State v. McDaniel

• Decision Date: 17 May 1978
• Docket Number: No. 59505,59505
• Citation: 265 N.W.2d 917
• Parties: STATE of Iowa, Appellee, v. Wayne A. McDANIEL, Appellant.
• Court: Iowa Supreme Court

Page 917

265 N.W.2d 917

STATE of Iowa, Appellee, v. Wayne A. McDANIEL, Appellant.

No. 59505.

Supreme Court of Iowa.

May 17, 1978.

Cahill, Johnston, Poula & Goetz, Iowa City, for appellant.

Richard C. Turner, Atty. Gen., J. Susan Carney and Harold A. Young, Asst. Attys. Gen., and David W. Newell, County Atty., for appellee.

Considered en banc.

McCORMICK, Justice.

Defendant appeals his convictions and sentences on three counts of delivery of a controlled substance in violation of § 204.401(1), The Code. The substances were marijuana, pentobarbital and phenobarbital. His trial was bifurcated under procedures delineated in State v. Monroe, 236 N.W.2d 24 (Iowa 1975). He contends that the trial court, Werling, J., erred in several respects in the first proceeding and that the accommodation trial court, Grant J., erred in the second. We find merit only in his contention that the accommodation trial court erred in overruling his motion for directed verdict on the accommodation issue. As a result we affirm in part and reverse in part, remanding for resentencing of defendant as an accommodation offender.

Defendant contends the trial court in the first proceeding erred (1) in refusing to sequester the jury panel for voir dire, (2) in admitting evidence of other crimes, (3) in admitting controlled substances for demonstrative purposes, and (4) in overruling his motion for directed verdict. In addition, he asserts (5) he should have a new trial because of cumulative errors.

He also contends (6) the accommodation trial court erred in several respects. However, we address only one of those contentions because we find his claim that the court erred in overruling his motion for directed verdict on the accommodation issue is determinative as to that proceeding.

We first summarize the evidence in its light most favorable to the State. Defendant was chief of police in Muscatine and Barbara Edington was a 38-year-old divorcee who was a resident of that city.

Defendant and Edington had been acquainted for 15 or 16 years. Approximately three or four years before the events in the present case Edington received a telephone call from defendant telling her she could come and get a television set of hers which the police had been holding as evidence in connection with a charge against another individual. Subsequently defendant and Edington intensified their relationship. They talked on the telephone and defendant visited her, although not in her home. He sometimes brought vodka to her and, on occasion, gave her small amounts of money. In about October 1973 defendant started bringing marijuana to Edington. He and Edington became intimate at approximately the same time. They met about twice a month. He brought marijuana to her and they had sexual relations on each occasion.

Edington testified she wanted the marijuana to give to friends, some of whom lived in her house. She asked for other drugs for the same purpose.

Defendant obtained the controlled substances from contraband which the police had confiscated.

An informer told a deputy sheriff that defendant was furnishing drugs to Edington. The sheriff enlisted the help of state law enforcement officials. Officers treated phenobarbital and barbiturate tablets and marijuana with a material which became luminous under a certain kind of light. They "planted" the items in a telephone booth and anonymously called the police and told them a drug pickup would occur at the booth.

The police set up surveillance at the booth, but when a pickup failed to occur they seized the items. In due course the items came into defendant's hands.

On some prior occasions defendant had delivered marijuana to a shed behind Edington's house for her to pick up. This time on the morning of March 8, 1975, after some previous calls, defendant telephone Edington he would leave the "stuff" in her shed.

The informer alerted the officers that this delivery would be made, and the officers set up surveillance near the shed. That morning defendant arrived with a brown bag and left it in the shed. An officer photographed defendant in the process. The officers then waited for the pickup.

During this period Edington was living with a 19-year-old man named Jerry Brown. On the morning defendant made the delivery in question, Edington was still in her night clothes, and Brown therefore went out to the shed to get the drugs. He entered the shed, but about then two of the officers got out of their car to intercept him. Brown saw them and came out of the shed without the brown bag as a matter of caution. The officers found the bag in the shed. Edington and Brown gave statements concerning their respective parts in these events.

The bag contained pentobarbital and phenobarbital tablets and marijuana. Some of the tablets were marked with the luminous material.

