State v. Allen

• Decision Date: 18 June 1980
• Docket Number: No. 63565,63565
• Citation: 293 N.W.2d 16
• Parties: STATE of Iowa, Appellee, v. Robert Arthur ALLEN, Appellant.
• Court: Iowa Supreme Court

Page 16

293 N.W.2d 16

STATE of Iowa, Appellee, v. Robert Arthur ALLEN, Appellant.

No. 63565.

Supreme Court of Iowa.

June 18, 1980.

C. A. Frerichs of Fulton, Frerichs, Nutting, Martin & Andres, P. C., Waterloo, for appellant.

Thomas J. Miller, Atty. Gen., Shirley Ann Steffe, Asst. Atty. Gen., and David H. Correll, Black Hawk County Atty., for appellee.

Considered by LeGRAND, P. J., and UHLENHOPP, McCORMICK, ALLBEE and McGIVERIN, JJ.

ALLBEE, Justice.

In this appeal we consider the procedure that should be followed in resolving objections by criminal defendants to venue, or the place of trial.

Defendant Robert Arthur Allen was charged with delivery of cocaine, possession with intent to deliver marijuana and possession of amphetamines, respectively violations of sections 204.401(1)(a), (1)(b), (3), Supplement to the Code 1977. As he waived his right to a trial by jury, the case was tried by trial judge. Defendant was convicted of delivery of cocaine, possession of marijuana and possession of amphetamines. His appeal challenges only his conviction for delivery of cocaine.

As grounds for reversal, defendant asserts (1) the insufficiency of proof that the crime occurred in Black Hawk County; (2) the insufficiency of evidence to corroborate his confession of the crime, as required by Iowa R.Crim.P. 20(4) and (3) the impropriety of admitting certain evidence. Because we hold for defendant on the first ground, concerning venue, we do not consider the others.

The venue issue was first raised by defendant's filing, before trial, a written objection to Black Hawk County as the place of trial. The matter was not resolved until after trial, when trial court found in its findings of fact and conclusions of law that venue was properly laid in Black Hawk County.

The gist of the dispute between the parties on this issue is the significance of defendant's venue objection and the lack of a ruling upon his objection before trial. Defendant contends that by raising the issue of venue, proper venue became a jurisdictional fact which the State was required to prove beyond a reasonable doubt at trial. Because he believes the evidence adduced to meet that burden was insufficient, he urges that reversal is required. The State, on the other hand, asserts that venue is not a jurisdictional fact, but rather denotes only the place of trial. Accordingly, it argues that the State has no burden of proving proper venue at trial, regardless of the filing of a pretrial objection to the place of trial by the defendant. Also apparently immaterial, under its stance, is any alleged insufficiency of evidence of proper venue in this case as it does not comment upon the matter before this court. In its opinion, the only purpose of a pretrial venue objection is to force relocation of the prosecution. Its view would consequently require all defendants to obtain a ruling on venue objections before trial began or at least sometime before final judgment. See § 803.4, Supplement to the Code 1977 ("A conviction or acquittal of an offense in a court having jurisdiction thereof is a bar to a prosecution of the offense in another court.").

From these arguments, reversal issues arise: (1)When should an objection to venue be resolved? (2) Which party bears the burden of establishing the propriety or impropriety of the place of trial selected by the prosecution? and (3) What is the standard of proof which must be met?

1. Time of resolution of venue objection. The statutory provision regarding venue directly applicable in this case states, "Criminal actions shall be tried in the county in which the crime is committed, except as otherwise provided by law. All objections to place of trial are waived by a defendant unless the defendant objects thereto prior to trial." § 803.2, Supplement to the Code 1977. Presumably a ruling of some sort must follow defendant's venue objection or it would be a meaningless gesture. Yet, absent from the statute is any indication of how and when the ruling should be made. In order to give effect to section 803.2 and to facilitate the orderly disposition of venue issues, it is necessary to establish a procedure for ruling upon a defendant's pretrial objection to venue. Cf. State v. Iowa District Court, 286 N.W.2d 22 (Iowa 1979) (prescribing certain procedural guidelines for determining fees for attorneys appointed to represent indigent criminal defendants).

