State v. Oppedal, 57678

• Decision Date: 29 August 1975
• Docket Number: No. 57678,57678
• Parties: STATE of Iowa, Appellee, v. Darrell Dean OPPEDAL, Appellant.
• Court: Iowa Supreme Court

Page 517

232 N.W.2d 517

STATE of Iowa, Appellee, v. Darrell Dean OPPEDAL, Appellant.

No. 57678.

Supreme Court of Iowa.

Aug. 29, 1975.

Scalise, Scism, Gentry, Brick & Brick, and John R. Sandre, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Earl W. Roberts, Asst. Atty. Gen., and Ray Fenton, County Atty., Des Moines, for appellee.

Heard by REYNOLDSON, Acting C.J., and RAWLINGS, REES, UHLENHOPP and HARRIS, JJ.

REES, Justice.

Defendant, charged by county attorney's information with the crime of possession of a controlled substance, to-wit, marijuana, with intent to deliver in violation of section 204.401(1), The Code, 1963, pleaded not guilty, was tried to a jury, convicted, sentenced and now appeals. We reverse and remand for new trial.

During the early afternoon of March 27, 1974 Officers Johnson, Leitzke and Pomeroy of the Metropolitan Area Narcotics Squad of Des Moines were conducting a warranted search of an apartment at 1618 East Twelfth Street in Des Moines. The apartment was shared by defendant, Randy Smith and possibly a third person, and defendant was present at the time of the search. The officers discovered and seized in the apartment eight small cellophane bags containing a green plant-like substance which they located in a closet off the living room. They also seized a list of names and phone numbers, some of whom Officer Leitzke was familiar with through his work as a narcotics officer, a quantity of collophane baggies, a scale, a container of seeds and green plant-like substance, a white sack containing stems and stalks, and some lollipop suckers. Shortly after the officers entered into the process of conducting the search, they placed Oppedal under arrest and informed him of his constitutional rights by giving him what is commonly referred to as the 'Miranda warnings'. Officer Leitzke then pointed to the box containing the eight small bags of marijuana and asked Oppedal, 'Do you sell these things?', to which question defendant answered in the affirmative.

The Oppedal apartment was on the second level of the apartment house. While the officers were in the apartment and continuing their search, and about 45 minutes after they had arrived at the apartment, they heard a knock at the outside door on the first level. Oppedal started to answer the door, but was told by Officer Pomeroy that he, Pomeroy, would do so. Pomeroy then saw a van outside the house and a person later identified as Rickey Hilker, who was at the door carrying a brown paper sack. Hilker asked Pomeroy, 'Is Darrell here?' and Pomeroy then said, 'He's upstairs'. Hilker was then admitted and proceeded upstairs to the door of the Oppedal apartment. As he reached the top of the stairway, Officer Johnson stopped him and advised him that he had walked into a search warrant, and asked Hilker what was in the paper sack. Officer Johnson testified that at this time he could see into the sack and observed what appeared to be a quantity of marijuana. Hilker was placed under arrest and the sack was then found to contain three plastic bags, each containing a pound of a green plant-like substance. Samples of the substance found in the closet in Oppedal's apartment, and also of that found in Hilker's grocery sack, were tested by the State Criminalistics Laboratory and analyzed as marijuana.

Prior to trial defendant filed what he characterized as a motion in limine, seeking exclusion of police testimony regarding the three one-pound bags of marijuana seized from Hilker just outside the door of defendant's apartment, and to further limit any expert testimony on the inference of intent based on the quantity of marijuana found. Trial court properly treated the motion in limine as a motion to suppress insofar as it asked exclusion of physical evidence resulting from the claimed illegal search and the testimony relating to the evidence. The parties stipulated that the facts pertinent to that part of the motion would be the transcript of evidence in the hearing before Judge Critelli in the case against Hilker in which case the evidence was suppressed. The motion in the instant case was overruled in its entirety, based upon the court's conclusion defendant had no standing to object to the admission of the evidence.

Defendant states the following issues for review which he contends require reversal:

(1) Trial court erred in admitting over defendant's objection testimony and evidence relating to three pounds of alleged marijuana seized from a Mr. Rickey Hilker at some point outside of the defendant's apartment.

(2) Trial court erred in denying the defendant's standing to object on illegal search and seizure grounds to the introduction of the three pounds of alleged marijuana seized from Rickey Hilker.

