State v. Belieu, 63369

• Decision Date: 20 February 1980
• Docket Number: No. 63369,63369
• Parties: STATE of Iowa, Appellee, v. Franklin R. BELIEU, Appellant.
• Court: Iowa Supreme Court

Page 895

288 N.W.2d 895

STATE of Iowa, Appellee, v. Franklin R. BELIEU, Appellant.

No. 63369.

Supreme Court of Iowa.

Feb. 20, 1980.

Thomas R. Isaac of Slack & Isaac, Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., Jeanine Freeman, Asst. Atty. Gen., Dan Johnston, Polk County Atty., and Robert Blink, Asst. Polk County Atty., for appellee.

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

McCORMICK, Justice.

In this case of first impression involving Iowa R.Crim.P. 6(4), the determinative question is whether the trial court abused its discretion in overruling defendant Franklin R. Belieu's motions to sever his trial from that of two codefendants. We find an abuse of discretion and therefore reverse.

Iowa R.Crim.P. 6(4) provides in relevant part a. Multiple defendants. Two or more defendants may be charged in the same indictment, information, or complaint if they are alleged to have participated in the same act or the same transaction or occurrence out of which the offense or offenses arose. Such defendants may be charged in one or more counts together or separately, and all the defendants need not be charged in each count.

b. Prosecution and judgment. When an indictment charges a defendant with a felony, and the same indictment charges two or more defendants, those defendants jointly charged may be tried jointly, if in the discretion of the court a joint trial will not result in prejudice to one or more of the parties; otherwise the defendants shall be tried separately. Where jointly tried, each defendant shall be judged separately on each count.

Before adoption of the present criminal code, effective January 1, 1978, a defendant had an absolute right to a separate trial on most felony charges, including robbery. § 780.1, The Code 1977; State v. Berry, 247 N.W.2d 263, 264-65 (Iowa 1976). Since the adoption of rule 6(4) as part of the code revision, an accused is entitled to a separate trial as a matter of right when the court finds a joint trial would result in prejudice.

Rule 6(4)(a) is identical to Fed.R.Crim.P. 8(b). Rule 6(4)(b) is similar to Fed.R.Crim.P. 14, which provides:

If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the court may order the attorney for the government to deliver to the court for inspection in camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial.

Because of the similarities between the rules, federal court decisions which construe and apply the federal rule are persuasive although not conclusive authority for similar construction and application of the Iowa rule. See Hubbard v. State, 163 N.W.2d 904, 909 (Iowa 1969).

The question in the present case is whether the trial court correctly construed and applied rule 6(4) in overruling defendant's motions to sever his trial from that of codefendants. The record shows he made his initial motion before the trial started and renewed it several times thereafter.

Defendant and three other persons were charged with two counts of robbery in the first degree in violation of §§ 711.1, 711.2, The Code, based on the alleged robbery of the Neal Drugstore in Des Moines on October 26, 1978. Defendant was arraigned on December 4, 1978. A jury was selected to try defendant jointly with codefendants Tracy Philipson and David Randolph on February 16, 1979. Before the jury was sworn, defendant filed his first motion to sever his trial, alleging that his counsel had just learned the prior afternoon that codefendant Philipson would testify about other criminal offenses of defendant in connection with her defense of diminished responsibility. The motion was supported by counsel's affidavit. In its ruling, the trial court said: "I'm going to overrule the motion at this time, with leave to renew it at such time as any such prejudicial information is presented by any witnesses that would deprive Mr. Belieu of a fair trial, and I think the court has a duty to do that."

Defense counsel moved in limine to prohibit Philipson's counsel from referring to prior criminal activity in his opening statement. This motion was also overruled. When counsel for codefendant Randolph mentioned an alleged earlier offense of defendant in his opening statement, defendant's counsel renewed his motion to sever, and it was overruled again.

