State v. Trudo

Iowa, Appellee, STATE TRUDO, Appellant.

Rick E.

No. 59279. of Iowa.

Supreme Court 20, 1977.

April 19, 1977.

Rehearing May Denied

On October four officers of the (Metropolitan Des Moines Area M.A.N.S. Squad) Narcotics unit went to 1424 23rd Street, Moines, Des execute a search yard Defendant was in the front warrant. talking neighbor. The officers told (de- looking were for Frank roommate) fendant’s because wanted buy marijuana some from him. Defend- replied Frank had moved he ant but could anything they handle wanted because he supplier. was Frank’s police- Defendant invited undercover they negotiated into house where men of purchase pound marijuana one of for leaving the Defendant admitted $140. one-pound packages house to retrieve five marijuana of from his “stash” in the bushes Upon at the end 24th return of Street. his dumped packages green he these out of a bag onto the floor and told the garbage to take their choice. officers two policemen The offered defendant bills. Defendant went one-hundred-dollar change, taking remaining upstairs for marijuana Upon of with him. his bags four money changed return the hands and under arrest. placed was then point, approximately At this 45 minutes premises, after the officers arrived at the Miller, Moines, Philip appel- P. Des for they executed the search warrant and lant. premises. They searched the recovered the Turner, Gen., Atty. C. H. Richard Richard one-pound marijuana also bags four of and IV, Gen., Atty. Ray Asst. A. Doyle, and quantity found a of other material and Fenton, County Atty., appellee. for drug-related paraphernalia. Upon appeal defendant asserts charges erred in court consolidation SON, Justice. REYNOLD trial, overruling suppress his motion evidence, testimony, expert admission of de- coun- charged by separate Defendant was prose- nial of his mistrial motions based on possession with ty attorney informations of misconduct, instruc- cutorial marijuana delivery marijuana, and with these asserted errors in tions. We consider 204.401(1), The Code. These violations § divisions which follow. order, charges were consolidated court upon trial defendant was convicted and charges. imprisonment for two concur- I. Consolidation sentenced appeals five-year terms. He rent asserts he was denied due affirm. parte, sponte trial court’s ex sua process charges strong the record to consolidate for trial the There was evidence in order in the two filed from which the could have found the contained informations following against facts. him. may balancing the above test and apply informa- charged one charges for trial. Of consolidated marijuana with in- order with tion course, may either separate informa- and in a to deliver tent file a severance motion and then obtain marijuana, of- delivery both with hearing thereon. Both 204.401(1), The Code. under §

