State v. Lynch, 54443
| Citation | 197 N.W.2d 186 |
| Decision Date | 13 April 1972 |
| Docket Number | No. 54443,54443 |
| Parties | STATE of Iowa, Appellee, v. Kevin Joseph LYNCH, Appellant. |
| Court | United States State Supreme Court of Iowa |
R. Fred Dumbaugh and Guy P. Booth, Cedar Rapids, for appellant.
Richard C. Turner, Atty. Gen., and Allen J. Lukehart, Asst. Atty. Gen., William Faches, County Atty., for appellee.
Defendant was convicted of violating chapter 204 of the Uniform Narcotic Drug Act, The Code, 1966 (since repealed and replaced by the Uniform Controlled Substances Act, chapter 148 and amended by chapter 149, Acts of the Sixty-fourth G.A., First Session). He appeals from the judgment sentencing him to serve a term of two years in the men's reformatory and to pay a fine of $500.00. We affirm the trial court.
We refer to the facts as they become important in our consideration of the various issues relied upon for reversal. These issues are: (1) the conviction must be set aside because defendant had not entered a plea to the charge of which he was accused; (2) there was prejudicial error in defining the crime of which defendant was convicted; (3) there was prejudicial error in the admission of testimony offered by a state narcotics agent; (4) section 204.18, The Code, 1966, is unconstitutional because it imposed upon defendant the burden of proving one of the elements of the charge against him; and (5) no probable cause existed for the issuance of the search warrant under which certain contraband drugs were seized and this evidence should have been suppressed.
I. We consider first defendant's claim of prejudice because he was tried without first having entered a plea to the charge against him. As pointed out in State v. Dorr, 184 N.W.2d 673 (Iowa 1971), our law recognizes only three pleas in criminal cases--guilty, not guilty, or former judgment of conviction or acquittal of the defendant. Section 777.11, The Code.
We assume defendant did not desire to enter a guilty plea; nor does he contend the plea of former conviction or acquittal was available to him. This then leaves open to him only a plea of not guilty.
Defendant was not prejudiced by the inadvertent omission of recording a formal not guilty plea. He stood trial without objection and his position was precisely the same as if such a plea had been entered. The jury, in fact, was told that the defendant had entered a not guilty plea.
The contention urged by defendant here has been unsuccessfully made on a number of prior occasions. What we said in State v. Girdler, 251 Iowa 868, 870, 102 N.W.2d 877, 878 (1960) is decisive here. There is no reversible error in this assignment.
II. Defendant also asserts he should have a new trial because the crime of which he was convicted was improperly defined in the court's instructions. Conceding the procedure followed is not one to be recommended, we reach the conclusion defendant is not entitled to the relief demanded.
Defendant was convicted of the illegal possession of marijuana. Section 204.20(5), The Code, 1966, prescribes the punishment for this offense depending upon the circumstances of the possession. This section provides in pertinent part as follows:
* * *'
Defendant argues the instructions submitted an improper definition of the crime and permitted his conviction for conduct which the statute does not prohibit. To put this issue in proper perspective we set out in detail the instructions dealing with this assignment.
In its statement of the issues the trial court said defendant was accused of possessing marijuana 'in such quantity that it can be logically inferred that such marijuana was not intended for personal use only.' No mention was there made about selling the drug to others.
Instruction 6 contained the following:
The elements which the State was required to prove beyond a reasonable doubt to secure a conviction were set out in instruction 8 as follows:
'In order to convict the defendant in this case the State must establish beyond a reasonable doubt each of the following propositions, to wit:
'If you find the State has proven all of the foregoing propositions beyond a reasonable doubt, then you must further determine whether said possession by the defendant was or was not for purposes of personal use only, as hereinafter defined.
'If you find the State has failed to prove any of the foregoing propositions beyond a reasonable doubt then it is your duty to find the defendant not guilty, and return your verdict on Verdict Form No. 3.
'If you find that the State has established beyond a reasonable doubt that the amount of marijuana in said State's Exhibit in this record is in such quantity that it can be logically inferred that such marijuana was not intended for personal use only but was held for sale to others then it is your duty to find the defendant guilty of possession of marijuana not for personal use and return your verdict on Verdict Form No. 1.
'If you find that the amount of marijuana in said State's Exhibit in this record is in such quantity that it can be logically inferred that such marijuana was intended for personal use only and not for sale, then it is your duty to find the defendant guilty of possession of marijuana for personal use and return your verdict on Verdict Form No. 2.'
The jury found defendant guilty of the greater offense and returned its verdict on Form No. 1 which is here set out in full:
'We, the jury find the defendant, Kevin Joseph Lynch, guilty of possession of marijuana not for personal use.
/s/ Kenneth L. Goodwin, Foreman 10--22--69.'
Defendant's argument may be paraphrased in this manner. He says that under the instructions and the forms of jury verdict submitted he was convicted of a crime for which there is no statutory basis. Sections 204.2 and 204.20(5) define the criminal possession of marijuana in two ways--possession for personal use or possession for sale. He insists that the instructions here permitted his conviction if the jury found simply that the marijuana was not for his personal use, even though it may not have been held for sale to others. This, he says, eliminated the essential element of the greater crime, which is the intent to sell to others, not simply that one has more of the substance than he himself may use.
There is considerable merit in this argument and if the instructions were fairly open to the criticism that the jury could have been confused or uncertain about the elements of the crime, defendant would be entitled to a new trial. In considering this objection of course the instructions must be read together and not considered piecemeal. State v. Morelock, 164 N.W.2d 819, 822 (Iowa 1969) and citations. In both Instruction 6 and Instruction 8 possession for sale was specifically made an element of the matters submitted to the jury. Instruction 8, which is the instruction submitting the elements to be proven, clearly and unequivocally required the jury to find possession was for sale to others before a conviction could be returned on the more serious charge. When explaining the necessity for such a finding, the court specifically referred to Verdict Form No. 1 as the form upon which such a finding should be recorded. While it is true this form of verdict did not include a reference to possession for sale to others, and while we agree it would have been better had it done so, there can be no doubt about the clear meaning and intent of the instructions when Instruction 6 and Instruction 8 are related to the form of verdict returned by the jury.
We do not approve the form of jury verdict used under these circumstances, nor do we feel that the statement of issues was as clear to the jury as it might have been, but we should not reverse for such errors unless there is reasonable basis for finding that the jury was confused or that the instructions, when viewed as a whole, were so contradictory that the jury may have followed a wrong one instead of a proper one.
We have carefully reviewed all the instructions and we can find no reversible error in the instructions as submitted. We therefore hold against defendant on this assignment of error.
III. Defendant next complains there was error in the admission of the testimony of the state narcotics agent. The principal objection raised was that the evidence was beyond the scope of...
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