State v. Bruno

• Citation: 204 N.W.2d 879
• Decision Date: 21 February 1973
• Docket Number: No. 54760,54760
• Parties: STATE of Iowa, Appellee, v. John BRUNO, Appellant.
• Court: Iowa Supreme Court

Page 879

204 N.W.2d 879

STATE of Iowa, Appellee, v. John BRUNO, Appellant.

No. 54760.

Supreme Court of Iowa.

Feb. 21, 1973.

Edward F. Samore, Sioux City, for appellant.

Richard C. Turner, Atty. Gen., Raymond W. Sullins, Asst. Atty. Gen., William S. Sturges, County Atty., for appellee.

Heard before MOORE, C.J., and MASON, RAWLINGS, HARRIS, and McCORMICK, JJ.

MASON, Justice.

John Bruno, indicted for selling hallucinogenic drugs contrary to Acts of the Regular Session of the Sixty-second General Assembly, chapter 189, section 3, appeals from judgment entered on a jury verdict convicting him of the crime charged.

In December 1969 Gayle Smith and Robert Bringle were working as undercover agents for the Iowa Narcotic Drug Division in LeMars. December 2 they were introduced to Bruno and a group of people at a residence in LeMars by an acquaintance of Bruno. Smith engaged some of the group in a conversation concerning acid, speed and marijuana. Before leaving the house Bruno offered Smith some broken tablets purported by Bruno to be acid. Smith took the packet into his possession.

Following this meeting there were other occasions when the agents visited with or saw defendant. December 6 they encountered Bruno at a local truck stop in LeMars. After some conversation Smith gave defendant $15 which represented the cost of 'LSD' tablets that were to be delivered by defendant to Smith and Bringle at their apartment. After some apparent confusion, the three met approximately two hours later at the apartment. Defendant then gave Smith a tinfoil packet containing what he represented to be 'acid.' Once defendant left, Smith enclosed the packet in a stationery envelope and sealed it.

December, 7, 1969 Smith transferred the envelope to his superior, Gene Battani, who immediately delivered the substance to the State Chemical Laboratory in Des Moines for analysis purposes. When the contents of the envelope were found to be LSD defendant was accused of having sold a quantity of the hallucinogenic drug lysergic acide diethylamide (LSD) to Smith.

At trial Smith and Bringle testified as to the circumstances surrounding their first meeting with defendant, the following meetings and the December 6 incident. Donald M. Booten, a chemist with the state laboratory, testified he received the package from Battani December 8; he then analyzed the substance December 16 and found it to be LSD. Several other witnesses testified for the State.

At the close of the State's evidence defendant filed motion for directed verdict alleging section 204A.3, The Code, was vague, failed to set forth the elements of the alleged crime and failed to include a definition of a hallucinogenic drug.

Defendant then introduced his evidence and renewed his motion for directed verdict at the close of all the evidence. Defendant filed two additional motions for directed verdict, all were overruled. The jury found defendant guilty of unlawfully selling hallucenogenic drugs.

The eight errors relied on by defendant for reversal are considered in the following divisions.

I. Defendant first contends the court erred in denying motion for directed verdict urged upon grounds of entrapment. He asserts the defense of entrapment was raised by the testimony of the State's first witness; that once evidence of entrapment is introduced, the burden is upon the State to prove beyond a reasonable doubt entrapment did not occur. This contention is asserted again in motion for new trial. Stated otherwise, defendant maintains the defense of entrapment was established as a matter of law.

In State v. Davis, 175 N.W.2d 407, 410 (Iowa 1970), this court stated the essence of entrapment in this language:

'Basically entrapment is the inducement of an innocent person into the commission of a crime by trickery, persuasion or fraud of a government agent. Government action in merely providing the opportunity or facilities for the commission of crime does not constitute entrapment. * * * (citing authorities).'

The foregoing statement is repeated with approval in State v. Fagan, 190 N.W.2d 800, 802 (Iowa 1971).

The State responds to defendant's argument by insisting entrapment was not available to Bruno under the circumstances. Thus, the first problem is to determine whether the principle of entrapment is available to this defendant under the record presented.

Although the doctrine of entrapment may be asserted even though defendant pleads not guilty, ordinarily the defense is not available where defendant denies commission of the very acts upon which the prosecution is predicated. Such a denial is inconsistent with the defense, which assumes the offense charged was committed but permits accused to seek relief from guilt on the ground the criminal intent or design was not his, but rather that of employees or agents of the government who planted the idea in his otherwise innocent mind by suggestion or solicitation.