fenses January for trial charges were set adopt procedure found We Relating to Joinder and A.B.A. Standards Trial 3.1(a), a “Motion Select (Approved filed at 46-47 Severance pos- seeking permission try Draft, Charge” 1968): charge first. This motion was session Authority of court to on own “3.1 act motion, Trial denied by defendant. court resisted (a) consoli- order “joint sponte motion and sua ordered charges if dation of two or more for trial trial”. offenses, and the defendants if there one, joined than more could been a argues process requires due single ain the hearing a trial court can decide before consolidation issue. Defendant relies on ^{[*] [*] [*]} >> Denato, 173 N.W.2d language in v. State 434, Reynolds, v. 250 State See defendant, 1970). We note 576 Wharton, (Iowa 1977); 2 Criminal Proce 438-439 court, excepted to trial merely district 302, (12th Torcia at 149-154 ed. C. § dure order, He filed never court’s consolidation Annot, (1958); 1975); 59 A.L.R.2d 841 requested a hear- motion for severance or a 773.37, 773.38, 773.42, The Code. §§ here at- ing. below nor does he Neither no with We find trial error prejudiced by tempt to how he was show respect the order. consolidation order he attacks. Ruling Denato, suppression we con- II. on motion. supra, In v. were parte directing ex order cerned with an mo- defendant filed a December identity an infor- disclose alia, suppress, asserting, inter we factual which mant. The determination entry premises officers’ was obtained more hearing necessitated a there held they through trickery and artifice and that question than consolidation onerous delayed war- intentionally execution of the study a ordinarily be resolved which 751.8, The 751.6 and in violation §§ rant already testimony before of minutes Code. court. parte ex order Trial court entered an county attorney could is clear “un- overruling the motion because it was charges single in a combined these two have 26(F) required Court rule timely”. District 204.408, Code. Section The information. days to be filed within 17 after motion event, would have been In arraignment. See Iowa Civil Liberties Un- for make a motion severance. required to Critelli, (Iowa 1976), 244 564 ion show his have been his burden to It would the rule was not unconstitu- we held where receiving fair uninflu trial interest deny equal protec- it did tionally vague, could effects which prejudicial enced tion, it violate a defendant’s statu- did not joint outweighed the result from rights, judges com- tory and district had judicial economy. interest See State’s authority adopt it. mon-law States, 486, (5 357 F.2d 489 v. United Smith Nonetheless, tri- defendant first contends Cir. court, overruling motion al rather than his Where, here, attorney parte procedural the basis of a local as ex on county rule, v. Den- granted on should have a Jackson separate two informations to file elects combined, Jackson type hearing no merits. charges could have been See which 1774, 368, 12 84 court, Denno, U.S. S.Ct. the infor- upon studying hold trial (1964). provide testimony, Failure attached minutes of L.Ed.2d mations and States, 298, Gouled v. United argues, violated his constitu- U.S. hearing, he 261, (1921), People 65 L.Ed. 647 rights. fair trial S.Ct. tional Reeves, 1, 38 Cal.Rptr. Cal.2d arraigned November (1964). P.2d 393 (not counsel present He retained his both of those attorney) on November 1975. As we cases there was no warrant search and no indicated, grounds reasonable suppress have the motion to filed existed to search entry. before the 1975 was December overruled as un- trickery involved gain entry was to timely. January When trial commenced purposes. search ruling. “excepted” to this unsuccessfully objected to of ex- He offers Those cases are distinguishable from premises hibits found on the for the same situation before Here us. the officers in his motion renewed reasons asserted premises went to the armed with and in motion when the rested. tending to execute a search warrant. An opportunity buy” presented to “make a it judicial 26(F), Fifth district rule pursued subterfuge self and it. The congestion in by criminal case mandated respect involved was with to an undercover County, designed meet Polk buy. This type ap of artifice has been 795.2, requirements of speedy trial Leonard, proved by our court. Iowa Code. Civil Liberties Union v. Critel State Tomlin li, supra, 244 N.W.2d at 570. That enact son, (Iowa 1976) (“We represented statutory imple ment in turn upheld right of the State to en speedy-trial provisions mentation of the gage in artifice stratagem appre the federal and state constitutions. State those engaged hend in criminal activity”). Satterfield, 257 Iowa (1965). Defendant additionally asserts the evidence seized should have been excluded In Critelli we open noted the rule’s “immediate”, because search was not ing creates exception permitting clause “an Code, 751.6, The nor was warrant § suspension good of the rule for cause.” 244 “forthwith”, .751.8, executed The Code. § 569-570. Defendant did not uti legislature That the foresaw circumstanc- escape lize this valve. He made no effort might require flexibility some is es disclosed any timely show the court excuse for not to provision chapter: another of the same filing the motion suppress. to Under these circumstances, we right hold he waived his “751.12 Return of warrant. A search hearing to and to have this sup warrant must be executed and returned pressed prior magistrate to trial. The motion was it who issued within ten properly days expiration denied. after its date. After the warrant, of such time the exe- unless brief, charitably But defendant’s inter- cuted, is void.” additionally preted, contends trial court objections his should have sustained A proper search warrant is issued when a showing the evidence obtained in the search. The magistrate is made before a that raise, does not nor are required probable we cause exists to believe 751.3 § reach, the issue whether property kept premises in to be or grounds objection 751.5, as assert the same searched. See The Code. Where alleged grounds untimely warrant, in his motion delay executing there is suppress. We danger change examine the merits of de- there is a the situation will objections. fendant’s supported so that circumstances which probable magistrate’s determination of alleges entrance into the longer cause will no exist. fraud, stealth, ruse, premises gained by subterfuge. hand, artifice and He argues the re- the other most courts On confront- sulting search was statutory invalid under Amend- with the “forthwith” and ed “im- Constitution, citing ment United States language have seasoned their in- mediate” case the evidence was not admit- this pragmatism. awith dash of terpretations ignore as ted and was admonished to interpreted requir- been terms have Such time, it. de- within reasonable ing service facts and circumstances pending on the though even argues See, g., e. United v. Har- case. States each admitted, not evidence was it so fla (5 1971); 1043-1044 Cir. 450 F.2d

