State v. Ritchison, 55555

• Decision Date: 13 November 1974
• Docket Number: No. 55555,55555
• Citation: 223 N.W.2d 207
• Parties: STATE of Iowa, Appellee, v. Richard Dean RITCHISON, Appellant.
• Court: Iowa Supreme Court

Page 207

223 N.W.2d 207

STATE of Iowa, Appellee, v. Richard Dean RITCHISON, Appellant.

No. 55555.

Supreme Court of Iowa.

Nov. 13, 1974.

John C. Platt, Cedar Rapids, for appellant.

Richard C. Turner, Atty. Gen., David E. Linquist, Asst. Atty. Gen., William G. Faches, County Atty., Timothy White, Asst. County Atty., for appellee.

Submitted to MOORE, C.J., and MASON, UHLENHOPP, REYNOLDSON and McCORMICK, JJ.

MASON, Justice.

Richard Dean Ritchison was charged by county attorney's information with sale of a narcotic drug contrary to section 204.2, The Code, 1966. Following his plea of not guilty defendant was tried and convicted by a jury of the crime as charged. He appeals from the sentence imposed following that conviction.

The controversy deals with the sale of somewhat over seven 'lids' of marijuana to a special agent of the Department of Public Safety on June 25, 1970.

Agent Frank Cooley, employed by the Department of Public Safety, the division of Narcotic and Drug Enforcement, testified he and Cedar Rapids police detective Denton Schultz went to the La Cantina bar in Cedar Rapids where Cooley was introduced to a man named Larry (defendant later testified this was Larry Bales, a bartender at the tavern). Cooley stated a discussion concerning the sale of drugs followed and it was decided a purchase was to be made at the Me Too parking lot at Johnson Drive and Jacolyn Drive on the west edge of Cedar Rapids.

Cooley arrived at the scene about 9:40 p.m. and at 9:45 p.m. a white 1969 Mercury Montego arrived. Cooley recognized one of the two men passengers as Larry and at trial identified the other as defendant, who was driving. The Mercury was registered to one Ida Pena.

Agent Cooley stated defendant suggested the three men have a drink. Defendant drove and while in the car asked Cooley if he wanted 'to buy this stuff or not.' Defendant informed Cooley the drugs were marijuana and sold for $20 per lid. Cooley objected the price was too expensive and offered $10.

Over objection Cooley testified defendant stated he had been in the drug business from four to four and one half years and the $20 price was not too high considering the quality of the marijuana.

The three stopped at a bar and had drinks, where Agent Cooley still refused to pay the asking price. On the way back to the Me Too parking lot, it was finally agreed defendant would sell seven lids and two 'nickel bags' for $135. The sale was completed at the parking lot.

Special Agent Dooley and Detective Schultz, who had gone to the Me Too parking lot, observed Agent Cooley enter the Mercury. They did not follow, but waited until the car returned, where they observed Cooley return to his own car.

Defendant took the stand stating Larry Bales introduced Agent Cooley to him at the La Cantina Tavern. According to defendant Larry approached him about six times about a drug sale, and later, Cooley asked him about marijuana several times. Defendant claimed he had no marijuana. During this time Ida Pena, owner of the Mercury, overheard the conversations and told defendant she had marijuana to sell. Defendant who denied the marijuana was his, said he relayed this information to Cooley. Cooley, on the other hand, denied he talked with or saw defendant at the La Cantina.

Defendant stated Cooley, subsequent to the sale in question, repeatedly telephoned about making another deal, to which defendant answered he did not deal in drugs.

After the sale had taken place Cooley delivered the marijuana to the home of Detective Schultz, where Agent Dooley sampled it. Cooley then personally delivered the marijuana to Donald Booton, a state chemist for the Department of Agriculture in Des Moines, who then gave it to an assistant, Dennis Chapman. Chapman determined the substance to be marijuana.

The appeal presents the following issues for review: (1) whether the trial court erred by failing to submit to counsel a preliminary draft of instruction 10 (which defined marijuana as a narcotic) prior to the jury argument as required by rule 196, Rules of Civil Procedure, as then in force; (2) did the trial court err in admitting the testimony of Agent Cooley relating to statements by defendant that he was a drug dealer?; (3) did the trial court err in denying defendant's offer of proof that marijuana is not a narcotic drug?; and (4) whether the statutory presumption created by section 204.1(10)(c), The Code, 1966, and instruction 10--that marijuana is a narcotic--is a denial of due process under Amendment 14 to the Constitution of the United States.

