State v. Menke

• Decision Date: 19 March 1975
• Docket Number: No. 57180,57180
• Parties: STATE of Iowa, Appellee, v. Gary MENKE, Appellant.
• Court: Iowa Supreme Court

Page 184

227 N.W.2d 184

STATE of Iowa, Appellee, v. Gary MENKE, Appellant.

No. 57180.

Supreme Court of Iowa.

March 19, 1975.

Fehseke & Fehseke by R. L. Fehseke, Jr., Fort Madison, for appellant.

Richard C. Turner, Atty. Gen., Nancy J. Shimanek, Asst. Atty. Gen., and Sidney E. Drake and Joel J. Kamp, Asst. County Attys., for appellee.

Considered en banc.

RAWLINGS, Justice.

Charged with delivery of a controlled substance, defendant pled not guilty. After return of a guilty verdict defendant ineffectively moved for an accommodation-delivery reduced sentence. He appeals from judgment entered. We reverse.

August 29, 1973, Roger Timko, an Iowa Narcotics Enforcement officer, along with Larry Harryman, a paid informant, went to the West Point home of Vivian Palmer. Shortly thereafter this threesome drove to a farmhouse located about two miles south of West Point. The intended purpose of the trip was to effect a drug-purchase by Timko, through Harryman, from the farmhouse occupant.

Upon arrival, Timko engaged in a 'drugbuy' conversation with defendant Menke. The latter was unable to produce drugs desired by the former. In this regard Timko testified the drugs were apparently under lock somewhere outside the farmhouse. Menke wanted Timko to wait for return of the party having the key. When Timko indicated he would not do so, Menke went upstairs and later returned, apparently unable to find the key. Timko then said: 'Well, if no deal can transpire at this time, I guess we'll leave.'

Several moments later Miss Palmer produced and handed 40 tabs of LSD to Timko for which he ultimately paid $1.00 per hit to someone not identified by the record. Timko, Harryman and Palmer subsequently left the farmhouse.

Other relevant evidence will be considered as it relates to issues here to be considered.

In support of a reversal defendant contends trial court erroneously (1) overruled his mistrial motion based on prosecutorial misconduct during voir dire of the jury panel; (2) overruled his hearsay objection to a question asked of Officer Timko regarding Miss Palmer's time-of-transaction statements; (3) limited his cross-examination of Miss Palmer as to pretransaction deliveries of a controlled substance; (4) overruled his motions to dismiss, direct a verdict and order a new trial; (5) found a nonaccommodation delivery; and (6) denied defendant a fair trial.

I. The first question to be resolved is whether defendant's mistrial motion, interposed in course of jury voir dire, should have been sustained.

Sometime after the panel had been advised to the effect defendant would attempt to establish an alibi defense, this colloquy occurred between the county attorney and a prospective juror: 'Young people hang together, don't they?' Upon receiving an affirmative response to that question the prosecutor asked: 'They alibi for each other?' At this point defense counsel unsuccessfully moved for a mistrial adjudication.

We cannot place the stamp of approval upon such tactics as disclosed above. It still remains, however, this is a matter resting largely in trial court's discretion with which we interfere only where abuse is clearly shown. See Anderson v. City of Council Bluffs, 195 N.W.2d 373, 377 (Iowa 1972); Elkin v. Johnson, 260 Iowa 46, 50, 148 N.W.2d 442 (1967).

No such showing is made.

II. Next to be considered is defendant's contention to the effect Timko was erroneously permitted to introduce certain testimony over defendant's hearsay objection.

In course of trial Officer Timko appeared as a State's witness. After he had testified as aforesaid regarding defendant's search for a missing key and Miss Palmer's production of LSD, this colloquy occurred:

'Q. Now, you say Miss Palmer produced this substance? A. Yes.

'Q. And what did she do with it? A. She in turn handed it to me for my observation.

'Q. And what did she say?

'MR. FEHSEKE: We'll object to any statements made by Miss Palmer to Mr. Timko for the reason they call for hearsay.

'THE COURT: Overruled. It is admissible so far as made in the presence of the defendant. Overruled.

'A. It was stated, in fact, that the drugs were not hers; that she was holding them, and that they were the actual possession of the defendant, Mr. Menke.

'Q. (By Mr. Drake) They belonged to the defendant? A. That is correct.'

In State v. Smith, 195 N.W.2d 673, 675 (Iowa 1972) this court defined 'hearsay' as a statement other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. See also State v. Lanphear, 220 N.W.2d 618, 621--622 (Iowa 1974); State v. Kelsey, 201 N.W.2d 921, 924 (Iowa 1972). See generally Dutton v. Evans, 400 U.S. 74, 86--89, 91 S.Ct. 210, 218--219, 27 L.Ed.2d 213 (1970); Rule 801, Federal Rules of Evidence, Act of January 2, 1975, Pub.L. No. 93--595, 93rd Congress, H.R. 5463 (16 Crim.L. 3009, 3013).

