State v. Johnson

• Decision Date: 26 June 1974
• Docket Number: No. 56653,56653
• Citation: 219 N.W.2d 690
• Parties: STATE of Iowa, Appellee, . Fred Andrew JOHNSON, Appellant.
• Court: Iowa Supreme Court

Page 690

219 N.W.2d 690

STATE of Iowa, Appellee Fred Andrew JOHNSON, Appellant.

No. 56653.

Supreme Court of Iowa.

June 26, 1974.

Rehearing Denied July 29, 1974.

C.A.Frerichs, Fulton, Frerichs, Nutting & Kennedy, Waterloo, for appellant.

Richard C. Turner, Atty. Gen., David E. Linquist, Asst. Atty Gen., Des Moines, and David J. Dutton, County Atty., Waterloo, for appellee.

Heard by MOORE, C.J., and MASON, REES, REYNOLDSON and McCORMICK, JJ.

REES, Justice.

Defendant was charged by county attorney's information with the crime of possession of heroin with intent to deliver in violation of section 204.401 (1) (a), The Code. He was tried to a jury and convicted and now appeals. We affirm.

The State's case was made substantially from the testimony of one Roosevelt Nabors, a convicted felon, who was acting as an undercover agent for the Waterloo police department and the State Department of Public Safety. His services as an undercover agent had been secured by Special Agent Jerry L. Johnson of the Narcotics Division of the State Department of Public Safety, and Detective Sgt. Harry Helgesen of the Narcotics Division of the Waterloo Police Department. Nabors testified to an alleged transaction involving the purchase and sale of heroin in the Super Chef Lounge in Waterloo about nine o'clock, p.m. on June 98 1972.

In the early evening of June 9, 1972 Nabors met with Agent Johnson and Sgt. Helgesen in a parking area. The officers completely searched Nabors for money and drugs, and then gave him two twenty-dollar bills, the serial numbers of which had been noted by the officers. The two officers then kept Nabors under surveillance as he proceeded to the Super Chef Lounge on Waterloo's north side. The officers testified that when Nabors was in the Super Chef Lounge they observed the automobile of defendant parked outside. The two officers did not purport to testify that they observed the alleged sale of heroin by Johnson to one Glenn 'Bubba' Phillips, nor did they purport to say that they saw the heroin delivered to Nabors by Phillips.

Nabors further testified he had been in the Super Chef earlier in the day and that he had there seen Phillips smoking marijuana. Defendant's counsel objected to such statement and moved for a mistrial immediately on the grounds that such testimony was in violation of a pretrial order on a motion in limine concerning statements by Phillips, but the objection was overruled. During the afternoon Nabors had interrogated Phillips as to how he could secure drugs and was told by Phillips he could arrange the purchase of drugs for him. When he entered the Super Chef during the evening hours, and after his rendezvous with the police officers, Nabors handed the two twenty-dollar bills to Phillips who then approached defendant who gave to Phillips three pills out of a small bottle which he removed from his pocket, took the two twenty-dollar bills and gave a ten-dollar bill back to Phillips. Phillips and Nabors then went to the restroom in the Super Chef where Nabors received from Phillips the ten-dollar bill which Phillips had received in change, and two of the pills, Phillips keeping one for himself, consistent with arrangements previously agreed to between them. Phillips instructed Nabors to roll the two pills in toilet tissue so that police officers could not find them. Nabors testified he and Phillips then left the Super Chef and walked to the Keg Tavern, and then after a short interval left the Keg Tavern and walked down Walnut Street where they separated. Nabors then went to the pre-arranged meeting place and met with Agent Johnson and Detective Helgesen where he was again searched and the two pills in his possession were turned over to Special Agent Johnson.

Although the alleged sale of heroin by defendant occurred on June 9, 1972, the defendant was not taken into custody until October 11, 1972. The delay, or interval between the alleged commission of the offense and the arrest of the defendant was explained, or justified, by Agent Johnson when he testified, explaining that to have arrested the defendant earlier would have required the exposure of Nabors as an undercover agent precipitately.

Admittedly, the State's witness, Nabors, could not be characterized as a model citizen. Defendant's counsel spent considerable time during the trial in an attempt to impeach Nabors by offering evidence of Nabors' prior conviction of a felony (which was described by Nabors as the crime of 'rape with consent') by showing prior inconsistent statements allegedly made while Nabors was under oath in a criminal trial in Michigan, by attempting to show prior criminal activities by Nabors (at the time of trial, Nabors was facing charges of armed robbery and conspiracy in Black Hawk County), of Nabors' use of drugs and of his trafficking in drugs, and of the fact that Nabors had committed perjury in a prior trial in Michigan where he had been employed as an informer.

