Opposition — Batten v. Iowa

- a tte

JUL 2% 1977

In The [mentee ous |,

Supreme Court of the United States

October Term, 1976

fy.

Vv

No. 76-1820

ray

Vv

JONATHAN W. BATTEN,

Petitioner,

Vs.

THE STATE OF IOWA,

Respondent.

ra’

V

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF IOWA

‘=

Vv

BRIEF FOR RESPONDENT IN OPPOSITION

RICHARD C. TURNER

Attorney General of Lowa

State Capitol

Des Moines, Iowa 50319

RAY SULLINS

Assistant Attorney General

State Capitol

Des Moines, Iowa 50319

Attorneys for Respondeni

COCKLE PRINTING CO., 1822 St. Mary’s Ave., Omaha

TABLE OF CONTENTS

Pages

EF Ss RR ee MR SE AE IRE Sad 1

SR ed ATT: Ni te RE ES Is OR

RIT re ev OOM SENET Oe EN 2

aC

PS IR ITER ETE Oe OE Oh, See eee 5

REIIIIIIINL. iis os sadiienescossssadiclnd tedadiastssacetaaniehsaagiciintepioabinaniiliabian 16

CITATIONS

CAasEs:

Bruton v. United States, 391 U.S. 123 (1968) ............. 7, 8,12

Cupp v. Naughton, 414 U.S. 141 (1973) —........ 7, 10, 11, 12

Donnelly v. De Christiforo, 416 U.S. 637

ICU © <sesiceloeccaeinuaistacnhadi lies tepsdidenreteithasetiilaiebilinilhios 7, 10, 11, 12

Frazier v. Cupp, 394 U.S. 731 (1969) .... 9, 10

Griffin v. California, 380 U.S. 609, reh. denied

PN PEIN celal shh sipstbiiihitceildttami 14

Henry v. Mississippi, 380 U.S. 443, reh. denied

ee Br ke UE dctisiin leusibicdonncaamocenaiene sendbiomaaivhelt 13

Hopt v. Utah, 120 U.S. 480 (1887) 2000. LOT. 8, 9

Leonard v. United States, 386 F. 2d 423 (5th Cir.

Lutwak v. United States, 344 U.S. 604 (1953) .............. 7

McGautha v. California, 402 U.S. 183 (1971) ................ 15

State v. Batten, 249 N. W. 2d 865 (Iowa 1977) WW. 1

ii

CITATIONS—Continued

Pages

Cases—Continued :

State v. Kramer, 231 N. W. 2d 874 (Lowa 1974) a ae

State v. Lyon, 223 N. W. 2d 193 (Iowa 1974) 00. 13

United States v. Anderson, 509 F.2d 213 (D.C.

Cir. 1974), cert. denied 420 U.S. 991 (1975)... 5

United States v. Boerner, 508 F.2d 1064 (5th

Cir. 1975), cert. denied 421 U.S. 1013 (1975) 0 11

United States v. Johnson, 327 U.S. 106 (1946) ........... 5, 6

United States v. Jones, 491 F.2d 526 (8th Cir.

1973), cert. denied 417 U.S. 970 (1974) 0. 11

United States v. Kidd, 446 F. 2d 1385 (5th Cir. 1971) 11

United States v. Resnick, 448 F. 2d 1165 (5th Cir.

1974), cert. denied 416 U.S. 991 (1974) 11

United States v. Rines, 453 F.2d 878 (3rd Cir. 1971) 11

United States v. Sarvis, 523 F. 2d 1177 (D.C. Cir.

United States v. Snow, 521 F.2d 730 (9th Cir.