Unquestionably, Miss Palmer's out-of-court statement, testified to by Timko, was testimonially offered to prove defendant's ownership of the LSD delivered by Palmer to Timko. It was thus offered to prove the truth of the statement made and therefore stood as hearsay.

It must be prefatorilly conceded, mere silence by defendant at or about the time the challenged statement was made would not, alone, render same admissible as to him. See State v. Kelsey, 201 N.W.2d at 925--927.

III. The question now posed is whether the aforesaid hearsay was admissible as an adoptive admission.

'(T)he term adoptive admission is applied to evidence of other conduct of a party which manifests circumstantially the party's assent to the truth of a statement made by another person.' McCormick, Evidence, § 269 at 649 (2d ed. 1972).

On the other hand, it must be shown a person clearly and unambiguously assented to the statements of another before an adoptive admission comes into being. See 2 Jones on Evidence, § 13:28 (Gard, 6th ed. 1972); 29 Am.Jur.2d, Evidence, § 661.

A fair reading of the record before us discloses that after Palmer handed the LSD to Timko, these two, and defendant, discussed and finally agreed upon a price to be paid for it. There was also some talk between Timko and Menke regarding a 'future deal.'

The foregoing cannot be said to constitute a clear and unambiguous assent by Menke to the truth of any inculpatory statement as to him which had been made by Palmer to Timko.

It therefore follows trial court erroneously admitted the challenged testimony in evidence over defendant's timely hearsay objection.

And, as this court recently said in State v. Branch, 222 N.W.2d 423, 427 (Iowa 1974); 'Error in admitting hearsay evidence must be presumed to be prejudicial unless the contrary is affirmatively established.'

IV. Defendant contends, absent the above noted inadmissible hearsay, there was a fatal inadequacy of evidence disclosing an actual or constructive delivery by him of a controlled substance.

This court has consistently held, where an accused moves for a directed verdict the evidence must be viewed in a light most favorable to the State and the case should be submitted to the jury if there is any evidence reasonably tending to support the charge. See, e.g., State v. Dewey, 220 N.W.2d 629, 631 (Iowa 1974).

It is equally well settled, when an accused challenges sufficiency of the evidence to sustain a guilty verdict the evidence is again viewed most favorably to the State, and the court accepts as established all reasonable inferences tending to support the jury action. Furthermore, only the supporting evidence need be considered, whether contradicted or not. See e.g., State v. Myers, 215 N.W.2d 262, 263 (Iowa 1974); State v. Bruno, 204 N.W.2d 879, 884 (Iowa 1973); State v. Johnson, 196 N.W.2d 563, 566 (Iowa 1972).

Looking now to the record it discloses this testimonial interchange between the county attorney and Miss Palmer, a statecalled witness, during direct examination of the latter:

'Q. * * * Now, Vivian, you mentioned a transaction between one of the people in your party and somebody else in the farmhouse. What do you recall about that? A. That someone in my party bought some LSD.

'Q. Bought some LSD. Who did they buy it from? A. I'm not sure.

'* * *

'Q. All right. And, Vivian, did you know the person who made the sale? A. I imagine I would have.

'* * *

'Q. Do you know the person who sold the forty tabs to the - - -. A. I'm not sure.

'* * *

'Q. All right. Now, back within the last two weeks at this table here, do you remember that discussion? (Reference to juvenile proceedings against Miss Palmer several weeks before this trial) A. Yes.

'Q. Do you remember I asked you at that time who made the sale? A. Yes.

'Q. What did you tell me then?

'* * *

'A. I was wrong in telling you that.

'Q. Who did you tell me, then? A. I said Gary Menke did, then.

'* * *

'Q. (By Mr. Drake) But now you don't remember for sure who it was? A. Now, I'm not sure.

'Q. Could it have been Gary Menke? A. It could have been.

'Q. But you did tell me two weeks ago it was him, right? A. Yes.

'* * *

'Q. And when this transaction took place, who did you give the tabs to? A. Mr. Timko said I gave them to him.

'* * *

'Q. Was that your acid? A. No.

'Q. It belonged to somebody else? A. Yes.

'Q. Why did you have it?

'* * *

'A. I was going to display it to Harryman.

'* * *

'Q. And what was the purpose in displaying it to Mr. Harryman? A. He told me that he was interested in buying some, or he wanted to buy some.

'Q. So, would it be a fair statement, Vivian, that you were kind of acting as a sales person? A. Yes.'

It is apparent trial court correctly observed Vivian Palmer was an 'adverse witness'. Surely she was hostile and unwilling to testify. Therefore, leading questions were permissible. See State v. Walker, 133 Iowa 489, 494--495, 110 N.W. 925 (1907); 3 Wigmore on Evidence, § 774 (Chadbourn rev. 1970); 4 Jones on Evidence, § 24:12 (Gard, 6th ed. 1972); The Code 1973, Section 624.1. See also Schmitt v. Jenkins Truck Lines,...