State v. Sharp

662 P.2d 1135, 104 Idaho 691, 1983 Ida. LEXIS 438

• Court: Idaho Supreme Court
• Decided: April 28, 1983
• Docket: 13604
• Status: Published

Opinions

BAKES, Justice.

Appellant appeals from a jury conviction for aiding and abetting in the delivery of a controlled substance.

On April 18, 1979, an undercover police officer and an informant went to appellant’s residence for the purpose of purchasing narcotics. They were followed by another officer in an unmarked vehicle, who was tape recording conversations made in the presence of the undercover officer (who was wearing a hidden microphone). The officer and informant contacted appellant, who entered their vehicle and directed them to a certain house. Appellant then went into that house and returned, accompanied by a friend, who then sold the officer one white envelope containing a substance later identified as PCP. The officer and informant then returned appellant to his home.

A complaint was filed against appellant on June 19, 1979, charging him with aiding and abetting in the delivery of a controlled substance. After arraignment and a preliminary hearing, the court ordered the parties to comply with discovery requests by August 17, 1979. Trial was set for September 5, 1979'.

After several postponements of the trial date (at appellant’s request), trial was finally set for November 1, 1979. A jury was selected and sworn. Appellant then moved to dismiss the action, based on failure of the prosecution to comply with the discovery order. The motion was denied, the prosecutor gave an opening statement, the first witness was sworn and asked to state his name. The defense then renewed the motion to dismiss for failure to comply with the discovery order. After arguments by counsel the court refused to dismiss the case, but asked defense counsel if he would like a continuance. The following exchange took place between the trial judge and defense counsel:

“THE COURT: ...

“I don’t think that this matter is so drastic since there was no motion to' impose sanctions prior to trial ever filed on behalf of the defense that I should dismiss the case. I think that’s extremely drastic.

“But I do think that I should do something to protect the defense in this matter, and I will grant a continuance should you wish, Mr. Wiebe.

“MR. WIEBE: Yes. I would like a continuance so that the State can comply with discovery, and I can know precisely what their case is going to consist of, which is something I don’t know at this point.

“THE COURT: Very well. I think that that motion is in order. I don’t think there is any problem with that in the Court’s mind.”

The court then continued the trial date and dismissed the sworn jury.

On November 26, 1979, the date set for trial, appellant moved the court to dismiss the action, based on a fifth amendment double jeopardy claim. After argument, the trial court denied the motion. He ruled that the double jeopardy clause would not bar retrial under these facts. The judge also noted that he was treating the November 1 proceeding as a mistrial.

A new jury was sworn, trial completed, and appellant found guilty. Appellant now appeals his conviction on three grounds. His first ground is that his retrial on November 26,1979, violated the double jeopardy clause of the fifth amendment of the United States Constitution. Second, he claims that evidence presented at the trial was insufficient to support a verdict of guilty. Finally, he urges that the trial court erred in admitting a tape recording of the drug transaction in question. We affirm.

We will consider appellant’s double jeopardy claim first. The double jeopardy clauses of the fifth amendment,¹ which apply to the states through the fourteenth amendment, and of our own state Constitution² were intended to protect defendants against constant retrials by a state with limitless resources. Jeopardy attaches when a jury is sworn. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978).

Where a trial is terminated over the objections of a defendant, a prosecutor must shoulder a heavy burden to allow for a retrial of the defendant. He must show the “manifest necessity” for the termination; if he cannot, then the double jeopardy clause will bar retrial of the defendant. Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978); Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963).

However, where a trial is terminated at the request of, or with the consent of a defendant, a different rule prevails. In these circumstances, the defendant is deemed to have waived his double jeopardy rights; thus, there is no constitutional barrier to reprosecution. Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982); United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); State v. Werneth, 101 Idaho 241, 611 P.2d 1026 (1980), cert. denied 449 U.S. 1129, 101 S.Ct. 951, 67 L.Ed.2d 118 (1981).

There is one narrow exception to this general rule. Oregon v. Kennedy, supra. A defendant who moves for, or consents to a mistrial may raise a bar to retrial if the conduct that induced the mistrial motion was prosecutorial or judicial conduct designed specifically to provoke the defendant into calling for a mistrial. Oregon v. Kennedy, supra; United States v. Dinitz, supra; see also Comment, The Double Jeopardy Clause and Mistrials Granted on Defendant’s Motion: What Kind of Prosecutorial Misconduct Precludes Reprosecution? 18 Duquesne L.Rev. 103 (1979). This exception is allowed only because:

“[W]here the prosecutor’s actions giving rise to the motion for mistrial were done ‘in order to goad the [defendant] into requesting a mistrial.’ ... [T]he defendant’s valued right to complete his trial before the first jury would be a hollow shell if the inevitable motion for mistrial were held to prevent a later invocation of the bar of double jeopardy in all circumstances.” Oregon v. Kennedy, 456 U.S. at 673, 102 S.Ct. at 2088.

The United States Supreme Court in Oregon v. Kennedy, supra, has now specifically limited this exception to allow for a retrial of the defendant unless there is conduct intended to provoke the defendant into declaring a mistrial. Id. at 2089. A mere showing of prejudice is not sufficient. Id.

Appellant now urges that it was prosecutorial misconduct that forced him to ask the judge to continue the trial. He argues that the facts of this case fall within the exception noted above! We disagree.

The alleged “misconduct” which the defendant claims precipitated the termination of the trial in this case was the failure of the prosecutor to file a written response to the discovery order issued by the trial court.³ There is no indication that the actions of the prosecutor were somehow fraudulent, or intended for the sole purpose of forcing the defendant to ask for a mistrial. The trial court treated this as a technical error made by the prosecutor, induced apparently by mere negligence of the prosecutor and not by the type of overreaching that would prevent a waiver of a defendant’s double jeopardy rights.⁴ ■ See Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973) (defective indictment caused defendant to move for mistrial; court ruled mere prosecutorial negligence erects no constitutional barrier to retrial; noted such a rule would place an unreasonable burden upon a prosecutor to produce flawless trials); United States v. Zozlio, 617 F.2d 314 (1st Cir.1980) (alleged failure of the government to comply strictly with pretrial discovery orders did not constitute sort of bad faith or affirmative overreaching which would bar retrial of defendants). Thus, we affirm the trial court ruling allowing defendant to be retried.

Appellant also contends that he could not have been convicted of aiding and abetting in the sale of a controlled substance because he did not intend to sell any controlled substance. He claims this lack of specific intent on his part would bar his conviction under the statute in question. Appellant cites cases from several jurisdictions which used this so-called “procuring agent” theory to relieve a defendant of any liability for aiding and abetting in the sale of a controlled substance. However, that argument misconstrues the nature of the statute under which appellant was convicted.

Appellant was convicted under I.C. § 37-2732.⁵ That provision makes it unlawful to manufacture or deliver a controlled substance. The code section which defines the word “deliver,” I.C. § 37-2701(f), makes it clear that a defendant need not have been an agent of another to be guilty under this statute.⁶ The “procuring agent” theory advanced by appellant has no application to a statutory scheme like ours, where the prohibited act is delivery rather than sale. See United States v. Wigley, 627 F.2d 224 (10th Cir.1980); United States v. Hernandez, 480 F.2d 1044 (9th Cir.1973). The evidence presented at the trial below was more than sufficient to convict appellant of aiding and abetting in the delivery of a controlled substance.

Finally, appellant alleges error in the admission of a tape recording of appellant’s activities during the incident in question. At trial, defense counsel argued that the tape contained objectionable material, including hearsay and irrelevant matters. The trial court allowed only a copy of portions of the tape recording to be played to the jury, and defense counsel withdrew any objection to having the tape introduced in evidence, except for noting that the jury would have no way of knowing who was speaking at a particular time. The trial judge gave defense counsel the right to stop the tape at any time to identify the person speaking, but defense counsel did not exercise that right.

The judgment of the trial court is presumed correct, and appellant has the burden of showing what error, if any, occurred at the trial level. State v. Hobbs, 101 Idaho 262, 611 P.2d 1047 (1980); State v. Horn, 101 Idaho 192, 610 P.2d 551 (1980). In the present case appellant asserts that introduction of this tape was error because it contained hearsay and irrelevant matters, but does not indicate what portions of the tape were objectionable, whether those parts of the tape were played to the jury, or cite any authority for his position. Under these circumstances, we will not presume error. We find no error in the trial judge’s handling of the introduction of this tape.

DONALDSON, C.J., and SHEPARD and HUNTLEY, JJ., concur.

1 . The fifth amendment to the United States Constitution reads in part as follows:

“[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb .. .. ”

2 . Art. 1, § 13, of the Idaho Constitution, reads in part as follows:

“No person shall be twice put in jeopardy for the same offense .... ”

3 . It is asserted by the state, and neither admitted nor denied by the appellant, that the prosecutor had responded orally to the discovery order.

4 . The trial court ordered that all pretrial motions be filed at least fifteen days before the trial date. We note that defense counsel did not assert his motion to dismiss for lack of discovery until after the jury was empaneled. This was a clear violation of the court order. We also note that if defense counsel had filed his pretrial motion prior to the fifteen day limitation, the state could have complied with the discovery order before trial and no continuance (and/or mistrial) would have been necessary. We would also note that there is nothing in the record to indicate that defendant ever complied with the discovery order.

5 .I.C. § 37-2732 reads in part as follows:

“37-2732. PROHIBITED ACTS A — PENALTIES. — (a) Except as authorized by this act, it is unlawful for any person to manufacture or deliver, or possess with intent to manufacture or deliver, a controlled substance.”

I.C. § 18-204 provides that persons aiding and abetting in the commission of a crime are chargeable as principals. That section reads in part:

“All persons concerned in the commission of a crime, whether it be felony or misdemean- or, and whether they directly commit the act constituting the offense or aid and abet in its commission, . . . are principals in any crime so committed.”

6 . I.C. § 37-2701(f) reads as follows:

“37-2701. DEFINITIONS. — As used in this áct:

“(f) ‘Deliver’ or ‘delivery’ means the actual, constructive, or attempted transfer from one (1) person to another of a controlled substance, whether or not there is an agency relationship.”