State v. Zaruba, 64895
| Decision Date | 17 June 1981 |
| Docket Number | No. 64895,64895 |
| Citation | 306 N.W.2d 772 |
| Parties | STATE of Iowa, Appellee, v. David Lynn ZARUBA, Appellant. |
| Court | Iowa Supreme Court |
Randy J. Hohenadel, Davenport, for appellant.
Thomas J. Miller, Atty. Gen., Merle Wilna Fleming, Asst. Atty. Gen., and William Davis, Scott County Atty., for appellee.
Considered by UHLENHOPP, P. J., and HARRIS, McGIVERIN, LARSON, and SCHULTZ, JJ.
Defendant was charged and tried on two counts of delivery of a controlled substance. § 204.401(1), The Code 1979. He was acquitted on one count. On the other count he was convicted of the lesser included offense of an accommodation delivery. § 204.410. In this appeal, following sentence, he assigns four errors. One complains of the trial court's refusal of a requested jury instruction. The other three assignments address the imposition of sentence. We affirm in part, reverse in part, and remand with instructions.
The prosecution's key witness, James Sweeney, was an undercover narcotics agent who testified of three separate drug purchases from defendant. Sweeney was introduced to defendant by a paid informant who did not testify. The informant was with the officer when the first two of the three drug buys occurred. The first was in Moline, Illinois, on March 30, 1979. Sweeney testified defendant there sold him one gram of cocaine for $90. The second purchase was in Bettendorf, Iowa, on April 2, 1979, where Sweeney paid defendant $525 for one quarter ounce of cocaine. Sweeney's final purchase was made May 4, 1979, in Davenport, Iowa. This time he was alone with defendant and bought one ounce of cocaine for $1500 and two stereo speakers.
The first count was based on the April 2 transaction in Bettendorf and resulted in the verdict of guilty. The second count was based on the May 4, 1979, purchase in Davenport and resulted in a verdict of not guilty.
In passing sentence, the trial court said:
Well, this is a troublesome one. I can see the presentence investigator struggled with it. I got a real serious offense with a fellow that's not had a lot of criminal history and has got some family responsibilities, and he's capable of making a lot of money at a good job, and he got in a lot of trouble. This court had the benefit, this Judge had the benefit of hearing the jury trial, and the court's pretty well convinced that this defendant was, at one time, a pretty substantial drug dealer. The evidence was uncontradicted that he was a big dealer in amphetamines, and that wasn't charged, but he got nailed on the cocaine. This court believes that drug dealers should do time, particularly when you're talking about narcotic drugs, and it's the court's intention to impose time.
This court, you should know, struggles over these, because I know the Scott County jail is not a very nice place. It's a terrible place, and I'm not sure he's the kind of fellow that ought to go to the Scott County jail; but the court doesn't have very many alternatives. It has no prison option. That would be a better option, frankly, and the court would have no reluctance to send him to prison Anamosa; but that's not an option. The only other option is the residential treatment facility, and I think the seriousness of the offense is that, is such that it's not, at this time, appropriate. The defendant's request for a deferred judgment is hereby denied.
A deferred judgment is intended for a person that has scrape with the law, made a big mistake, and gets the finest thing that the courts pass out that a deferred judgment and doesn't even have a record. We are not dealing with that sort of a fellow here. We are dealing with a fellow that got involved in a pretty sophisticated drug deal, and not just once. He was convicted of only one and convicted of only being an accommodation. I think the seriousness of the offense is such that he is not an appropriate candidate for a deferred judgment. That is rejected.
The trial court then sentenced defendant to a one-year jail term, suspending the last six months. A two-year probation was provided beginning with the suspension.
The sentence also provided: The judge strongly hinted he would consider placing defendant in a residential treatment facility on reconsideration (§ 903.2, The Code 1981) of sentence after 30 days of actual incarceration.
I. It was the defendant's contention at trial "that all his actions which resulted in the alleged delivery ... were at the behest and insistence of the informant and (Sweeney)." Accordingly, defendant sought an instruction that he was acting only as an aider and abettor and hence could not be guilty of delivery under the theory recognized in United States v. Moses, 220 F.2d 166, 169 (3 Cir. 1955), and in State v. Lott, 255 N.W.2d 105, 107 (Iowa 1977) (). The trial court's refusal of the requested instruction was based on the belief that the holdings in Moses and Lott are not applicable in cases where, as here, the defendant makes the actual delivery of the controlled substance. We agree. The assignment is without merit.
II. The first of defendant's three assignments attacking the sentence is twofold. He asserts the trial court abused its discretion in denying his application for deferred sentence and refusing probation. Defendant argues:
An examination of the record demonstrates that the defendant was married, had a one year old child, had a good employment history and at the time of the sentencing had a good paying job, and had only a very minimal criminal history.... The presentence investigator recommended that the defendant be given probation ... and the (prosecutor) ... joined in the recommendation. Defense counsel likewise, endorsed the notion....
Defendant recognizes that we interfere with a sentence only if the trial court abused its discretion. This appears only when it is demonstrated that the discretion was exercised only on grounds or for reasons clearly untenable or to an extent clearly unreasonable. State v. Hildebrand, 280 N.W.2d 393, 396 (Iowa 1979); State v. Killpack, 276 N.W.2d 368, 373 (Iowa 1979); State v. Buck, 275 N.W.2d 194, 195 (Iowa 1979).
We find no abuse. The trial court stated it found the sentencing decision "a troublesome one." It expressed the belief that the presentence investigator had also struggled with the case. The seriousness of the offense was mentioned as was the fact that defendant did not have an extensive...
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