State v. Dague, 54941
| Citation | 206 N.W.2d 93 |
| Decision Date | 28 March 1973 |
| Docket Number | No. 54941,54941 |
| Parties | STATE of Iowa, Appellee, v. Tommy R. DAGUE, Appellant. |
| Court | United States State Supreme Court of Iowa |
Jerald W. Kinnamon and Jon M. Kinnamon, Platt Kinnamon & Kinnamon, Cedar Rapids, for appellant.
Richard C. Turner, Atty. Gen., Fred M. Haskins, Asst. Atty. Gen., and William G. Faches, County Atty., for appellee.
Heard before MOORE, C.J., and RAWLINGS, REES, REYNOLDSON and McCORMICK, JJ.
Defendant was convicted by jury and sentenced for selling stimulant and depressant drugs in violation of § 203A.3(1), The Code, 1971. He asserts trial court erred in overruling his pretrial motion for change of venue and in instructing on reasonable doubt. We affirm.
I. The motion for change of venue. The entire record bearing on defendant's motion for change of venue consists of the motion, four supporting affidavits, and trial court's ruling. Defendant alleged prejudice and excitement against him in Jackson County would prevent a fair trial there. He requested change of venue to Dubuque County.
In a supporting affidavit defendant alleged there existed rumor of his guilt, general belief in his guilt and substantial prejudice against him in Jackson County. Three residents of Maquoketa in Jackson County gave separate affidavits. Except for their names, the affidavits were identical. They averred defendant could not receive a fair trial in Jackson County because of widespread belief in his guilt and prejudice against him.
The State filed no affidavits in resistance. In its ruling trial court noted the motion was discussed but submitted without oral argument. There is no record of a request by either the State or defendant for additional hearing. Trial court overruled the motion without giving its reason.
Defendant maintains the affidavits must be taken as verities because there were no counter affidavits and no hearing was held. He asserts the motion and affidavits are converted from a Prima facie to a conclusive showing of grounds for change of venue where they constitute the only record for exercise of trial court discretion. We do not agree.
The movant has the burden to show entitlement to a change of venue. The motion must be decided by the trial court 'in the exercise of sound discretion * * * according to the very right of it.' § 778.9, The Code. What we said in State v. Loney, 163 N.W.2d 378, 383 (Iowa 1968) is equally applicable here:
The record does not show what was discussed when the motion was submitted for ruling. We have no basis to find either side desired further hearing. Certainly, there is no indication defendant was denied the right to present additional evidence or argument.
We view the record De novo in assessing the evidence to determine whether trial court discretion was abused in refusing a change of venue. The test is whether there is reasonable likelihood defendant could not receive a fair trial in Jackson County. Lloyd v. District Court of Scott County, 201 N.W.2d 720 (Iowa 1972).
The motion and affidavits in this case are couched in general terms. They contain no factual recital. We are given no hint as to the basis of the alleged community excitement and prejudice. No explanation is offered to show how such feelings were aroused in the county. Unlike most of our recent change of venue cases there is no suggestion here of pervasive or prejudicial pretrial publicity.
Generalities are permitted in the motion. § 778.6, The Code. Similar generalities are not acceptable in supporting affidavits. The general rule is stated in 22 C.J.S. Criminal Law § 206 at 537--538:
'While technical defects in the affidavits may be disregarded, they must state the facts or grounds for a...
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