State v. Mullen

Decision Date27 March 1974
Docket NumberNo. 55519,55519
Citation216 N.W.2d 375
PartiesSTATE of Iowa, Appellee, v. Jerry Patrick MULLEN, Appellant.
CourtIowa Supreme Court

John W. Hayek, Iowa City, for appellant.

Richard C. Turner, Atty. Gen., Dennis E. Jontz, Asst. Atty. Gen., Carl Goetz, County Atty., Robert L. Stenander, Asst. County Atty., for appellee.

Considered en banc.


Upon trial defendant was found guilty of delivering marijuana, a controlled substance. He was sentenced to serve a term in the penitentiary not exceeding five years and to pay a fine of $500. Upon his appeal to this court, we reverse.

July 27, 1971, Keenley, a state undercover agent, sent Linda Archibald (a 'cooperating individual' working with the Department of Public Safety) into the Vine Tavern at Iowa City to contact defendant for the purchase of hashish or marijuana. She returned to Keenley's vehicle with defendant, who sold the agent three ounces of hashish for $255.

Defendant, testifying, said he was told by Miss Archibald 'that if I didn't help them they would have to go back to their hometown empty-handed and that they had a bunch of people lined up to buy grams of hash and things like that.' Defendant contended, 'I didn't want to be a 'jerk' * * * and flat out refuse to help them.' He testified he then obtained the hashish from a friend in the tavern and sold it only because he was persuaded by Miss Archibald.

Upon cross-examination defendant said he had lived three other college students at 730 Iowa Avenue. He was asked if Keenley and Miss Archibald had not come to that residence on prior occasions to buy drugs. Objection to the question was overruled and defendant stated he could not say that was a fact. He was then asked if he was in that residence and witnessed Mr. McGranahan sell hashish to Keenley. (See State v. McGranahan, 206 N.W.2d 88 (Iowa 1973)). Objection to this question was sustained.

There immediately followed an inquiry, 'Is it not a fact, sir, that prior to July 27, 1971, that you had sold or delivered marijuana to Mr. Keenley?' The objection being overruled, defendant responded that to the best of his knowledge, he had not. Two more such questions followed, with similar responses.

The defendant then rested. In the jury's absence defense counsel made a motion in limine to exclude any testimony by state agents Keenley and Dooley relating to alleged prior sales of marijuana and specifically an alleged sale made April 22, 1971, on the ground such testimony would be irrelevant, prejudicial, deprive defendant of a fair trial, and the alleged incidents were remote in time. The county attorney confirmed he intended to call those witnesses to testify concerning that sale. Trial court, inquiring of counsel, ascertained defendant had been arraigned on the alleged April 22, 1971 defense. The court then ruled:

'Now, you go down and get that file, and we can put the Defendant on the stand, and you can impeach him by asking him if he was not arraigned on that charge. But that's as far as I am going to go. I will sustain your motion. He can refresh his recollection.'

At the court's suggestion the State moved to reopen to further cross-examine the defendant. All this was over the vigorous objections of defendant's counsel, on the above grounds and the additional grounds the procedure would be improper cross-examination and deprive defendant of due process and fair trial. These objections were overruled.

Defendant was recalled for the cross-examination. Over similar objections, which were again overruled, he was asked if he had been arraigned on a charge of selling marijuana to Keenley on April 22, 1971, which he admitted, and if he wished to change his prior testimony as to whether he had previously sold marijuana to Keenley, to which he responded in the negative.

Motion for mistrial was overruled. Following conviction, defendant's motion for new trial, raising the same issues, was overruled.

Appealing, defendant asserts trial court erred in permitting him to be cross-examined, over proper objection, concerning alleged previous criminal offenses unrelated to the offense for which he was being tried. He further contends even if that evidence was admissible, trial court erred in directing and permitting him to be cross-examined concerning an arraignment on a separate charge because evidence of arraignment would not be competent or relevant evidence to prove commission of the separate offense.

I. It is clear defendant could not be impeached in such fashion and this case must be reversed on defendant's second ground of assigned error. Section 622.17, The Code; State v. Underwood, 248 Iowa 443, 447--448, 80 N.W.2d 730, 733--734 (1957); State v. Voelpel, 213 Iowa 702, 707, 239 N.W. 677, 679 (1931).

