State v. Gibb, No. 63765

CourtUnited States State Supreme Court of Iowa
Writing for the CourtConsidered by REYNOLDSON; REYNOLDSON
Citation303 N.W.2d 673
Docket NumberNo. 63765
Decision Date18 March 1981
PartiesSTATE of Iowa, Appellee, v. Allan Banks GIBB III, Appellant.

Page 673

303 N.W.2d 673
STATE of Iowa, Appellee,
v.
Allan Banks GIBB III, Appellant.
No. 63765.
Supreme Court of Iowa.
March 18, 1981.

Page 675

Lad Grove, Ames, for appellant.

Thomas J. Miller, Atty. Gen., Kathy Krewer, Asst. Atty. Gen., Ruth Harkin, Story County Atty., and Richard O. Parker, Asst. Story County Atty., Nev., for appellee.

Considered by REYNOLDSON, C. J., and HARRIS, McCORMICK, ALLBEE, and LARSON, JJ.

REYNOLDSON, Chief Justice.

A three-count information charged defendant Allan Banks Gibb III with three separate incidents of delivering a Schedule II narcotic drug, cocaine, for a profit, in violation of section 204.401(1)(a), Code Supp. 1977. Following a jury trial he was convicted on all counts and sentenced to a $1000 fine and a ten-year prison term on each charge, two of the prison terms to be served consecutively. Defendant appeals. We affirm on two counts, reverse on the third, and remand.

Page 676

Defendant's arrest resulted from an undercover drug traffic investigation by the Story county attorney and sheriff's office. Deputy sheriff David Anderson, age 26, operated as an undercover agent. He cultivated an acquaintance with defendant's friend, John Furman. Through Furman, Anderson arranged three cocaine "buys" from defendant. These purchases occurred September 16, 1978 (five grams for $500), October 25, 1978 (fourteen grams for $1185), and November 4, 1978 (one-fourth pound for $9000). In the last transaction the money, although displayed to defendant, was not paid. He and Furman were arrested. Furman later entered a guilty plea and the State called him as an adverse witness in this case.

Defense counsel in opening statement conceded defendant had delivered the cocaine on the three occasions, and told the jury the only issue was whether these were deliveries for profit or deliveries as an accommodation to a friend.

Defendant raises sixteen grounds for reversal of the district court judgment. We address these issues in the fourteen divisions that follow.

I. Was trial court right in overruling defendant's pretrial motion to dismiss, grounded on alleged reprehensible police conduct?

Defendant produced several witnesses in support of this motion. Trial court's ruling denying the motion concluded that from this testimony a fact finder "could find,"

that during that investigation Deputy Anderson 1) contacted and used the juveniles as providers of information without the knowledge or consent of the juvenile's parents, 2) purchased for and furnished to the juveniles beer, 3) provided on one occasion his own marijuana for them to smoke, and 4) operated his motor vehicle with the juveniles in it when he was under the influence of an alcoholic beverage, (and) that the Officer had no authority from his superiors to engage in any criminal conduct as a part of his undercover work other than the commission of simple misdemeanors regarding the personal consumption of alcohol on a public highway and the disobedience of minor traffic regulations. Neither did he have authority from his superiors to use minors as contacts without parental permission.

Anderson took the stand, denied he was intoxicated on any occasion, and further denied he bought alcoholic beverages or distributed them to minors. He admitted two minor traffic violations and that he had consumed beer on a public highway. With respect to the marijuana incident, he asserted the substance was supplied by the minor girls, and that he held the pipe but did not smoke it.

Trial court assumed, without deciding, that Anderson participated in the illegal activities as claimed, but nonetheless held the conduct was "not so outrageous" that defendant's prosecution should be aborted. We agree.

There is no nexus between Anderson's alleged conduct with the sophisticated minors and the defendant. The latter was not present during any of the alleged illegal activity. These acquaintances only led Anderson to Furman; that contact in turn led to defendant. Defendant does not suggest how Anderson's alleged conduct, described above, affected him, and he raises no claim of entrapment. In making this observation we do not foreclose the possibility of barring prosecution in extreme cases, even where an entrapment defense is not established. See State v. Pooler, 255 N.W.2d 328, 330-31 (Iowa 1977).

