State v. Monroe

• Decision Date: 24 November 1975
• Docket Number: No. 57540,57540
• Citation: 236 N.W.2d 24
• Parties: STATE of Iowa, Appellee, v. Gary Allen MONROE, Appellant.
• Court: Iowa Supreme Court

Page 24

236 N.W.2d 24

STATE of Iowa, Appellee, v. Gary Allen MONROE, Appellant.

No. 57540.

Supreme Court of Iowa.

Nov. 24, 1975.

Johnston, Penney & Goetz, Iowa City, for appellant.

Richard C. Turner, Atty. Gen., Earl W. Roberts, Asst. Atty. Gen., Des Moines, and James P. Hoffman, County Atty., Keokuk, for appellee.

En banc.

REES, Justice.

Defendant was charged by county attorney's information in Lee County with the crime of delivering a controlled substance, specifically, cocaine hydrochloride, allegedly a schedule II substance, as defined in § 204.401, The Code, 1973. The venue of the cause was changed to Henry County. Defendant demurred to the information, alleging the unconstitutionality of §§ 204.401 and 204.410, The Code, contending they proscribe two separate criminal offenses for delivery of a controlled substance, one a felony, the other a misdemeanor. Following the overruling of the demurrer, the cause came on for trial to a jury. Defendant was convicted, sentenced and now appeals. We reverse and remand for a new trial.

The evidence which was not in fact refuted by defendant tended to show that on August 15, 1973, defendant was contacted by Roger Timcoe, a special agent for the Iowa Division of Narcotic and Drug Enforcement, and one Larry Harriman, a confidential informant. At about 8:30 P.M. on that date, defendant delivered to Agent Timcoe approximately three grams of a substance which was chemically analyzed to be concaine hydrochloride, for which Agent Timcoe paid defendant $145. On November 27, 1973, defendant was arrested at his home by Agent Timcoe and Detective Beaird of the Keokuk Police Department. At the time of the arrest, a small quantity of marijuana was discovered in a jacket owned by defendant.

Defendant admitted the delivery alleged, but raised an issue of entrapment (which is not before us here) and also maintained the delivery had been an accommodation. The jury found defendant guilty of having delivered a schedule II controlled substance, specifically, cocaine, and at the time the verdict was rendered defendant requested an accommodation hearing pursuant to § 204.410, The Code, which hearing was set for March 13, 1974. On March 12, defendant's counsel and the prosecuting attorney agreed the matter of accommodation would be submitted to the court on the trial record. Trial court found defendant had failed to show by clear and convincing evidence he had delivered the cocaine in question to Agent Timcoe as an accommodation to another individual, and not with intent to profit thereby. He was thereupon sentenced to be confined in the Men's Reformatory for a term of not to exceed ten years, and to pay a fine and costs.

Defendant states the following issues which he asserts entitle him to a reversal:

(1) Trial court erred in permitting the State to inquire during cross-examination of defendant into his alleged possession of marijuana at the time of his arrest.

(2) Trial court abused its discretion in overruling defendant's objection to portions of the county attorney's closing argument.

(3) Trial court erred in failing to find the State had failed to prove each and every element of the crime charged beyond a reasonable doubt, in that cocaine hydrochloride, or cocaine, is not listed as a controlled or narcotic substance by the proscriptive statute, and

(4) That §§ 204.401 and 204.410, The Code, 1973, are unconstitutional, as applied to defendant.

I. in his first issue stated for review, defendant claims trial court erred in permitting the State to question defendant on cross-examination concerning his possession of marijuana at the time of his arrest. Defendant asserts this line of questioning exceeded the proper scope of cross-examination and did not bear on any issue in the case, defendant having been charged only with the delivery of a controlled substance, specifically, cocaine, or cocaine hydrochloride.

The State contends the line of questioning on cross-examination of defendant was within the proper scope of such examination, by virtue of the fact defendant himself introduced the subject matter on direct examination, and that it was allowable for the purpose of attacking defendant's credibility.

It should be noted that the arresting officers who discovered the marijuana in defendant's jacket at the time of his arrest made no reference to the marijuana in their testimony as a part of the State's case.

In view of our determination of this issue on other grounds we deem it unnecessary to consider the State's contention the line of questioning concerning the presence of marijuana in the pocket of defendant's coat was allowable for the purpose of attacking defendant's credibility. We accordingly focus our consideration of this issue on the question as to whether the interrogation of defendant was permissible because defendant himself opened the subject to inquiry in his own testimony on direct examination.

