State v. Herndon

• Decision Date: 31 August 1977
• Docket Number: No. 59337,59337
• Citation: 257 N.W.2d 19
• Parties: STATE of Iowa, Appellee, v. Willie HERNDON, Appellant.
• Court: Iowa Supreme Court

Page 19

257 N.W.2d 19

STATE of Iowa, Appellee, v. Willie HERNDON, Appellant.

No. 59337.

Supreme Court of Iowa.

Aug. 31, 1977.

Robert A. Wright, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., and Ray A. Fenton, County Atty., for appellee.

Heard by MOORE, C. J., and MASON, REES, UHLENHOPP and HARRIS, JJ.

REES, Justice.

Defendant was charged by county attorney's information filed November 18, 1975, with two counts of delivery of controlled substance, namely, cocaine, in violation of § 204.401, The Code, 1975. The jury in a subsequent accommodation hearing found the delivery was for profit and defendant was sentenced to the penitentiary for a term of not to exceed ten years for the first delivery offense occurring on May 12, 1975, and for a term of not to exceed ten years for the second offense allegedly having occurred on June 25, 1975, with the sentences running concurrently. We affirm the trial court.

The defendant was charged with having made sales and delivery of cocaine to a police informant, one Robert Brown, on two occasions, one on May 12, 1975, and the second on June 25, 1975. Defendant bases his appeal on the following three issues stated for review:

(a) Trial court erred in denying defendant's motion to dismiss because of the time elapsed between the occurrence of the two offenses and the filing of the county attorney's information violated defendant's constitutional right to a fair trial.

(b) Trial court erred in overruling defendant's motion for directed verdict or new trial based on the record of the informer's allegedly perjured testimony, his admitted drug addiction and drug peddling and claimed inconsistent statements made by him.

(c) Trial court erred in overruling defendant's motion for a directed verdict in the accommodation hearing.

I. The issue of preaccusatorial delay was introduced in this case by the filing of a motion to dismiss. Similar motions were filed in 15 cases involving drug traffic in Polk County, and in all of the cases the motions involved claimed prejudice to the several defendants in general terms of deprivation of possible witnesses, the blurring of defendant's memory by passage of time, and the intent of the State to gain a tactical advantage by delaying the filing of the information.

There is no showing in the record of specific prejudice to the defendant other than as above claimed. We have addressed this same question in State v. Burrell, Iowa, 255 N.W.2d 119, 121-122. Burrell, supra, was one of the cases referred to above in which the motion to dismiss was filed. As we noted in Burrell, the defendant should have renewed the motion to dismiss with a specific showing of prejudice at the close of the evidence to enable the trial judge to assess the prejudicial effect of the delay, if any there were. Defendant, by failing to renew his motion to dismiss, failed to preserve the issue for review after the introduction of testimony. See United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).

We note that the only specific allegation of prejudice claimed by the defendant in this appeal is the loss of a possible witness, one Travis Fowler, who died before the information was filed. The only reference to Travis Fowler in the record is in connection with the cross-examination of the defendant during the accommodation hearing. Herndon there testified Fowler was his source for the cocaine.

The unavailability of the witness Fowler was not mentioned in the motion to dismiss prior to trial, and defendant did at no time allege that Fowler, has he been available to testify, could have testified favorably to the defendant, but merely alleges that he was unavailable as a witness because of his death. In Robinson v. United States, 148 U.S.App.D.C. 58, 459 F.2d 847 (1972), the court refused to upset a conviction on the claim that defendant's deceased sister might have been able to help reconstruct the pattern of defendant's activities. The probability of damage to the defense was held insufficient to upset the conviction.

In United States v. Norton, 504 F.2d 342 (8th Cir. 1974), cert. den., 419 U.S. 1113, 95 S.Ct. 790, 42 L.Ed.2d 811, the Eighth Circuit Court of Appeals placed the burden on the government to show that a missing witness had no exculpatory evidence where the missing witness was a governmental informant, but held defendant must affirmatively show prejudice from the absence of the witness. In Norton, the court said:

"The record shows that the missing witness, James Green, only introduced the government agents who purchased the firearms to Quinn and Wilson. Agent Patterson testified at the hearing on the motion to dismiss that he did not know Green's whereabouts and that he had not been in contact with Green for approximately two months. Neither defendant carried his burden of affirmatively showing prejudice from the absence of the informant. There was no intimation that the informant could supply any information which might constitute a defense or rebut any necessary element of the offense. The government, on the other hand, adequately carried its burden of showing that the informant would have no basis for supplying exculpatory evidence."

The requirement in Marion, supra, of "substantial prejudice" means more than a mere showing of the unavailability of any witness. The missing witness must be one who could supply material evidence for the defense. United...