Courts have recognized the necessity to infiltrate drug rings may require a limited participation in unlawful practices. See United States v. Russell, 411 U.S. 423, 432, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366, 373-74 (1973); United States v. Spivey, 508 F.2d 146, 148-49 (10th Cir.), cert. denied, 421 U.S. 949, 95 S.Ct. 1682, 44 L.Ed.2d 104 (1975); State v. Apt, 244 N.W.2d 801, 803-04 (Iowa 1976).

We hold our decisions in Pooler (undercover police officer participated in break-in

Page 677

with defendant) and Apt (undercover officer permitted informant to smoke marijuana in his presence) control here. If defendant's evidence relating to Anderson's conduct is true, we agree it was reprehensible. Nonetheless, it was unrelated to any activity involving defendant, and not "so outrageous and reprehensible that a defendant whose rights were not infringed should be acquitted because of it." Pooler, 255 N.W.2d at 331. Trial court properly overruled the motion.

II. Was trial court right in overruling defendant's motion for separate trial on each count?

Confronted with the three-count information, defendant moved for separate trial upon each count, alleging that otherwise the jury would "improperly (consider) evidence of other crimes in the determination of whether or not the Defendant is guilty of any of the alleged crimes." His allegations of constitutional due process and equal protection violations were not asserted here. Trial court overruled the motion, noting defendant "failed to show any prejudicial effect which would overcome the State's interest in trying the offenses at one time to preserve time and money."

The grouping of controlled substance violations is governed by a special statute tailored for the purpose. Section 204.408, The Code, relevantly provides:

Information, indictments, trial, and sentencing for violations of this (Uniform Controlled Substances) chapter may allege any number of violations of their provisions against one person and join one or more persons as defendants who it is alleged violated the same provisions in the same transaction or series of transactions and which involve common questions of law and fact. The several charges shall be set out in separate counts The court may grant severance and separate trial to any accused person jointly charged or indicted if it appears that substantial injustice would result to such accused person unless a separate trial was granted.

The above statute is more inclusive than Iowa Rule of Criminal Procedure 6(1), which permits offenses "arising out of the same transaction or occurrence" to be alleged and prosecuted "as separate counts in a single complaint, information or indictment, unless, for good cause shown, the trial court in its discretion determines otherwise." In State v. Evans, 248 N.W.2d 521, 523 (Iowa 1976), relying on the section 204.408 "series of transactions" language, we held defendant's two incidents of controlled substance delivery were properly joined under separate counts in an information.

A strict construction of section 204.408 arguably would permit severance only to an accused who is "jointly charged." But we have indicated severance of charges may be permitted to a defendant who has carried the burden to show his or her interest in receiving a fair trial, uninfluenced by the prejudicial effects that could result from prosecuting a multicount information, outweighs the State's interest in judicial economy. State v. Trudo, 253 N.W.2d 101, 104 (Iowa), cert. denied, 434 U.S. 903, 98 S.Ct. 299, 54 L.Ed.2d 189 (1977); see Iowa R.Crim.P. 10(2)(e) (request for severance of charges or defendants). Defendant must show trial court abused its discretion by refusing to sever the charges. See State v. Belieu, 288 N.W.2d 895, 900 (Iowa 1980).

In this case trial court instructed the jury "that the charge contained in each count is to be separately considered and separately determined by you without any regard to any of the other counts." We believe the jury was capable of following, and did follow, this instruction. See State v. Hepburn, 270 N.W.2d 629, 632 (Iowa 1978).

The three cocaine sales charged in the separate counts constituted a series of transactions involving the same persons and the same law. The economy of one trial clearly outweighed any potential prejudice to defendant. We hold trial court rightly overruled the severance motion.

III. Did trial court commit reversible error in overruling defendant's objection to a question whether a public officer had any conversation with him following his arrest?

Special agent Wilbur participated in the third cocaine sale in Ames and the related

Page 678

arrests. He heard another officer give defendant the Miranda warning. Wilbur then drove defendant to Nevada in defendant's car.

On Wilbur's direct examination the following testimony occurred:

Q. And did you have any conversation with (defendant) during the transportation to Nevada, or upon your arrival?

MR. GROVE: Objection, Your Honor. I object to any conversation with the defendant from Ames to Nevada for the reason that the defendant had not been afforded the right to contact counsel at that point.

THE COURT: Overruled on the record made.

