 are assy-metric so that 4 optically active isomers are possible. These are d-lysergic acid die-thylamide, 1-lysergic acid diethylamide, d-isolysergic acid diethylamide and l-isoly-sergic acid diethylamide.”6 (Emphasis supplied.)

“D” and “l” forms of isolysergic acid diethylamide are optical isomers. As such, they fall within the statute prohibiting possession of “. . . any of the following substances, their optical isomers, and their salts”7 (emphasis supplied), and it necessarily follows that possession or sale of such chemicals is prohibited.

We conclude, then, that the indictment now before us is not defective. There was no need to specify which form because all four forms of lysergic acid die-thylamide are included within the proscriptions of 22 M.R.S.A. § 2212-B.

[125]*125The appellant next asserts that even though the statute embraces all four forms of lysergic acid diethylamide, the indictment’s use of the generic term nevertheless renders it fatally deficient. The indictment’s deficiency stems, he contends, from its failure to meet the standard set out in State v. Beckwith that “[i]n criminal prosecutions, the description of the offense in the complaint or indictment must be certain, positive and complete” enabling the accused to understand the accusation without having to go “beyond the record.” State v. Beckwith, 135 Me. 423, 426, 198 A. 739, 741 (1938). The appellant argues that the instant indictment does not meet this standard because expert testimony was required to determine whether the forms of the drug included under the generic term were also included in 22 M.R.S.A. § 2212-B, thus forcing him to go “beyond the record.”

In considering this argument we note first that “. . . the object of the rule requiring the charge to be particularly, certainly and technically set forth is threefold: To apprise the defendant of the precise nature of the charge made against him; to enable the court to determine whether the facts constitute an offense and to render the proper judgment thereon; that the judgment may be a bar to any future prosecution for the same offense.” State v. Longley, 119 Me. 535, 537, 112 A. 260, 261 (1921); accord, State v. Ward, 156 Me. 59, 158 A.2d 869 (1960). If these purposes are met, the indictment is valid.

An indictment adequately notifies the appellant of the nature of the accusation if it would so inform a man of “reasonable and normal intelligence.” State v. Charette, 159 Me. 124, 127, 188 A.2d 898, 900 (1963). In State v. Alley, Me., 263 A.2d 66 (1970), we approved the use of the word “marijuana” in an indictment because “[t]he meaning of the term ‘marijuana’ is well and commonly known” and is, therefore, “. . . more informative to a person of ‘common understanding1 ” than the technical scientific nomenclature. Id., at 70. The requisite degree of notice demanded of an indictment was also considered in United States v. Farber, 306 F.Supp. 48 (N.D.Calif.1969).

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388 A.2d 69 (Supreme Judicial Court of Maine, 1978)
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Bluebook (online)
365 A.2d 122, 1976 Me. LEXIS 378, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-philpot-me-1976.