State v. Gallup, 92-17
| Decision Date | 19 May 1993 |
| Docket Number | No. 92-17,92-17 |
| Citation | 500 N.W.2d 437 |
| Parties | STATE of Iowa, Appellee, v. Gerald Leroy GALLUP, Appellant. |
| Court | Iowa Supreme Court |
Linda Del Gallo, State Appellate Defender, and Kevin Cmelik, Asst. State Appellate Defender, for appellant.
Bonnie J. Campbell, Atty. Gen., Martha Boesen and Sheryl A. Soich, Asst. Attys. Gen., Michael Riepe, County Atty., and John Courter, Asst. County Atty., for appellee.
Considered by McGIVERIN, C.J., and HARRIS, CARTER, LAVORATO, and ANDREASEN, JJ.
The jury in this case convicted the defendant of two crimes: delivery of a controlled substance and distribution of a taxable substance without a drug tax stamp. See Iowa Code §§ 204.401(1)(b)(5), 421A.12 (1991). 1 Because the defendant was an habitual offender, the district court enhanced the sentence. See Iowa Code §§ 902.8, 902.9(2).
On appeal from these convictions, the defendant raises four issues. First, the district court erred in overruling his motions for a judgment of acquittal because the State failed to disprove the defendant's defense of entrapment. Second, the district court abused its discretion by overruling the defendant's hearsay objection to an evidence tag. Third, the district court erred by overruling the defendant's motion to dismiss the trial information on double jeopardy, self-incrimination, and due process challenges to Iowa Code chapter 421A. Last, the district court imposed an illegal sentence by failing to merge his sentences on the delivery and drug tax stamp offenses.
Viewing the evidence in the light most favorable to the State, we think the jury could find the following facts. Paul Craff, a suspected drug dealer, unknowingly sold crystal methamphetamine to undercover agents on three different occasions. On February 7, 1991, authorities confronted him at his apartment with these facts. At the same time they offered him a "Cooperation and Plea Agreement." Its terms provided that if Craff could provide "five prosecutable cases" for the Henry county sheriff's office, one of the three delivery charges against him would be dropped. Craff understood that if he could provide authorities with additional prosecutable cases, he might receive a further reduction in charges.
Craff named seven alleged drug dealers. One was the defendant, Gerald Leroy Gallup. Before this, authorities had never suspected Gallup of any illegal drug activity.
On February 14 authorities met with Craff and debriefed him. The authorities told Craff that should he become aware of an imminent drug transaction, deputy sheriff Al Wittmer was to be his contact for any sting operation that might be set up.
Five weeks later Gallup knocked on Craff's door at about 2:30 a.m., awakening Craff. Craff let Gallup in. Gallup then asked Craff if he would like to buy some LSD (lysergic acid diethylamide). Craff declined, claiming he could not afford it right then. However, Craff left open the possibility of a "buy" by telling Gallup that if he could get the cash, he would call Gallup about the drugs.
Following the authorities' earlier instructions, Craff called Wittmer later that morning. He told Wittmer about his conversation with Gallup. Craff told Wittmer he thought he could make the buy from Gallup.
Wittmer then called sheriff Terry E. Morrow. Morrow told Wittmer to set up the buy. Craff and Gallup set up a meeting for 11:30 a.m. in a local grocery store parking lot.
Craff met Wittmer at a local cemetery before meeting Gallup. After searching Craff and his pickup truck, Wittmer put a recorder into Craff's chest pocket, turned it on, and gave Craff buy money.
Craff then went to his appointment with Gallup. Gallup drove up at the appointed time, entered Craff's truck, had some conversation with Craff, gave Craff the LSD, took the money from Craff, and left. Craff returned to the cemetery where Wittmer retrieved the recorder and LSD from him.
After Gallup was charged, he filed a motion to dismiss raising the constitutional challenges to chapter 421A. The district court overruled the motion.
Later Gallup filed another motion to dismiss. This time Gallup asked the court to find as a matter of law that he was entrapped. This, too, was overruled.
Following his conviction and sentence, Gallup appealed.
Gallup's first complaint is that his motion for judgment of acquittal should have been granted. Under the standard he proposes, Gallup thinks the State failed to disprove his entrapment defense as a matter of law.
