State v. Trudo, 59279

Decision Date20 April 1977
Docket NumberNo. 59279,59279
PartiesSTATE of Iowa, Appellee, v. Rick E. TRUDO, Appellant.
CourtIowa Supreme Court

Philip F. Miller, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Richard H. Doyle, IV, Asst. Atty. Gen., and Ray A. Fenton, County Atty., for appellee.

Considered en banc.

REYNOLDSON, Justice.

Defendant was charged by separate county attorney informations with possession of marijuana and with delivery of marijuana, violations of § 204.401(1), The Code. These charges were consolidated by court order, and upon trial defendant was convicted and sentenced to imprisonment for two concurrent five-year terms. He appeals and we affirm.

There was strong evidence in the record from which the jury could have found the following facts.

On October 5, 1975, four officers of the Des Moines M.A.N.S. (Metropolitan Area Narcotics Squad) unit went to 1424 23rd Street, Des Moines, to execute a search warrant. Defendant was in the front yard talking to a neighbor. The officers told defendant they were looking for Frank (defendant's roommate) because they wanted to buy some marijuana from him. Defendant replied Frank had moved but he could handle anything they wanted because he was Frank's supplier.

Defendant invited the undercover policemen into the house where they negotiated a purchase of one pound of marijuana for $140. Defendant admitted leaving the house to retrieve five one-pound packages of marijuana from his "stash" in the bushes at the end of 24th Street. Upon his return he dumped these packages out of a green garbage bag onto the floor and told the officers to take their choice.

The policemen offered defendant two one-hundred-dollar bills. Defendant went upstairs for change, taking the remaining four bags of marijuana with him. Upon his return the money changed hands and he was then placed under arrest.

At this point, approximately 45 minutes after the officers arrived at the premises, they executed the search warrant and searched the premises. They recovered the four one-pound bags of marijuana and also found a quantity of other material and drug-related paraphernalia.

Upon this appeal defendant asserts trial court erred in consolidation of the charges for trial, overruling his motion to suppress evidence, admission of expert testimony, denial of his mistrial motions based on prosecutorial misconduct, and in the jury instructions. We consider these asserted errors in the divisions which follow.

I. Consolidation of charges.

Defendant asserts he was denied due process by trial court's ex parte, sua sponte order to consolidate for trial the charges contained in the two informations filed against him.

Defendant was charged in one information with possession of marijuana with intent to deliver and in a separate information with delivery of marijuana, both offenses under § 204.401(1), The Code. Both charges were set for trial on January 5, 1976.

The State filed a "Motion to Select Trial Charge" seeking permission to try the possession charge first. This motion was not resisted by defendant. Trial court denied the motion and sua sponte ordered a "joint trial".

Defendant argues due process requires a hearing before a trial court can decide the consolidation issue. Defendant relies on language in State v. Denato, 173 N.W.2d 576 (Iowa 1970). We note defendant, in district court, merely excepted to trial court's consolidation order. He never filed a motion for severance or requested a hearing. Neither below nor here does he attempt to show how he was prejudiced by the order he attacks.

In State v. Denato, supra, we were concerned with an ex parte order directing the State to disclose the identity of an informant. The factual determination which we there held necessitated a hearing is more onerous than the consolidation question which ordinarily may be resolved by a study of minutes of testimony already before the court.

It is clear the county attorney could have combined these two charges in a single information. Section 204.408, The Code. In that event, defendant would have been required to make a motion for severance. It would have been his burden to show his interest in receiving a fair trial uninfluenced by the prejudicial effects which could result from a joint trial outweighed the State's interest in judicial economy. See Smith v. United States, 357 F.2d 486, 489 (5 Cir. 1966).

Where, as here, the county attorney elects to file two separate informations on charges which could have been combined, we hold trial court, upon studying the informations and attached minutes of testimony, may apply the above balancing test and order the charges consolidated for trial. Of course, either the State or defendant may then file a severance motion and obtain a hearing thereon.

We adopt the procedure found in A.B.A. Standards Relating to Joinder and Severance § 3.1(a), at 46-47 (Approved Draft, 1968):

"3.1 Authority of court to act on own motion. (a) The court may order consolidation of two or more charges for trial if the offenses, and the defendants if there is more than one, could have been joined in a single charge.