Considering first the time for ruling upon a defendant's venue objection, we conclude that the defendant must secure a ruling by the trial court before trial after the parties have had an opportunity for an evidentiary hearing or he waives the issue of improper venue. Absent an adverse ruling by the trial court, he may not seek appellate review of the issue. This holding is consistent with our previous decisions interpreting the effect of section 803.2 and with our criminal rules of procedure governing the determination of pretrial objections. It is also supported by policy considerations.

In State v. Donnelly, 242 N.W.2d 295 (Iowa 1976), we first examined the history and effect of section 753.2, The Code 1973, which was the same as section 803.2, Supplement to the Code 1977. We there noted that prior to the enactment of section 753 in 1972, the venue statute provided: "The local jurisdiction of the district court is of offenses committed within the county in which it is held, and of such other cases as may be provided by law." 242 N.W.2d at 296 (quoting § 753.2, The Code 1971). Under that provision, venue was considered "a jurisdictional fact put in issue by a plea of not guilty which the State must prove beyond a reasonable doubt as a vital ingredient of any prosecution." 242 N.W.2d at 297 (citations omitted).

Two substantive changes were determined to have been effected by the legislative revision in Donnelly. The first was the replacement of language making venue a jurisdictional fact with language simply stating where criminal actions shall be tried. Id. The second was the addition of a provision which automatically waived the right to assert the venue issue as error unless an objection to venue had been raised before trial. Id. at 297-98.

Later, in State v. Wedelstedt, 263 N.W.2d 894, 898 (Iowa), cert. denied, 439 U.S. 954, 99 S.Ct. 352, 58 L.Ed.2d 345 (1978), we characterized the overall impact of these changes as demoting the importance of the venue question. Finally, in State v. Hanna, 277 N.W.2d 605, 608 (Iowa 1979), we commented in dictum that the purpose of the waiver provision is "to require a pretrial determination of (the venue) issue by the trial court." Thus, while this issue has not previously been formally addressed by this court, our prior opinions certainly indicate no perceived statutory impediments to our current holding and, in one instance, suggest its propriety.

Our holding is also consistent with Iowa R.Crim.P. 10. The pretrial objection to place of trial required by section 803.2 is analogous to "(m)otions for change of venue" and arguably might be included in the class of "objections based on defects in the institution of the prosecution," which are both required by the rule to be raised prior to trial. See Iowa R. Crim.P. 10(2) (f), (2)(a). Rule 10(8) requires that determinations on pretrial motions, and plausibly objections as well, be reached "without unreasonable delay," and contemplates resolution of factual issues by the trial court by its provision that "(w)here factual issues are involved in determining a motion, the court shall state its essential findings on the record."

Another consideration affecting our decision is our determination in part III, infra, that venue need be established by only a preponderance of the evidence instead of by proof beyond a reasonable doubt. If resolution of the venue question were to be left to the jury at the conclusion of trial, the jury might well be confused by the different standards for evaluating different features of the State's case. See Model Penal Code § 1.13, Comment 1 (Tent. Draft No. 4, 1955).

The effect of our holding upon this case remains to be examined. During a pretrial conference, defendant called the attention of trial court and the State to its previously filed objection to place of trial. None of the individuals present at that conference then indicated any concern that the matter should be resolved before trial. To the contrary, the State intimated that it interpreted section 803.2 to impose upon it the burden of proving venue at trial, and trial court implicitly acquiesced in that interpretation. In keeping with this view of the statute, defendant renewed his venue objection during trial by means of a motion for judgment of acquittal, on which trial court reserved ruling until after trial, and after trial by means of a motion for new trial and arrest of judgment and a motion to amend or enlarge findings or conclusions, which asked the court to specify the facts it relied on in finding that the alleged delivery occurred in Black Hawk County.

In view of the working premise of all involved in the litigation that section 803.2 did not require pretrial resolution of the venue question and of the absence of such a requirement from the face of the statute, we decline to impose the requirement in this case. In order to afford fair notice of the time limit for securing rulings on venue objections here articulated, such limit shall apply only to cases in which the venue objection is raised after the date of filing of this opinion.

II. Burden of proving venue. We conclude that the State has the burden of proving venue. As the State is the party which selects the place of trial, it is only logical that it should be required to justify its selection if the issue of venue is properly raised. To hold otherwise would eviscerate the provision in section 803.2 that "(c)riminal actions shall be tried in the county in which the crime is committed." In cases where the trial court was in...