State v. Pelelo

However, agree we with II. Iowa, be a modification that there should

Cathryn Appellee, STATE of support. terms of child amount and support child in the awarded decree PELELO, Appellant. Michael Alan week, per per child of $25 amount the four dur during that weeks stipulation No. 58908. Jerry to have children was ing, which summer, support payments during the Court of Supreme Iowa. parents an Both have terminate. should 17, 1976. Nov. children, this support to their but obligation be necessarily is borne obligation Rehearing Denied Jan. 1977. apportioned be by them. It should equally of each con ability to the fair according Marriage Carney, In Re

tribute. (Iowa 1973). We believe made in the child changes should be

two paying Instead of provisions.

support $25 child, Jerry pay week for each should

per week for child. each per

$40 addition, support

In we order suspended during be should not

payments Jerry weeks has children with four Most of the ex during the summer.

him home for herself maintaining a

penses Cathryn continue for children will her only during period. differ

even expenses. We is in food and incidental

ence permit are an these not sufficient

hold Re

interruption payments. In Glass, 670-671

Marriage of Cathryn

III. also asks allowance appeal. Her attor attorney fees on this has submitted a statement

ney amount, Of $702.50. $215

amount assumption the case included orally argued. matter was

would be argument, oral without

submitted cost is therefore eliminated.

estimated $487.50, we which reduces claim

This part costs. paid Jerry

order the modifications heretofore

IV. With 15, 1974, out, January the decree of

set

affirmed. AFFIRMED.

MODIFIED AND

Mayer Kanter, City, appellant. Sioux for Turner, Gen., C. Richard Atty. David L. and Jim P. Robbins, Brown Attys. Asst. Gen., Dull, and Michael County Atty., for appellee.

McCORMICK,Justice.

