State v. Kaufman, 58929

• Decision Date: 19 April 1978
• Docket Number: No. 58929,58929
• Citation: 265 N.W.2d 610
• Parties: STATE of Iowa, Appellee, v. David John KAUFMAN, Appellant.
• Court: Iowa Supreme Court

Page 610

265 N.W.2d 610

STATE of Iowa, Appellee, v. David John KAUFMAN, Appellant.

No. 58929.

Supreme Court of Iowa.

April 19, 1978.

Philip F. Miller, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., J. Susan Carney, Asst. Atty. Gen., and Dan L. Johnston, County Atty., for appellee.

Considered by MOORE, C. J., and REES, UHLENHOPP, HARRIS and McCORMICK, JJ.

REES, Justice.

On April 8, 1975 a county attorney's true information was filed charging defendant in count I with the crime of possession with intent to deliver a schedule I controlled substance, to-wit: marijuana, and in count II with possession with intent to deliver a schedule I controlled substance, to-wit: hashish, all in claimed violation of § 204.401(1), The Code, 1975. Following a verdict of guilty as to both counts, an accommodation hearing was held, resulting in a finding that the drugs were not possessed as an accommodation for another. Defendant was sentenced to serve two terms of five years to run concurrently, and he appeals. We affirm in part, and reverse in part.

The charges in this case resulted from the discovery of approximately one ounce of hashish, six pounds of marijuana, scales, and alleged records of drug transactions during a search conducted pursuant to a warrant. Prior to trial, defendant moved to suppress evidence obtained in the search alleging the information submitted for the search warrant was inaccurate, incorrect and unlawful; that the warrant was obtained upon information which was stale and remote; and that there had been no showing that the informants, whose information was relied upon for the issuance of the warrant, were reliable.

At hearing on the motion to suppress a copy of the information for the search warrant was introduced into evidence. The information was signed by Officer Larry Edwards, and he alleged therein he was present during the arrest of two persons for possession of marijuana the day before the search was conducted; that the arrest took place "in front of" defendant's trailer; that one of the persons arrested told the officer he had purchased the marijuana from the defendant; and that a second confidential informant had observed hashish in the trailer during February, 1975. The application for the search warrant indicated the informant who was arrested had not given the police information before and that the second informant confirmed the accuracy of the statement of the first.

The deposition of Officer Edwards was admitted into evidence at the suppression hearing, in which he stated he arrived after the two persons were arrested and did not know where they had been taken into custody. The defendant testified at the suppression hearing that the arrest of the two persons had been made a block away from his trailer.

The trial court overruled the motion to suppress on September 11, 1975, finding there had been no material misrepresentations made to the magistrate and that, even though some of the information in the application for the warrant may have been over one month old, some of the information was only one day old, and that such circumstances did not require suppression of the evidence on the basis the facts were stale and remote. The evidence sought to be suppressed was later admitted at the trial of the defendant.

After the jury had been selected and sworn to try the case, the State moved to amend count II of the information to allege "illegal possession of a controlled substance, to wit, marijuana, in the form of hashish." The motion to amend was resisted by the defendant, who then moved to consolidate the two counts of the information into one count.

The defendant filed a motion in limine in which he sought, among other things, a ruling that the word "juvenile" not be used in connection with the sale of marijuana to the two persons arrested since such description of one of the arrested persons would be highly inflammatory and serve to deny the defendant a fair trial. No resistance was made by the State to such motion, and the court ordered that the word "juvenile" should not be used in connection with the presentation of the State's case.

