State v. Lunsford

• Citation: 204 N.W.2d 613
• Decision Date: 21 February 1973
• Docket Number: No. 55542,55542
• Parties: STATE of Iowa, Appellee, v. John Frank LUNSFORD, Appellant.
• Court: United States State Supreme Court of Iowa

Page 613

204 N.W.2d 613

STATE of Iowa, Appellee, v. John Frank LUNSFORD, Appellant.

No. 55542.

Supreme Court of Iowa.

Feb. 21, 1973.

Fehseke & Fehseke, Fort Madison, for appellant.

Richard C. Turner, Atty. Gen., Raymond M. Sullins, Asst. Atty. Gen., and Michael M. Phelan, Asst. County Atty., for appellee.

Heard before MOORE, C.J., and MASON, RAWLINGS, HARRIS and McCORMICK, JJ.

McCORMICK, Justice.

Defendant was convicted by jury and sentenced for sale of a narcotic drug (marijuana) under § 204.2, The Code, 1966. His appeal presents three questions: (1) Did trial court err in admitting evidence as to details of an experiment? (2) Did trial court err in admitting the alleged marijuana into evidence over an objection that the State had not demonstrated a proper chain of custody? (3) Was defendant deprived of a fair trial because tried by members of a jury panel which had been told of his former plea of guilty in the case? We answer 'no' to the first two questions, 'yes' to the third, and reverse and remand for new trial.

We will summarize the evidence in its light most favorable to sustaining the verdict.

In the evening of May 8, 1969, detective Jay Edward Holley of the Burlington police department came to Fort Madison to assist with a narcotics 'buy.' He met officer Gary Frost of the Fort Madison police department and one Junior Jones, an informant. Jones was to set up a marijuana purchase from one Clifford Polton. Polton had asked Jones to help him sell ten pounds of marijuana, and Jones had told the police. Polton was employed with defendant and they were friends. Defendant had engaged Polton to help him sell the ten pounds of marijuana. Neither Jones nor the police knew Polton was acting for defendant.

During the course of the evening Jones and Holley met Polton. Holley expressed interest in buying marijuana. They drove around in Jones' car while discussing the subject, and later Polton took them into an alley behind his residence. He left the car and returned with a small sack of marijuana. Polton said he did not have the quantity Holley wanted. They drove around together again in Jones' car.

Then they returned to Polton's residence. Polton went inside for a few minutes, telephoned defendant, and when he returned said he had arranged for Holley to buy the marijuana he wanted and would take them to the place. They 'zigzagged' through the downtown Fort Madison area and ultimately ended up at about 1:00 a.m. on May 9, 1969, in front of a house on a dead-end section of Second Street called Prison Hollow.

Defendant came out of the house and Holley was introduced to him by Polton as the man interested in purchasing marijuana. Polton told defendant Holley had checked the 'sample.' Then defendant walked over to a car parked in the yard, opened the door and showed Holley a red, cut-off cardboard box containing what he said, and Holley believed, was marijuana. He viewed it under the car's dome light. The marijuana was in 14 individual plastic bags in a 'One-Hour Martinizing' plastic garment bag which also contained loose marijuana.

Defendant said he wanted $1000 for the marijuana. Holley had only $420 with him and therefore offered to buy half of it. They finally agreed Holley could have the whole box for $420 with $600 to be paid later. Holley paid defendant the $420. Jones took the box to his car. Defendant and Polton started for the house. Jones activated the turn signals on his car as a prearranged signal to other officers. Holley placed defendant and Polton under arrest. He held them at gunpoint and told them to stand against the garage door with their hands up. Polton complied but defendant was restless and argumentative.

Holley's problem was intensified by the fact the other officers thought the purchase would be made elsewhere and had lost track of him. Holley became worried and directed Jones to call the police from a neighbor's phone. Jones was not able to get use of a phone so Holley then told him to take the car and go to the police station for help. Jones met Sergeant Hayes as he drove into the police station drive. Hayes got in Jones' car and after hearing his story told him to drive as rapidly as was safe back to the scene of arrest. Jones was gone a total of three or four minutes. Frost was notified by radio and also went to the scene. The officers assisted Holley. The box and contents were taken from Jones' car. Later chemical analysis showed the contents to be slightly more than ten pounds of very good quality marijuana.