Defendant his appeals conviction and sen- tence for of delivery marijuana in violation 204.401(l)(a), The of Code. He contends the trial court erred in overruling pre- his for change venue, trial motion of in denying him in support evidence the jury of his panel, in over- ruling exception his entrap- court’s instruction, ment in placing the burden of on him in proof the accommodation hearing, failing and in rule his motion arrest We judgment. of affirm the trial court. charge was based alleged sale bags containing about pound marijuana three-fourths of a to a undercover state in LeMars in the evening of 2,1974, December for $170. was arranged sale paid of a help trial, At informant. defendant admitted the sale and relied defense entrap- ment. After the found guilty him offense, requested he an accommoda- hearing tion which was subsequently held. trial court found the transaction was an accommodation sale. sentenced, this appeal followed. change of venue. De- cases.” The The motion minutes were I. not from moved trial for before defendant’s case. fendant ground he could not receive a venue on the later, Almost one month newspaper Plymouth County because of trial in fair entitled, featured editorial “Deferred inflammatory pretrial publicity. His mo- . . . deal”, sentence there’s no better by signed an affidavit supported was tion in which sarcastic attack was made on the by persons. three use of deferred sentences in criminal cases. this, shown, allegedly After on date not The affidavit referred to ad- an un- letter to the prejudicial publicity signed appeared and in the Le- editor verse Sentinel, contending drug Daily including page paper a front offenders were Mars be- editor, unsigned ing leniently letter to the treated story, urging harsher news Later, resisting dispositions. August 28,1975, and editorial articles. In on the mo- tion, newspaper printed a newspaper denied that the cartoon captioned, inflammatory prejudi- “Fight your was crime! Don’t let and of son publicity become a defense lawyer.” effect. criminal cial The trial court overruled the motion for subsequently Defendant amended his mo- change 5, of venue September attaching 1975. by newspaper the four items tion 15, Trial September commenced alleged prejudiced had his 1975. No which he to was made record of voir hearing testimony trial. At the was dire. fair defendant, received from the editor of the Our evaluation of the allegedly prej Sentinel, publisher, and its and the four publicity udicial leads us to the same con were items received as exhibits. After clusion the trial court. Defendant’s hearing evidence, the trial over- appeared only name in the article of June the motion. ruled 26, published almost three months before the case was tried. Although the article review the evidence de to novo We regarding left little doubt newspaper’s whether the determine trial court abused guilt named, view of the of those it was not in holding discretion its inflammatory pervasive so as to make failed demonstrate a reasonable likeli likely it defendant could not have a fair he would receive a fair trial in hood three trial months later. The other news County. Plymouth Dague, items were rather paper commonplace gen (Iowa 1973); Lloyd v. Dis eralized attacks on the courts sys and our County, 201 N.W.2d 720 trict Court Scott justice. of criminal publicity tem This did not establish a reasonable likelihood defend daily newspaper The LeMars Sentinel is a Plymouth ant could not have a fair trial in 5,000. with a circulation in LeMars of about County. Plymouth County population We hold the trial court did not err in 24,000. On June the paper about overruling defendant’s motion for page story a front with a headline carried of venue. link, proclaiming “Illegal drugs in red sold parking packets lots: Prices for in $90 II. challenge jury panel. to the reported that story a number Defendant sought object jury pan $200.” drug had occurred in recent arrests Le- el before voir dire. The trial court ruled his Mars, naming persons including six defend- challenge could be made at the first conve day who had been arrested the before. during ant voir nient recess dire. The chal Then, in order to illustrate it describ- lenge what after the trial actually was made typical pattern as the involved in local impaneled. alleged ed sales, quoted the article minutes of drug persons systematically been ex young had attorney’s testimony county attached to the He asserted the panel. cluded from the cases, voting in of the recent de- list one had been drawn from panel information damage general “in order not to the last and thus did not leting names election we persons rejected less than 18 later young include those in State v. Mullen. day who attained that on election There years old is no hint in the instruction the presented He no evi- age subsequently. jury should consider police whether the support of the but asked were so reprehensible that, actions dence as a judicial the trial court to take notice matter of policy, a conviction panel voting was drawn from the fact should not be tolerated. The uniform ignores list. instruction factual evaluation undertaken on a to be case case basis challenge. The trial court overruled the ‘ * * * possible prohibited govern- Defendant, now represented by different activity mental might include ex- [which] counsel, the court contends erred in re- pleas desperate illness, treme appeals fusing permit him to evidence in primarily on sympathy, based pity or challenge. of his He relies personal friendship, close and offers of explained Staker, in State v. 220 principles ’ * * * sums money. inordinate 613, (Iowa 1974); 615 N.W.2d see rule all, 216 N.W.2d at 383. Most of the uni- 187(d), However, Rules of Civil Procedure. form instruction erroneously fails to fo- argue not the merits of the he does chal- on the crucial question cus of what is lenge. likely normally to cause law-abiding per- The récord does not defendant’s to commit sons the offense. The giving contention. His- trial present counsel did the instruction was error.” 