State v. Babers

514 N.W.2d 79, 1994 Iowa Sup. LEXIS 70, 1994 WL 94070
CourtSupreme Court of Iowa
DecidedMarch 23, 1994
Docket92-565
StatusPublished
Cited by20 cases

This text of 514 N.W.2d 79 (State v. Babers) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Babers, 514 N.W.2d 79, 1994 Iowa Sup. LEXIS 70, 1994 WL 94070 (iowa 1994).

Opinion

ANDREASEN, Justice.

Dewitt N. Babers was convicted of delivery of a schedule II simulated controlled substance, cocaine, in violation of Iowa Code section 204.401(l)(c) (1991). On appeal he challenged the court’s refusal to permit him to offer impeachment testimony from a previously nondisclosed witness and the court’s *81 failure to instruct the jury upon the defense of entrapment. We transferred the appeal to the court of appeals.

In a divided decision, the court of appeals reversed and remanded for a new trial. The majority opinion found the trial court abused its discretion in excluding the testimony of the defendant’s witness under Iowa Rule of Criminal Procedure 12(4). We granted further review and now vacate the decision of the court of appeals and affirm the district court judgment and sentence.

I. Background.

Nineteen-year-old Christine Stalker worked as a confidential informant for the Davenport Police Department during the summer of 1991. She had completed high school and planned to enter a college law enforcement program in the fall. She contacted the police department and volunteered to work as a confidential informant.

On the evening of July 11 Stalker was instructed to drive her car to an area in Davenport known to be frequented by drug dealers. She was equipped with a “wire,” a body bug transmitter. Her supervisor was in a second vehicle where he could hear and record the transmissions from the wire. Other police officers were assigned to the area to provide surveillance and they also were equipped to hear the transmissions.

Stalker was instructed to pull up along the curb in front of two bars and ask anyone that walked by, or who approached her, if they had any “rocks.” “Rocks” is a street term for crack cocaine. She was also instructed to keep the doors locked in her vehicle, to keep the passenger window partially closed, and not to get out of the vehicle.

At approximately 10:30 p.m. Stalker pulled up along the curb near the front of the bar. She talked to a couple of people before Ba-bers approached and had a conversation with her. She asked him if he had any rocks for sale. Babers then asked her if she was a police officer or if she had a wire on; she said no. He asked her to show him she was not wearing a wire, so she lifted her shirt. He then handed her rocks, some of which were wrapped in pink plastic, and said he wanted thirty dollars. Stalker told him thirty dollars was too much, but she paid him the amount requested. She then pulled away from the curb, met her supervisor, and delivered the rocks.

The six rocks Babers sold to Stalker were tested by the criminology lab. They were in fact, rocks, not crack cocaine. Babers was charged by trial information with delivery of a simulated controlled substance. See Iowa Code § 204.101(27) (defining simulated controlled substance).

Prior to trial Babers deposed Stalker and other witnesses listed by the State on the trial information. He also gave notice of his intent to rely upon the defense of entrapment. After jury selection, but before opening statements, the State alerted the court that it had a tape of the conversation between Stalker and Babers. The court listened to the tape in the presence of the prosecuting attorney, Babers, and his attorney. The tape was understandable. The court then ordered that the State could not use the tape as a part of its ease-in-chief, but could use it for impeachment purposes.

The case proceeded to jury trial. The State called a property and evidence police officer to mark and identify exhibits including the rocks, the lab report, and the cassette tape. Stalker, her supervisor, and the commander of the street crimes vice narcotic unit also testified at trial. During cross-examination, Babers’ attorney used the testimony given during the depositions to impeach the State’s witnesses.

After the State had rested, Babers’ counsel requested the court submit an instruction on entrapment. The court refused the request. Counsel for the defendant then advised the court and the prosecutor that he had an undisclosed witness, Max Ray, whose testimony would be used strictly to impeach Stalker’s credibility. The court ruled that without notice to the State the witness could not testify. The defendant rested his case without calling any witnesses. The court submitted the case to the jury without instructions on the defense of entrapment. The jury returned a guilty verdict. The court then entered a judgment upon the verdict and sentenced Babers to serve a term *82 not to exceed ten years and to pay a fine of $1000, restitution, attorney fees, and costs.

II. Exclusion of Defense Witness.

Babers challenges the court’s order excluding the testimony of defense witness Ray. Iowa Rule of Criminal Procedure 12 imposes a notice requirement on a defendant who deposes a State witness. In a criminal case the defendant may depose all witnesses listed by the State on the indictment or trial information. Iowa R.Crim.P. 12(1). At or before the taking of a deposition, the defendant must file a written list of the names and addresses of all witnesses expected to be called, except the defendant and rebuttal witnesses. Iowa R.Crim.P. 12(3). The defendant has a continuing duty to promptly disclose additional defense witnesses. Id.

In 1981 we held the preclusion of a defense witness’s testimony was not an authorized sanction for noncompliance with rule 12(3). State v. Marchellino, 304 N.W.2d 252, 257 (Iowa 1981). Rule 12 was amended in 1982. 1982 Iowa Acts ch. 1269. The amended rule provides:

Failure to comply. If the defendant has taken depositions under section 1 of this rule and does not disclose to the prosecuting attorney all of the defense witnesses (except the defendant and surrebuttal witnesses) at least nine days before trial, the court may order the defendant to permit the discovery of such witnesses, grant a continuance, or enter such other order as it deems just under the circumstances. It may, if it finds that no less severe remedy is adequate to protect the state from undue prejudice, order the exclusion of the testimony of any such witnesses.

Iowa R.Crim.P. 12(4).

The court of appeals found the rule required the court to make a specific finding “that no less severe remedy is adequate to protect the State from undue prejudice” pri- or to exeluding the testimony of the nondis-closed witness. We disagree. If the rule required a specific finding on the record, the rule would have so provided. See, e.g., Iowa R.Crim.P. 16(1) (requiring waiver of jury trial “on the record”). Although it would be a good practice for the trial court to make on the record findings, rule 12(4) does not require the court to make a specific finding. Under the rule, the court may exercise its discretion in fashioning an appropriate sanction under the circumstances.

We review the record to determine if the court abused its discretion.

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Bluebook (online)
514 N.W.2d 79, 1994 Iowa Sup. LEXIS 70, 1994 WL 94070, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-babers-iowa-1994.