State v. Atley

• Decision Date: 18 June 1997
• Docket Number: No. 95-1133,95-1133
• Citation: 564 N.W.2d 817
• Parties: STATE of Iowa, Appellee, v. Lewis J. ATLEY a/k/a Gary J. Semeniuk, Appellant.
• Court: Iowa Supreme Court

Page 817

564 N.W.2d 817

STATE of Iowa, Appellee, v. Lewis J. ATLEY a/k/a Gary J. Semeniuk, Appellant.

No. 95-1133.

Supreme Court of Iowa.

June 18, 1997.

Michael K. Williams, Souix City, for appellant.

Lewis J. Atley, pro se, on rehearing.

Thomas J. Miller, Attorney General, Robert P. Ewald, Assistant Attorney General, William E. Davis, County Attorney, and Realff H. Ottesen, Assistant County Attorney, for appellee.

Considered en banc.

SNELL, Justice.

This case involves an appeal by defendant, Lewis J. Atley, who was convicted of manufacturing and possessing controlled substances, possession with intent to deliver controlled substances, and tax stamp violations. He asserts trial court errors and that the statute relating to psilocybin is unconstitutional. We are now reconsidering issues raised by defendant's petition for rehearing, which we granted, as well as those issues previously considered. On rehearing, we affirm.

I. Factual and Procedural Background

On July 11, 1994, Davenport authorities were notified by the Denver, Colorado police that a package containing methamphetamine had been intercepted at the Denver airport and would be arriving that afternoon at the Quad City airport. Officers of the Quad-City Metropolitan Enforcement Group (MEG) set up surveillance at the airport and observed the defendant pick up the package. The officers followed Atley's vehicle into Iowa and eventually stopped it along the interstate. Officers questioned him about the package and found that it did contain methamphetamine. Atley was Mirandized but not arrested. After a brief conversation, police obtained consent from Atley to search his home. Atley informed the officers that there they would find a small quantity of marijuana and something else that would "make front page news."

Upon arriving at Atley's residence, officers found it had been converted into a large mushroom growing operation. Inside were mushrooms in various stages of growth, over 4000 mason jars, 2000 styrofoam coolers, 240 petri dishes, four 50-pound bags of brown rice, and numerous other instruments of mushroom production, including refrigerators, humidifiers, grow lights, pressure cookers, heat sealers, and packaging materials. Police also found a quantity of marijuana at the residence. Atley told the police that he did not believe his operation was illegal, and at the same time stated that he could sell the mushrooms for $800 per pound.

Atley initially was not arrested and subsequently entered into an agreement with the police to serve as an informant. But after a few days, Atley and his wife could not be located. Police then obtained and executed several search warrants at post office boxes and at Atley's residence. Pursuant to these warrants, officers seized property and funds believed to be proceeds of an illegal mushroom growing operation. A random sampling of mushroom material taken from the mason jars and petri dishes tested positive for psilocybin, a controlled substance, by the Iowa Division of Criminal Investigation. The remaining organic material seized from the residence, including the untested mushrooms and mycelia, was subsequently destroyed when officers believed that its decomposition posed a health hazard.

Atley was eventually located and arrested in Florida in October 1994. On October 28, 1994, he was charged by trial information with: manufacture of a controlled substance (psilocybin) in violation of Iowa Code section 124.401(1)(c)(6) (1993), possession of a controlled substance with the intent to deliver (psilocybin) in violation of section 124.401(1)(b), failure to affix a tax stamp (psilocybin) in violation of section 453B.12, possession with the intent to deliver (cannabis) in violation of section 124.401(1)(d), failure to affix a tax stamp (cannabis) in violation of section 453B.12, and possession of a controlled substance (methamphetamine) in violation of section 124.401(3).

A forfeiture hearing was also held, which resulted in the forfeiture of money and other personal property found to be proceeds of illegal drug sales. Atley represented himself at this hearing.

Prior to trial of the criminal charges, court-appointed attorneys were appointed to represent Atley. They performed their responsibilities as his counsel and Atley filed and argued numerous motions pro se. At trial, a jury returned guilty verdicts on all counts. Atley filed a motion for new trial, which was denied by the district court. He now appeals the jury verdicts, the denial of the new trial motion, and other aspects of the charges against him.

II. Procedural Issues

A. Uniform Criminal Jury Instruction No. 200.40

At trial, the jury was given Uniform Criminal Jury Instruction 200.40, which stated that the defendant's exercise of his right to not be a witness on his own behalf shall not be considered by the jury for any purpose. Atley argues that the court erred in submitting this instruction, contending that he never requested it, as required by State v. Kimball, 176 N.W.2d 864, 869 (Iowa 1970).

