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Murphy v. Commonwealth, 31 Va.App. 70, 521 S.E.2d 301 (Va.App. 11/23/1999)
| [1] | Virginia Court of Appeals |
| [2] | Record No. 1459-98-4 |
| [3] | 31 Va.App. 70, 521 S.E.2d 301, 1999.VA.0042634 <http://www.versuslaw.com> |
| [4] | November 23, 1999 |
| [5] | BRIAN JOSEPH MURPHY V. COMMONWEALTH OF VIRGINIA |
| [6] | John Kenneth Zwerling (Zwerling & Kemler, P.C., on briefs), for appellant.
Michael T. Judge, Assistant Attorney General (Mark L. Earley, Attorney General,
on brief), for appellee. |
| [7] | Present: Judges Benton, Annunziata and Senior Judge Duff Argued at Alexandria,
Virginia |
| [8] | The opinion of the court was delivered by: Judge Rosemarie Annunziata |
| [9] | FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Kathleen H. MacKay, Judge |
| [10] | Brian J. Murphy ("appellant") was tried by jury for manufacturing
marijuana for his own use, in violation of Code § 18.2-248.1(c). Appellant
was acquitted of the charge but convicted of possession of marijuana. The
jury fixed his punishment at thirty days in jail and a fine of $250. He
contends on appeal that the trial court erred when it declined to find applicable
to the charge of possession of marijuana the common law defense of necessity
and erred in refusing a jury instruction on the issue. We find, as a matter
of law, that under the circumstances of this case, the common law defense
of necessity is not available to an individual accused of simple possession
of marijuana and affirm appellant's conviction. |
| [11] | Upon the execution of a search warrant at appellant's home in September
1997, a Fairfax County police officer found cultivated marijuana plants
and seized them as evidence in support of charges subsequently lodged against
appellant. Appellant admitted he possessed the marijuana, but contended
it was for his personal use to alleviate debilitating migraine headaches
he suffers as a result of an accident which occurred while he was serving
in the Navy. Appellant was prescribed numerous medications in substitution
for the marijuana but found none to be as effective or free of serious side
effects. On the ground that he used the illegal drug for medicinal purposes
for which there was no effective substitute, and which posed a lesser risk
to his health than conventional legal medications, appellant requested the
trial court to instruct the jury on necessity. The instruction was denied.
*fn1 1 |
| [12] | The first statute criminalizing the possession of marijuana in Virginia
was enacted in 1936. 1936 Va. Acts at 361 (codified at § 1693a, Code of
Virginia (1936)). *fn2
2 Notwithstanding its enactment of criminal penalties for the possession
of "cannabis and mariahuana [sic]," the General Assembly permitted
doctors to use the drug for medicinal purposes. *fn3
3 |
| [13] | Subsequently, the General Assembly significantly curtailed the medicinal
use of marijuana. Code § 18.2-251.1 allows the possession of marijuana only
"pursuant to a valid prescription issued by a medical doctor in the
course of his professional practice" and only "for the treatment
of cancer or glaucoma." By specifying the two permitted medicinal uses
of the drug, the legislature excluded all other uses from the scope of the
statute. See Turner v. Wexler, 244 Va. 124, 127, 418 S.E.2d 886, 887 (1992)
("mention of a specific item in a statute implies that omitted items
were not intended to be included within the scope of the statute"). |
| [14] | We must presume that legislative amendments are intended to effect a change
in the law. See Burke v. Commonwealth, 29 Va. App. 183, 188, 510 S.E.2d
743, 746 (1999) (citing Wisniewski v. Johnson, 223 Va. 141, 144, 286 S.E.2d
223, 224-25 (1982)). "When a legislative enactment limits the manner
in which something can be done, the enactment also evinces the intent that
it should not be done another way." Grigg v. Commonwealth, 224 Va.