(b) * * * "

See State v. Reynolds, 250 N.W.2d 434, 439 (Iowa 1977); 2 Wharton, Criminal Procedure § 302, at 149-154 (12th ed. C. Torcia 1975); Annot., 59 A.L.R.2d 841 (1958); §§ 773.37, 773.38, 773.42, The Code.

We find no trial court error with respect to the consolidation order.

II. Ruling on suppression motion.

December 24, 1975, defendant filed a motion to suppress, asserting, inter alia, the officers' entry on the premises was obtained through trickery and artifice and that they intentionally delayed execution of the warrant in violation of §§ 751.6 and 751.8, The Code.

Trial court entered an ex parte order overruling the motion because it was "untimely". District Court rule 26(F) required the motion to be filed within 17 days after arraignment. See Iowa Civil Liberties Union v. Critelli, 244 N.W.2d 564 (Iowa 1976), where we held the rule was not unconstitutionally vague, it did not deny equal protection, it did not violate a defendant's statutory rights, and district judges had common-law authority to adopt it.

Nonetheless, defendant first contends trial court, rather than overruling his motion ex parte on the basis of a local procedural rule, should have granted a Jackson v. Denno type hearing on the merits. See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). Failure to provide the hearing, he argues, violated his constitutional fair trial rights.

Defendant was arraigned November 12, 1975. He retained counsel (not his present attorney) on November 28, 1975. As we have indicated, the motion to suppress filed December 24, 1975 was overruled as untimely. When trial commenced January 5, 1976, defendant "excepted" to this ruling. He unsuccessfully objected to offers of exhibits found on the premises for the same reasons asserted in his motion and renewed the motion when the State rested.

Fifth judicial district rule 26[F], mandated by criminal case congestion in Polk County, was designed to meet the speedy trial requirements of § 795.2, The Code. Iowa Civil Liberties Union v. Critelli, supra, 244 N.W.2d at 570. That enactment in turn represented a statutory implementation of the speedy-trial provisions of the federal and state constitutions. State v. Satterfield, 257 Iowa 1193, 1195, 136 N.W.2d 257, 258 (1965).

In Critelli we noted the rule's opening clause creates "an exception permitting suspension of the rule for good cause." 244 N.W.2d at 569-570. Defendant did not utilize this escape valve. He made no effort to show the court any excuse for not timely filing the motion to suppress. Under these circumstances, we hold he waived his right to hearing and to have this evidence suppressed prior to trial. The motion was properly denied.

But defendant's brief, charitably interpreted, additionally contends trial court should have sustained his trial objections to the evidence obtained in the search. The State does not raise, nor are we required to reach, the issue whether defendant may assert as grounds for objection the same grounds alleged in his untimely motion to suppress. We examine the merits of defendant's objections.

Defendant alleges entrance into the premises was gained by fraud, stealth, ruse, artifice and subterfuge. He argues the resulting search was invalid under Amendment, 4, United States Constitution, citing Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921), and People v. Reeves, 61 Cal.2d 268, 38 Cal.Rptr. 1, 391 P.2d 393 (1964).

In both of those cases there was no search warrant and no reasonable grounds existed to search before the entry. The trickery involved was to gain entry for search purposes.

Those cases are distinguishable from the situation before us. Here the officers went to the premises armed with and intending to execute a search warrant. An opportunity to "make a buy" presented itself and they pursued it. The subterfuge involved was with respect to an undercover buy. This type of artifice has been approved by our court. State v. Leonard, 243 N.W.2d 75, 80 (Iowa 1976); State v. Tomlinson, 243 N.W.2d 551, 554 (Iowa 1976) ("We have upheld the right of the State to engage in artifice and stratagem to apprehend those engaged in criminal activity").

Defendant additionally asserts the evidence seized should have been excluded because the search was not "immediate", § 751.6, The Code, nor was the warrant executed "forthwith", § 751.8, The Code.

That the legislature foresaw circumstances might require some flexibility is disclosed by another provision of the same chapter:

"751.12 Return of warrant. A search warrant must be executed and returned to the magistrate who issued it within ten days after its date. After the expiration of such time the warrant, unless executed, is void."

A search warrant is issued when a proper showing is made before a magistrate that probable cause...

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