As a part of the direct examination of defendant by his counsel, the following series of questions and answers appeared in the record:

'Q. Have you ever used any drugs yourself?

'A. Yes, I have.

'Q. What kind of drugs?

'A. I smoke marijuana.

'Q. Have you ever used cocaine?

'A. I have tried it but it didn't agree with me. That was some time ago. That was long before the 15th. That was as much as a year and a half ago.

'Q. You haven't used any since?

'A. No, I haven't.

'Q. Other than this one occasion?

'A. No, other than August 15th.

'Q. Have you used any drugs at all since August 15th?

'A. No, I haven't--I have smoked marijuana.

'Q. Since August 15th?

'A. Yes, but I don't consider marijuana a drug.

'Q. That is not an issue here. But anything other than marijuana?

'A. No.'

Also on direct examination, the defendant, speaking of his arrest, testified, 'They (Special Agent Timcoe of the Iowa Division of Narcotic and Drug Enforcement and Ken Beaird, detective with the Keokuk Police Department) started to search the house, and I asked them not to, and they went through it anyway and then they took me to jail . . ..' With respect to Agent Timcoe, the defendant also testified, 'He started searching my house, and I asked him not to unless he had a warrant, and he said, 'I won't', and then he started going through my bedroom.'

On cross-examination of the defendant, the prosecutor inquired of him as follows:

'Q. Now, at that time (of defendant's arrest) did they find any drugs on you?

'A. No, they didn't.

'Q. Now again, I don't want to--for the sake of the jury, would you explain what you think is a drug and what you think is not a drug?

'A. Yes, I will. I think anything that is clinical or home-made or anything of that sort is a drug, but I do not think marijuana is a drug, but they didn't find any on me.'

At the time the county attorney began his cross-examination of defendant and had commenced a line of inquiry dealing with the marijuana found in defendant's coat at the time of his arrest, defendant's counsel made what he characterized as a motion in limine with reference to any charge of possession of marijuana as a result of the search and asking the court to rule that it would be improper for the county attorney's office to go into the matter of the possession of marijuana by defendant for the purposes of impeachment. Trial court held the State had no right to inquire into the matter of any criminal charges growing out of the possession of marijuana, but that the State could inquire as to whether or not he had marijuana in his possession at the time of arrest.

Pursuant to this ruling, the State continued its cross-examination, eliciting from defendant his admission that a small quantity of marijuana belonging to him was found in his coat at the scene of the arrest.

Section 781.13, The Code, permits the prosecution to cross-examine a defendant as an ordinary witness, but the State is strictly confined in cross-examination to the matters testified to by the defendant in his examination in chief.

The scope and extent of cross-examination are largely within the discretion of the trial court. State v. Everett, 214 N.W.2d 214, 219 (Iowa 1974); State v. Hinsey, 200 N.W.2d 810, 815 (Iowa 1972); State v. Harrington, 178 N.W.2d 314, 316 (Iowa 1970). Cross-examination may cover fully and fairly all matters raised on direct examination. See State v. Everett, supra. Cross-examination of a defendant is not restricted to a 'mere categorical review of the matters stated in the direct examination, but may cover any matter referred to, or within the fair purview of, direct examination.' State v. Jensen, 189 N.W.2d 919, 924 (Iowa 1971), quoting 98 C.J.S. Witnesses § 395, p. 175.

Defendant contends the interrogation with respect to the marijuana found in his jacket offends the general rule enunciated in State v. Martin, 217 N.W.2d 536 (Iowa 1974), in which we held evidence showing commission of crimes other than one with which an accused stands charged is not ordinarily admissible. We believe, however, that defendant's testimony on direct examination concerning his use of marijuana and concerning the actions of Agent Timcoe and Detective Beaird at the scene of the arrest sufficiently raised the issue with which the cross-examination was concerned. We accordingly find no abuse of discretion by the trial court in this matter.

II. In his second issue stated for review, defendant asserts trial court abused its discretion in overruling defendant's objections to certain portions of the county attorney's closing argument which he claims were prejudicial to him with respect to statements made, the conduct of the county attorney, and the inferences which could be drawn from the argument. First, he objects to what he characterizes as the prosecutor's representation that Agent Timcoe's life had been endangered by his testimony at trial. Second, he complains that the prosecutor impermissibly asserted his own belief and opinion as to defendant's guilt without reference to any supporting...