218 any request not at time an opportunity to at 651. N.W.2d Although evidence. the trial present present In the case the trial court re- arguments hear challenge, refused to on the sponded defendant’s exception by adding the court did not refuse op- defendant the language to its proposed instruction. In its to make his record. portunity We find no form, final the instruction follows, was as present in defendant’s contention merit language with the added italicized: right he was denied the The defendant asserts that he was the evidence. entrapment victim of as to the crime Regarding merits of his challenge the charged. The State has the burden of made, see record State v. based disproving entrapment by the evidence Williams, (Iowa 661-662 beyond a reasonable doubt and if it fails Knutson, 1976); N.W.2d burden, its to sustain the defendant must acquitted. be entrapment III. The instruction. Entrapment occurs when a law en- timely exception Defendant took agent forcement induces the commission instruction on his defense proposed court’s of an using offense persuasion or other entrapment.- The court’s instruction con likely means to cause normally law-abid- language the tained of uniform in persons ing to commit the offense. Con- (1975). struction No. 501.21 Defendant con merely affording duct person oppor- tended the uniform instruction did not meet tunity to commit an offense does not addressed, problem Deanda, the in State v. constitute entrapment. (Iowa 1974), 650-651 where In applying instruction, you should court held an earlier uniform instruc the consider course of conduct between tion did not conform with the newly-adopt agent defendant. You should objective entrapment ed standard of State consider police whether the actions were Mullen, N.W.2d 375 reprehensible so pub- as a matter of In criticizing previous uniform in- policy lic a conviction should not be toler- the court in struction said: Deanda ated. might Such actions include ex- “Defendant insisting the in- pleas iilness, treme of desperate appeals struction was erroneous because it was primarily based sympathy, pity or squarely subjective bottomed on the test personal close friendship, and offers of money. sums of The transac- requires inordinate dard that the jury'be told it must offense, leading up to the the inter- tion consider in applying the standard, “whether agent and the defend- action between police actions were so reprehensible response to con- and the defendant’s ant that, as a matter of policy, a convic- agent are all to be considered duct tion should not be tolerated”. princi- This you judging what the effect of the ple explanation is an for the standard but agent’s normally conduct would be on a part of its definition. law-abiding person. We believe the trial court should not Therefore, your duty acquit it is have added the additional language to the you if find that the con- instruction, but we do not think adding the himself in a manner which ducted would language was reversible error. Defendant normally law-abiding person induce a major invited the part of by his commit charged. However, the offense if exception to the instruction as originally you conduct find that such would not be proposed. Further, although the additional likely a normally law-abiding to induce language required the jury to consider person to commit the offense alleged, police whether conduct reprehensi has then the state sustained the burden ble, equated reprehensible it police conduct imposed upon disproved it and has examples of conduct which entrapment. we have defense jury may held a find would induce a nor excepted to the court’s use of mally law-abiding person to commit an of “reprehensible” word amended fense. The court did not thereby change instruction, asserting it required jury the objective the standard which it twice acquitting béfore a only find defendant not instruction, defined elsewhere in the nor did entrapment objective under the standard the court thereby condition acquittal for police punished that the should be but entrapment on a showing police the entrapment. The trial court such overruled punishment. deserved The instruction exception. assigns must be viewed as a whole piece and not ruling as error. court’s Robinette, meal. State v. 216 N.W.2d 317 criticizing subjective In standard of whole, aAs it accurately in Mullen, entrapment said, we “It fails to of objective formed standard the real concern whether the po- confront context, In entrapment. of the language reprehensible actions were so lice under the by added the court did not diminish the conviction, a as circumstances a matter burden State’s under that standard. public policy, should not be tolerated.” at 381. This 216 N.W.2d was a reason for no We find merit in this assignment of standard; objective adopting the it was not error. of the new statement standard. The sub- a IV. The accommodation issue. language in sequent similar Deanda was After he was found guilty by the jury, point out flaw which exist- intended requested defendant an accommodation the former uniform instruction on the ed in hearing which was subsequently held. The subjective entrapment. standard placed trial court proof burden of deficiency subjective in the standard is defendant to show he marijuana sold the objective by the standard. The overcome an accommodation. Defendant did not ob entrapment is that objective standard oc- ject to procedure until he a filed motion when a law curs enforcement induces judgment in arrest of after the offense, hearing was using persua- the commissionof an preserve In order to concluded. likely any alleged or other means to cause normally sion ruling in a law-abiding persons constitutionality to commit the error offense. statute, Although party police challenging standard focuses on a the statute acquittals so that must do so at the entrap- opportu conduct based on earliest available of identifying repre- progress ment have the effect nity of the case. v. State conduct, police nothing Ritchison, in the stan- (Iowa hensible 223 1974); N.W.2d 214 226 to Fair LePard, Press, Free Trial and 3.2(c)’(Ap-

