State v. Tokatlian, s. 54387

• Decision Date: 20 December 1972
• Docket Number: Nos. 54387,54591,s. 54387
• Citation: 203 N.W.2d 116
• Parties: STATE of Lowa, Appellee, v. Vincent TOKATLIAN, Appellant. STATE of Iowa, Appellee, v. Carmichael C. PETERS, Appellant.
• Court: Iowa Supreme Court

Page 116

203 N.W.2d 116

STATE of Lowa, Appellee, v. Vincent TOKATLIAN, Appellant.

STATE of Iowa, Appellee, v. Carmichael C. PETERS, Appellant.

Nos. 54387, 54591.

Supreme Court of Iowa.

Dec. 20, 1972.

Ralph D. Beal, Davenport, for appellant Tokatlian and appellant peters.

Richard C. Turner, Atty. Gen., C. Joseph Coleman, Jr., Asst. County Atty., Edward N. Wehr, County Atty., for appellee.

Heard Before MOORE, C.J., and MASON, RAWLINGS, REES and HARRIS, JJ.

MASON, Justice.

These consolidated appeals arise from two judgments sentencing defendants to two years in the state penitentiary following separate convictions of selling narcotic drugs in violation of section 204.2, The Code, 1966.

Vincent Tokatlian was accused of having sold a quantity of marijuana to Richard Castro, a deputy sheriff of Scott County. At approximately 8:30 p.m. April 4, 1970, Castro, Roxanne Mueller and Tim Wessling drove to Tokatlian's college dormitory room and purchased from Tokatlian what he represented to be a quantity of marijuana for five dollars.

It appears that earlier the same evening Castro had notified his superior, Kenneth Paulsen, by telephone he would be working as an undercover agent that night in the area of Vander Veer Park, a city park frequented by young people suspected of using drugs. Subsequently, Castro received a phone call from Miss Mueller, who informed him she had located an individual from whom they could procure marijuana. Castro then proceeded to Vander Veer Park where he spoke with several people, including Miss Mueller. It is not clear from the record whether Castro left the park with Miss Mueller or whether they met at her home. Upon leaving the park, however, Castro drove to Miss Mueller's home. From that point the two went to the residence of Timothy Wessling and the three then continued on to Tokatlian's residence where Castro gave Tokatlian $5.00 in return for a substance wrapped in tinfoil which he believed to be hashish. Castro and Miss Mueller than left the campus. Castro returned Miss Mueller to her home and went directly to the sheriff's office.

Paulsen, who had followed and observed Castro and Miss Mueller after Castro left Vander Veer Park, returned to the sheriff's office when it was apparent Castro was taking the girl home.

At the office, Castro immediately handed the substance purchased from Tokatlian over to Paulsen. A narcodol test performed by Paulsen indicated the substance was either hashish or some other concentrated form of marijuana. Thereafter, the substance was sealed in an appropriately marked envelope and locked in the sheriff's evidence file.

April 8 Paulsen mailed the package obtained from Tokatlian to the Federal Bureau of Narcotics and Dangerous Drugs Laboratory in Chicago, Illinois, for analysis purposes. David Parmalee, a forensic chemist with the Bureau testified he analyzed the substance received from Paulsen and found it to be hashish. After the substance was sent back to officer Paulsen, it remained in the sheriff's evidence file until the first day of Tokatlian's trial.

At close of the State's evidence consisting of testimony of Castro, Paulsen and Parmalee, defendant moved for a directed verdict asserting, in effect, there was insufficient evidence of a continuous chain of possession from the time Castro received the substance from Tokatlian until the substance was returned to Paulsen by the chemist, Parmalee. The motion was correctly overruled. The problem arising from a challenge of sufficiency of a chain of possession of evidence necessary for admissibility is fully discussed in State v. Grady, 201 N.W.2d 493, 495--496 (Iowa 1972); State v. Ubben, 186 N.W.2d 625, 627--628 (Iowa 1971); and State v. Limerick, 169 N.W.2d 538, 541--542 (Iowa 1969).

Defendant then introduced his evidence but failed to renew his motion for a directed verdict at close of all evidence. The jury found Tokatlian guilty of the crime of unlawfully selling a narcotic drug as charged in the county attorney's information.

