State v. Deanda, 55889

• Decision Date: 22 May 1974
• Docket Number: No. 55889,55889
• Citation: 218 N.W.2d 649
• Court: Iowa Supreme Court
• Parties: STATE of Iowa, Appellee, v. Miguel Fernando DEANDA, Appellant.

Page 649

218 N.W.2d 649

STATE of Iowa, Appellee, v. Miguel Fernando DEANDA, Appellant.

No. 55889.

Supreme Court of Iowa.

May 22, 1974.

McCracken & Carlin, Davenport, for appellant.

Richard C. Turner, Atty. Gen., David M. Dryer, Asst. Atty. Gen., Edward N. Wehr, County Atty., and Thomas G. Schebler, Asst. County Atty., for appellee.

Heard beofre MOORE, C.J., and MASON, RAWLINGS, REYNOLDSON and HARRIS, JJ.

HARRIS, Justice.

Defendant appeals his conviction of delivery of a controlled substance in violation of § 204.401(1)(b), The Code. We reverse and remand.

The change arose from defendant's sale of marijuana to Davenport police officer William Lortz. Officer Lortz was working as an undercover agent with the Organized Crime Unit of the Davenport police department. His investigation began with the offer of a ride to a hitchhiker in Davenport. The hitchhiker was Raymond DeAnda, a brother of defendant. During the five minute ride the officer told Raymond he had recently been discharged from military service and was having difficulty obtaining marijuana. Raymond gave Officer Lortz his telephone number.

The officer telephoned the DeAnda home several times and arranged with Raymond for the purchase. The officer was directed to a public park to meet defendant where defendant sold him marijuana. In this appeal from his subsequent arrest and conviction defendant assigns numerous errors. Our opinion in State v. Mullen, 216 N.W.2d 375 (Iowa 1974), filed during pendency of this appeal, necessitates a reversal because of the trial court's instruction on entrapment. Because of their importance in retrial we shall consider other assignments.

I. In State v. Mullen, supra, we adopted the objective test in considering whether an officer induced, or merely presented an opportunity for the criminal act. The test adopted in State v. Mullen was from the National Commissions Study Draft of a New Federal Criminal Code, § 702 (1970):

"Entrapment occurs when a law enforcement agent induces the commission of an offense, using persuasion or other means likely to cause normally law-abiding persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment." 216 N.W.2d at 382.

Defendant makes three arguments on the question of entrapment. First he argues the trial court should have adopted the objective test and found as a matter of law he was entrapped. He next argues it was error to give the uniform jury instruction because it was tailored to the subjective rather than objective test. Finally he argues evidence of subsequent sales was improperly admitted on the question of predisposition.

The trial court was correct in refusing to find there was or was not entrapment as a matter of law. A trial court should make such a finding only where there is no dispute as to the facts or inferences to be drawn from them. In all other cases the question should be submitted to the jury. State v. Mullen, supra. The record shows there was a sharp dispute as to the operative facts and the inferences to be drawn from them. In this case it was not appropriate for the trial court to decide the entrapment issue as a matter of law.

The instruction given on entrapment was Uniform Jury Instruction 501.21 of the Iowa State Bar Association. Defendant is right in insisting the instruction was erroneous because it was squarely bottomed on the subjective test we later rejected in State v. Mullen. There is no hint in the instruction the jury should consider whether the police actions were so reprehensible that, as a matter of public policy, a conviction should not be tolerated. The uniform instruction ignores the factual evaluation to be undertaken on a case by case basis of possible '* * * prohibited governmental activity (which) might include extreme pleas of desperate illness, appeals based primaily on sympathy, pity or close personal friendship, and offers of inordinate sums of money. * * *.' 216 N.W.2d at 383. Most of all, the uniform instruction erroneously fails to focus on the crucial question of what is likely to cause normally law-abiding persons to commit the offense. The giving of the instruction was error.

Over defendant's timely, specific and strenuous objections, the State introduced evidence of subsequent sales by defendant. It was erroneously received on the question of defendant's 'predisposition' for the offense. Evidence of subsequent sales should have been excluded. Because the case must be reversed by reason of the entrapment instructment it is not necessary to consider the effect of a curative instruction. But see State v. Coffee, 182 N.W.2d 390, 392 (Iowa 1970).

II. Defendant argues he was entitled to a jury trial on his claim he was an accommodation seller under § 204.401, The Code. He also argues that section is unconstitutional because it places the burden of proof on the accused. These claims were decided adversely to defendant in State v. Vietor, 208 N.W.2d 897 (Iowa (1973). In State v. Frank, 214 N.W.2d 915 (Iowa 1974) we declined to reconsider our holding in State v. Vietor. We again decline to do so.

III. Defendant sought to examine Officer Lortz's police reports. On cross-examination the officer testified he daily prepared a report of his investigations. Under a procedure intended to comply with that prescribed in State v. White, 260 Iowa 1000, 151 N.W.2d 552 the trial court examined the material with the prosecutor. In State v. White we provided for an in camera hearing in the belief courts in this state should adopt and provide a procedure in such matters similar to that which obtains in federal courts under the Jencks Act (18 U.S.C.A. § 3500). The in camera hearing should be held during trial recess, immediately after demand is made for the materials. On appeal defendant assigns separate errors. One is addressed to the conduct of the camera hearing, and one is addressed to the trial court's refusal to allow him the materials.

Defendant urges his...