STATE of North Carolina
v.
Monroe Gordon PILAND.
No. 811SC1117.
Court of Appeals of North Carolina.
July 6, 1982.*279 Atty. Gen. Rufus T. Edmisten by Asst. Atty. Gen. Joan H. Byers, Raleigh, for the State.
Alexander & McCormick, Durham by David S. Rudolph, Chapel Hill, and Donald H. Beskind, Durham, for defendant-appellant.
WEBB, Judge.
The defendant brings forward seven assignments of error. He first argues that holding part of the suppression hearing without his presence violated his right of confrontation and effective assistance of counsel. He contends his attorney could not waive his right to be present. The State had offered to continue the suppression hearing, but it was started before the defendant was present at the request of defendant's counsel. There can be no question that his counsel intended to waive the *280 presence of the defendant at the hearing. We hold that he had the power to do this. It has been held that a defendant cannot waive his right to be present at every stage of his trial upon an indictment charging a capital felony. State v. Moore, 275 N.C. 198, 166 S.E.2d 652 (1969). Our Supreme Court has not extended this rule to non-capital cases. It has held that this rule is not extended in a capital case to require the defendant's presence at a hearing on a pretrial motion for discovery. State v. Davis, 290 N.C. 511, 227 S.E.2d 97 (1976). The defendant in this case has not demonstrated any prejudice to him by his absence from a part of the hearing. The evidence elicited was not disputed and there has been no showing that it would have been different had the defendant been present. The defendant's first assignment of error is overruled.
In his second assignment of error the defendant contends the court should have granted his motion to suppress the marijuana found on his property and his statements made to the officers at the time of his arrest. He contends the marijuana was seized and he was arrested as the result of an unlawful search. We do not believe there was an unlawful search. The officers had been invited by Mr. Gaskins to enter his property. While in a place at which they had a right to be, they were able to observe the growing marijuana in plain view. No search warrant was required to enter the property of the defendant and seize the contraband. See State v. Thompson, 296 N.C. 703, 252 S.E.2d 776 (1979). The defendant, citing several United States Supreme Court cases and cases from other jurisdictions, argues that the marijuana was being grown at a place in which he had a reasonable expectation of privacy and for this reason a search warrant was required before the officers could enter the property. We do not believe the case turns on this point. Assuming the defendant had a reasonable expectation of privacy in the place at which he planted the marijuana, it was in plain view of the officers at a place they had a lawful right to be. A reasonable expectation of privacy does not affect the officers' right to seize the marijuana without a search warrant under these circumstances. When the defendant said the marijuana was his, they had a right to arrest him and the statement he volunteered at that time may be received in evidence. The defendant's second assignment of error is overruled.
In his third assignment of error the defendant contends the court should have submitted to the jury the defense of necessity. He cites cases from other states and textbook authority for the proposition that in some cases society may be better served by violation of the law than adherence to its letter. He argues from this that the jury should have been allowed to determine whether the defendant had a right to grow marijuana in violation of the law in order to furnish it to his patients. We do not consider the defense of necessity except to say it has no application in this case. The evidence shows there is at least one doctor in this state who may prescribe marijuana. The defendant could have referred to Dr. Laszlo any patient who he felt needed marijuana. We cannot hold that any doctor in the state who decides he wants to grow marijuana may do so in disregard of the criminal sanctions against it and the laws and rules regulating the prescription of drugs by physicians. The defendant's third assignment of error is overruled.
In his fourth assignment of error the defendant contends the court should have charged the jury on G.S. 90-87(15) which provides in part:
"`Manufacture' ... does not include the preparation or compounding of a controlled substance ....
a. By a practitioner as an incident to his administering or dispensing of a controlled substance in the course of his professional practice."
We do not believe G.S. 90-87(15) has any application to this case. The defendant was doing more than preparing or compounding the marijuana. He was growing it. He should not have been growing it as an incident to administering or dispensing it in the *281 course of his professional practice as he was forbidden by law from doing so. The defendant's fourth assignment of error is overruled.
The defendant's fifth assignment of error is to the charge. The court charged on constructive possession. He charged the jury that if they found the marijuana was on premises owned and controlled by the defendant, this would be a circumstance with other circumstances from which they could conclude the defendant had the power and intent to control the marijuana. He charged further they could not make this inference on this circumstance alone. He then charged as follows: "This inference may be drawn only from this or any other circumstances that you find from the evidence beyond a reasonable doubt." The defendant contends that by using the word "or" the court charged inconsistently. We do not believe this lapse linguae was prejudicial to the defendant. He admitted throughout the trial that the marijuana was his. We believe from reading the entire charge that the jury was not misled. The defendant's fifth assignment of error is overruled.
The defendant next assigns error to the definition of intent used in the charge. The court apparently became confused when it started the definition of intent. It said "Intent is defined asa person acts intentionally for the purposes of this crime when it is his intent to knowingly possess marijuana." The court then correctly defined intent. We do not believe the jury was confused or misled by the above quoted sentence. The court also instructed the jury as follows:
"And intent to normally possess marijuana may be inferred from the act itself, the nature of the possession, the conduct of the defendant, and other relevant circumstances."
The defendant argues that by using the phrase "the nature of the possession" the court assumed that possession had been proved and thus commented on the evidence. We do not believe the jury would conclude from this phrase that the court had assumed that possession had been proved. If they did it may have been because the defendant admitted possession. This assignment of error is overruled.
In his last assignment of error the defendant contends the statute was unconstitutionally vague as applied to him. G.S. 90-101 provides in part:
"(g) Practitioners licensed in North Carolina by their respective licensing boards may possess, dispense or administer controlled substances to the extent authorized by law and by their boards.
(h) A physician licensed by the Board of Medical Examiners pursuant to Article 1 of this Chapter may possess, dispense or administer tetrahydrocannabinols in duly constituted pharmaceutical form for human administration for treatment purposes pursuant to regulations adopted by the North Carolina Drug Commission."
The defendant argues that the term "tetrahydrocannabinols" reasonably includes marijuana. He argues further that no regulations had been adopted by the North Carolina Drug Commission. He concludes these two sections of the statute led him to believe he could grow and possess marijuana for the use of his patients. Assuming that tetrahydrocannabinols include marijuana, we do not believe a statute which allows a physician to possess it in pharmaceutical form could lead a physician of common intelligence to believe he could grow marijuana and possess it in its raw form. The defendant's last assignment of error is overruled.
No error.
CLARK and ARNOLD, JJ., concur.