1975), cert. denied 423 U.S. 1090 (1976) 000 Ld

Williams v. Florida, 399 U.S. 78 (1970) 00000. 14, 15

CoNSTITUTIONAL AND STatTuTORY PROVISIONS:

Amendment V, United States Constitution. ............. 2,14, 15

Amendment XIV, 41, United States Constitution ....... 2

Section 204.401 (1) (a), 1973 Code of Towa ooo 3

Section 787.3, 1977 Code of Towa .....ccccccccccsccsccnecmsmmae OO

meee ery oe

i a

RT rm

ili

CITATIONS—Continued

Pages

MISCELLANEOUS:

Rule 33, Federal Rules of Criminal Procedure .............. 5

Rule 19, Rules of the United States Supreme Court ..... 17

In The

Supreme Court of the United States

October Term, 1976

fay

Vv

No. 76-1820

ray

Vv

JONATHAN W. BATTEN,

Petitioner,

vs.

THE STATE OF IOWA,

Respondent.

ral

Vv

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF IOWA

ray

Vv

BRIEF FOR RESPONDENT IN OPPOSITION

fa’

—

OPINION BELOW

The opinion of the Iowa Supreme Court, State v.

Batten, 249 N. W. 2d 865 (Iowa 1977), is set forth in the

Appendix to the Petition.

ray

Vv

JURISDICTION

The jurisdictional requisites are adequately set forth

in Paragraph 2 of the Petition.

2

QUESTIONS PRESENTED

1. Was Petitioner denied a fair and impartial trial

as guaranteed by the Due Process Clause of the Four-

teenth Amendment to the United States Constitution

because of the reference to Petitioner’s alleged prior

criminal activities by a prosecution witness at his trial

and because of the trial court’s denial of Petitioner’s

motion for a new trial?

2. Was Petitioner compelled to be a witness against

himself in violation of the Firth Amendment to the United

States Constitution by the ruling of the trial court on

Petitioner’s motion for a mistrial following the reference

to Petitioner’s alleged prior criminal activities by a prose-

cution witness?

STATEMENT OF THE CASE

On the evening of June 5, 1974, Petitioner contacted

one Miss Christine Cox and asked her if she desired to

purchase some heroin. Miss Cox reported this contact

to police the following day, and was given one hundred

dollars by officers of the Davenport, Lowa, Police Depart-

ment with which to purchase a quantity of heroin. Miss

Cox returned to Petitioner’s house, under police survei!-

lance, and gave him the money.

As Miss Cox was leaving Petitioner’s residence, one

Mimi Ehrler arrived, and both women went into Peti-

tioner’s house. Miss Cox reported to the surveillance

officers that Petitioner gave the $100 to Mrs. Ehrler and

a

3

then called his wife at work, telling her to give Mrs.

Ehrler another $100 when Ehrler arrived. Mrs. Ehrler

reported to Miss Cox and Petitioner that her husband

Steve would not make the trip to Chicago to pick up the

heroin, but rather a man named Bill would do so. Con-

tinued police surveillance of Mrs. Ehrler led to the ob-

servation of a meeting between Ehrler and Petitioner’s

wife and a trip by Mrs. Ehrier to the residence of a Bill

Logel. Later in the evening of June 7. 1974, Mrs. Ehrler

and Mr. Logel were seen in Mrs. Ebrler’s car headed

toward Chicago on Interstate 80.

Miss Cox met Petitioner in the early morning of

June 8, 1974, and was told, in a conversation overheard

by police by means of a transmitter on Miss Cox’ body,

that the heroin would arrive later that morning and that

she could pick it up at his house.

At about 3:00 a.m., police observed the Ehrler ve-

hicle pull up to the rear of the Ehrler residence. The

three occupants of the vehicle were placed under arrest

and were searched. Quantities of heroin were discovered

in the purses of Mrs. Ehrler and Mrs. Logel and in the

Ehrler vehicle. As this search was being conducted, an

automobile operated by Petitioner pulled into the drive-

way behind the Ehrler vehicle. Police informed Peti-

tioner that he was under arrest. Petitioner attempted to

back out of the driveway and leave. Police officers

stopped Petitioner at gunpoint and placed him in custody.

Petitioner was charged by County Attorney’s In-

formation with the crime of conspiracy to possess a con-

trolled substance with intent to deliver in violation of

Iowa Code Section 204.401 (1) (a) (1973). Prior to his

trial, Petitioner filed a motion in limine asking that no

mention of, or reference to, his prior felony convictions

be made by the County Attorney. Trial court entered an

order to that effect. On defense motion, this order was

amended to prohibit witnesses for the State from offering

testimony as to Petitioner’s prior use of, or association

with, illegal drugs.