A. I asked Mr. Gibb questions. However, he exercised his right to remain silent.

The above question was asked in developing the circumstances surrounding defendant's producing two more packets of cocaine in response to Wilbur's question whether defendant had any other "controlled substance" in the vehicle, a matter we take up in division VII.

The same question had been asked and almost the same answer elicited as part of a prior...

To continue reading

Request your trial
58 practice notes
  • People v. Aston, Cr. 11261
    • United States
    • California Court of Appeals
    • December 13, 1984
    ...held that, as a matter of law, d-cocaine is chemically equivalent to the cocaine derived from coca leaves. (State v. Gibb (Iowa 1981) 303 N.W.2d 673, 684-685.) The court reached this conclusion by means of the same grammatical mistake discussed in the text. (See the text adjacent to fn. 10 ......
  • State v. Steele, No. 18077
    • United States
    • Supreme Court of South Dakota
    • September 2, 1993
    ...United States v. Spletzer, 535 F.2d 950, 955 (5th Cir.1976); People v. Nicholls, 42 Ill.2d 91, 245 N.E.2d 771, 776 (1969); State v. Gibb, 303 N.W.2d 673, 682 (Iowa 1981); State v. Saul, 434 N.W.2d 572, 575 (N.D.1989). Further, despite the majority's citation to a federal balancing test, the......
  • State v. Eagle Star, No. 19439
    • United States
    • Supreme Court of South Dakota
    • December 18, 1996
    ...United States v. Spletzer, 535 F.2d 950, 955 (5th Cir.1976); People v. Nicholls, 42 Ill.2d 91, 245 N.E.2d 771, 776 (1969); State v. Gibb, 303 N.W.2d 673, 682 (Iowa 1981); State v. Saul, 434 N.W.2d 572, 575 ¶27 The State had the burden of proving Defendant assaulted Victim with the intent to......
  • State v. Deases, No. 90-414
    • United States
    • Court of Appeals of Iowa
    • June 25, 1991
    ...issue other than a general propensity to commit wrongful acts. Barrett, 401 N.W.2d at 187; Emerson, 375 N.W.2d at 260; State v. Gibb, 303 N.W.2d 673, 682 (Iowa 1981); State v. McDaniel, 265 N.W.2d 917, 921 (Iowa Questions of relevancy and materiality of evidence rests largely within the sou......
  • Request a trial to view additional results
58 cases
  • People v. Aston, Cr. 11261
    • United States
    • California Court of Appeals
    • December 13, 1984
    ...held that, as a matter of law, d-cocaine is chemically equivalent to the cocaine derived from coca leaves. (State v. Gibb (Iowa 1981) 303 N.W.2d 673, 684-685.) The court reached this conclusion by means of the same grammatical mistake discussed in the text. (See the text adjacent to fn. 10 ......
  • State v. Steele, No. 18077
    • United States
    • Supreme Court of South Dakota
    • September 2, 1993
    ...United States v. Spletzer, 535 F.2d 950, 955 (5th Cir.1976); People v. Nicholls, 42 Ill.2d 91, 245 N.E.2d 771, 776 (1969); State v. Gibb, 303 N.W.2d 673, 682 (Iowa 1981); State v. Saul, 434 N.W.2d 572, 575 (N.D.1989). Further, despite the majority's citation to a federal balancing test, the......
  • State v. Eagle Star, No. 19439
    • United States
    • Supreme Court of South Dakota
    • December 18, 1996
    ...United States v. Spletzer, 535 F.2d 950, 955 (5th Cir.1976); People v. Nicholls, 42 Ill.2d 91, 245 N.E.2d 771, 776 (1969); State v. Gibb, 303 N.W.2d 673, 682 (Iowa 1981); State v. Saul, 434 N.W.2d 572, 575 ¶27 The State had the burden of proving Defendant assaulted Victim with the intent to......
  • State v. Deases, No. 90-414
    • United States
    • Court of Appeals of Iowa
    • June 25, 1991
    ...issue other than a general propensity to commit wrongful acts. Barrett, 401 N.W.2d at 187; Emerson, 375 N.W.2d at 260; State v. Gibb, 303 N.W.2d 673, 682 (Iowa 1981); State v. McDaniel, 265 N.W.2d 917, 921 (Iowa Questions of relevancy and materiality of evidence rests largely within the sou......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT