*1 Q17 99.1, legislation requires. and the It public tion” “lewdness” as The is for Code, 1975, 724, Code, legislative The chapter bodies and not courts to decide prostitution 1975. Because was not shown what laws are in the public interest or for vagueness and lewdness suffers from the good of the of Iowa. A people court of infirmity, injunction cannot be sus- equity does roving not have a commission to on ground. tained this punish all conduct in the opinion which of the court morals of corrupts public offends The trial court ordering erred in the in- community People tastes. v. Vandewa See on junction grounds. nuisance statutory ter, 864, 250 164 N.E. N.Y. 867 (1928). equitable power V. The inherent that,
ground. The trial held apart court The trial in asserting court erred an in- basis, it any legal other had inherent power herent conduct it found enjoin equitable power enjoin conduct which the “damaging public offensive inter- damaging court found to be or offensive to est.” public interest. not We do understand Because we merit in of find no ground to be on a theory based injunction by on grounds relied the trial common-law nuisance but instead on a the court, we reverse. ory inherent authority by invoked plea REVERSED. State’s for “such other relief as the just court deems equitable.” ordering the injunction on this ground court performed legislative function. regulation massage parlors,
The apart nuisance,
from the law legislative is a not a judicial responsibility. only The
authority by support cited court its
theory, Ex Maki, 635, Parte Cal.App.2d 56
642, 133 P.2d (1943), overruled on grounds,
other v. Municipal Lancaster Ct. Dist.,
of Bev. Hills Jud. Cal.3d
Cal.Rptr. 609, (1972), P.2d stands this very principle. (“Municipal author- ities not the are to courts determine Iowa, Appellee, STATE of whether local conditions such legis- demand * * *.”). lation McDANIEL, Wayne Appellant. City The of Des Moines has demonstrated it knows how massage parlor to control No. 59505. operations by ordinance. If chooses to do so, the legislature example has an it may Supreme of Iowa. Court follow. Des Moines ordinance leg- is a May 1978. response islative which to conduct as the court recognized repugnant trial and of- is
fensive to many public, members of the
including However, judges. courts do not to be keepers public
exist conscience. they uphold
Instead exist to rule of law. do
They uphold rule of law when choose
they to decide based either eases on preference
personal or their notions of what
919
Cahill, Johnston, Goetz, Poula & Iowa City, for appellant. Turner, Gen., Atty.
Richard C. J. Susan Carney Harold Young, Attys. Asst. Gen., Newell, and David W. County Atty., *3 appellee. for
McCORMICK, Justice. appeals his convictions and sentences on three delivery counts of of a controlled substance in violation of 204.- 401(1), The Code. The substances were marijuana, pentobarbital phenobarbi- tal. His proce- trial was bifurcated under Monroe, dures delineated in N.W.2d 24 (Iowa 1975). He contends court, J., the trial in several Werling, erred respects in the first proceeding and that court, J., accommodation trial Grant erred in the We merit in only second. find his contention that the accommodation trial overruling in court erred his motion for directed on the verdict accommodation is- sue. As a result we in part affirm part, remanding reverse in for resentencing of defendant as an offend- accommodation er.
Defendant contends trial court in the (1) first in proceeding refusing erred dire, sequester (2) voir panel crimes, (3) in admitting evidence of other admitting controlled substances for demon- (4) overruling strative his purposes, and addition, motion for directed verdict. (5) asserts he should have a new be- trial cause cumulative errors.
He (6) also accommodation contends respects. trial court erred in several How- ever, only we address one of those conten- tions because we find his claim in overruling court erred his motion directed verdict on the issue accommodation proceeding. is determinative as to that We first summarize evidence its light most favorable to the State. Defend- ant was in Muscatine and police chief calls, defendant previous telephoned some Edington 38-year-old Barbara was a divor- city. Edington cee who was a resident of that he would leave the “stuff” in her shed. Edington Defendant and had been ac-
quainted for years. Approximately 15 or 16 The informer alerted officers made, years delivery three or four before the events in the would be and the offi- present case Edington telephone up received cers set surveillance near the shed. call from telling defendant her she could That arrived morning defendant with a get come and a television set of hers which brown and left it in the shed. An police holding had been as evidence in officer in the photographed proc- defendant connection with charge against pick- another ess. The officers then waited for the individual. defendant Subsequently up. Edington intensified their relationship. During this period Edington living *4 They talked on the telephone and defendant 19-year-old Jerry with a man named her, although visited not in her home. He morning Brown. On the defendant made and, brought sometimes vodka to her on delivery question, Edington the was still occasion, gave money. her small amounts of clothes, night in her therefore Brown In about October 1973 defendant started get drugs. out He went to the shed to the marijuana bringing Edington. to He and shed, about then two of the entered but Edington approximate- became intimate at got intercept officers out of their car to
ly the They same time. met about twice a him. Brown saw them and came out of the brought marijuana month. He to her and shed without a matter bag the brown as of they had sexual relations on each occasion. bag caution. The officers found the in the
Edington testified she shed. Edington gave wanted mari- Brown state- juana friends, to give to some parts of whom ments their concerning respective lived her house. asked for other She these events.
drugs for the same purpose. pentobarbital phe- The contained marijuana. obtained the controlled sub- nobarbital tablets and Some stances from police contraband which the the tablets were marked with the luminous had confiscated. material.
An informer told a deputy grand jury sheriff that A indicted defendant on three furnishing substances, defendant was drugs Eding- delivering to counts of controlled ton. The sheriff enlisted the help jury guilty of state and a trial found him of all law enforcement officials. Officers treated counts. A second trial found the deliv- jury phenobarbital and barbiturate ery tablets and was not an accommodation. Defendant marijuana sentenced, with a material which appeal became was and this followed. luminous under a certain of light. kind Sequestration I. of voir dire. In the They “planted” the items in telephone a first proceeding defendant moved the court booth and anonymously police called the to conduct the dire examination of each voir and told them a drug pickup would occur at juror jur- prospective apart from the other the booth. ors. The court the motion and overruled police error,
The up citing set surveillance at A.B.A. defendant claims Stan- booth, but a pickup Relating failed to occur dard to Fair Trial Free Press & they seized the 3.4(a) (1968). items. In due course the items came into defendant’s hands. by de- The A.B.A. standard advocated some prior provides
On occasions defendant had fendant for individual voir dire jur- where marijuana prospective jurors delivered in situations shed behind Ed- preju- ington’s pick up. exposed potentially house for her to This time ors have been recognized on the of March material. The trial court morning after dicial its voir The basic by discretion to conduct dire in that standard which other so, is relevancy. here to do crimes evidence is tested believing manner but declined Jeffs, (Iowa v. 246 N.W.2d State through regu- fair be obtained could 1976). However, even when such evidence lar procedures.
has
relevancy
some
trial court must
a basis
provide
record does not
discretion to determine whether
exercise
probative
value of the
finding
evidence is sub
the court abused its discretion.
stantially outweighed by
danger
un
Elmore,
See
v.
201 N.W.2d
State
Johnson,
prejudice.
fair
(Iowa 1972). In addition it does not contain
(Iowa 1974).
N.W.2d
finding
preju
any basis
defendant was
by
diced
because does
procedures used
The State’s evidence of defendant’s
show was harmed.
relationship and
prior
transactions with Ed-
assignment.
We find no merit
in this
ington was clearly admissible under this
standard. The
theory
State’s
was that de
of prior relationship.
II. Evidence
Over
delivery
fendant’s
drugs
the shed
objection,
defendant’s
the court permitted
reality
was in
a delivery
Edington.
It
proceeding
in the first
intro-
had
prove
delivery
and that defend
duce evidence
the prior
sexual relation-
ant had
knowledge
paper bag contained
ship between defendant and
Edington
drugs. But it could not
a delivery
show
of defendant’s
prior deliveries
*5
to
personally
Edington, and defendant de
her.
argues
Defendant
the court violated
nied even taking
bag
the
to the shed.
the rule that evidence of other crimes is
ordinarily irrelevant
and inadmissible.
Therefore it became vital to the State’s
(Iowa
v. Wright,
State
criminal activity in which he furnished Ed- argues Edington’s Defendant also ington drugs. with This evidence enabled testimony about these matters was not helped to do so. It also establish defend- weight credible. The and to be credibility knowledge ant’s that bag the contained however, to Edington’s testimony, attached drugs. was a factual issue for and not a the parties’ prior The evidence of the sexual Newman,
legal issue for the court. v. State intimacy negate tended to the of possibility 29, 1977). 257 31 (Iowa N.W.2d Defend mistake It or accident. also was so closely argument ant’s to contrary the is untena place related in time and to the furnishing ble. of drugs as be admissible- an insepara- as part ble of those transactions. See State v. As to his we principal argument, Lyons, 543, (Iowa 1973). 210 N.W.2d recognized the general principle that The trial court not its abuse discretion evidence which shows commission of crimes admitting in this evidence. other than the one with which a defendant III. Demonstrative evidence. Defend- charged is is inadmissible. We have also put ant the in bag placed in and the shed recognized exceptions permitting evi such of only part the marked tablets. The State motive, prove (1) (2) dence it tends to the marking offered evidence of of of all intent, (3) accident, absence of mistake or officers, them the by and the trial court (4)a common scheme or of criminal system permitted the State introduce the mark- activity embracing the of commission two in pills bag ed which were the also or that proof more crimes so related one place those which defendant did the not other, (5) prove identity tends the bag. Defendant contends this was error. person the with charged commission 638, Wright, crime. State v. 191 N.W.2d We have examined the do evidence and (Iowa 1971). 639-640 not find confusion as resulted defendant proceeding. to the first He contends. The tion contends try State did not to deceive anyone. It the picture inadequate showed whole counsel was original his trial beginning to end: the marking deposition of the en- failing discovery to use a Ste- lot, tire the portion Hensen, which defendant deliv- one of the officers who main- phen ered, and the portion which he did not dep- at the shed. In the tained surveillance deliver. Jerry Hensen testified he saw osition out, the and come go Brown into shed The trial court acted within its discretion just ap- before Brown came out he admitting this demonstrative evidence. back, drop some- peared step stop, Badgett, (Iowa 167 N.W.2d thing. 1969); Kittelson, State v. 164 N.W.2d (Iowa 1969); Evidence, McCormick on was that he went to testimony Brown’s 212 at (Second Ed.1972). get drugs, the shed to saw two officers of the shed approaching, emp- and came out IV. Directed verdict in the first ty-handed. proceeding. argues the trial that defendant theory The State’s court should have sustained his motion for placed eyewit- in the as its shed directed verdict at original proceeding testified, Eding- nesses Brown at and that based on insufficiency proof delivery drugs, ton’s saw bidding get came to and of knowledge by defendant did not officers, reason and for contents of were controlled sub out bring drugs. stances. trial could original Defense counsel at the passing upon such motion a discovery deposition have used Hensen’s court views the evidence in the most favor at trial as he try get testify Hensen to light accepts able reasona discovery appeared did on that Brown sup ble inferences from the evidence which drop something. But the evidence did port the verdict. If substantial evidence shed; anything show Brown took into supports charge, the court submits the *6 likely the inference to be more that appears case to the for determination. State v. Brown had found the defendant 353, Beyer, (Iowa 1977). 258 N.W.2d 356 officers, brought, thereup- then saw the The generated strong jury State a case dropped on counsel bag. If defense here; question is not even close. The went over with Hensen at these matters of testimony arranged the officers who trial, emphasizing a of good stood chance pickup booth, at telephone of the sur- happened. This what theory State’s of shed, veillance of Edington, officers at the is the which involves tac- kind of decision and of Brown required the trial court to tics, We cannot counsel. inadequacy of overrule the motion to direct. inadequate find on this original counsel was Brewer, ground. v. 262 N.W.2d See Bizzett V. Cumulative errors. Defendant con- (Iowa 1978). 273 tends he should have a new trial because of the cumulative effect of errors he has as Therefore we trial court affirm the assigned. proceeding As the first we trial. proceeding the first in this bifurcated have found no merit in any assign- his VI. Directed verdict in the accommoda- they ments of error. Therefore provide no the ac- proceeding. alleges tion basis for upsetting part that of the case. in overruling commodation trial erred court We reverse as to the proceeding second on a his verdict in the ac- motion for directed separate ground, making contention We find merit in proceeding. commodation moot as to it. this assignment.
In this assignment does, defendant The burden was on the to introduce State however, present a new argument in rela- which the jury substantial evidence from
923
Q.
year
could
doubt
What
would
be? A.
beyond
find
a reasonable
de-
* * *
1973.
drugs
fendant did not
as an
deliver
Edington.
accommodation to
Q.
year,
Over the
we’ll
course
8th
say leading up
year,
to March
of last
The events here occurred before the
on how
would
frequent
you
a basis
see
204.410,
Code,
amendment
July
on
§
*
* *
Mr. McDaniel?
1245,
231,
Acts 66 G.A. Ch.
ch. 4 §
The Witness: Approximately every
which narrowed
nonaccommodation
always,
usually
two weeks. Not
but
on
transactions
“for the purpose
entered
meetings.
council
night
they
had
making a profit”.
State v. Didley,
See
264
1978).
N.W.2d
(Iowa
732
Therefore the ac
Q.
you
All
ar-
right.
any
Did
McNabb,
commodation
definition
State v.
defendant,
rangement with
Mr.
32,
241
(Iowa 1976),
N.W.2d
applies. See
McDaniel,
for the
him
materials
pay
v. Stidolph,
737,
State
N.W.2d
morning
of March 8th?
came on the
(Iowa 1978). In
we said the
McNabb
words
“only as an accommodation to another indi
* * *
The Witness: No.
vidual”,
204.410,
as used in former
meant
Q.
pay
him at
you
any
Did
intend
furnish,
“to
as a favor to the recipient,
time
8 for those mate-
on or after March
something the
recipient desires.”
*
**
rials? A. No.
N.W.2d at 35. Under that definition it was
During the
Q.
right.
month of
necessary
prove
for the
the drugs
1975,
January
would
have seen the
were not
delivered as
“favor” to Eding
defendant? A. Yes.
ton.
Q.
many
On how
occasions? A. Once
The State’s
theory
that defendant
twice,
was every every
because it
—
delivered
“quid
pro quo”
as
month,
him; usually
once a
seen
month
sexual
intercourse and not as a “favor”
* *
least,
at
if not twice
*.
under
Knutson,
McNabb.
Q.
two
During
preceding
those
(Iowa 1974),
N.W.2d 575
we recognized that
months,
January
February
sexual relations may constitute considera-
did
sexual contact with the
tion in a pecuniary sense. This principle is
defendant?
also integral
concept
prostitution.
to the
* * *.
The Witness: Yes
Price,
See State v.
(Iowa),
drugs.
evi
circumstantial
implied from
must be
rela-
Q. (Cross-examination)
your
And
to be
evidence
For circumstantial
dence.
tionship
always
with Jack has
been
ain crimi
jury
sufficient for
consideration
relationship?
sort of
friendly, compatible
be able to find
jury
must
nal case
A. Yes.
hypothesis
rational
inconsistent with
Q.
expect anything
You didn’t
from
Barnes, 204 N.W.2d
contrary.
him,
really expect anything
and he didn’t
1972).
by that
(Iowa
Tested
828-829
you,
friendship,
in terms of
did he?
here.
was insufficient
standard the evidence
until the
A. Not
last—Since October
just
got
thing * * *
1973. It
kind of
to be a
im-
though Edington
Even
was assured
testimony
her
did not constitute
munity,
Q. Okay.
you
The next time
testified
which the
substantial evidence from
Now,
hearing.
was at the preliminary
doubt her
beyond
could find
a reasonable
you
began
testified that when
meet-
you
with de-
participation in sexual relations
McDaniel,
met
ing
you always
with Chief
delivering
his
upon
fendant was conditioned
car,
A. Yes.
right?
him the
is that
in the context of the
drugs to her.
In fact
Q.
rela-
And that’s when the sexual
record,
testimony
support
would
entire
her
* *
A.
*.
began?
tions
Yes
inference.
In addition
only
contrary
simultaneous,
Q. But
the times are
on which the State relies she
testimony
in the car
you
getting
talk about
a “friend” and “lov-
testified defendant was
McDaniel, you
with Officer
are also talk-
acknowl-
redirect examination she
er”. On
in time
ing
being
point
about that as
hearing
edged testifying
preliminary
at
too,
began
you?
in which sex
aren’t
defendant was
why
that she did not know
Yes.
marijuana.
had also testi-
giving her
She
Q.
you
stating
And
are also now
fied,
figured
“I
never
it out to
marijuana
begun
that’s when the
it,
I
ever tried
day;
just
asked me if had
given
be
you, is that correct? A. Yes.
nothing
him it
do
told
didn’t
Q. And that
began
all
in October of
give
wanted it to
me—.”
said she
She
* *
1973? A. Yes
*.
approval.
their
way
gaining
friends as a
your
—but
statement
is that
now
legislature
We do not believe
month,
having
met with him twice a
par
to a
furnishing
intended the
had sex with him
three times a
two or
selling
legally equivalent
amour to be
month,
and I would like to know how
*8
In
addiction.
profit
them for
or to induce
(No
did that? A.
response.)
stead,
plain
a
situation
presents
this case
Well,
Q. (Redirect
Mrs.
Examination)
jury could
The fact the
accommodation.
Edington,
give you
opportunity
let me
an
were involved
Edington
find defendant and
during
to answer that
the
question;
in an
favors is insufficient to
exchange of
1975,
February
months of
January
drug
the
deliveries
permit
finding
a
how often did
see Mr. McDaniel?
a
furnishing,
more than
“as
something
were
two times
About two—not
more than
recipi-
recipient, something
favor to the
the
a month.
925
McNabb,
finder,
us,
v.
is for the fact
not
to
State
supra,
ent desires”. See
resolve
questions
ijuana? grams. defendant, . would have had the twenty-three you been mate- barbiturates, relating to those you do first conversation Q. And as to a count of the various barbiturates early A. It was on afternoon rials? found? A. I do. know, I early, you was Friday. on It
Q.
they
Would
tell us what
were?
you
one or two in the after-
suppose maybe
approximately
pheno-
A. There was
10½
noon.
tablets;
pento-
were two
barbital
there
take
Q. How did the conversation
barbiturate;
tablets,
there
barbital
also
Well,
me,
when he called
place? A.
amobarbitals;
approxi-
was also two
about, and he said
that’s what we talked
which
mately
phendimetrazine,
was at
way
them off on his
home
drop
he would
III
sub-
time a
controlled
Schedule
work,
then,
because his wife
from
stance.
him,
waiting for
he called and told
bearing
As to the
quantity
has
then, he
bring them
me that he couldn’t
issue,
on the accommodation
see
day.
down the next
bring
would
them
Metcalf,
(Iowa).
McDaniel? . Q. During preceding those two The Witness: Yes. months, January February Q. When did that begin? you any did sexual contact with the October, proba- Witness: It was in defendant? . bly, year of the first that I lived there. . The Witness: Yes. Q. year What would that be? A. give occasions, you did Q. those On 1973. . . . defendant, money, any anything Q. Over the course we’ll year, A. No. goods? property, any physical say leading up to March year, 8th of last anything receive you Q. Did frequent on how you basis would see Yes. him? Mr. McDaniel? . The Witness: Approximately every Q. What you receive? A. Mari-
two weeks. Not always, usually but on juana. . the night they had council meetings. every occa- receive it on Q. you Did A. Yes. . . . him? saw you sion Q. right. you Did have any ar- with the de- Q. you Did ever discuss defendant, rangement with the Mr. fendant, marijuana from him? receiving McDaniel, pay him for the materials . A. Yes. . . that came on morning of March 8th Well, Q. talk many you how times did Well, The Witness: No. . call about it? A. when he would phone, marijuana on the and sex was all Q. at you pay Did intend to him really talked about. usually that was even time on or after March 8 for those mate- rials? A. No.
Also: with Q. You said that in connection marijuana, sex you also discussed Do recall when would A. Yes. . the materials which with the defendant?
have first discussed *10 Q. Edington, you ing Mrs. can tell us the being about that as point in time in too, or the date that which approximate you began date sex aren’t you? A. Yes. marijuana first discussed with the de- I
fendant? A. October of Q. And are you also now that stating tell you couldn’t the exact date. marijuana that’s when the was begun to Q. be given you, is you And when did first establish that correct? A. Yes. the intimate with the defend- relationship Q. began And that all in October of ant? A. About that time. 1973? A. . Yes. . . Edington On cross-examination testified in Q. —but your statement now is that part: month, a having you met with him twice
Q. gather way prosecu- I from the had sex with him two or three times a conducting tor was his direct month, examination you and I would like to know how you had sexual relations with (No response.) did that? A. Mr. Brown? A. Yes. Edington On redirect examination testified Q. How you, Edington? old are Mrs. part: in A. I’ll be forty September. Q. Well, Edington, give Mrs. let me
Q. How old is Brown? A. Jerry He’s you ques- opportunity an to answer that twenty-two. tion; . during January months of and February of how often did see
Q. you Did Davis you? Faris live with A. Mr. McDaniel? A. About two —not Yes. than a more two times month. Q. long? For how A. Approximately year two —a Q. and a years. right, half to two how often during period? sex with him A. Q. your And with relationship Jack Every time. has always friendly, been [defendant] compatible sort relationship? Yes. I jury reasonably would hold the could Q. You didn’t expect anything from infer drugs defendant did not deliver the him, really didn’t expect anything accommodate, merely to but his own you, friendship, terms of did he? If purposes given defendant had Ed- —sex. A. Not until the last —since October ington marijuana small quantity on one just 1978. It kind of got thing. to be a favor, occasion as a we would have a differ- ent case. But the could find that the
Q. Okay. The next time you testified delivery sexual intercourse and the of mari- Now, at preliminary hearing. began in juana both October 1973 and were you testified you began that when meet- February on in going, still 1975. Defendant ing McDaniel, with Chief you always met out Edington went about twice a car, him in the is right? month, A. Yes. which would be about 34 times. period of prolonged drugs This sex and Q. And that’s when the sexual rela- renders the conclusion of a nexus between tions began? A. Yes. the sex and almost let irresistible Q. The sexual relations began with nothing alone reasonable —to say the rest getting in the car? A. always We went testimony. judg- would affirm the someplace, we someplace went besides. ment. simultaneous, But the times are MOORE, J., talk about in the car getting C. LeGRAND McDaniel, you JJ., with REES, join Officer dissent. are also talk-