per, prejudicial he was entitled to a grantly States, F.2d Spinelli United persuaded. We are not so Not all mistrial. 1967), grounds, on other (8 rev’d Cir. trial. entitles defendant a new conduct 584, 21 L.Ed.2d 637 89 S.Ct. U.S. such his trial proportions reach that must Cromer, 313 (1969); Commonwealth Hansen, an unfair one. State v. becomes (Mass.1974). N.E.2d (Iowa 1975); us, the officers were In the case before Carey, 165 N.W.2d minutes, required time delayed only 45 A has a trial court wide discre unanticipated drug buy. Execution for an granting denying or a motion for a destroyed would have of the warrant only mistrial. We intervene where this dis delay We hold the was rea- opportunity. cretion is abused. Abuse discretion subject and the evidence was sonable when only it is demonstrated that shown ground. on this exclusion grounds such exercised on discretion was for reasons untenable or to an ex clearly misconduct III. Prosecutorial Brewer, clearly tent unreasonable. State v. Defendant asserts trial court erred in overruling two motions for mistrial. Blackwell, 131, 138 The first motion for mistrial followed prose While do not condone the prosecutor concern- questions asked instance, this we do persistence cutor’s marijuana stems stalks ing found not find trial court abused its discretion persons during the of third search bedrooms overruling the mistrial motion. above ma- attempted introduction second mistrial motion was based into Trial court sustained terial evidence. closing alleged prosecutorial misconduct in objections questions concern- defendant’s argument. ing this material admonished the argument Prosecutor commented disregard it. defend- thought the evidence showed what the places While defendant characterizes ant’s business was. He also made a com- persons’ material was found as “third into turning ment about the defendant back bedrooms”, place at another in his one brief community. arguments the The were not persons is as a designated these “room- of reported and the record is obscure. Trial person One such had moved from mate”. thought proper the comments were in is a inference house. There clear in the the response argument. to defense counsel's testimony per- had control over defendant concerning The statement defend person’s property located in this “bed- sonal the evi had a foundation in ant’s business it to move a new room” and intended arguably and was relevant on dence location. which intent to deliver issue of defendant’s per- argues evidence of third required posses was to show ordinarily offense not rele- crime or son’s sion accused, guilt to the issue vant should 517, comment that citing Oppedal, 232 The State v. N.W.2d returning (Iowa 1975) about Harper, be concerned and State 520-524 not as 450, community improper, but 452 should was 222 N.W.2d noted, however, inflammatory as the comments in State reversal those cases be 1975) (Iowa Monroe, 30 236 N.W.2d resulted from admission Vickroy, N.W.2d 751 prejudical. irrelevant and plainly which was merely asked if he an always opinion; Such misconduct does not had not defendant was denied a mean fair trial or opinion what was. See Harrison v. trial court in overruling Ulicki, erred a mis- Brewer, supra, trial motion. State v. Scheetz, ex rel. Fulton v. 214-216; Hall, (Iowa 1969). Further, the issue upon raises here is based alleged trial court overruling objection, error in our Applying above rules for review of in overruling not the motion to strike. denying motion, court’s action in we find no reversible error here. But it is apparent prosecution, also an gild lily, ill-advised effort expert

IV. Admission of testimony. attempting to testimony elicit in an area we During direct examination a indicated experts of- was forbidden to M.A.N.S. at least asked, ficer was you opinion have an four months before this trial. Op State v. “[D]o as to or not the pedal, supra. whether of five pounds marijuana is normal personal We are required not in this case to use or would it be considered for distribu- determine objection whether should Objection tive use?” was made this was have been Assuming ruling sustained. proper subject expert testimony, wrong, we conclude this instance qualified, invading province witness not nothing there was prejudicial so as to con objection jury. was overruled. stitute reversible error. following episode then occurred: Examining precedents, case May “A. I speak prosecutor to the for a place to one side involving those decisions minute? constitutional errors. The harmless consti object “MR. MILLER: I to any colloquy rule, tutional error well articulated in State they proceed conversation ask that Blackwell, 136-137 a normal form. (Iowa 1976) Lanphear, and State v. Starr) “Q. (by Mr. youDo remember the (Iowa 1974), holds that to question? affirm a conviction the court must be able Yes, A. sir. declare a belief the error was harmless “Q. you Would answer? beyond a reasonable doubt. In Blackwell objection] [No Lanphear we held constitutional errors A. I have been in situations where a Compare Nelson, harmless. pound or more would be far in excess of However,— personal one’s use. alleged Defendant does not assert “MR. I MILLER: move to strike that error in this case assumes constitutional responsive. answer as not Any further dimensions. We apply stringent thus a less explanation beyond would be ques- rule to determine ruling whether a on ad- tion, your honor.” prejudicial: mission of evidence was Does it Trial court admonished the witness to sufficiently appear rights that the no further and answer overruled the motion complaining party have injuriously been af- to strike. by fected the error or that he has suffered a miscarriage justice? Mayhew, State v. ruling

