State v. Rush

• Decision Date: 19 May 1976
• Docket Number: No. 57688,57688
• Citation: 242 N.W.2d 313
• Parties: STATE of Iowa, Appellee, v. Michael Allen RUSH, Appellant.
• Court: Iowa Supreme Court

Page 313

242 N.W.2d 313

STATE of Iowa, Appellee, v. Michael Allen RUSH, Appellant.

No. 57688.

Supreme Court of Iowa.

May 19, 1976.

Greg A. Life, of Life, Davis & Life, Oskaloosa, for appellant.

Richard C. Turner, Atty. Gen., Nancy J. Shimanek, Asst. Atty. Gen., Edward N. Wehr, County Atty., and Thomas G. Schebler, Asst. County Atty., for appellee.

Heard by MOORE, C.J., and MASON, RAWLINGS, LeGRAND and REES, JJ.

RAWLINGS, Justice.

Defendant, Michael Allen Rush, appeals from judgment on jury verdict finding him guilty of delivering a controlled substance (marijuana), in violation of Section 204.401(1)(b), The Code 1973. We affirm.

Looking first to procedural aspects of the case, defendant was initially charged by county attorney's information. Immediately before trial the State, over defendant's objection, was permitted to file an amended and substituted information, thereby charging Rush had delivered the controlled substance, as originally alleged, with this added: 'or did aid and abet another in delivering marijuana'. By a pretrial motion in limine Rush unsuccessfully sought to exclude all evidence regarding the marijuana allegedly delivered because, after being chemically tested, it had been lost in the mails and was unavailable.

This is, in brief, the State's trial evidence, viewed most favorably to the verdict.

Pursuant to prior agreement, undercover agent Richard Johnson went to Rock Island, December 23, 1973, for the purpose of there meeting Steve Zaehringer who was to sell Johnson 100 pounds of marijuana. When Zaehringer failed to appear as scheduled Johnson returned to his residence and there met Davenport police officer Richard Parker.

Agent Johnson telephoned Zaehringer's home but was told by an unidentified female he had left with two companions. Later Zaehringer phoned Johnson and it was then agreed 50, not 100, pounds of marijuana would be delivered to the latter.

Parker and Johnson visited until Zaehringer and a companion, Chuck Cawley, arrived. Officer Parker and Cawley remained in Johnson's home while agent Johnson and Zaehringer walked several blocks to where a van was located. Johnson there saw Richard Skinner in the rear of the vehicle and defendant Rush sitting in the driver's seat.

After Johnson had inspected numerous packages in a cooler and suitcase located in the van, he and Zaehringer returned to Johnson's home, followed by Rush and Skinner. Upon arrival of the van Zaehringer and Johnson carried the packaged marijuana into Johnson's home. Zaehringer and Cawley there recounted the money previiously delivered to Cawley and these two then left. Immediately all four men involved in the transaction were arrested by officers who had the area under surveilance.

Other facts will be set forth as they relate to a determination of the issues presented.

Reduced to bare essentials defendant contends trial court erred in:

(1) Permitting the State to file an amended and substituted information because,

(a) it allowed an infamous charge to be made against him without presentment before a grand jury,

(b) it changed the nature of the charge, thereby forcing him to defend both as a principal and an aider and abettor;

(2) Overruling his pretrial limine motion;

(3) Overruling certain in-course-of-trial hearsay objections interposed by him;

(4) Overruling his objections to evidence regarding a chemical test of the involved substance.

These assignments will be considered in the order presented.

I. As aforesaid, Rush contends trial court erroneously permitted the State to file an amended and substituted information.

In support thereof it is first urged the revised information permitted an 'infamous charge' to be made without 'benefit of presentation before a grand jury'. He supportively argues his Fifth Amendment rights were contemporaneously violated.

This complaint should have been initially registered by demurrer, not by resistance to a motion for leave to file an amended and substituted information. See Code § 777.3. It may therefore be said defendant is here confronted with a waiver. See State v. Glenn, 234 N.W.2d 396, 399 (Iowa 1975).

Be that as it may there is no merit in defendant's aforesaid grand jury related claim. As articulated in State v. Finnegan, 237 N.W.2d 459, 460 (Iowa 1976):

'The remaining assignment of error in two divisions raises a single issue--the use of a county attorney's information. Defendant argues he is constitutionally entitled to be charged and tried on indictment. He says prosecution by information violates his right to due process under the 5th and 14th Amendments to the federal constitution.

This same complaint in various forms has been considered and rejected many times, both by this court and by others. See § 769.1, The Code; Beck v. Washington, 369 U.S. 541, 545, 82 S.Ct. 955, 957--958, 8 L.Ed.2d 98, 104 (1962); Wessling v. Bennett, 410 F.2d 205, 207 (8th Cir. 1969); State v. Masters, 196 N.W.2d 548, 550 (Iowa 1972); State v. Abodeely, 179 N.W.2d 347, 355 (Iowa 1970). Cf. State v. Lass, 228 N.W.2d 758, 762, 763 (Iowa 1975).'

