State v. Leonard

• Decision Date: 19 May 1976
• Docket Number: No. 58414,58414
• Parties: STATE of Iowa, Appellee, v. Donald G. LEONARD, Appellant.
• Court: Iowa Supreme Court

Page 75

243 N.W.2d 75

STATE of Iowa, Appellee, v. Donald G. LEONARD, Appellant.

No. 58414.

Supreme Court of Iowa.

May 19, 1976.

Charles H. Barlow, and Robert Boyd Griffith, Emmetsburg, for appellant.

Richard C. Turner, Atty. Gen., Earl W. Roberts, Jr., Asst. Atty. Gen., Roger Berkland, County Atty., for appellee.

Heard before MOORE, C.J., and MASON, RAWLINGS, LeGRAND, and REES, JJ.

MASON, Justice.

Donald G. Leonard was charged by county attorney's information filed March 6, 1975, with delivery of a schedule II controlled substance (amphetamine) in violation of section 204.401(1)(b), The Code. The basis for the charge was defendant's sale of 1000 amphetamine tablets to special agent James Navis of the Division of Narcotics and Drug Enforcement October 19, 1974. He was convicted by a jury of the crime charged and appeals from judgment imposing sentence on this conviction.

The appeal presents the following issues for review:

1. Was defendant entrapped as a matter of law due to police use of close personal relationships to induce a sale of drugs?

2. Did the trial court err by employing in the entrapment instruction the phrase 'normally law-abiding person' as opposed to 'reasonable man of ordinary prudence,' because the former is 'confusing and prejudicial' in that a person who has admitted selling drugs cannot be a normally law-abiding person? Is this contention properly before this court due to defendant's failure to cite authority in support thereof?

3. A. Was the trial court's failure to place the burden upon the State to prove the drug sale was not an accommodation delivery properly preserved for review?

B. May the State rest its opposition to defendant's accommodation assertions upon trial testimony and depositions?

Some time before the October 19 incident Johnathan K. Davis of Laurens had agreed to assist law enforcement officers in the apprehension of area drug dealers. Davis had originally been approached by Laurens Chief of Police Les Hartshorn in this regard in exchange for the 'dropping or softening' of an August 1974 possession of marijuana charge and Davis' subsequent probation status.

Mr. Davis himself was no greenhorn to the drug scene. It was adduced he had become involved with marijuana some three to four years previous to defendant's trial. Consumption progressed to occasional use of LSD and large amounts of amphetamines, which continued until his arrest for possession of marijuana, at which time his use of drugs dropped.

Davis had met John Rider early in 1974 when both were employed by Mefferd's Industries of Laurens. The two became good friends and shared in their drug-related activities. At least some of the drugs used by Davis were purchased from Rider. Davis had no doubt he could purchase, because of this friendship, anything he wanted.

In any event, Agent Navis was not inclined to employ as an informer a person with parole or probation status, when the two first met at the cemetery in Laurens, but his mind changed, apparently, after Davis was able to procure 100 white cross tablets from John Rider. Davis had taken these pills to Chief Hartshorn 'to show him I knew what I was talking about.' Some time after this Agent Navis contacted Davis' probation officer who agreed to utilization of Davis as an informant.

Thus, Davis apprised Rider he had a 'friend' from Des Moines who wished to purchase a 'jar' (1000 pills) of amphetamines. Rider apparently did not protest in the least and contacted long-time acquaintance and friend Donald Leonard concerning the purchase, as defendant and Davis were only casually acquainted. According to defendant's testimony, Rider made no statements he simply had to acquire the pills or that the sale had to go through. Neither did Rider beg or plead with defendant.

Agent Navis met with Davis October 19 at Ware, from which they were to drive to Emmetsburg. Davis was originally accompanied by his wife, whom the agent sent home. Also on the scene was another special agent, Duane Lynch. After Davis returned without his wife, he and his car were searched whereupon the Navis-Davis due set out for Emmetsburg in Davis' car with Lynch following. They first entered Grannies tavern in Emmetsburg but due to lack of privacy proceeded to Hamilton's bar where Navis dialed Rider's number and gave the phone to Davis, who indicated to Rider they were ready to make the purchase. Rider arrived at the tavern at 2:25 p.m. and was introduced to Navis who utilized an alias first name. He borrowed Davis' car in order to find defendant to firm up 'the last minute details.'