The trial judge refused to permit defendant's counsel's efforts to impeach on the grounds that the efforts to impeach as aforesaid were attempts to prove isolated incidents of untrustworthiness and evidence of specific criminal acts, some for which Nabors had not been convicted. Defendant's counsel also interrogated Nabors on cross-examination as to whether Nabors had attempted to make other purchases of drugs from the defendant, whether Nabors had lied to Agent Johnson, and whether Nabors, while acting as a police informer in the Waterloo area, received payoffs from drug pushers for introducing addicts to them, but objections to such a line of testimony were sustained. Defendant's counsel made numerous offers of proof, touching the above lines of interrogation out of the presence of the jury.

On cross-examination of the defendant, the prosecutor propounded to the defendant the following question:

'Have you ever given a statement . . . to the Waterloo Police Department or any law enforcement agency indicating your whereabouts on that date?'

The question referred to the date, June 9, 1972. While the above question was being propounded to the witness, the witness volunteered a negative answer before the prosecutor had an opportunity to complete the question. Immediately defendant's counsel moved for a mistrial, alleging that the above question violated defendant's Fifth Amendment right to remain silent, which objection was overruled. The question was, however, stricken by the trial judge and the trial judge immediately admonished the jury to disregard the question and any answer which was in the record responsive to it.

Defendant based his defense on alibi. He introduced evidence tending to prove that he was enroute from Fort Wayne, Indiana, to Waterloo at the time of the alleged sale of heroin to Phillips which was eventually delivered to Nabors. To buttress his alibi defense, defendant introduced a telephone bill which he claimed indicated a telephone call had been made from Waterloo to Fort Wayne by a witness, Mrs. Nicholson, at midnight or just prior to midnight, on June 9, upon defendant's arrival in Waterloo from Fort Wayne. Witnesses for the telephone company, however, indicated the telephone call in question had been made 24 hours prior to the time defendant claimed the phone call had been made. Such testimony refuted the alibi evidence of the defendant completely, and defendant then moved for a continuance based on the contention that an element of surprise had been interjected into the record, but the court overruled the motion for continuance.

At the close of the State's evidence, defendant moved for a directed verdict, which was overruled and his motion was and again overruled. Defendant's post-verdict motion for new trial was overruled, defendant was sentenced, and this appeal followed.

The defendant presented the following issues for review:

(A) Trial court erred in permitting to stand a guilty verdict based on the uncorroborated testimony of an addict informer.

(B) Trial court erred in refusing to permit defendant to cross-examine the witness Nabors concerning his alleged previous criminal activity.

(C) Trial court erred in denying defendant's motions for continuance on the grounds that:

1) defendant was surprised by the testimony of the State refuting his alibi, and

2) trial court erred in refusing to correct a record made concerning Nabor's previous conviction of rape.

(D) Trial court erred in overruling defendant's motion for a mistrial after the prosecutor asked defendant on corss-examination a question which was in violation of defendant's Fifth Amendment right to remain silent.

(E) Trial court erred in admitting evidence that Glenn 'Bubba' Phillips was smoking marijuana on the afternoon of June 9, as the same was irrelevant to the issue of defendant's guilt, and therefore inadmissible.

(F) Trial court erred in excluding a transcript of evidence, specifically the testimony of Nabors in a trial in Michigan, on the basis the same was hearsay.

(G) Trial court abused its discretion in refusing to permit cross-examination of Nabors concerning Nabors' commission of certain crimes, including perjury.

(H) That the cumulative effect of the specifically-stated issues was such as to deny defendant a fair and impartial trial.

I. Defendant contends his motions for directed verdict made at the close of the State's evidence and renewed at the close of all the evidence, should have been sustained because the uncorroborated testimony of an addict informer is insufficient to establish guilt beyond a reasonable doubt of a person charged with the unlawful sale of drugs.

We do not agree with defendant the testimony of Nabors was entirely uncorroborated. Agent Johnson and Sgt. Helgesen had Nabors under surveillance from the time they searched him and furnished him with money to make the purchase of drugs until he entered the Super Chef Lounge, and both officers testified they saw defendant's car near the Lounge.

Nor do w...