356, 364, 297 S.E.2d 799, 803 (1982). Although the legislature once permitted
doctors generally to use marijuana "for medicinal purposes," Code
§ 18.2-251.1 now allows for possession of marijuana only "pursuant
to a valid prescription issued by a medical doctor in the course of his
professional practice" and only "for [the] treatment of cancer
or glaucoma." The basic tenets of statutory construction require us
to "'ascertain and give effect to legislative [intent,]'" Commonwealth
v. Wallace, 29 Va. App. 228, 233, 511 S.E.2d 423, 425 (1999) (quoting Branch
v. Commonwealth, 14 Va. App. 836, 839, 419 S.E.2d 422, 424 (1992)), and
"'effect rather than defeat a legislative purpose evident from the
history of the legislation.'" Adkins v. Commonwealth, 27 Va. App. 166,
170, 497 S.E.2d 896, 897 (1998) (quoting Ambrogi v. Koontz, 224 Va. 381,
389, 297 S.E.2d 660, 664 (1982)). In so doing, the "plain, obvious,
and rational meaning of a statute is always preferred to any curious, narrow
or strained construction . . . ." Branch, 14 Va. App. at 839, 419 S.E.2d
at 424. |
| [15] | Code § 18.2-251.1 makes clear that the legislature has narrowly limited
the permissible use of marijuana to the specific situations enumerated,
viz., to when a doctor issues a prescription for the use of marijuana to
treat either cancer or glaucoma. |
| [16] | As noted in Long v. Commonwealth, 23 Va. App. 537, 478 S.E.2d 324 (1996),
"[t]he defense of necessity is available only in situations wherein
the legislature has not itself, in its criminal statute, made a determination
of values. If it has done so, its decision governs." Id. at 543, 478
S.E.2d at 327 (citation omitted). "[W]here it is apparent that the
legislature has made a value judgment with respect to certain behavior,
it follows that the legislature intended to abrogate, to that extent, the
common law defense of necessity which, if not abrogated, would, within limits,
allow individuals to make their own value judgments with respect to that
behavior." Id. at 544, 478 S.E.2d at 327. |
| [17] | In short, the legislative history of the statute manifests that the General
Assembly has significantly limited the availability of the defense of necessity
for individuals who use marijuana for medicinal purposes. In restricting
the legitimate medicinal use of marijuana to cases involving cancer or glaucoma,
the legislature evinced its intent to circumscribe the value judgment an
individual can make with respect to its use for treating other conditions.
See id. To that extent, the common law defense of necessity is abrogated,
see id., and unavailing in appellant's case. Accordingly, the trial court
did not err in refusing appellant's proffered instruction on the defense. |
| [18] | Finding no error, we affirm the conviction. |
| [19] | Affirmed. |
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| Opinion Footnotes | |
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| [20] | *fn1 Appellant requested
the following instructions: Instruction J. The defendant in this case has
raised a necessity defense. The essential elements of this defense are:
(1) a reasonable belief that the action was necessary to avoid threatened
harm; (2) a lack of other adequate means to avoid the threatened harm; and
(3) a direct causal relationship that may be reasonably anticipated between
the action taken and the avoidance of the harm. If you find that the defendant
was acting out of necessity, you shall find him not guilty. Instruction
I. The defense of necessity addresses the dilemma created when physical
forces beyond the actor's control renders illegal conduct the lesser of
the two evils. If one who is starving eats another's food to save his own
life, the defense of necessity may bar a conviction for the larceny of the
other's food. The rationale of the necessity defense is not that a person,
when faced with the pressure of circumstances of nature lacks the mental
element which the crime in question requires. Rather, it is based upon the
public policy that the law ought to promote the achievement of higher values
at the expense of lesser values, and sometimes the greater good for society
will be accomplished by violating the literal language of the law. In some
sense, the necessity defense allows the jury to act as individual legislature,
amending a particular criminal provision or drafting a one-time exception
to it, subject to court review, when a real legislature would formally do
the same under those circumstances. |
| [21] | *fn2 Section 1693a made
a violation of the section punishable by not less than one year's incarceration
nor more than ten, or, in the discretion of the court or jury, punishable
by confinement in jail for not more than 12 months and a fine of not more
than $1,000, either or both. |
| [22] | *fn3 The statute provided,
in pertinent part: [A]ll varieties of cannibis and mariahuana [sic] (when
not used in accordance with a physician's direction) are hereby declared
dangerous, detrimental to the public health and a nuisance, and their cultivation
or growth within the limits of the State of Virginia is hereby declared
unlawful and prohibited. However, nothing in this Act shall be construed
as applying to licensed growers, licensed manufacturers of drugs and medicinal
supplies, licensed wholesalers of drugs, owners of licensed pharmacies,
licensed hospitals or other licensed institutions for the care of the sick
under the supervision of a licensed physician, or to registered wholesale
or retail pharmacists, or to licensed physicians, dentists and veterinarians
who are registered, licensed and authorized to practice their professions
under the laws of the State of Virginia when cannibis (and similar plants)
or the parts, preparation and compounds thereof are grown, possessed, purchased,
sold, delivered, distributed, transported or prescribed for medicinal purposes.
Code of Virginia (1936) § 1693a. |
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