During the interrogation of Officer Edwards by the prosecutor Edwards was asked why the two persons had been arrested at a point proximate to the defendant's trailer. Edwards answered, "he was assigned to juvenile for possession of a schedule I controlled substance." Defendant's counsel immediately asked that the court take up a matter of law out of the presence of the jury, and the record indicates the court ordered the matter of law to be taken up at the next subsequent recess. At that recess, defendant's counsel moved for a mistrial on the ground that the ruling on the motion in limine had been violated by Officer Edwards' employing the word, "juvenile" in his testimony, and that prejudice resulted from the use of the word which would deny the defendant a fair trial. The State indicated it had advised the officer not to use the word "juvenile" and the fact that the person arrested was a juvenile was not explored in the interrogation of the witness. The trial court found the statement was not deliberate and overruled the motion for a mistrial. On four occasions during the testimony of Officer Edwards, defendant's counsel sought to examine him on the voir dire, but counsel's requests to so examine Edwards were denied by the court. Also, Edwards testified the defendant had told him that he (the defendant) was the biggest drug dealer in Des Moines, or that he knew of no drug dealer in Des Moines who worked on a bigger scale than defendant. Such testimony was objected to by defendant's counsel as being not relevant to any matter involved in the case.

When the court's instructions to the jury were submitted to counsel, defendant's attorney objected to an instruction on reasonable doubt since references therein to the evidence in the case were not modified by the phrase, "by the state". Such objection was based on the rationale that without the modifying phrase the instruction was incomplete and contrary to the defendant's presumption of innocence and the State's burden of proof. Defendant's objection in this regard was overruled by the court.

Defendant also objected to the instruction given by the court defining circumstantial evidence, contending that the instruction was incomplete and defendant requested the court to give to the jury Uniform Jury Instruction No. 501.13. In overruling such request, the court stated the uniform instruction was appropriate only in a situation where the entire case was based on circumstantial evidence.

After the verdict of the jury and the finding that the drugs had not been delivered by the defendant as an accommodation, defendant filed a motion in arrest of judgment, to set aside the verdict, and for a new trial. Among other grounds, he alleged trial court erred in overruling his demurrer and motion to consolidate the counts, in denying the defendant an opportunity to examine State's witnesses on the voir dire, in denying defendant's counsel an opportunity to present his motion for a mistrial immediately after defense counsel had indicated he wished to present a matter of law outside the presence of the jury, in overruling objections made during the trial, in overruling the motion for a mistrial for the prejudicial effect of the use of the word "juvenile", and in giving the instructions as set out above. All of said motions were overruled on November 6, 1975.

On November 24, 1975 defendant filed an amendment to his motion for a new trial in which he asserted a juror had indicated that during the jury's deliberation on the case, several jurors stated that if the drugs in the defendant's possession were intended only for his personal use he should have testified to that effect. The amendment to the motion was supported by the affidavit of one of the jurors. Trial court overruled the amendment to the motion for new trial, stating, "the argument of the jury to each other adheres (sic) in their verdict and may not be used under these circumstances to undo the verdict of the jury." Defendant was thereupon sentenced to serve two concurrent five-year terms at the Men's Reformatory.

The defendant advances the following issues which he contends necessitate a reversal in this case:

(1) The trial court erred in giving to the jury an instruction on reasonable doubt which did not refer solely to the evidence presented by the State when referring to the evidence involved in the case, since the defendant called no witnesses to testify in his behalf.

(2) The trial court erred in giving to the jury a limited definition of circumstantial evidence when the defendant requested a more comprehensive definition of circumstantial evidence as contained in Uniform Jury Instruction No. 501.13.

(3) Trial court erred in overruling defendant's motion to suppress evidence obtained during a search of defendant's trailer pursuant to a warrant when the written application for the warrant failed to demonstrate the juvenile informant's credibility and reliability, contained reference to information obtained from a second informant based on knowledge obtained from observations made in February, over one month prior thereto, and contained claimed misrepresentations about the arrest of the juvenile.

(4) The trial court erred in overruling defendant's demurrer to the information and motion to consolidate the counts on the possession of hashish and marijuana since the two drugs were discovered during one occurrence, § 204.204(4), The Code, does not list hashish as a controlled substance, and hashish is a derivative of marijuana.

(5) Trial court erred in overruling defendant's amended motion for a new trial in which jury misconduct was claimed.

(6) Trial court erred in refusing defendant's motion for a new trial on t t th grounds that the word "juvenile" was used by a State's witness in violation of the ruling on defendant's motion...