State v. Menke

227 N.W.2d 184, 1975 Iowa Sup. LEXIS 975
CourtSupreme Court of Iowa
DecidedMarch 19, 1975
Docket57180
StatusPublished
Cited by32 cases

This text of 227 N.W.2d 184 (State v. Menke) 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. Menke, 227 N.W.2d 184, 1975 Iowa Sup. LEXIS 975 (iowa 1975).

Opinions

RAWLINGS, Justice.

Charged with delivery of a controlled substance, defendant pled not guilty. After return of a guilty verdict defendant ineffectively moved for an accommodation-delivery reduced sentence. He appeals from judgment entered. We reverse.

August 29, 1973, Roger Timko, an Iowa Narcotics Enforcement officer, along with Larry Harryman, a paid informant, went to the West Point home of Vivian Palmer. Shortly thereafter this threesome drove to a farmhouse located about two miles south of West Point. The intended purpose of the trip was to effect a drug-purchase by Tim-ko, through Harryman, from the farmhouse occupant.

Upon arrival, Timko engaged in a “drug-buy” conversation with defendant Menke. The latter was unable to produce drugs desired by the former. In this regard Tim-ko testified the drugs were apparently under lock somewhere outside the farmhouse. Menke wanted Timko to wait for return of the party having the key. When Timko indicated he would not do so, Menke went upstairs and later returned, apparently unable to find the key. Timko then said: “Well, if no deal can transpire at this time, I guess we’ll leave.”

Several moments later Miss Palmer produced and handed 40 tabs of LSD to Timko for which he ultimately paid $1.00 per hit to someone not identified by the record. Tim-ko, Harryman and Palmer subsequently left the farmhouse.

[187]*187Other relevant evidence will be considered as it relates to issues here to be considered.

In support of a reversal defendant contends trial court erroneously (1) overruled his mistrial motion based on prosecutorial misconduct during voir dire of the jury panel; (2) overruled his hearsay objection to a question asked of Officer Timko regarding Miss Palmer’s time-of-transaction statements; (3) limited his cross-examination of Miss Palmer as to pretransaction deliveries of a controlled substance; (4) overruled his motions to dismiss, direct a verdict and order a new trial; (5) found a nonaccommodation delivery; and (6) denied defendant a fair trial.

I. The first question to be resolved is whether defendant’s mistrial motion, interposed in course of jury voir dire, should have been sustained.

Sometime after the panel had been advised to the effect defendant would attempt to establish an alibi defense, this colloquy occurred between the county attorney and a prospective juror: “Young people hang together, don’t they?” Upon receiving an affirmative response to that question the prosecutor asked: “They alibi for each other?” At this point defense counsel unsuccessfully moved for a mistrial adjudication.

We cannot place the stamp of approval upon such tactics as disclosed above. It still remains, however, this is a matter resting largely in trial court’s discretion with which we interfere only where abuse is clearly shown. See Anderson v. City of Council Bluffs, 195 N.W.2d 373, 377 (Iowa 1972); Elkin v. Johnson, 260 Iowa 46, 50, 148 N.W.2d 442 (1967).

No such showing is made.

II. Next to be considered is defendant’s contention to the effect Timko was erroneously permitted to introduce certain testimony over defendant’s hearsay objection.

In course of trial Officer Timko appeared as a State’s witness. After he had testified as aforesaid regarding defendant’s search for a missing key and Miss Palmer’s production of LSD, this colloquy occurred:

“Q. Now, you say Miss Palmer produced this substance? A. Yes.
“Q. And what did she do with it? A. She in turn handed it to me for my observation.
“Q. And what did she say?
“MR. FEHSEKE: We’ll object to any statements made by Miss Palmer to Mr. Timko for the reason they call for hearsay.
“THE COURT: Overruled. It is admissible so far as made in the presence of the defendant. Overruled.
“A. It was stated, in fact, that the drugs were not hers; that she was holding them, and that they were the actual possession of the defendant, Mr. Menke.
“Q. (By Mr. Drake) They belonged to the defendant? A. That is correct.”

In State v. Smith, 195 N.W.2d 673, 675 (Iowa 1972) this court defined “hearsay” as a statement other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. See also State v. Lanphear, 220 N.W.2d 618, 621-622 (Iowa 1974); State v. Kelsey, 201 N.W.2d 921, 924 (Iowa 1972). See generally Dutton v. Evans, 400 U.S. 74, 86-89, 91 S.Ct. 210, 218-219, 27 L.Ed.2d 213 (1970); Rule 801, Federal Rules of Evidence, Act of January 2, 1975, Pub.L. No. 93-595, 93rd Congress, H.R. 5463 (16 Crim.L. 3009, 3013).

Unquestionably, Miss Palmer’s out-of-court statement, testified to by Timko, was testimonially offered to prove defendant’s ownership of the LSD delivered by Palmer to Timko. It was thus offered to prove the truth of the statement made and therefore stood as hearsay.

It must be prefatorilly conceded, mere silence by defendant at or about the time the challenged statement was made would not, alone, render same admissible as [188]*188to him. See State v. Kelsey, 201 N.W.2d at 925-927.

III. The question now posed is whether the aforesaid hearsay was admissible as an adoptive admission.

“[T]he term adoptive admission is applied to evidence of other conduct of a party which manifests circumstantially the party’s assent to the truth of a statement made by another person.” McCormick, Evidence, § 269 at 649 (2d ed. 1972).

On the other hand, it must be shown a person clearly and unambiguously assented to the statements of another before an adoptive admission comes into being. See 2 Jones on Evidence, § 13:28 (Gard, 6th ed. 1972); 29 Am.Jur.2d, Evidence, § 661.

A fair reading of the record before us discloses that after Palmer handed the LSD to Timko, these two, and defendant, discussed and finally agreed upon a price to be paid for it. There was also some talk between Timko and Menke regarding a “future deal.”

The foregoing cannot be said to constitute a clear and unambiguous assent by Menke to the truth of any inculpatory statement as to him which had been made by Palmer to Timko.

It therefore follows trial court erroneously admitted the challenged testimony in evidence over defendant’s timely hearsay objection.

And, as this court recently said in State v. Branch, 222 N.W.2d 423, 427 (Iowa 1974); “Error in admitting hearsay evidence must be presumed to be prejudicial unless the contrary is affirmatively established.”

IV. Defendant contends, absent the above noted inadmissible hearsay, there was a fatal inadequacy of evidence disclosing an actual or constructive delivery by him of a controlled substance.

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Bluebook (online)
227 N.W.2d 184, 1975 Iowa Sup. LEXIS 975, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-menke-iowa-1975.