State v. Lain
| Citation | 246 N.W.2d 238 |
| Decision Date | 20 October 1976 |
| Docket Number | No. 58879,58879 |
| Parties | STATE of Iowa, Appellee, v. William A. LAIN and Patsy Lain, Appellants. |
| Court | Iowa Supreme Court |
Mowry, Irvine & Brooks, by Pat W. Brooks and Curtis A. Ward, Marshalltown, for appellants.
Richard C. Turner, Atty. Gen., Steven K. Sandblom, Asst. Atty. Gen., and Jared O. Bauch, Tama County Atty., for appellee.
Heard by MOORE, C.J., and MASON, LeGRAND, UHLENHOPP and HARRIS, JJ.
This criminal appeal involves legal problems which arose in the prosecution of charges of conspiracy to deliver and delivery of a controlled substance. See Code 1975, § 204.401(1).
The jury could find the following from the evidence. Gary Johnson and defendants William A. Lain and Patsy Hoekstra (now Lain) previously knew each other in college. Johnson had been in Tucson, Arizona, in 1974. In March 1975, William and Patsy brought a large quantity of marijuana bricks from Tucson to Iowa. At Dee's Tavern in Gladbrook, Iowa, Johnson offered to help them get rid of the marijuana at a price of $130 per pound. Thereafter Johnson contacted various prospective purchasers and did complete some sales.
One of the prospective purchasers was Ron Paustian of Cedar Falls, Iowa, who offered to buy ten pounds for $1200, for resale. Johnson reported the offer to Patsy by telephone, and she agreed to it.
Two days later Johnson called Patsy to arrange delivery to Paustian. William and Patsy went to the farm where Johnson and Roland Wiebensohn resided, and entered the house. A little later William went out to his pickup truck and returned with a green duffel bag containing several of the marijuana bricks.
Subsequently officers searched the Johnson-Wiebensohn home and seized various articles including the duffel bag containing the bricks of marijuana. In addition they arrested Paustian when he was on his way to the Johnson-Wiebensohn home to pick up the marijuana.
Johnson pleaded guilty to conspiracy to deliver marijuana and Wiebensohn pleaded guilty to possession of marijuana. The Tama County Attorney charged William and Patsy with conspiracy to deliver and with delivery. They pleaded not guilty and stood trial. Near the conclusion of the evidence at trial, the county attorney withdrew the conspiracy charges. The jury found William and Patsy guilty of delivery. The trial court sentenced them, and they appealed.
I. At trial, Johnson testified at some length regarding his dealings with William and Patsy. This testimony included the following:
Q. (County Attorney) And would you tell us, please, what was the nature of your conversations with the defendants at that time (at Dee's Tavern). A. Well, in the conversation Patsy mentioned that they had a considerable amount of pot to get rid of. . . .
Q. All right. Did she say anything else with regard to this marijuana? A. I mentioned that--I just said that I could help them get rid of it maybe.
Q. Was anything mentioned as to price of this marijuana? A. One hundred and thirty dollars a pound.
Q. And who was seeking $130 a pound? A. Patsy and Lain.
They indicated that they had between 30 and 40 pounds of marijuana for sale. They told me that the marijuana came from Arizona. I was to receive anything over $130 per pound that I received if I could sell the marijuana. During the course of the conversation I left Dee's Lounge with William Lain and we drove his truck to the 4--H grounds to get a sample of the marijuana. At that time he pulled a rectangular square package from behind the seat of the truck and ripped off a corner and gave it to me in a cellophane cigarette pack. . . .
After Mr. Lain gave me the marijuana at the 4--H grounds I did not go back to Dee's Tavern but got on my motorcycle and went to Ron Paustian's residence.
Johnson also testified about his negotiations with Paustian in endeavoring to sell marijuana for William and Patsy, and other contacts he made.
William and Patsy objected at trial to Johnson's statements to Paustian and to other third persons, made in Johnson's efforts to peddle the marijuana for them. The trial court let in the statements under the co-conspirator exception to the hearsay rule. William and Patsy now contend that the State introduced no evidence of a conspiracy, other than the statements to the third persons which they say were hearsay. They assign as error the trial court's admission into evidence of Johnson's statements to third persons.
Assuming arguendo that Johnson's statements to third persons would otherwise be hearsay, William and Patsy appear to overlook completely Johnson's own testimony. They are correct that the State cannot bootstrap proof of a conspiracy by introduction of an alleged co-conspirator's hearsay declarations, but that is not what we have here. The State showed the conspiracy by Johnson's in-court testimony regarding his negotiations with William and Patsy. The testimony of a co-conspirator is admissible for this purpose. 22A C.J.S. Criminal Law § 759 at 1134. We are dealing at this point, of course, with proof of a conspiracy to establish admissibility of declarations, not with proof of a conspiracy under the charge of that crime in the information against William and Patsy. The latter would require corroborative evidence by virtue of § 782.5 of the Code.
Since Johnson's statements to third persons were admissible as the declarations of a co-conspirator, we need not consider whether such statements were also admissible as the declarations of an agent in the course of his agency. See McCormick, Evidence, § 267 at 639--641 (2nd Ed.).
We do not find merit in the present assignment of error.
II. After the county attorney withdrew the conspiracy counts near the conclusion of the evidence, defense counsel moved to withdraw Johnson's statements previously admitted under the co-conspirator exception. The trial court overruled the motion. William and Patsy contend this was error.
That the State no longer Charged William and Patsy with conspiracy was immaterial to the admissibility of Johnson's statements. State v. Huckins, 212 Iowa 283, 234 N.W. 554; State v. Kidd, 239 N.W.2d 860 (Iowa); McCormick, Evidence § 267 at 646 (2nd Ed.) ('The existence of a conspiracy in fact is sufficient to support admissibility, and a conspiracy count in the indictment is not required.'); 22A C.J.S. Criminal Law § 756 at 1127--1128.
III. William and Patsy contended at trial and contend now, somewhat contrary to their argument the State did not show conspiracy, that their convictions of delivery cannot stand because Johnson was their accomplice and the State did not introduce corroborative evidence tending to connect them with the crime.
Section 782.5 of the Code provides that a conviction cannot stand upon the testimony of an accomplice 'unless corroborated by other evidence which shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.'
Undoubtedly Johnson was an accomplice. Did the State introduce corroborative evidence? We have said, 'The statutory requirement is met if it can fairly be said the accomplice is corroborated in some material fact tending to connect the defendant with the commission of the crime.' State v. Vesey, 241 N.W.2d 888, 890 (Iowa).
William and Patsy contend the evidence merely placed them at the scene of the crime, in the Johnson-Wiebensohn home. Actually, however, the evidence went considerably farther to tie them in. Wiebensohn testified he had never previously seen a brick of marijuana at that home, but that he saw William in possession of a brick of it there. Robb Reinhard, a friend who was present on some of the occasions in question, also testified he saw a brick of marijuana at the Johnson-Weibensohn home, and he said it was 'sitting in front of Patsy and William Lain.' He testified in addition that he saw either William or Patsy in Johnson's bedroom with the green duffel bag containing the marijuana and heard Johnson say it was the most pot he had ever seen.
We are satisfied that this assignment of error is not meritorious.
IV. Finally, William and Patsy contend that the trial court erroneously overruled their objection to admission of a telephone bill into evidence.
The telephone at the Johnson-Wiebensohn house was listed in the name of the farm...
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