State v. McGranahan

• Decision Date: 28 March 1973
• Docket Number: No. 55493,55493
• Citation: 206 N.W.2d 88
• Parties: STATE of Iowa, Appellee, v. Larry W. McGRANAHAN, Appellant.
• Court: Iowa Supreme Court

Page 88

206 N.W.2d 88

STATE of Iowa, Appellee, v. Larry W. McGRANAHAN, Appellant.

No. 55493.

Supreme Court of Iowa.

March 28, 1973.

Oehler, Radig & Hoy, Iowa City, for appellant.

Richard C. Turner, Atty. Gen., Raymond W. Sullins, Asst. Atty. Gen., Carl J. Goetz, County Atty., and Robert L. Stenander, Asst. County Atty., for appellee.

Considered en banc.

HARRIS, Justice.

Defendant appeals his conviction of selling marijuana in violation of section 204.2, The Code, 1971, prior to the amendment of that section by chapter 148 of the Acts of the Sixty-fourth G.A., First Session. We reverse and remand.

Steven Kenley, a special agent with the Iowa Department of Public Safety, is trained to make purchases of illicit drugs. He purchased a quantity of marijuana from defendant April 15, 1971. Kenley was accompanied by Linda Archibald who had been convicted of possession of heroin and was at that time cooperating with the State agents. They went first to Luther Danneman's business establishment in Iowa City. Miss Archibald introduced Keenley to Danneman. Keenley sought to 'make a buy' from Danneman but was not successful. However Danneman did give him a note which was taken by Keenley and Miss Archibald to the defendant's residence. Until receiving this note Keenley had never heard of defendant. He presented the note and succeeded in making the purchase which is the basis for this prosecution.

I. Defendant's request for an entrapment instruction was refused. He assigns this refusal as error. Defendant argues he was entrapped, that he was induced by Keenley to make the delivery. He insists the evidence raises a jury question on the issue. The only testimony offered at trial on the transaction was given by Officer Keenley. He testified: 'Well, Mr. Granahan was the first to speak. He said, 'What is it that you need?' And I said, 'Well, what have you got?' And he answered with the word, 'Marijuana'.'

'Basically entrapment is the inducement of an innocent person into the commission of a crime by trickery, persuasion or fraud of a government agent. Government action in merely providing the opportunity or facilities for the commission of crime does not constitute entrapment. (Citations).' State v. Davis, 175 N.W.2d 407, 410 (Iowa 1970). See also State v. Fagan, 190 N.W.2d 800 (Iowa 1971).

In other words, there is no entrapment when narcotics agents merely afford an accused the opportunity to commit the offense. Wood v. United States, 10 Cir., 317 F.2d 736; United States v. Carter, 2 Cir., 320 F.2d 1. See also Annot., 33 A.L.R.2d 883. The agent in the instant case merely afforded the opportunity for the defendant to commit the crime. He did not induce the defendant to commit it. The trial court was correct in refusing to submit the instruction on entrapment.

II. Defendant assigns as separate error the trial court's overruling of his motion in arrest of judgment. The gist of the motion was the claim the statute under which defendant was convicted was repealed prior to his arrest.

The transaction took place April 15, 1971. On September 20, 1971 the county attorney's information was filed. July 1, 1971 was the effective date of the Uniform Controlled Substance Act (hereafter the Act) which supplanted the chapter and section under which defendant was charged. Defendant claims the prior repeal of the law under which he was charged vitiated his conviction. The claim is without merit.

In such a claim defendant is confronted with two statutes and claims benefit of a third. Section 4.1, The Code, provides:

'* * * The repeal of a statute does not revive a statute previously repealed, nor affect any right which has accrued, any duty imposed, and penalty incurred, or any proceeding commenced, under or by virtue of the statute repealed.'

In State v. McDowell, 228 Iowa 180, 290 N.W. 65, we held section 4.1 (then section 63, subdivision 1 of the 1935 Code) answered a claim that a statutory penalty had been repealed and replaced by another statute which went into effect before an indictment was returned, but after defendant's arrest. She also State ex rel. Ackerly v. Shepherd, 202 Iowa 437, 210 N.W. 476.

Defendant is next faced with section 601 of the Act which provides: 'Prosecution for any violation of law occurring prior to the effective date of this Act is not affected or abated by the passage of this Act. * * *.' Defendant seeks to circumvent the effect of these two statutes by relying on section 605 of the Act which provides:

'The laws specified below are repealed except with respect to rights and duties which matured, penalties which were incurred and proceedings which were begun before the effective date of this Act:

'1. Chapter two hundred four (204), Code 1971.

'* * *.'

This section specifically preserves penalties incurred before the effective date of the Act. The question becomes one of whether the situation presents a 'penalty incurred' by the effective date. The identical question was faced by the Kansas Supreme Court in Re Schneck, 78 Kan. 207, 96 P. 43. It was held:

'The penalty is imposed by the court after the fact of guilt is legally determined. It is incurred when the act for which the law prescribed the penalty is committed. It follows, then, since the crime is charged to have been committed before the repeal of the statute prescribing the penalty of death, that the repeal and amendment does not affect the penalty of the crime charged, * * *.' There was no error in overruling defendant's motion in arrest of judgment.

III. There is merit to defendant's next assignment. Defendant rightly argues the trial court's instruction on reasonable doubt was inadequate. The court instructed:

'The burden is on the State to prove the defendant guilty beyond a reasonable doubt. This means just what it says, a doubt which is based upon reason.

'It may exist because of evidence or the lack of evidence.'

Defendant requested the court to give instruction 501.11 of the uniform jury instructions of the Iowa State Bar Association as follows:

'The burden is on the State to prove the defendant guilty beyond a reasonable doubt.

'A 'reasonable doubt' is such a doubt as fairly and naturally arises in your mind and by reason of which you cannot say that you have a full and abiding conviction of the guilt of the defendant; and if, after considering all of the circumstances as disclosed by the evidence, you find your mind wavering or vacilating, then you have a reasonable doubt, and the defendant is entitled to the benefit of such doubt and you must acquit him. A reasonable doubt may arise from the evidence in the case or it may arise from a lack or failure of evidence, and it must be such a doubt as would cause a reasonable, prudent and considerate man to pause and hesitate before acting in the graver and more important affairs of life. But you should not ignore credible evidence to hunt for doubt, and you should not entertain such doubt as is purely imaginary or fanciful or based on groundless conjecture. If, after a careful and impartial consideration of all of the evidence in the case, you have a full and abiding conviction of the guilt of the defendant, then you are satisfied beyond a reasonable doubt, otherwise you are not satisfied beyond a reasonable doubt.' The county attorney was also critical of the instruction. He said: 'It kind of bothers me too. That instruction 7, Judge.'

The vice of the instruction as given is that it contains no definition. Except for pointing out reasonable doubt may arise from the evidence or lack of it, the instruction does no more than rearrange the words which name the principle involved. Nothing is defined. The...