Approximately 2:55 Rider reappeared and declared defendant had the drugs and was willing to sell. Rider, however, wanted Navis to give him the money and wait for his return with the amphetamines. Navis refused, stating he feared the money would be stolen. A later discussion in Davis' car did not sway Navis so Rider told Navis and Davis to return to the tavern and await his return after discussing with defendant what should be done.

Shortly thereafter, Rider returned. Since defendant, although a 'friend' of Rider, did not trust him with the drugs, a face-to-face meeting was arranged. The three drove to Five Island Lake and pulled up next to defendant's Dodge convertible. Defendant wanted $200.00 for the 'jar,' plus $10.00 'for his trouble,' which price Navis indicated was too high. Defendant replied this was the price regardless of who was the purchaser. Navis finally agreed and the exchange took place at around 3:45 p.m.

Based upon this sale defendant was arrested March 6. After pleading not guilty, a motion to suppress alleging entrapment was filed and a hearing held thereon. April 4, 1975, Judge Underwood overruled the motion, holding entrapment had not been established as a matter of law. Trial followed and the jury found defendant guilty. The trial court denied defendant's motion for a new trial and motion in arrest of judgment.

April 25 an accommodation hearing was held. The State was satisfied to rely upon the trial court's review of 'the testimony of all the State's witnesses through the record and their depositions.' The prosecutor stated:

'The State has not had time or notice to call these individuals, however, I feel that what they have testified to on trial would be the sum and substance of their testimony if they were recalled and with what understanding, Your Honor, the State would proceed at this time.'

Defense counsel objected on hearsay grounds to the use of depositions (apparently from the suppression hearing) as well as a report from the Drug Abuse Study Committee set out in State v. Vietor, 208 N.W.2d 894 (Iowa 1973). Earlier, when the prosecutor stated he would rely upon the trial testimony and depositions, defense counsel declared:

'Your Honor, the defendant can't stipulate to that because the defendant is unaware from the decisions in the Iowa court just exactly how this hearing should be run procedure-wise.'

Defendant then took the stand and testified to his friendship with Rider, which likewise induced him to make the drug sale. The trial court concluded defendant had not shown by clear and convincing evidence the sale was only an accommodation. After studying the presentence report, the court sentenced defendant to a term not to exceed five years at the State Penitentiary in Fort Madison and imposed a fine of $700.00.

I. Defendant initially contends the 'inducement of the law enforcement agents was of a sufficient (means) quality to have caused a normally law abiding person to have transferred the 1000 amphetamine pills and was an objectionable police activity.' It is argued the following 'step-by-step form of analysis' indicates the manner in which the state, by 'persuasion, inducement, and deceit' caused a law-abiding person to sell drugs.

'a. Government official, Hartshorn, conceives plan to apprehend drug trafficers in area.

'b. Government official initiates plan by contacting drug user, Davis, who is on probation and pending charges.

'c. Government official offers inducement to 'user' to cooperate in apprehension of other drug trafficers in area.

'd. 'Drug user' provides law enforcement officials with initial information regarding defendant's alleged criminal activity.

'e. Drug user re-establishes trust of old friend, Rider.

'f. In order to gain benefits of deal, user initiates criminal activity persuading his friend, Rider, to transfer 100 amphetamine pills; 'user' not certain defendant present.

'g. At time accepts 100 tablets 'user' completes unsupervised negotiation for transfer of 1,000 pills from Rider based upon close friendship, initiating arrangements for delivery the following day; again 'user' not certain if defendant present or not.

'h. 'Drug user' presents 100 pills to government officials to prove eligibility for previously arranged deal benefits.

'i. Immediately prior to transfer government official, Navis, obtains special permission to use a parolee as informant.

'j. Government official, Navis, dresses shabbily and assumes alias identity.

'k. Government officials accompany informant to pre-arranged transfer.

'l. Informant contacts friend, Rider, that he and government official have arrived to receive the 1,000 pills.

'm. Government official feigns willingness to participate in the criminal act.

'n. Defendant obtains possession of 1,000 pills from third party.

'o. Government official refuses to transfer money to friend, Rider, demanding friend arrange meeting so defendant transfers pills to government official.

'p. Government official receives 1,000 pills from defendant; in exchange the defendant accepted $210.'

From the foregoing discourse as well as from the record as a whole, the following somewhat more condensed version may be gleaned:

Informant Davis had been a heavy user of drugs who curtailed his consumption following arrest for possession of marijuana and placement on probation. To relieve this status as well as to...