Our review of the submission of a jury instruction is for corrections of errors of law. Iowa R.App. P. 4; State v. Kellogg, 542 N.W.2d 514, 516 (Iowa 1996).

We have set forth the necessary prerequisites for submitting instruction number 200.40. In Kimball, we held that

such instruction should not be given in any future trial unless it is requested by defendant, and that it will be considered error if it is given, absent such request, in any trial started after the date this opinion is filed.

Kimball, 176 N.W.2d at 869.

The record, however, does indicate that the defendant affirmatively requested this instruction. After the jury left to deliberate, a brief record was made concerning this issue:

THE COURT: For purposes of the record--I've sent the jury from the room--included in the instructions sent with them was Instruction No. 33, regarding defendant's decision not to testify.

I just need to clarify this for the record. Mr. Weinberg, this was included at your client's request, is that right?

MR. WEINBERG: Oh, yes; sure.

THE COURT: We didn't put that on the record before.

MR. WEINBERG: It's because it was already included.

Because the record shows Atley requested this instruction, there was no error in submitting it to the jury. The fact that the record was made after the jury began to deliberate is non-consequential. In addition, there is testimony from Atley where he acknowledges that he chose not to testify on his own behalf. Thus, we find that the record sufficiently meets the requirement of Kimball and that Atley was not prejudiced by the submission of this instruction to the jury.

B. Motion for New Trial

Atley also claims error in the trial court's refusal to grant a new trial, based on numerous alleged errors occurring during the course of the proceedings. Trial courts have broad discretion in passing on motions for new trial. Thompson v. Rozeboom, 272 N.W.2d 444, 446 (Iowa 1978); Fleener v. Board of Supervisors, 246 N.W.2d 335, 338 (Iowa 1976). We review a denial of a motion for new trial for abuse of discretion. Bredberg v. Pepsico, Inc., 551 N.W.2d 321, 326 (Iowa 1996). In order to show an abuse of discretion, one generally must show the court exercised its discretion " 'on grounds or for reasons clearly untenable or to an extent clearly unreasonable.' " State v. Blackwell, 238 N.W.2d 131, 138 (Iowa 1976) (quoting Weeks v. Burnor, 132 Vt. 603, 326 A.2d 138, 140 (1974)).

At trial, Atley moved to dismiss counts I, II, and III (relating to psilocybin), based on the State's destruction of much of the evidence it had seized. Atley claimed such destruction was violative of his due process rights. This motion was denied and after the jury returned guilty verdicts on all counts, Atley, both through his counsel and pro se, sought a new trial on the grounds that the court erred in failing to dismiss the charges against him. He argued that the destruction of evidence by the State warranted dismissal and that the court failed to properly instruct the jury on spoliation. We do not find that the trial court abused its discretion in denying these motions.

Failure of the State to preserve potentially useful evidence does not constitute a denial of due process unless the defendant can show bad faith. Whitsel v. State, 525 N.W.2d 860, 864 (Iowa 1994); State v. Dulaney, 493 N.W.2d 787, 791 (Iowa 1992). Bad faith destruction of exculpatory evidence is commonly referred to as spoliation. State v. Langlet, 283 N.W.2d 330, 333 (Iowa 1979) ("Spoliation involves more than destruction of evidence. Application of the concept requires an intentional act of destruction."). We have further noted:

Where the lost evidence is only potentially exculpatory, where by its nature the lost evidence cannot be evaluated by a fact finder, a due process violation will not be found in the absence of a showing of bad faith.... [I]f the exculpatory value of the lost evidence is suitable for evaluation by a fact finder, a due process violation will be found upon a showing that the evidence was exculpatory and its destruction was deliberate.

State v. Craig, 490 N.W.2d 795, 796-97 (Iowa 1992) (footnote omitted).

We agree with the trial court that the evidence destroyed was neither exculpatory nor destroyed in bad faith. The trial court considered the facts and circumstances and refused to instruct the jury as to "destruction of the evidence." In its ruling, the district court listed a large number of "extraordinary circumstances" which justified the officers' destruction of some of the evidence. Included in these circumstances was the "sheer quantity" (over 4000 mason jars and petri dishes of organic material) of evidence, its perishability, and that there was insufficient space to store it. Furthermore, there was testimony that as the mushrooms began to decompose, officers noticed a strong odor and believed that it may have been toxic. One officer testified that the...