see v. proved 1968), was 1976). says: Defendant’s Draft which (Iowa case. See late in made too “A motion for of venue or con- Everhart, (Iowa granted tinuance shall be whenever it is preserved. 1976). was not Error determined that because of the dissemi- material, nation of potentially prejudicial judg in arrest of The motion V. is a there reasonable likelihood that he defendant sentenced After ment. relief, the absence of such a fair trial judgment. motion for arrest moved cannot be had. This may determination the time at he filed his pending was still qualified be based on such evidence as to this court. He contends appeal notice public opinion surveys opinion or testimo- in not ruling erred on the the trial individuals, or ny offered However, party predicate cannot motion. nature, court’s own evaluation fre- court’s failure to rule when a trial error on timing of the quency, and material in- request or demand for no he has made showing prejudice volved. A of actual Schiernbeck, 203 N.W.2d ruling. State required." (emphasis shall not be sup- such request No or de plied). pre here. No error was was made mand served. underlying-this The rationale principle is self-evident; usually possible it is not for a reversible error. no We find prove jurors have pub- read

AFFIRMED. reports anything lished or heard of preju- Often will they deny dicial nature. such LeGRAND, MOORE, J.,C. and REES knowledge upon being questioned or at UHLENHOPP, JJ., concur. having something most admit read about a MASON, RAWLINGS, REYNOLDSON case, given but assert such will not bear HARRIS, JJ., dissent. upon or influence their decision. See Com- RAWLINGS, (dissenting). Stouffer, Justice monwealth v. Pa.Super. 415, (1973) (Hoffman, A.2d J., 418 307 dis- agree reasoning with Being unable to the senting). employed and conclusion reached in Divi- majority opinion, respectfully I sion I of the The United Supreme States has Court dissent. recognized impropriety the of placing the change venue upon a burden movant here principle involved is an The basic prejudice. actual demonstrate See v. Estes trial. Spencer accused’s to a fair See Texas, 542-543, of 381 at U.S. 85 State Texas, 554, 563-564, v. 385 U.S. 87 State of at 1632. For an informative S.Ct. discus- 653, 648, (1967). 17 L.Ed.2d 606 S.Ct. Supreme of evolving sion Court’s con- would majority apparently require The cept process of due as here involved see widespread show that a defendant identifia- Doggett United States ex rel. v. Yeager, community in the prejudice ble before trial 229, (3d 1973). 472 F.2d 236-239 Cir. to allow a change court’s refusal of venue in this Admittedly, case does an abuse could be termed of discretion. not a Texas, foundationed on v. of But see Estes State 381 U.S. grounds. constitutional 532, 541-545, 1628, 1632-1634, issue must 85 14 S.Ct. upon the basis therefore be resolved of (1965). our L.Ed.2d 543 statutes, change of venue Code ch. 778. In Estes, In keeping spe- this court has 793.18, however, light of Code reason- cifically a showing prejudice held of actual process ing which underlies due mandates resulting from adverse publicity is not a blithely ignored. not be should change prerequisite to a of venue. See Woodbury key Pollard v. District Court of question whether a reasonable 519, (Iowa 1972). County, 200 N.W.2d 520 likelihood exists a fair trial cannot be adopted Relating potentially prejudicial We there ABA because Standards had material

227 Pollard v. Dis recognition “in order See to damage been disseminated. has Woodbury County, of Despite 200 court cases”. Court this asserted trict caution v. Stouf 520; cf. Commonwealth names of all at arrested were listed. N.W.2d Moreover, majority As the Sentinel story fer, 307 A.2d at 421-422. contained this rousing review, statement: to make notes, required, we are evaluation of all the circum independent “The seriousness of drug abuse sit- in LeMars stances. uation cannot be disputed. Availability drugs of narcotic for indis- moved for appropriately Defendant here use criminate has been common knowl- change of supported by venue affidavits a years. for several edge His petition, statu- persons. three “Intervention by an Iowa narcotics conformity form and in torily prescribed stopped has this latest series of statute, prima made out a with the facie drug sales LeMars and youths area Ordinarily was uncontroverted. case which provided with facts and for alone would suffice as basis drugs of how details are sold.” See State v. sought. the redress granting 714, Hephner, (Iowa 1968). 161 N.W.2d 716 majority concedes the foregoing left Loney, 378, see 383 But regarding little doubt the newspaper’s view effect, 1968), holding, the failure the guilt as to of those named. Additional- party either to resist a venue ly, the above article was not confined to the negate does not trial court’s discre- petition page editorial nor labeled “commentary”. made, under the record prominent tion to determine It was front-page news. Cf. States v. Coast United of Maine Lobster necessity advisability or transfer Inc., Co., Accord, Dague, 899, trial. 538 F.2d (1st Cir. Admittedly, an unsigned letter to the edi- tor, Sentinel, a deferred sentence only daily Plym- The LeMars editorial and car- toon, intermittently County (population 25,000), has carried in about outh Sentinel trial, all as prior to described in majori- 5000. The approximately a circulation opinion, generalized ty were criticisms publication carried a front June justice the courts and our criminal headline, under red ink article, system. report- page But the cumulative effect thereof cannot be people, including six named this defend- ing Dunahoo, brushed See “The Scope of ant, day LeMars the aside. had been arrested in Judicial Discretion in the Iowa Criminal drug charges. The headline bold- before Process”, Law 58 Iowa L.Rev. drugs park- sold in “Illegal ly proclaimed: (1973). packets ing lots: Prices for $90 facially There followed a authentic $200.” Surely publications the aforesaid were setting “specifics as to how