II. It is equally clear the State upon retrial will contend evidence of alleged prior offenses is admissible because defendant has raised the defense of entrapment. Here the State's brief attempts to justify what occurred below on the theory such evidence would bear on defendant's 'predisposition' to commit the alleged crime. We believe that issue should be resolved while the case is now before us. The parties apparently concede, and we agree, this is a matter of first impression in this court.

The entrapment defense was first recognized and sustained by the United States Supreme Court in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). Of primary significance here, the Sorrells majority held, 'The predisposition and criminal design of the defendant are relevant. (T)he issues raised and the evidence adduced must be pertinent to the controlling question whether the defendant is a person otherwise innocent * * *.' Mr. Justice Roberts, in a separate opinion concurred in by Justices Brandeis and Stone, asserted the question was one for the court to determine based upon the nature of the law officers' conduct and not upon the fact the defendant had a bad reputation or had a history of previous transgressions.

'It is the province of the court and of the court alone to protect itself and the government from such prostitution of the criminal law.'--287 U.S. at 457, 53 S.Ct. at 218, 77 L.Ed. at 425.

The Sorrells entrapment test, focusing on the intent or predisposition of the defendant to commit the crime, again withstood assault in 1958, although the reasoning of Mr. Justice Roberts found expression in a concurring opinion written by Mr. Justice Frankfurther in which Justices Douglas, Harlan and Brennan joined. Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958).

Evidencing a reluctance to overturn a long-standing precedent, the United States Supreme Court, again by a five to four majority, reaffirmed the Sorrells rule in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). The conflict between the competing rationales and the considerations to be weighed are well defined by Mr. Justice Stewart's dissent, 411 U.S. at 440--443, 93 S.Ct. at 1647--1648, 36 L.Ed.2d at 378--380:

'In Sorrells v. United States * * * the Court took what might be called a 'subjective' approach to the defense of entrapment. In that view, the defense is predicated on an unexpressed intent of Congress to exclude from its criminal statutes the prosecution and conviction of persons, 'otherwise innocent,' who have been lured to the commission of the prohibited act through the Government's instigation. * * *

Thus, the subjective approach focuses on the conduct and propensities of the particular defendant in each individual case: if he is 'otherwise innocent,' he may avail himself of the defense; but if he had the 'predisposition' to commit the crime, or if the 'criminal design' originated with him, then--regardless of the nature and extend of the Government's participation--there has been no entrapment. * * * And, in the absence of a conclusive showing one way or the other, the question of the defendant's 'predisposition' to the crime is a question of fact for the jury. * * *

'The concurring opinion of Mr. Justice Roberts, joined by Justices Brandeis and Stone, in the Sorrells case, and that of Mr. Justice Frankfurter, joined by Justices Douglas, Harlan, and Brennan, in the Sherman case, took a different view of the entrapment defense. In their concept, the defense is not grounded on some unexpressed intent of Congress to exclude from punishment under its statutes those otherwise innocent persons tempted into crime by the Government, but rather on the belief that 'the methods employed on behalf of the government to bring about conviction cannot be countenanced.' Sherman v. United States, supra, 356 U.S. at 380, 78 S.Ct. at 324, 2 L.Ed.2d 848. Thus, the focus of this approach is not on the propensities and predisposition of a specific defendant, but on 'whether the police conduct revealed in the particular case falls below the standards, to which common feelings respond, for the proper use of governmental power.' Id., at 382, 78 S.Ct. 825, 2 L.Ed.2d 848. * * * Under this approach, the determination of the lawfulness of the Government's conduct must be made--as it is on all questions involving the legality of law enforcement methods--by the trial judge, not the jury.

'Furthermore, to say that such a defendant is 'otherwise innocent' or not 'predisposed' to commit the crime is misleading, at best. The very fact that he has committed an act that Congress has determined to be illegal demonstrates conclusively that he is not innocent of the offense. * * * That he was induced, provoked, or tempted to do so by government agents does not make him any more innocent or any less predisposed than he would be if he had been induced, provoked, or tempted by a private person--which, of course, would not entitle him to cry 'entrapment.' Since the only difference between these situations is the identity of the temptor, it follows that the significant focus must be on the conduct of the government agents, and...

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