State v. Brumage, 87-1571

• Decision Date: 25 January 1989
• Docket Number: No. 87-1571,87-1571
• Citation: 435 N.W.2d 337
• Parties: STATE of Iowa, Appellant, v. Ronnie D. BRUMAGE, Appellee.
• Court: Iowa Supreme Court

Page 337

435 N.W.2d 337

STATE of Iowa, Appellant, v. Ronnie D. BRUMAGE, Appellee.

No. 87-1571.

Supreme Court of Iowa.

Jan. 25, 1989.

Thomas J. Miller, Atty. Gen., Christie J. Scase, Asst. Atty. Gen., E.A. Westfall, County Atty., for appellant.

David E. Richter, Council Bluffs, and Troyce A. Wheeler, Council Bluffs, for appellee.

Considered by McGIVERIN, C.J., and LARSON, SCHULTZ, CARTER, and ANDREASEN, JJ.

SCHULTZ, Justice.

The State appeals from the trial court's pretrial dismissal of four criminal charges filed against Ronnie D. Brumage for the drugging of dogs in violation of Iowa Code section 99D.25(3)(b) (1987). Following a hearing on defendant's motion to dismiss, the defendant abandoned the portion of his motion based on the State's failure to state a prima facie case. He instead relied solely on the claim that the charging statute was unconstitutionally vague. The court entered a dismissal on its own initiative pursuant to Iowa Rule of Criminal Procedure 27(1), dismissing the Trial Information "in the furtherance of justice." While the court did not directly rely on the constitutional claim, it opined that section 99D.25(3) was vague. The State appeals, claiming that the trial court abused its discretion by dismissing the Trial Information and that Iowa Code section 99D.25(3) is not unconstitutionally vague. We reverse.

The "minutes of testimony," attached to the trial information, reveal that State agents conducted a dog drugging investigation at the Brumage Kennels at Bluffs Run track in Council Bluffs. It was learned that defendant Ronnie Brumage, son of the kennel owner, was injecting some of their dogs with a substance to improve their racing performance. Four dogs were injected on March 9, 1987, and each dog raced on either March 10th or 11th.

The state agent seized drug vials and syringes. The Diagnostic Laboratory at Iowa State University tested the contents of a vial and syringe, the results revealing they contained Boldenone Undecylenate, an anabolic steroid found in the drug Equipose. This drug is used to increase muscle mass, influence metabolism rates and sometimes produce aggressive behavior in animals. It is a synthetic compound not naturally found in animals. The urine samples taken on the dogs prior to their races on March 10th and 11th continue under testing.

In adopting pari-mutuel betting, the legislature prohibited certain acts relating to horse or dog racing. In charging Brumage, the State relied upon the prohibition against "the drugging of a ... dog with knowledge or reason to believe that the ... dog will compete in a race while so drugged...." § 99D.25(3)(b). "Drugging" is defined as "administering to a ... dog any substance, foreign to the natural ... dog prior to the start of a race." § 99D.25(1)(a).

Defendant filed a motion to dismiss which was set for hearing and generated a rather unusual evidentiary proceeding. Without objection, defendant called the county attorney as a witness and sought to have her interpret the terms of the applicable statute. Defendant also called other racing officials, veterinarians, and a D.C.I. agent seeking their interpretations of terms, among other matters. The State, on the other hand, presented no evidence, but did ask the court to take judicial notice of certain rules of Greyhound Racing. This hearing was conducted despite the fact that defendant had neither sought, nor obtained, the required Bill of Particulars for a motion to dismiss grounded generally on insufficiency of the evidence. See State v. Graham, 291 N.W.2d 345, 350 (Iowa 1980). At oral argument on appeal, defendant's counsel conceded that he was aware of this deficiency. He further stated that when an in-chambers conference with the judge led him to believe that his motion was going to be sustained, he withdrew the portion of the motion based on general insufficiency of the evidence to avoid this problem.

Despite the withdrawal of this portion of the motion, the trial court was troubled by what it perceived to be the weakness of the State's case. It reviewed the defendant's evidence and the proof required under the charging section. It decided that the State could not show that these dogs competed while drugged and concluded that if the case were to proceed to trial, the court would be forced to sustain an acquittal motion at the conclusion of the State's evidence. After commenting on the wasted expense of a trial, the court dismissed the case in the furtherance of justice under Rule of Criminal Procedure 27(1).