(3) Trial court erred in permitting a witness to testify that a quantity of marijuana seized from the defendant's apartment was possessed with intent to deliver; and

(4) Trial court erred in retaining in evidence, untested and unexamined, alleged contraband when the representative sample thereof had been withdrawn from evidence.

I. As stated above, trial court admitted in evidence the three pounds of marijuana which was seized from Rickey Hilker as he

approached the door of defendant's apartment while a warranted search was being conducted in the apartment. Defendant claims the State failed to establish any connection between the three pounds of marijuana seized from Hilker and the crime with which the defendant was charged, and argues that the introduction of such evidence tended to confuse and excite the prejudice of the jury. The State contends the Hilker marijuana was admissible as a part of the 'res gestae of the search and arrest'.

The admissibility of such evidence is largely within the discretion of the trial court. State v. Harper, 222 N.W.2d 450, 452 (Iowa 1974); State v. Wilson, 173 N.W.2d 563, 566 (Iowa 1970). So is the question of the relevancy of such evidence. State v. Harper, supra; State v. Battle, 199 N.W.2d 70, 72 (Iowa 1972). We have not, however, hesitated to reverse when the jury was allowed to consider plainly irrelevant and prejudicial evidence. State v. Harper, supra; State v. Lelchook, 186 N.W.2d 655, 657 (Iowa 1971); State v. Armstrong, 183 N.W.2d 205, 209 (Iowa 1971), (cert. den. 414 U.S. 857, 94 S.Ct. 163, 38 L.Ed.2d 108).

We have held, with notable exceptions, that evidence of the commission of crimes other than the one with which defendant is presently charged, is inadmissible. State v. Fetters, 202 N.W.2d 84, 91--92 (Iowa 1972); State v. Wright, 191 N.W.2d 638, 639--640 (Iowa 1971). In the instant case, however, there is involved the admission of evidence of the crime of another person committed contemporaneously with the commission of the crime with which the defendant here is charged.

Defendant cites a line of cases in which this court has reversed criminal convictions where the relevancy of admitted evidence to the specific crime charged has been tenuous or nonexistent. He cites State v. McCarty, 179 N.W.2d 548 (Iowa 1970) which involved the prosecution of a defendant for larceny of a quantity of soybeans. In McCarty, we held that evidence relating to the commercial transactions in soybeans of a brother of the defendant prior to the larceny with which defendant was charged allowed prejudicial speculation by the jury as to the connection between the sales by the brother and the offense with which the defendant was charged, and held that such evidence should have been excluded. We there noted the State was obviously attempting to connect the sales by the defendant's brother with the alleged offense by showing that the amount of soybeans subject to sale was more than the defendant and his brother could have raised or accumulated without having come into their possession in some manner unexplained. In State v. McHenry, 207 Iowa 760, 223 N.W. 535, which involved a prosecution for possession of burglar tools, trial court admitted, as evidence of intent, a sack of pennies seized with the tools in a search of defendant's house. At page 539 of 223 N.W., we said:

'Many other things were found by the sheriff in his search, among which is what is known in the record as Exhibit BBBB, a money sack with some small change in it. * * * It was not shown or intimated in any of the testimony that this sack was in any way connected with the Alleman Bank robbery, * * *.'

See also the following cases cited by defendant, viz.: State v. Wright, 203 N.W.2d 247 (Iowa 1972); State v. Gill, 259 Iowa 142, 143 N.W.2d 331, in both of which we held evidence of unrelated crimes and general bad conduct to be inadmissible.

Defendant here was charged with the possession of eight baggies of marijuana, a controlled substance. The State did not attempt to charge defendant with possession of the three pounds of marijuana seized from Rickey Hilker. In fact, the State has argued that defendant had no possessory interest in the drug seized from Hilker sufficient to allow him standing to contest its admission to trial. In the absence of any other justification, therefore, the rule enunciated by us in McCarty, supra, would not permit the admission of the marijuana seized from Hilker as the same would be prejudicial, speculative and incapable of affording any reasonable presumption or inference as to the principal matter in dispute, the possession of the eight baggies of contraband marijuana seized in the defendant's apartment.

Inversely, the State insists evidence concerning the marijuana seized from Hilker was properly admissible as a part of the Res gestae of the search and arrest of the defendant.

The penumbra of vagueness and impreciseness which surrounds the term Res gestae impels us to analyze the State's contention in this regard with some exactness. The concept of Res gestae has been used broadly by courts to justify the admission of a wide range of evidence, yet its parameters may be at least approximately defined. A...