I. Defendant asserts it was error to submit instruction 10 which defined marijuana as a narcotic. In the trial court, after argument to the jury, defendant objected to the added instruction because, (1) of the failure to include it in the preliminary draft; (2) defendant argued to the jury marijuana was not a narcotic, thus, inclusion of the instruction after argument would be prejudicial; and (3) the instruction violates the due process clause of Amendment 14 since the legislature cannot define marijuana as a narcotic when in fact it is not.

In overruling the objection, the trial court stated defense counsel knew marijuana was defined as a narcotic, took the risk in arguing this issue to the jury and that the court was stating the law which to not do would be erroneous.

In written brief and argument defendant stresses only the contention urged in the first of his objections made at trial.

The question as to whether marijuana was a narcotic drug was injected into the case during the cross-examination of the State's witness, Dennis Chapman. This witness testified that as far as chemical analysis was concerned marijuana was not a narcotic drug.

At the close of all evidence but before arguments to the jury the court submitted preliminary drafts of instructions it expected to give. Instruction 10 which is the subject of defendant's attack was not included. Counsel for each side made some objections to the preliminary draft. However, the matter later included in instruction 10 was not the subject of a request or objection by either side.

In this connection attention is called to the rule followed in this state that ordinarily objections to preliminary drafts of instructions do not serve to preserve for review alleged error in regard to the instructions. State v. Schmidt, 259 Iowa 972, 145 N.W.2d 631 and State v. Clark, 187 N.W.2d 717 (Iowa 1971).

The problem of preserving for review objections to instructions was dealt with recently in State v. Baskin, 220 N.W.2d 882, 884--887 (Iowa 1974).

In jury argument defendant asserted marijuana was not a narcotic drug. After jury arguments were completed the court submitted its final draft of proposed instructions to counsel and afforded them opportunity to take exceptions and make objections. Included in the final draft was instruction 10 which we set out in its entirety: 'By definition, marijuana was a narcotic drug under Law of Iowa on June 25, 1970.'

At this time defendant objected to instruction 10. His sole challenge arises from the fact this instruction included in the final draft had not been included in the preliminary draft. Defendant does not in any manner attack the instruction as being an incorrect statement of the law. As a matter of fact, there is no question but that the law applicable at the time of the alleged offense and trial defined marijuana as a narcotic. Section 204.1(10)(c), The Code, 1966.

Defendant relies on rule 196, R.C.P., in support of his contention. The rule as then in force stated in pertinent part:

'Before argument to the jury begins, the court shall furnish counsel with a preliminary draft of instructions which it expects to give on all controversial issues. * * *.'

The language is clear. A court was required by the wording of the rule to so submit a preliminary draft to counsel. Defendant in relying on this provision cites State v. Zbornik, 248 Iowa 450, 457--458, 80 N.W.2d 735, 739 for the proposition, 'Counsel were entitled as a matter of right to see the instructions before commencing argument.' See also State v. Miller, 254 Iowa 545, 558, 117 N.W.2d 447, 456. In both cases, however, any error was not preserved because counsel failed to object before argument.

Research revealed only one other case on the subject, which is older than Zbornik or Miller and in which the holding is somewhat obscure. In State v. Holder, 237 Iowa 72, 84, 20 N.W.2d 909, 915, appellant's counsel objected that the court failed to furnish a preliminary draft. This objection was made at the close of the jury argument and before the instructions were read. There was no objection on this in the motion for new trial, however, and the court concluded the instruction correctly stated the law. '* * * While the instructions should have been submitted to counsel in accordance with Rule 196 we are of the opinion that under the record here no prejudicial error resulted in the court's failure to so submit them to counsel.' Whether the court bases its reasoning upon the fact error was not preserved or the instruction correctly stated the law is not clear.

In Zbornik and Miller case there was no preliminary draft whatsoever submitted to counsel where here one instruction was added after the issue was raised in defendant's argument to the jury.

Courts have the duty to instruct juries '* * * on the law applicable to the facts as disclosed by the evidence, and must so instruct if there is evidence admitted which supports some involved issue. * * * (citing authorities).' State v. McConnell, 178 N.W.2d 386, 389 (Iowa 1970). See also State v. Horrell, 260 Iowa 945, 956, 151 N.W.2d 526, 533 and State v. Lamar, 210 N.W.2d 600, 605--606 (Iowa 1973).

Courts must so instruct even without a request when the issues presented justify an instruction. State v. Wiese, 182 N.W.2d 918, 921 (Iowa 1971). See also State v. Wheeler, 216 Iowa 433, 435, 249 N.W. 162.

In the present case the...