No question exists of the sufficiency of the State's evidence to convict. It tended to show that Randolph, accompanied by DeWayne DeBrouse, drove defendant and Tracy Philipson to a point near the Neal Drugstore during the morning of October 26, 1978. Defendant and Philipson donned ski masks and entered the drugstore. Each was armed with a pistol. They held store employees at gun point while defendant ordered one employee to fill a plastic bag with drugs and Philipson took money from the cash register. When the pair left the store, they returned to Randolph's car. They had only gotten two blocks away in the car when they were observed and the car was stopped by a police officer responding to the robbery report. Defendant was identified by a store employee at the scene of arrest as one of the robbers, and Philipson fit the description of the other. Defendant admitted his participation in the robbery on three occasions, once at the scene of arrest and twice later at the police station. Philipson also admitted her involvement and implicated defendant. The pistols, ski masks, and plastic bag containing drugs were found in the Randolph automobile.

The State did not offer any evidence of alleged prior criminal activity. That evidence was received during testimony of Randolph and Philipson as part of their defenses.

Randolph's theory of defense was that he took no part in the planning or execution of the robbery. He testified he drove defendant and Philipson to the vicinity of the drugstore as a favor because defendant's car had bad brakes and was nearly out of gas. He said he believed defendant and Philipson were merely going to visit a friend of Philipson's who lived in a house near where he dropped them off. He testified he had loaned defendant the pistols used in the robbery but had done so only to enable defendant and Philipson to protect themselves. Despite defendant's objection and renewed motion to sever, he was permitted to testify defendant and Philipson feared attack by a person from whom defendant had taken a TV set. He said he knew the day before the robbery that they intended to rob the drugstore but thought they had abandoned the plan when they could not rent a car for that purpose. He asserted he did not know otherwise until they returned to his car after the robbery. Randolph was permitted to testify, over defendant's objection and renewal of his motion to sever, that a day or two before the robbery defendant said he had once robbed the Ward Drugstore in Des Moines.

Philipson's theory of defense was that she was so dominated by defendant she lacked the capacity to form the necessary specific intent to rob. As part of her effort to demonstrate his dominance, she testified to three alleged prior crimes of defendant. Defense objections and a renewed motion to sever were overruled. One offense was the robbery of the Ward Drugstore, about which Philipson claimed defendant told her but in which she did not participate. The second was the theft of some jewelry from a truck stop approximately two and one-half weeks before the Neal robbery. She said she ate with defendant in the truck stop before the theft but waited in the car for him while he stole the jewelry. The third offense was a break-in of an apartment in which she accompanied defendant. It occurred a few days before the Neal robbery. She said defendant took a television set which he had sold to the occupant of the apartment, who had failed to pay the balance owed.

Both Randolph and Philipson testified without objection to constant and extensive drug usage by defendant and those around him. They portrayed a complex picture of drug purchases and sales, involving cash and barter transactions. From the afternoon of the prior day until the time of the Neal Drugstore robbery, the group smoked marijuana, injected themselves with amphetamines, and did not sleep.

Defendant's theory of defense was that he was under the influence of drugs during this entire time, was thus incapable of forming the specific intent necessary for robbery, and could remember nothing from the time he started taking drugs to celebrate his birthday four days earlier until the day after the robbery. He testified to that effect. He was nevertheless convicted, and this appeal followed.

No dispute exists that defendant preserved error on his contention the trial court erred in overruling his motions to sever. The disputed issues are, first, whether the motions to sever were timely, and, second, whether the trial court abused its discretion in overruling either the initial motion or the renewed motions.

I. The timeliness of the motions. Under Iowa R.Crim.P. rule 10(2)-(4) a request for severance is deemed waived unless filed before the earlier of thirty days after arraignment or prior to the impaneling of the trial jury, unless the court grants relief for good cause. When relief is not granted, noncompliance with the rule constitutes waiver of the motion. Rule 10(3); State v. Hobson, 284 N.W.2d 239, 241 (Iowa 1979). This rule is modeled on Fed.R.Crim.P. 12, with certain additions. See J. Yaeger & R. Carlson, 4 Iowa Practice: Criminal Law and Procedure § 1051, at 236 (1979).

Defendant sought to establish good cause through an affidavit in which his lawyer stated he learned...