I. Dismissal. Various procedures for dismissal are available. First, trial courts are vested with authority to dismiss criminal charges by Iowa Rule of Criminal Procedure 10(6), which sets out specific grounds required for such a motion. Second, after the State's evidence is offered at trial, the defendant is entitled to a judgment of acquittal if the evidence is insufficient to sustain a conviction of the offense charged. Iowa R.Crim.P. 18(8)(a). A third method of dismissing an action is under Rule of Criminal Procedure 27(1), which was relied upon by the trial court in this case. This rule provides:

The court, upon its own motion or the application of the prosecuting attorney, in the furtherance of justice, may order the dismissal of any pending criminal prosecution, the reasons therefor being stated in the order and entered of record, and no such prosecution shall be discontinued or abandoned in any other manner. Such a dismissal is a bar to another prosecution for the same offense if it is a simple or serious misdemeanor; but it is not a bar if the offense charged be a felony or an aggravated misdemeanor.

The State maintains that the trial court erred in two respects: first, the State should have been advised of the court's intention to dismiss in the furtherance of justice, enabling it to present an argument on the merits of the case; and second, the court abused its discretion in dismissing the charges prior to trial because, contrary to the trial court's conclusion, the evidence creates a jury question regarding defendant's guilt of the crimes charged.

A. Notice. The State complained that the trial court failed to provide notice that it was contemplating dismissing the case under Rule 27(1). Defendant concedes that there is no record of notification. We must determine whether notice to the parties is required.

No specific provision in Rule 27(1) requires a trial court to give notice before entering a dismissal. However, our previous pronouncements leave little doubt that such notice is mandated. In regard to our rule's predecessor, we stated that prior to dismissal, "a fair opportunity for each side to present its case must be afforded" to provide a requisite "opportunity for each side to be heard." In re Judges of the Municipal Court, 256 Iowa 1135, 1137, 130 N.W.2d 553, 555 (1964). Our court of appeals specifically recognized a right of notice to the State in stating, "[i]f trial court was considering dismissal of the charges in the furtherance of justice, fair notice of its intention to do so should have been given to the parties and a full hearing held to permit them to argue the merits of dismissal or trial of the remaining charges." State v. Lundeen, 297 N.W.2d 232, 235 (Iowa App.1980). We hold that the trial court's failure to afford the State an opportunity to present reason why the case should not be dismissed was an abuse of its discretion.

B. Propriety of Dismissal. A trial court's authority to dismiss under Rule 27(1) is limited by the general phrase "in the furtherance of justice." While we have not previously defined the bounds of this phrase, we have suggested that proper reasons for dismissal under this rule include "facilitating the State in gathering evidence, procuring witnesses, or plea bargaining." State v. Fisher, 351 N.W.2d 798, 801 (Iowa 1984) (citing State v. Johnson, 217 N.W.2d 609, 612-13 (Iowa 1974)).

Other jurisdictions with similar statutes have curtailed the trial court's authority to dismiss. Perhaps the most limited application has been made by the Washington court which requires that the dismissal be based on a showing of arbitrary action or governmental misconduct. State v. Whitney, 96 Wash.2d 578, 579-80, 637 P.2d 956, 958 (1981). The Washington appellate courts have also upheld the trial court's inherent authority to dismiss for insufficiency of the charge or insufficiency of the evidence. State v. Knapstad, 41 Wash.App. 781, 786, 706 P.2d 238, 241 (1985). However, the state Supreme Court indicated that a motion to dismiss on this ground is premature before the court has opportunity to hear the evidence at trial. State v. Tyler, 77 Wash.2d 726, 738, 466 P.2d 120, 127 (1970).

In interpreting its similarly worded statute, the California Supreme Court stated that such language "requires consideration both of the constitutional rights of the defendant, and the interest of society represented by the People, in determining whether there should be a dismissal." People v. Orin, 13 Cal.3d 937, 945, 533 P.2d 193, 199, 120 Cal.Rptr. 65, 71 (1975). At a minimum, the reason for dismissal must be "that which would motivate a reasonable judge." Id. at 945, 533 P.2d at 199, 120 Cal.Rptr. at 71.

Similar to California, New York interpreted its statute to require a court to attain a sensitive balance between the individual and the state. People v. Insignares, 109 A.D.2d 221, 231, 491 N.Y.S.2d 166, 173 (1985). The court warned that the trial court's discretion to dismiss in the interest of justice, should be "exercised sparingly" and only in that "rare" and "unusual" case where it "cries out for fundamental justice beyond the confines of conventional consideration." Id. at 234, 491 N.Y.S.2d at 175 (citation omitted); see e.g., People v. Superior Court, 69 Cal.2d 491, 504, 446 P.2d 138, 147, 72 Cal.Rptr. 330, 339 (1968) (to avoid harassment of retrial when defendant has already served appropriate period of...