Upon voir dire examination of the jurors and in his

opening statement to the jury, Petitioner’s counsel indi-

cated that Petitioner would testify on his own behalf; that

the trial would essentially be a credibility contest between

the State’s main witness, Miss Christine Cox, and Peti-

tioner.

The State’s first witness, Miss Cox, in response to

question about her possible prior heroin use, stated that

she had used it ‘‘a couple of times with John Batten

[Petitioner].’’ Upon defense counsel’s objection, the trial

court ordered the response stricken from the record and

instructed the jury to disregard it. A motion for a mis-

trial was denied out of the hearing of the jury. Miss Cox’

account of the events of June 6 to June 8, 1974, was

corroborated by the testimony of four law enforcement

agents.

After the State rested, defense counsel moved for

a directed verdict, and the motion was denied. The de-

fense then presented the testimony of six witnesses and

the Petitioner to support the defense theory that Petitioner

was merely on the scene of the arrest to repay money

which he owed the Ehrlers for a ear which they had pur-

we er

en eS oe me Re

5)

chased from him but had been repossessed by a creditor

of a prior owner.

The jury returned a verdict of guilty, and Petitioner

moved for a new trial on the basis of Miss Cox’ remark

about his prior heroin use. This motion was denied on

June 25, 1975, after a hearing.

Petitioner was sentenced to be imprisoned for not

more than ten years at the lowa Men’s Reformatory and

to pay a fine of one thousand dollars.

The lowa Supreme Court affirmed Petitioner’s con-

viction in a per curiam opinion which is reprinted in the

Appendix to the Petition.

ARGUMENT

A trial court has broad discretion in ruling upon a

motion for a new tria! under both Lowa and federal law.

State v. Kramer, 231 N. W.2d 874 (Iowa 1975); United

States v. Johnson, 327 U.S. 106 (1946); United States v.

Anderson, 509 F.2d 312 (D.C. Cir. 1974), cert. denied

420 U.S. 991 (1975). See lowa Code Section 787.3 (8)

(1977); Rule 33, Federal Rules of Criminal Procedure.

Sound policy underlies such a view. The trial judge has

personal familiarity with the evidence and conduct of the

trial and is in a far better position to decide the mixed

factual and legal questions involved in issues of prejudice

and newly-discovered evidence. Therefore, the deter-

minations of the trial court are entitled to great weight

in an appellate proceeding.

6

Application of this principle to the present case re-

quires denial of the petition for a writ of certiorari. The

Scott County District Court, Honorable Lowell D. Phelps,

Judge, denied Petitioner’s motion for a mistrial, stating:

‘‘The Court at this time, after due consideration, has

determined that the statement was not too prejudicial

to the defendant that a mistrial should be declared.’’

(R. p. 81).

In denying Petitioner’s motion for a new trial the

Court stated:

‘“‘This maiter was taken up by defense counsel im-

mediately after the statement was made, and the

Court at that time, on due consideration, concluded

that the statement was not so prejudicial to defend-

ant as to require a mistrial. The Court at the time

the statement was made sustained the objection to

strike it from the record and at that time instructed

the jury to completely ignore the statement. At the

time it was the feeling of the Court that this did

amply protect the defendant and as the case developed

the Court had no reason to change its feeling in that

matter, and at this time does not feel that the state-

ment by Christine Cox was of such a prejudicial na-

ture that it required a mistrial, especially in view of

the fact that the Court instructed the jury to com-

pletely disregard it.” (R. p. 424).

Petitioner merely asks this Court to substitute its

judgment on the largely factual question of the existence

of prejudice for that of the trial judge, something which

this Court should only do if there is no support in the

record for the decision of the trial court. See United

States v. Johnson, supra. The State of Iowa contends that

the judgment of the trial court was correct and was sup-

ported by the record.