Defendant contends trial court’s 608, (Iowa 1969); 170 N.W.2d 619 error, v. State citing Ogg, was State v. 243 N.W.2d Johnson, 690, (Iowa 219 620, (Iowa N.W.2d 698-699 1976) 621 Oppedal, v. State 1974); Parker, see United States v. 491 supra, 232 F.2d N.W.2d also v. See State 517, (8th 1973); Pilcher, 524 Cir. Nimmo, State v. 247 N.W.2d 228 State 367, (Iowa 242 N.W.2d 371 Swartz, 1976); 553, 244 v. N.W.2d 555 Mattingly, 865, 220 N.W.2d 869 Ordinarily defendant’s contentions could easily by be resolved simply noting the ancillary ob- An rule is involved in de jection premature. was termining witness was rights whether defendant’s

108 scrutiny: place testimony At in did by incident under no his extensive injured the been prej not possession claim claim he was of this ordinarily, defendant is marijuana the otherwise personal same evidence for his use. The evi- udice where over or is made supplied by overwhelmingly the defendant he dence disclosed intended v. the whelmingly it, clear in record. State sell did. convicted him (Iowa 1976) 887, Leonard, 891 delivery, charge upon the second which evidence is not admission of (“Ordinarily being was tried. We find in this in- he is of matters when the evidence prejudicial injuriously case not stance was defendant’s defendant”); v. Jur by the State conceded by alleged error, affected nor did it (Iowa 1975) 310, 312 genson, 225 N.W.2d miscarriage justice. in a result is not in the of evidence (“[EJrror admission rules, record On this and under above ev substantially where same prejudicial prejudiced by defendant was we hold not objection”); without is in record idence question the controverted and answer. 855, (Iowa Dykers, 239 N.W.2d 858 v. State 1208, Billberg, 1976); 229 Iowa v. State Objections V. instructions. 396, v. (1941); 400 296 N.W. State objected to the words “normal Anderson, 405 154 Iowa N.W. law-abiding” (person) entrapment in- Hall, (1912); see State given by requested the court. His struction (Iowa Johnson, 1975); instruction eliminated those words. Of phrase approved course us, plain Turning to the issue before it is Mullen, (Iowa 1974), is offending in- question and the rather “normally law-abiding person”, but defend- might nocuous volunteer answer tend assign not this error. ant does distinction as marijua- defendant’s show A similar attack was made Leon- in State v. intent to deliver to others and na was with ard, (Iowa 1976), but we unquestiona- use. It personal not for unsup- refused to consider it because it was injected purpose. case bly into the any ported by authority. Reyn- In State v. Ogg, See olds, supra, 250 N.W.2d at we have 1976) (“Ordinarily possession drugs (Iowa adversely disposed of defendant’s conten- personal delivery use or for either for tion. Quite obviously Officer Zimmer- others. convey was intended to man’s answer Defendant contends the instruction guilty idea defendant was of the latter language should have contained additional former”). rather than specifically predis eliminate defendant’s position as a factor to be considered However, overwhelming evi- there was jury. incorporated The instruction the ob posses- that defendant’s dence in this case test of Failure to include jective Mullen. undis- sion was with intent deliver. requested not language error. See marijuana to sell to the he offered puted Pelelo, policemen pound. He undercover brought his “stash” and back five went to dumping them on the floor from pounds, argues Finally, garbage bag for green them make limiting entrapment in court erred pound. per at $140 selection delivery charge to the struction reject readily purchased including possession charge. We admitted because, view, de marijuana He contention in our Minnesota. asserted carry gener of would not sold it these did not his burden he to unknown fendant question on of high marijua- ating he fact the defense persons if had not been a readily entrapment. Cooper, v. na five bottles of He State and beer. Tomlinson, (Iowa 1976); weighed had of the mari- State some conceded viewing bags tags supra, 243 at 553. When juana into with attached “lids” — light in favorable to most weight. to show the defendant, Intent to deliver is an essential Cooper, supra, element the evidence permissible charge possession all of of inferences at most dis a of a controlled policemen undercover with intent to deliver making buy closed substance under 204.401(1), The upon Permitting from defendant the assurance Code. a wit- friendly testify to were his “roommate” and ordi that a possessed ness narily bought drugs drug their with intent from him. This tantamount deliver is by a wide mark ap permitting express opin- misses evidence of an witness to an personal friendship” based on “close ion on the issue or peal guilt of the defendant’s Mullen, supra, permit which we indicated in innocence. error testi- is such generate mony adequate objection. N.W.2d at a jury would issue. over State v. Instigations per which would only Ogg, induce engaged Oppedal,