Carmichael C. Peters' conviction ensued from a wholly unrelated incident in which Castro and Miss Mueller were also involved. Castro testified he had engaged in activity as an undercover agent for the Scott County sheriff's department on March 24, 1970. On that evening he and Miss Mueller went to Peters' apartment arriving about 8:45 p.m. Both were admitted by Peters to his apartment. He then paid Peters a five dollar bill for a quantity of marijuana contained in a cellophane bag. Upon receiving the marijuana, they left the apartment. After driving Miss Mueller back to her home, he went directly to the sheriff's office and delivered to Paulsen the substance purchased from Peters.

Paulsen testified he observed Castro and Miss Mueller enter the apartment building about 8:45 p.m. March 24, although he was unable to actually see either of them enter Peters' apartment; that he had Castro under his surveillance from the time of their arrival at Peters' apartment until it appeared Castro was returning Miss Mueller to her home before going to the sheriff's office. Further, since a narcodol test performed by him revealed the substance obtained from Peters was marijuana, he mailed the substance to the Chicago office of the Federal Bureau of Narcotics and Dangerous Drugs.

Parmalee testified he had analyzed the particular substance involved in this litigation and had found it to be marijuana.

Peters' testimony was substantially dissimilar from that of Castro's. According to Peters' version he had met Castro and Miss Mueller only twice before the night of March 24, first during the week prior to March 24 and again on the night of March 23. On both occasions Castro had attempted to purchase marijuana from him. March 24 only Castro entered his apartment. Castro implored Peters to sell him $3.00 worth of marijuana on the pretense Miss Mueller was a 'speed freak,' who would resort to hard drugs if she could not obtain marijuana. Peters then searched the apartment and discovered a bag of marijuana which belonged to his roommate. Because he had no knowledge of the monetary value of marijuana, Peters offered to let Castro have the entire amount without compensation. Castro refused the offer, removed a quantity he considered to be $3.00 worth, and gave Peters another $2.00 'for his trouble.'

Clyde Harris, Peters' roommate, testified that when he returned to the apartment after working from 11:00 p.m. to 7:00 a.m. on the morning of March 25, he discovered a bag of marijuana on a table together with five $1.00 bills. He then accused Peters of having violated their agreement never to sell marijuana. Peters denied having sold the marijuana but said he had given some to Castro for the benefit of Miss Mueller.

In rebuttal, the State offered further testimony of Castro and Miss Mueller. Castro denied having ever met Peters prior to the night of March 24, 1970. Miss Mueller stated she accompanied Castro into Peters' apartment that evening where she observed Castro purchase marijuana from Peters; also, she was not then aware Castro was a police officer.

After the jury returned a verdict of guilty, Peters filed a motion for new trial. The motion was overruled and Peters was sentenced.

The same counsel represented both defendants in the trial court and has filed both appeals. The errors relied upon for reversal in each case, as well as the arguments, are identical. The errors assigned by each defendant and argued in separate divisions are: (1) the trial court erred in failing to sustain defendant's motion to set aside the verdict and for a new trial on the ground the verdict is contrary to the evidence; (2) defendant's constitutional rights were violated by the Iowa statutory scheme relating to marijuana and requires this court to conduct an independent examination of facts underlying that statutory structure; (3) classification of marijuana with 'Narcotic Drugs' with attendant mandatory nonparolable disposition for first offense, however, small the quantity violates defendant's rights under the due process and equal protection clauses of the federal and state constitutions; and (4) the applicable sentencing provisions of the statute constitute cruel and unusual punishment in violation of Amendment 8 of the United States Constitution and section 17, Article I of the state constitution.

I. In the first division of each brief error is predicated on the court's refusal to sustain both a motion to set aside the verdict and a motion for new trial on the ground the verdict is contrary to the evidence. However, since the same steps to preserve the alleged error were not followed in the trial of these cases, consideration of the assignment presents different problems.

In the Tokatlian case, defense counsel asks this court to review a motion that was never made. The abstract of record contains no motion to set aside the verdict or motion for new trial. Rather, in the course of trial, counsel only moved for a directed verdict at the close of the State's evidence. As stated, Tokatlian failed to renew the motion at the close of all evidence.

A trial court may sustain a defendant's motion for directed verdict at the close of the state's case but is not required to do so, and no error can be predicated upon...