In evaluating the decision, it is important to remain

cognizant of the principle that a defendant is not entitled

to a perfect trial, but a fair one. Bruton v. United States,

391 U. S. 123, 1385 (1968); Lutwak v. United States, 344

U. S. 604, 619 (1953). As the Fifth Cireuit Court of Ap-

peals stated in Leonard v. United States, 386 F. 2d 423,

425 (Sth Cir. 1967). ‘*The Constitution does not require

error-free trials; it requires fair trials. The distinction

is vital as long as human beings participate... .’’ This

Court has noted that error will creep into virtually every

trial. Bruton v. United States, supra at 135.

It is equally necessary to be aware that Petitioner

seeks review in this Court, as he must, under the Due

Process Clause, not under the broad supervisory powers

of this Court over the federal judicial system. This dis-

tinction is significant, since not every error that might be

sufficient for reversal under the supervisory power is suf-

ficient to constitute a due process violation. Donnelly v.

De Chrisiforo, 416 U. S. 637, 642 (1974). ‘‘Before a

federal court may overturn a conviction resulting from a

state trial ..., it must be established not merely that

the [act complained of] is undesirable, erroneous, or even

‘universally condemned,’ but that it violated some right

which was guaranteed to the defendant by the Fourteenth

Amendment.’’ Cupp v. Naughtun, 414 U. S. 141, 146

(1973). Respondent contends that any error which may

have occurred in Petitioner’s trial was not sufficient to

reach the level of a denial of due process.

The practice of striking offensive testimony from the

record and admonishing the jury to ignore it, followed by

the trial court in this case, has been recognized as normally

being sufficient to cure any error which may have resulted

8

from the admission of such testimony. As this Court

stated in Hopt v. Utah, 120 U. 8. 480, 488 (1887):

**It is true, in some instances, there may be such

strong impressions made upon the minds of a jury by

illegal and improper testimony, that its subsequent

withdrawal from the case will not remove the effect

caused by its admission; and in that case the original

objection may prevail on writ of error. But such in-

stances are exceptional. The trial of a case is not to

be suspended, the jury discharged, a new one sum-

moned, and the evidence retaken, when an error in

the admission of testimony can be corrected by its with-

drawal with proper instructions from the court to dis-

regard it.’’

This view was reaffirmed in Bruton v. United States,

supra at 134, where this Court acknowledged:

‘*Not every admission of inadmissible hearsay or

other evidence can be considered reversible error un-

avoidable through limiting instructions; instances oc-

cur in almost every trial where inadmissible evidence

creeps in, usually inadvertenily. ... It is not un-

reasonable to conclude that in many such cases the

jury can and will follow the trial judge’s instructions

to disregard such information.’’

Examination of cases decided by this Court reveals

that this is such a case. In Hopt v. Utah, supra, the prose-

cuter in a murder trial asked a physician on direct exami-

nation from which direction the fatal blow was delivered.

Defense counsel objected on the ground that this was a

jury question, but the objection was overruled. The doctor

then testified that the blow was struck in such a manner

as to incriminate the defendant, who was left-handed. The

following morning the prosecutor moved the court to strike

the testimony and to admonish the jury to disregard it.

The motion was granted, and the instruction given. On

9

appeal, this Court held that the testimony was proper as

giving an expert opinion, but also held that even if it were

not the withdrawal of the evidence and the instruction to

the jury was sufficient to have cured any error. Surely

Hopt requires denial of the petition in the instant case

where the offensive testimony did not tend to establish the

defendant’s guilt for the crime charged and the withdrawal

and curative instruction occurred immediately upon the ad-

mission of the prohibited testimony.

In Frazier v. Cupp, 394 U. S. 731 (1969), the prose-

eutor in his opening remarks summarized the expected

testimony of a co-defendant who had pleaded guilty but

had not yet been sentenced. Although the defense counsel

had warned of the possibility that the co-defendant might

refuse to testify, the prosecutor had sufficient reason to

believe he would. During this portion cf his opening state-

ment, the prosecutor referred to a paper which the State

conceded could have been interpreted by the jury as a

confession. At the close of the opening remarks, defense

counsel moved for a mistrial. The judge denied the mo-

tion but instructed the jury that the remarks were not

evidence and were not to be considered as such. When

the co-defendant was called to testify, he refused to an-

swer any questions, exercising his Fifth Amendment rights.