report forth ordinary more than reporting always which sale of narcotics come about in each any accompany event such as this. Illustra- Conspicuously detail”. absent was minute tively the editor the paper Sentinel testified attempt to tell the reader these “de- any printed never had before minute details of by allegations were mere claimed wit- tails” statements attached to a county attorney’s county attorney’s in nesses And publisher information. admitted it example, For in the third information. time the first an article headline on a qualifi- without the writer states paragraph case had been criminal emblazoned in red in too, “Affidavits contained six of cation: Then the material print. in contained drug in which were eight cases arrests subsequent publications above de- Monday drugs in LeMars show were made closely scribed June issue were so special agents for $840.” sold in both time and related substance as to regarding no their leave doubt correlative' Although the information-min- aforesaid purpose. aim or specifically relate to defend- did not utes case, identity stated, thereof Briefly neither was ant’s involved editions of allegedly Daily this given. editor deleted the LeMars Sentinel must be charac- * * * nothing indelibly as less than an It fundamental, terized under our community predicated crusade imprinted system government, that one charged pretrial media determination that news a with the commission of a offense is named, defendant, including were all presumed to be innocent until the con- subjected penal be servi- and must guilty trary appears. He is entitled to a fair Surely jeopardized if not tude. obliter- impartial trial before and jury a of his fair defendant’s a trial in ated peers, by bias, uninfluenced any preju- County. Plymouth dice, or preconceived guilt. notions of his end, To this the trial should be removed majority seemingly infers a influences, these so far properly be as it lies venue can denied even ” here, power where, within of the court publication as there is local to do so.’ Niccum, v. prejudicial potentially pre- material if the siding judge merely assumes no reasonable get likelihood exists an accused could not a Good faith on part of trial court and publicity. trial because of such

fair newspaper personnel is neither here in It still remains the places above view question nor relevant. an accused burden upon which cannot be By reason of the above described article met, e., prejudice. This, i. establish actual I a garish headline, carried under red and submit, is a violation of fair rights. trial If ongoing pretrial provocative publicity this exists no reasonable there likelihood was, my view, so case patently fraught coverage will to deny news serve an accused prejudice potential to the accused as to trial, impartial then the a fair burden any obviate exercise of by discretion trial upon show should be to so State and court. And if such discretionary right did showing conspicuously is here absent. such exist, respectfully I submit it was abused. case, example, In this might the State event a In either reversal is dictated. produced disclosing any po- have evidence I would attendantly remand for a new prejudice passage tential vanished with the trial with instructions to prefatorily grant of time. Or it could have requested re- defendant’s requested change of venue.

ported voir dire examination of the to, arguendo, support order its view. See MASON, HARRIS, REYNOLDSON and Davis, JJ., join in this dissent. 1972). But see ABA Relating Standards Press, 3.2(c)(d) Fair Trial and Free

Commentary at 126-127 (Approved Draft

No such instantly voir dire is shown of defendant, other

record. On the hand

aforesaid, submitted three sup- affidavits

porting prejudice his contention. The State

merely allegation. denied the Iowa, Appellee, STATE And, upon the basis of the lost. conclusion here reached the majority, the same may result expected be to hereafter obtain NIMMO, Jerry Appellant. every unsuccessfully time an accused seeks No. 58318. place of trial potential because of community prejudice. Supreme This is to me inher- Court of Iowa. ently unjust. Nov. 1976. ' not, cannot, We proscribe need indeed press properly reporting on criminal

events and trials. On the other hand this

court has declared:

Case Details

Case Name: State v. Pelelo

Court Name: Supreme Court of Iowa

Date Published: Nov 17, 1976

Citation: 247 N.W.2d 221

Docket Number: 58908

Court Abbreviation: Iowa