I. The experiment. Defendant alleges it was error to permit officer Paul Bartholomew to testify that the driving distance between the police station and arrest scene was eight-tenths of one mile and that it took him approximately two minutes to travel it at 25 miles per hour. He measured and timed the trip by driving over the route.

The evidence was offered by the State to account for the conduct of Junior Jones during the three or four minutes he was absent from the scene of arrest on his errand to get police assistance. Jones did not testify at trial. The testimony of Sergeant Hayes confirms Jones went to the police station and accounts for possession of the alleged marijuana during the return trip. The State sought to minimize speculation that Jones may have tampered with it by showing he was occupied with driving his car during the period of his exclusive possession.

Admissibility of experimental evidence rests within the sound discretion of the trial court. Althof v. Benson, 259 Iowa 1254, 1257, 147 N.W.2d 875, 877 (1967), and citations. The experiment in this case was not unusual. Cf. State v. Simpson, 119 Wash. 653, 206 P. 561 (1922).

Moreover, defendant lodged his only objection when Bartholomew was asked what speed he drove during the test. The question was objected to as 'incompetent, irrelevant and immaterial' and '(a)pparently it is evidence of an experiment, and no proper foundation has been laid.' The objection was overruled. The witness answered: 'Drove at a speed of 25 miles per hour, and it took us approximately two minutes.' There was no motion to strike.

The general objection of 'no proper foundation' is inadequate and preserves nothing for review. State v. Wright, 191 N.W.2d 638, 642 (Iowa 1971). We will assume the general objection as to relevancy was adequate. See State v. Davis, 196 N.W.2d 885, 894 (Iowa 1972). Bartholomew's speed during his experiment was obviously relevant because it affected the time the trip took, and the issue concerning Jones' conduct while in possession of the alleged marijuana was significant in the trial.

Trial court did not err in overruling the objection.

II. Chain of custody. Defendant maintains that without Jones' testimony there is a fatal gap in the chain of possession of the alleged marijuana and his objection to its admissibility should have been sustained. The State contends the objection was inadequate and in any event was properly overruled.

Included in defendant's objection to the foundation for the exhibit was an assertion there had not been 'a complete proper chain of evidence established by credible testimony.' The record discloses the exhibit had purportedly been in the hands of Jones, then Holley, and then Bartholomew who later took it to state chemist Donald Booton for analysis. All testified except Jones. The State and trial court were made aware through several prior objections that the defense contended the exhibit could not be received without testimony from all persons who had custody of it. The State was aware of its problem when it offered the evidence as to Bartholomew's experiment. In these circumstances the objection was sufficient to alert trial court and the State to its ground.

We do not wish to be understood as approving the form of the objection. We do not approve it. A foundation objection must be sufficiently specific to alert trial court and opposing counsel to its basis. Hedges v. Conder, 166 N.W.2d 844, 856 (Iowa 1969). The greater the specificity the less likely it is that the objection will be deemed inadequate upon review. See McCormick on Evidence, § 52 at 115--117 (Second Ed.1972).

Turning then to the merits of defendant's contention, we apply the rule stated in McCormick on Evidence, § 212 at 527--528 (second Ed.1972):

'(W)hen real evidence is offered an adequate foundation for admission will require testimony first that the object offered is The object which was involved in the incident, and further that the condition of the object is substantially unchanged. If the offered item possesses characteristics which are fairly unique and readily identifiable, and if the substance of which the item is composed is relatively impervious to change, the trial court is viewed as having broad discretion to admit merely on the basis of testimony that the item is the one in question and is in a substantially unchanged condition. On the other hand, if the offered evidence is of such a nature as not to be readily identifiable, or to be susceptible to alteration by tampering or contamination, sound exercise of the trial court's discretion may require a substantially more elaborate foundation. A foundation of the latter sort will commonly entail testimonially tracing the 'chain of custody' of the item with sufficient completeness to render it improbable that the original item has either been exchanged with another or been contaminated or tampered with.'

See State v. Limerick, 169 N.W.2d 538, 542 (Iowa 1969), and State v. Ubben, 186 N.W.2d 625, 627--628 (Iowa 1971).

Marijuana is susceptible to tampering or substitution. State v. Grady, 201 N.W.2d 493 (Iowa 1972); Brewer v. United States, 353 F.2d 260, 261 (8 Cir. 1965). A more elaborate foundation to establish identification is therefore required than as to readily identifiable articles. State v. Limerick, Supra.

Determination of the sufficiency of identification is made by the trial judge. 'Factors to be considered in making...