Defense counsel again moved for a mistrial, which motion

was again denied. This Court refused to allow a writ of

habeas corpus to issue, finding the instruction by the trial

judge sufficient to have cured any error. The remarks

were an objective summary of evidence which the prose-

cutor in good faith expected to produce. The statements

could be separated from the rest of the testimony, and

therefore no retrial was required.

10

The instant case is merely the other side of the Frazier

coin. The prosecutor was faced with a statement by a

witness which he in good faith had not expected. The

remark did not relate to the issue confronting the jury—

Petitioner’s guilt or innocence—and could, therefore, be

separated logically by the jurors from the rest of the testi-

mony. Frazier would seem to indicate that the funda-

mental fairness of Petitioner’s trial was not undermined

by comment of Miss Cox.

In Cupp v. Naughton, supra, this Court considered the

problem of a jury instruction which stated that the testi-

mony of a witness was to be presumed truthful, although

the presumption could be overcome in various ways. The

trial court also gave strong instructions on the burden of

proof beyond a reasonable doubt and on the subject of

the defendant’s right not to testify, which he had exer-

cised, and the impermissibility of drawing any inference

of guilt from this exercise. Acknowledging that the United

States Courts of Appeals had universally disapproved the

instruction under their supervisory powers, this Court re-

fused to release the habeas petitioner despite its use.

When the entire trial was examined, the Court found that

the strong instructions on burdens of proof and the right

not to testify were sufficient to vitiate whatever prejudice

may have resulted from a single, isolated instruction.

This same totality of circumstances test was applied

to improper comments by the prosecutor in his closing re-

marks in Donnelly v. De Christiforo, supra. The Court

found that the comments were, at best, arguably preju-

dicial, that a curative instruction was giveu immediately

by the trial judge, and that the comment was only a brief

part of the overall trial. These factors led the Court to

11

conclude that the comments did not so prejudice the de-

fendant as to constitute a due process violation, and the

habeas corpus petition was denied.

Naughton and De Christiforo clearly stand for the

proposition that an improper comment during the course

of the trial which by itself appears prejudicial may, in fact,

not violate due process rights where a curative instruction

is given and the comment is only a minor part of the trial

proceeding. This proposition requires denial of the peti-

tion in this case, since the improper remark by the witness

was only a minor part of the trial and the judge gave a

clear and immediate curative instruction.

The Cireuit Courts have frequently faced the problem

of inadmissible comment by a witness about prior criminal

activities of the defendant similar to that for which he

was being tried. Almost without exception, they have

affirmed the convictions when the comments were followed

by a curative instruction from the trial court. See, e.g.,

United States v. Boerner, 508 F. 2d 1064 (5th Cir. 1975),

cert. denied 421 U. S. 1013 (1975) (importation of illegal

aliens); United States v. Resnick, 488 F. 2d 1165 (5th Cir.

1974), cert denied 416 U. S. 991 (1974) (firearms sales

violations) ; United States v. Rines, 453 F. 2d 878 (3rd Cir.

1971) (bank robbery); United States v. Kidd, 446 F. 2d

1385 (5th Cir. 1971) (interstate transportation of forged

securities). Identical results have been obtained in trials

for violations of narcotics laws. See, e.g., United States

v. Snow, 521 F.2d 730 (9th Cir. 1975), cert. denied 423

U. S. 1090 (1976); United States v. Jones, 491 F. 2d 526

(9th Cir. 1973), cert. denied 417 U. S. 970 (1974). The

violation of a pre-trial order prohibiting the introduction

12

of such testimony does not alter the result. See United

States v. Sarvis, 523 F. 2d 1177 (D. C. Cir. 1975).