The foregoing pronouncement is supported in whole or in part by the following decisions: United States v. Pagano, 207 F.2d 884, 885 (2 Cir. 1953); Munroe v. United States, 424 F.2d 243, 244 (10 Cir. 1970); Burris v. United States, 430 F.2d 399, 403 (7 Cir. 1970); United States v. Rodrigues, 433 F.2d 760, 761 (1 Cir. 1970); United States v. Groessel, 440 F.2d 602, 605 (5 Cir. 1971); United States v. Barrios, 457 F.2d 680, 682 (9 Cir. 1972); Brown v. State, 248 Ark. 561, 453 S.W.2d 50, 52; State v. Avery, 152 Conn. 582, 211 A.2d 165, 166; Pearson v. State, 221 So.2d 760, 763--764 (Fla.App.1969); People v. Shaw, 89 Ill.App.2d 285, 233 N.E.2d 73, 78; People v. Claugherty, 36 Mich.App. 648, 194 N.W.2d 54, 56; Reeves v. State, 244 So.2d 5, 6 (Miss.1971); State v. Stock, 463 S.W.2d 889, 892 (Mo.1971); State v. Parr, 129 Mont. 175, 283 P.2d 1086, 1089; State v. Johnson, 90 N.J.Super. 105, 216 A.2d 397, 403; State v. Wright, 84 N.M. 3, 498 P.2d 695, 697; State v. Good, 110 Ohio App. 415, 165 N.E.2d 28, 39; Godin v. State, 441 S.W.2d 196, 197 (Tex.Cr.App. 1969).

Contra, United States v. Neuman, 141 U.S.App.D.C. 131, 436 F.2d 285 (1970); People v. Perez, 62 Cal.2d 769, 44 Cal.Rptr. 326, 401 P.2d 934. At this point in time, so far as our research has disclosed, Perez has not been generally followed in other jurisdictions.

Bruno testified the tablets he delivered to Smith December 6 in return for the $15 given him were aspirin obtained from a local infirmary. Defendant said he filed the markings off the aspirin, made them smaller, placed them in a plastic packet and wrapped them in tinfoil before handing them to Smith. In this way he denied the very acts upon which the prosecution is predicated, that is, the unlawful sale of hallucinogenic drugs. In the light of this record and guided by the principle of law stated supra, we hold the defense of entrapment was not available.

II. Defendant's second assignment of error concerns the ruling of the trial court in permitting the State to amend the indictment during the course of trial.

Defendant contends the amended indictment defines an offense entirely different from that charged in the original indictment, which alleged defendant:

'* * * did, on or about the 6th day of December, 1969, unlawfully sell Hallucinogenic Drugs, not obtained upon a valid prescription and held in the original container in which said drugs were delivered contrary to the statutes in such cases made and provided in Section 204A.3 of the 1966 Code of Iowa as amended by Chapter 189, Section 3, Acts 1967 (62 G.A.).'

The State amended its indictment as follows:

'* * * Did, on or about the 6th day of December, 1969, unlawfully and feloniously sell Hallucinogenic Drugs, as defined in Section 204A point 1, Subparagraph 6 Subparagraph C, of the 1966 Code of Iowa, as amended, by Acts of the 1967 62nd General Assembly, Chapter 189, section 1 and in 52 Stat One-Oh-Four-Oh, 1936 (sic) U.S.C., Section 321, Subparagraph V, Subparagraph 3, contrary to the statute in such cases made and provided, and Section 204A point 3 of the 1966 Code of Iowa, as amended by Chapter 189, Section 3, Acts 1967, 62nd G.A.'

The indictment was amended pursuant to section 773.43, The Code, 1966, which provides: 'The court may, on motion of the state, and before or During the trial, order the indictment so amended as to correct errors or Omissions in matters of form or substance.' (Emphasis supplied).

That part of the original indictment not repeated in the amended indictment was properly eliminated as surplusage. See State v. Finnegan, 244 Iowa 166, 55 N.W.2d 223.

The language inserted in the amended indictment merely referred to another section of chapter 204A which defines a 'depressant or stimulant drug' as one 'having a hallucinogenic effect,' thereby making the alleged crime more specific--the sale of a hallucinogenic drug.

Thus, under the amended indictment the crime charged remained the same: that defendant 'did, on or about the 6th day of December, 1969, unlawfully * * * sell Hallucinogenic Drugs * * *.'

The court did not err in permitting the State to amend. See State v. Crutcher, 174 N.W.2d 449, 451--452 (Iowa 1970).

III. Defendant next contends the court erred in overruling his motion for directed verdict based on the contention the alleged unlawful act was possession, not selling, and in submitting the case to the jury on the issue of selling instead of possession He argues the court should have submitted the question whether defendant sold the alleged drugs to the undercover agent (Smith) or was acting solely at his request and as agent of Smith to the jury. Apparently, it is defendant's theory an affirmative finding as to the issue would prevent his conviction of selling narcotics.

Examination of the reporter's transcript which was filed in lieu of a printed record in this matter discloses defendant's motion was based on the allegation the statute under which he was charged was vague, uncertain, failed to state the nature of the crime, failed to state the specific...