son in an habitual course unlaw of State gain profit ful conduct for or do not consti Leonard, entrapment. supra, tute Although majority does not decide

243 N.W.2d 80. issue, objection I ade- think the Because on this record trial court was not quate preserve present error in the case. required to any entrapment submit instruc- It was neither nor untime- deficient form tion, failure given of the instruction to in- ly-

clude possession charge could not consti- objection an is if it The form of sufficient tute error. alerts the principle sought trial court to the We have arguments examined all other Nimmo, to be invoked. by advanced in the various divi- objection here sions of his brief and find them to be with- challenged improper the evidence as “an out merit. Defendant was accorded a fair subject expert of testimony.” This is the judgment trial and of the trial court is objection Op approved form of State v. affirmed. supra, pedal, 232 N.W.2d at

AFFIRMED. Moreover, objection the timing of the approved Oppedal. was the same as

here McCORMICK, demonstrated, All except Justices concur the answer of the witness As J., dissents, joined who question MASON and was not clear from the that the it RAWLINGS, JJ. “yes” himself to a witness should limit was he instructed to do “no” answer. Nor

REES, J., part. takes no Furthermore, majority’s suggestion so. objection may premature have been McCORMICK, (dissenting). Justice no issue existed as on cases where rests agree I do not with the majority holding subject inquiry into the propriety in Division IV that it was harmless error subject Here the matter involved. matter receive, for the trial court to over defend- proscribed. Inquiry whether witness objection, ant’s opinion police of a offi- opinion subject an on such 'matter has regarding cer the intent with which defend- infirmity ques- the same as a afflicted ant possessed marijuana. seeking opinion to elicit the itself. Defendant was on trial for circumstances, objection was not these marijuana with intent to deliver as well as premature. delivery marijuana. plea His Ogg, principles Oppedal Under guilty put every controverted issue overruling trial court erred in defend- material allegation of each objection. ant’s Nelson, presumption The burden well settled that a prove was on the be- It is yond a arises from an erroneous every prejudice ruling reasonable doubt element of Monroe, crimes. The error is on evidence. reversible unless presumption is affirmatively rebutted

HO by Mattingly, the record. tend nor does the court find the evidence was insufficient on the intoxication issue in However, this case. the effect of the I do not presumption believe the holding deprive is to court’s the defendant present in the case. overcome The State’s of this defense as a matter of law. The “overwhelming” evidence is not unless the put place jury. court has itself in the jury chose to believe it. Much of it was doing In so the court has denied the defend- example, contradicted. For defendant de- ant the benefit of the presumption of inno- marijuana put nied he in individual cence, plea the effect of his of not addition, guilty, bags. on the issue of intent he right jury and his to have the decide wheth- offered substantial evidence that he was er the heavy prove the influence of alcohol State met its burden to marijua- under na on the occasion involved. the intent element. Whether he requisite had the intent was fighting Contrary to the majority, assertion possession charge. issue on the The trial I do not believe the record shows he was jury court instructed the accordingly. The neither injuriously jus- affected nor denied told the consider the-intoxica- tice the trial ruling. court’s erroneous in determining whether the I would reverse and remand for new proved intent element. We have recognized the availability of intoxication defense when it negate as a tends to one of RAWLINGS, JJ., which the prove join

the elements State must MASON guilt. Booth, establish dissent. In evaluating the

sufficiency of evidence to wheth- determine

er a issue exists on a matter of de-

fense, light we examine the evidence in its defendant,

most favorable to the not the Tomlinson,

State. The State does not con-

Case Details

Case Name: State v. Trudo

Court Name: Supreme Court of Iowa

Date Published: Apr 20, 1977

Citation: 253 N.W.2d 101

Docket Number: 59279

Court Abbreviation: Iowa