State v. Maghee

• Decision Date: 26 November 1997
• Docket Number: No. 96-1135,96-1135
• Citation: 573 N.W.2d 1
• Parties: STATE of Iowa, Appellee, v. Valentino MAGHEE, Appellant.
• Court: Iowa Supreme Court

Page 1

573 N.W.2d 1

STATE of Iowa, Appellee, v. Valentino MAGHEE, Appellant.

No. 96-1135.

Supreme Court of Iowa.

Nov. 26, 1997.

Rehearing Denied Jan. 9, 1998.

F. Montgomery Brown of Cook, Gotsdiner, McEnroe & McCarthy, Des Moines, for appellant.

Thomas J. Miller, Attorney General, Robert P. Ewald, Assistant Attorney General, John P. Sarcone, County Attorney, and Jamie D. Bowers, Assistant County Attorney, for appellee.

Considered by McGIVERIN, C.J., and LAVORATO, NEUMAN, ANDREASEN, and TERNUS JJ.

LAVORATO, Justice.

This case presents a twist in the war on drugs: a "reverse sting" operation in which the police are doing the selling rather than the buying. The defendant, Valentino Maghee, was one of the targets in this operation. A jury convicted him of possession with intent to deliver, conspiracy to possess with intent to deliver, and failure to affix a drug tax stamp. He raises numerous issues in his appeal from his convictions and sentences, some of which we address and others we preserve for postconviction relief. Some of the issues we do address concern whether the district court correctly (1) allowed the State to amend the trial information to charge an offense carrying a higher penalty, (2) submitted conspiracy as a separate offense, and (3) defined "constructive possession" in a jury instruction. The remaining issues we address deal generally with whether there was sufficient evidence to support convictions on all three offenses.

Although we affirm on all issues, we conclude conspiracy was not a separate offense. Rather it was an alternative means of violating Iowa Code section 124.401(1), Iowa's drug trafficking statute. We therefore vacate the sentence on the conspiracy conviction, and let the balance of the sentence stand. We affirm the judgment of convictions and sentences as modified.

I. Background Facts and Proceedings.

A Des Moines police officer, Craig Hamilton, received information from a Federal Bureau of Investigations officer in Chicago that Valentino Maghee had contacted a confidential informant. According to the informant, Maghee wished to buy cocaine. The informant provided Maghee with Hamilton's beeper number. Maghee then "beeped" Hamilton and the two arranged a meeting.

On May 5, 1994, Hamilton and Maghee met at a bar in Des Moines. The two agreed that Hamilton would provide three kilograms of cocaine to Maghee on May 7 for $20,000 per kilo. Maghee told Hamilton a third man, Anthony Gress, would bring the money.

The following day, in preparation for the sale, Officer Kelly Evans contacted a state chemist for information on the proper proportion of cocaine to filler material for the three kilograms. The chemist told Evans that the law required a detectable amount of cocaine to be present in any substance, roughly five grams of cocaine per kilo. Evans then obtained thirty-three grams of cocaine from two previous criminal cases. He mixed the cocaine with powdered sugar and flour, weighed out slightly more than three kilograms of the mixture, wrapped the mixture in cellophane, and packaged the mixture in three Tupperware containers wrapped in duct tape. Each container contained slightly more than one kilo.

On May 7, as planned, Hamilton met with Maghee and Gress at a Des Moines motel where Hamilton had rented three rooms. Maghee and Gress waited in one room. Hamilton brought a suitcase containing the three Tupperware containers of the cocaine mixture to them from the second room, while Evans and other officers surveilled from the third room.

When Hamilton entered Maghee's and Gress's room, he saw money sitting on the dresser. Hamilton laid the suitcase on the bed, unzipped it, and pulled out the three Tupperware containers. Gress put the containers on the dresser and said he wanted to test the cocaine but he had no knife. Seeing this as his opportunity to leave the room and alert the surveillance officers, Hamilton told Gress he had a knife in his room and that he would get it. Hamilton left and signaled surveillance officers to storm Maghee's room and make the arrests.

When the officers entered the room, the cocaine and money were on the dresser, Maghee was standing by the door, and Gress was standing by the dresser. The officers seized, among other things, $61,100 in cash from the dresser, $15,000 in cash from Maghee's coat pocket, and $7,789 in cash from Gress's pants pocket. The officers found no tax stamps.