We turn now to defendant's second complaint regarding the substituted information, i.e., in addition to defending against actual delivery of marijuana he was 'prevented * * * from properly preparing for a defense as an aider and abettor', thus denying him a fair trial.

Admittedly, an amendment cannot be permitted which in effect charges a different offense. See State v. Gowins, 211 N.W.2d 302, 306 (Iowa 1973), and citations. But this rule does not instantly obtain. Rather the situation is like that presented in State v. Guess, 223 N.W.2d 214 (Iowa 1974). There, as here, the accused was informed against for delivery of a controlled substance. The amended information averred, alternatively, aiding and abetting an unlawful delivery. In rejecting defendant's attack upon the information thus amended this court dispositively stated, 223 N.W.2d at 215--216:

'Section 688.1, The Code, provides, Inter alia:

"* * * all persons concerned in the commission of a public offense, whether they directly commit the act constituting the offense, or aid and abet its commission, * * * must hereafter be indicted, tried, and punished as principals.'

'We find no language in chapter 204, The Code, precluding the operation of this section. Thus the crime exists and the 'aiding and abetting' language was mere surplusage. This assignment is without merit.'

See also State v. Garrett, 173 N.W.2d 87, 90 (Iowa 1969).

It is parenthetically noted, Rush never requested a continuance in order to prepare his amendment-related defense. See Code § 773.47. Under these circumstances any alleged denial of defense preparation time was waived. Cf. State v. Sevcik, 239 N.W.2d 571 (Iowa 1976).

Further discussion will serve no useful purpose.

Defendant's first two-fold assignment is devoid of substance.

II. Rush next focuses upon his pretrial limine and trial suppression motions regarding evidence as to marijuana, lost in the mails after effectuation of a chemical analysis.

This is defendant's theory, as summarized by trial court: '(T)he very fact the State is unable to produce the marijuana should preclude any reference by anyone to the fact of the marijuana.'

An accused should not be denied leave to examine physical evidence the State expects to use against him. See State v. Eads, 166 N.W.2d 766, 771 (Iowa 1969). See also Annot., 7 A.L.R.3d 8.

Here, however, defendant does not claim the State deliberately withheld, suppressed or destroyed the involved substance. In fact the record affirmatively discloses the material was chemically analyzed by the Iowa Criminalistics Laboratory, found to be marijuana, and the remainder placed in the mail (restricted) for return to the Davenport Police Department. It then mysteriously disappeared.

United States v. Augenblick, 393 U.S. 348, 356, 89 S.Ct. 528, 533, 21 L.Ed.2d 537, 545 (1969) holds, in substance, the situation instantly presented does not rise to a constitutional level.

This is followed by People v. Eddington, 53 Mich.App. 200, 218 N.W.2d 831, 834 (1974), where the court said:

'Even Augenblick, supra, interpreting the Jencks Act, 18 U.S.C. § 3500, indicates that circumstances of evidence destruction are crucial in determining whether the sanction of exclusion attaches. A good-faith loss does not trigger exclusion, and does not even rise to the dignity of constitutional dimension.

'In light of the persuasive, reliable authority to the contrary, we hold the trial judge abused his discretion in concluding that good-faith unintentional nonproduction of evidence requires suppression of expert testimony because defendant's right to confrontation is violated.' (emphasis supplied).

See also United States v. Bridges, 499 F.2d 179, 185 (7th Cir. 1974); United States v. Love, 482 F.2d 213, 218--220 (5th Cir. 1973); United States v. Sewar, 468 F.2d 236, 237--238 (9th Cir. 1972); State v. Riley, 24 Conn.Sup. 235, 189 A.2d 518, 521 (1962); Davis v. State, 135 Ga.App. 203, 217 S.E.2d 343, 345 (1975); Watson v. State, 18 Md.App. 184, 306 A.2d 599, 606--607 (1973); Gedicks v. State, 62 Wis.2d 74, 214 N.W.2d 569, 573 (1974).

Briefly stated, the inexplicable incourse-of-transit loss of the involved substance after it had been tested did not preclude admission in evidence of the Iowa Criminalistics Laboratory analysis report. See State v. Kramer, 231 N.W.2d 874, 880--881 (Iowa 1975); State v. One Certain Conveyance, 1971 Honda 350, etc., 211 N.W.2d 297, 300--301 (Iowa 1973); Code § 749A.2.

Actually, the State's inability to physically produce the missing marijuana did not affect admissibility of the test evidence. See United States v. Pullings, 321 F.2d 287, 296 (7th Cir. 1963); Davis v. State, supra; Watson v. State, supra; State v. Admire, 495 S.W.2d 132, 133 (Mo.App.1973); Gedicks v. State, 214 N.W.2d at 572--573.

Unpreventable loss of the marijuana did not, per se, preclude introduction in evidence of the chemical...