The general principle of these cases is that in applying

the totality of circumstances test of prejudice, see Naughton

and De Christiforo, supra, the major factors to be con-

sidered are the subjective intent of the prosecutor, the

strength of the government’s case independent of the of-

fending remark, and the presence or absence of a clear

instruction by the court to ignore the comment. Where

the prosecutor made a good faith effort to avoid the com-

ment, the government’s case was strong, and the judge

gave a clear and immediate instruction, the courts have

almost universally found an absence of prejudice. The

Respondent contends that the present case satisfies all

three criteria.

The prosecutor in this case did not attempt to elicit

any reference to Petitioner’s possible prior heroin usage.

He complied with the court’s order to instruct the State’s

witnesses not to mention the subject (R. p. 58). The ques-

tion was not designed to reveal such information. The

comment was merely an inadvertance, one of the instances

‘‘where inadmissible evidence creeps in.’’ Bruton v. United

States, swpra at 135. No prosecutorial bad faith can be

discovered on this record.

The State’s case against Petitioner was overwhelming.

Miss Cox, previously established as reliable in several

cases, testified as to a credible series of events linking

Petitioner to a conspiracy. The police officers corrobo-

rated this testimony, including electronic interception of

a conversation in which Petitioner stated that the heroin

would be delivered to his house and that several persons

13

were waiting there to purchase quantities of the drug.

As defense counsel indicated in his opening argument, the

trial was a credibility contest between these witnesses and

those of the defense. Petitioner simply lost that contest

and now seeks release on the basis of a brief comment by

a State witness, despite the trial court’s swift action to

remedy any prejudice which may have resulted.

The instruction to the jury was clear and immediate.

Upon hearing the objection and motion for mistrial by

defense counsel, the judge stated: ‘*The motion will be

taken under advisement. But I will strike the answer of

the witness from the record and ask the jury to disregard

the answer entirely.’”’ (R. pp. 56-57). No further instruc-

tion was requested by counsel and therefore any error in

the instruction cannot be complained of on direct appeal.

State v. Lyon, 223 N. W. 2d 193 (lowa 1974); Henry v.

Mississippi, 380 U.S. 443, reh. denied 380 U. S. 926 (1965).

The record substantiates the State’s claim that, in the

totality of circumstances, Petitioner was not denied a fair

trial. The inadvertent reference to his prior criminal ac-

tivity was only one brief moment in the trial, the jury

was immediately instructed to ignore the comment, and

both before and after the comment, the State’s case pro-

vided ample evidence upon which the jury could convict

Petitioner.

Petitioner also argues that as a result of the improper

comment he was compelled to testify, violating his Fifth

Amendment rights. To support this claim, he cites the

trial court’s statement in ruling on the motion for a mis-

trial that when Petitioner testified he could deny the alle-

gations of heroin usage if he desired. The State contends

14,

that in no meaningful sense of the word was petitioner

‘‘compelled’’ to testify by either the testimony itself or

the judge’s ruling on the motion for a mistrial.

In both the voir dire and his opening statement, de-

fense counsel had informed the jurors that, although not

required to do so, Petitioner intended to testify in his own

behalf (See R. p. 29). The judge merely relied upon these

statements in making his comments on the ruling (R. pp.

81-82). It is important to note that prior to any mention

of Petitioner’s own testimony, Judge Phelps indicated that

he did not consider the remarks prejudicial (R. p. 81).

The inference to be drawn from a reading of the entire

ruling is that the judge did not consider the remarks

prejudicial, but if Petitioner did he was free to deny them.

Petitioner’s testimony was not necessary to alleviate any

prejudice, and he was not ‘‘compelled’’ to take the stand.

The ruling by the judge was made in chambers, so that

any mention of Petitioner’s testifying occurred out of the

hearing of the jury. Therefore, any analogy to the cases

concerning comment to the jury on the defendant’s failure

to testify, eg. Griffin v. California, 380 U. S. 609, reh.

denied 381 U. 8. 957 (1965), is inappropriate.