Gallup finds fault with the objective test of entrapment articulated by this court in State v. Mullen, 216 N.W.2d 375, 382 (Iowa 1974) and used by the district court in this case. Briefly, under the Mullen standard,
[e]ntrapment occurs when a law enforcement agent causes the commission of a crime by using persuasion or other means likely to cause a normally law-abiding person to commit the crime. Conduct merely providing an opportunity to commit a crime does not amount to entrapment.
I Iowa Criminal Jury Instructions 200.17 (1988). This court settled on the objective standard as opposed to the subjective standard in an effort to
balance and recognize both the necessity to preserve the integrity of our courts and the Iowa criminal justice system, and the urgency to use all legitimate, necessary means to combat crime.
Gallup's proposed standard would require the State to additionally prove it had a reasonable suspicion, or even probable cause, to believe an individual was engaging in unlawful conduct before targeting that individual by providing the opportunity to commit a crime. We decline Gallup's invitation to impose either additional proof requirement on the State.
Under the present state of the law, we think the State produced sufficient evidence to disprove Gallup's entrapment defense. The district court correctly overruled Gallup's motion on this issue.
As part of the State's case, the prosecutor offered as an exhibit an envelope containing the LSD Gallup allegedly sold to Craff. An evidence tag was attached to the envelope. Wittmer prepared the tag for internal record keeping. Over Gallup's hearsay objection, the district court admitted the exhibit with the tag attached.
The tag looked like this:
PROPERTY/EVIDENCE TAG
CASE NO. 44"900829"08
--------------------------
DATE 03 / 23 / 91
--------------------------
TIME 11:42 AM
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OFFENSE Del. Cont. Sub
--------------------------
DESCRIPTION
--------------------------
Fourteen (14) pieces of
--------------------------
paper that are to contain
--------------------------
drugs on them
--------------------------
--------------------------
State
--------------------------
vs
--------------------------
Gerald Gallup
--------------------------
--------------------------
44"3Y
--------------------------
--------------------------
SIGNATURE Wittmer
--------------------------
Were it not for the fact that Gallup admitted that he had sold LSD to Craff, we would reverse his conviction on this issue. Generally, the admission of incriminating evidence with an evidence tag still attached is prejudicial error. State v. Shultz, 231 N.W.2d 585, 587 (Iowa 1975); State v. Branch, 222 N.W.2d 423, 427 (Iowa 1974). Such a tag is clearly hearsay. Branch, 222 N.W.2d at 426. And, in addition, the tag has the effect of unduly emphasizing the State's evidence because it is "a neat condensation of the whole case against the defendant." Id. at 427 (citation omitted), accord Shultz, 231 N.W.2d at 587. So even though recitals on the tag are merely cumulative of the State's evidence, prejudicial error can still occur. Shultz, 231 N.W.2d at 587; Branch, 222 N.W.2d at 427.
Here, because of Gallup's admission, we think any error created by admission of the tag was harmless. In Shultz and Branch, there was no such admission. However, we take this opportunity to remind the bench and the bar that
[o]nce an exhibit has been received in evidence, no proper purpose exists for leaving attached to it an identification tag which summarizes the State's testimony regarding the exhibit.
Gallup challenged the validity of chapter 421A through a pretrial motion to dismiss the trial information. He alleged three federal constitutional infirmities: (1) double jeopardy, (2) self-incrimination, and (3) denial of due process. The district court overruled the motion in its entirety.
Our review of constitutional issues is de novo. State v. Fox, 491 N.W.2d 527, 530 (Iowa 1992). Statutes are presumed to be constitutional. Kelly v. Sinclair Oil Corp., 476 N.W.2d 341, 348 (Iowa 1991). This presumption places a heavy burden of proof upon one challenging the constitutionality of a statute. Id. We engage in any reasonable construction to uphold a statute against a constitutional challenge. State v. Mehner, 480 N.W.2d 872, 878 (Iowa 1992) (citation omitted).
A. Double jeopardy. The jury found Gallup guilty of delivery of a controlled substance and distribution of a taxable substance without a drug tax stamp. The district court pronounced separate sentences, enhanced them, and then ran the sentences concurrently.
Gallup's first constitutional challenge to Iowa Code chapter 421A is grounded on double jeopardy. Gallup's complaint is that chapter 421A infringes on his Fifth Amendment protection under the Double Jeopardy Clause against multiple punishments for the same offense. According to him chapter 421A...
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