At trial, the State offered and the court received into evidence audiotapes of (1) the original May 5 meeting at the bar, (2) telephone calls between Hamilton and Maghee, and (3) conversations in Maghee's and Gress's room, which had been "bugged." Surveillance officers had videotaped portions of the May 5 meeting and portions of events at the motel meeting on May 7. The videotapes were also received into evidence.

In a three count trial information, the State charged Maghee with possession with intent to deliver a controlled substance, conspiracy to possess with intent to deliver a controlled substance, and failure to affix a drug tax stamp. See Iowa Code §§ 124.401(1), 453B.3 (1993).

On the morning of trial, the State moved to amend the trial information to correct an "oversight and clerical error." Specifically, the State wished to change the charged possession and conspiracy offenses from a class "C" to a class "B" felony. Compare id. § 124.401(1)(c )(2)(b) (making it a class "C" felony and providing for ten year sentence if the drugs involved weigh five hundred grams or less), with id. § 124.401(1)(b )(2)(b) (making it a class "B" felony and providing for twenty-five year sentence if the drugs involved weigh more than five hundred grams but not more than one kilogram). The district court allowed the amendment over Maghee's resistance.

The district court overruled Maghee's motions for judgment of acquittal and his objection to several jury instructions. Thereafter the jury returned a verdict of guilty on all three counts. In a special interrogatory, the jury found the amount of cocaine in question was more than 500 grams but not more than 5 kilograms.

The court sentenced Maghee to a term of imprisonment not to exceed twenty-five years for possession with intent to deliver a controlled substance, twenty-five years for conspiracy to possess with intent to deliver a controlled substance, and five years for failure to affix a drug tax stamp. See id. § 902.9. The court ordered these sentences to "be served concurrently with each other but consecutively to a sentence defendant is presently serving." The court also ordered that Maghee serve one-third of the concurrent sentences imposed before he is eligible for parole. See id. § 901.10; State v. Thomas, 547 N.W.2d 223, 225-26 (Iowa 1996).

Maghee appealed and we consider the following issues raised:

1. Whether the district court correctly allowed the State to amend the trial information to charge a class "B" felony rather than a class "C" felony;

2. Whether the district court erred in submitting conspiracy to possess with intent to deliver a controlled substance as a separate charge;

3. Whether the district court's instruction defining "constructive possession" was erroneous;

4. Whether there was sufficient evidence to support a verdict of guilty for violation of the drug tax stamp statute;

5. Whether the district court erred in submitting counts I and II on the theory that it was the weight of the mixture that mattered rather than the purity of the cocaine in question; and

6. Whether there was sufficient evidence to support a finding that Maghee possessed more than 500 grams of cocaine.

II. Amendment of Trial Information.

In resisting the State's motion to amend the trial information, Maghee argued "surprise." The surprise, he contended, was that he was prepared to defend a class "C" felony (500 grams or less of cocaine) and not a class "B" felony (more than 500 grams of cocaine). In support of his contention, Maghee argued that depositions of State's witnesses established that only 33 grams of cocaine were involved, not 3000 grams.

Iowa Rule of Criminal Procedure 4(8) governs amendments to trial informations. It provides in part:

The court may, on motion of the state, either before or during the trial, order the indictment amended so as to correct errors or omissions in matters of form or substance. Amendment is not allowed if substantial rights of the defendant are prejudiced by the amendment, or if a wholly new or different offense is charged.

Iowa R.Crim. P. 4(8)(a). The first part of the rule is discretionary: the district court may order amendment so as to correct errors or omissions that either are or are not substantive. Iowa Code § 4.1(30) (provides that word "may" in statute confers a power). Our review up to this point of the rule is therefore for abuse of discretion. We find an abuse of discretion only when the party claiming such shows that the court exercised the discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable. State v. Vanover, 559 N.W.2d 618, 627 (Iowa 1997).

The second part of the rule limits the district court's discretion: The district court must not allow the amendment if the amendment prejudices substantial rights of the defendant or the amendment charges a wholly new or different offense. Thus, our review is for correction of errors at law for this part of the rule. State v. Sharpe, 304 N.W.2d 220, 223 (Iowa 1981) (holding it was error to allow State to amend indictment charging second-degree murder by substituting first-degree murder because the amendment charged a wholly new and different offense); see Iowa R.App. P. 4.

We have interpreted rule 4(8)(a) to require a two-part test:

A trial information, like an indictment, may be amended to correct errors or omissions of form or substance, so long as a two-pronged test is satisfied: (1) substantial rights of the defendant are not prejudiced thereby, and (2) a wholly new or different...