A grand jury indicted defendant on three counts of delivering controlled substances, and a trial jury found him guilty of all counts. A second trial jury found the delivery was not an accommodation. Defendant was sentenced, and this appeal followed.

I. Sequestration of voir dire. In the first proceeding defendant moved the court to conduct the voir dire examination of each prospective juror apart from the other jurors. The court overruled the motion and defendant claims error, citing A.B.A. Standard Relating to Fair Trial & Free Press § 3.4(a) (1968).

The A.B.A. standard advocated by defendant provides for individual voir dire of prospective jurors in situations where jurors have been exposed to potentially prejudicial material. The trial court recognized its discretion to conduct voir dire in that manner here but declined to do so, believing a fair jury could be obtained through regular procedures.

The record does not provide a basis for finding the court abused its discretion. See State v. Elmore, 201 N.W.2d 443, 445 (Iowa 1972). In addition it does not contain any basis for finding defendant was prejudiced by the procedures used because it does not show he was harmed.

We find no merit in this assignment.

II. Evidence of prior relationship. Over defendant's objection, the court permitted the State in the first proceeding to introduce evidence of the prior sexual relationship between defendant and Edington and of defendant's prior deliveries of drugs to her. Defendant argues the court violated the rule that evidence of other crimes is ordinarily irrelevant and inadmissible. State v. Wright, 191 N.W.2d 638 (Iowa 1971).

Defendant also argues Edington's testimony about these matters was not credible. The weight and credibility to be attached to Edington's testimony, however, was a factual issue for the jury and not a legal issue for the court. State v. Newman, 257 N.W.2d 29, 31 (Iowa 1977). Defendant's argument to the contrary is untenable.

As to his principal argument, we have recognized the general principle that evidence which shows commission of crimes other than the one with which a defendant is charged is inadmissible. We have also recognized exceptions permitting such evidence when it tends to prove (1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme or system of criminal activity embracing the commission of two or more crimes so related that proof of one tends to prove the other, or (5) identity of the person charged with commission of the crime. State v. Wright, 191 N.W.2d 638, 639-640 (Iowa 1971).

The basic standard by which other crimes evidence is tested is relevancy. State v. Jeffs, 246 N.W.2d 913, 915 (Iowa 1976). However, even when such evidence has some relevancy the trial court must exercise discretion to determine whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. State v. Johnson, 224 N.W.2d 617, 621 (Iowa 1974).

The State's evidence of defendant's prior relationship and transactions with Edington was clearly admissible under this standard. The State's theory was that defendant's delivery of the drugs to the shed was in reality a delivery to Edington. It had to prove the delivery and that defendant had knowledge the paper bag contained drugs. But it could not show a delivery personally to Edington, and defendant denied even taking the bag to the shed.

Therefore it became vital to the State's case to show defendant's visit to the shed was part of a regular scheme or system of criminal activity in which he furnished Edington with drugs. This evidence enabled it to do so. It also helped establish defendant's knowledge that the bag contained drugs.

The evidence of the parties' prior sexual intimacy tended to negate the possibility of mistake or accident. It also was so closely related in time and place to the furnishing of drugs as to be admissible as an inseparable part of those transactions. See State v. Lyons, 210 N.W.2d 543, 546 (Iowa 1973).

The trial court did not abuse its discretion in admitting this evidence.

III. Demonstrative evidence. Defendant put in the bag and placed in the shed only part of the marked tablets. The State offered evidence of the marking of all of them by the officers, and the trial court permitted the State to introduce the marked pills which were in the bag and also those which defendant did not place in the bag. Defendant contends this was error.

We have examined the evidence and do not find confusion resulted as defendant contends. The State did not try to deceive anyone. It showed the whole picture from beginning to end: the marking of the entire lot, the portion which defendant delivered, and the portion which he did not deliver.

The trial court acted within its discretion in admitting this demonstrative evidence. State v. Badgett, 167 N.W.2d 680, 686 (Iowa 1969); State v. Kittelson, 164 N.W.2d 157, 168 (Iowa 1969); McCormick on Evidence, § 212 at 526, 528 (Second Ed.1972).

IV. Directed verdict in the first proceeding. Defendant argues the trial court should have sustained his motion for directed verdict at...