As noted previously, the State produced a substantial

amount of evidence of Petitioner’s guilt independent of

the improper remark. The weight of this evidence was

certainly a stronger pressure upon Petitioner to testify

than was the brief remark about his prior criminal activi-

tics. This Court has acknowledged that such pressure may

occur, but has held that it is not compulsion within the

meaning of the Fifth Amendment. Williams v. Florida,

399 U. S. 78, 84 (1970). It is difficult to find the basis

15

for a credible claim of compulsion given the existence of

such strong, yet constitutional, pressure as was exerted by

the bulk of the State’s evidence.

The likelihood of impermissible compulsion is further

reduced by the Petitioner’s promise to the jury that he

would testify. Experienced counsel such as Petitioner’s

would recognize the possible negative psychological effect

upon the jurors of breaking such a promise. Thus, apart

from the fact that the promise belied any compulsion to

testify from outside sources, the promise itself became a

strong compelling force. This Court has held that defend-

ants are not constitutionally immunized from the po-

tentially disastrous effects of such tactical decisions.

McGautha v. California, 402 U. S. 183 (1971); Williams v.

Florida, supra. Petitioner and his counsel made such a

decision and should not now be allowed to eseape its con-

sequences because of a minor intervening factor which

could not have altered those consequences.

The compulsi to testify upon Petitioner resulting

from the improper comment of the government’s witness

was non-existent or, at most, minute when compared to

the pressures created by the weight of the rest of the

evidence and Petitioner’s promise to testify. Petitioner’s

Fifth Amendment rights were not violated by either the

witness’ remark or the judge’s ruling on the motion for

a mistrial, and the petition for a writ of certiorari should

be denied.

°

16

CONCLUSION

The trial court did not violate Petitioner’s due proc-

ess rights by denying his motion for a new trial or motion

for a mistrial. The reference to Petitioner’s prior drug

usage was brief and was not intentionally elicited by the

prosecutor. The remark was immediately stricken from

the record, and the jury was instructed to ignore it. Sub-

stantial evidence independent cf the remark was pre-

sented to prove Petitioner’s guilt. The trial judge ruled

at the time of the motion for a mistrial that the remark

was not prejudicial and reaffirmed his finding at the

conclusion of the trial. The record clearly establishes

that the trial court did not abuse its discretion in denying

the motion for a new trial.

The trial court did not compel Petitioner to be a

witness against himself by its ruling on the motion for a

mistrial. The court found the remark in question not

to be prejudicial and merely commented that Petitioner

could deny the allegations of prior criminal conduct if

he chose. Petitioner had indicated to the jury that he

would testify at the trial, and the court merely relied

upon these representations. Any pressure to testify

caused by the ruling pales into insignificance when com-

pared to the pressures created by the sheer weight of the

State’s evidence and the Petitioner’s own promise to the

jury that he would testify. In no meaningful sense of

the word was Petitioner compelled to take the witness

stand by the casual remark of the prosecution witness.

Although this Court has not previously considered

a case involving the factual situation presented by this

17

petition, the principles of due process and self-incrimina-

tion have been considered in analogous contexts, and this

Court has uniformly found no violation of either constitu-

tional provision. This is not truly a case ‘‘{w]here a

state court has decided a federal question of substance

not theretofore determined by this court, or has decided

it in a way probably not in accord with applicable deci-

sions of this court.” Rule 19, Rules of the United States

Supreme Court. Prior decisions of this Court have made

the result in Petitioner’s case clear. The petition for a

writ of certiorari should be denied.

Respectfully submitted,

RICHARD C. TURNER

Attorney General of lowa

State Capito!

Des Moines, lowa 50319

RAY SULLINS

Assistant Attorney General

State Capitol

Des Moines, lowa 50319

Attorneys for Respondent

18

CERTIFICATE OF SERVICE

I, Ray Sullins, Assistant Attorney General for the

State of Iowa, hereby certify that on the 20th day of

July, 1977, I mailed three (3) copies of Brief for Re-

spondent in Opposition, correct first class postage pre-

paid, to:

Loren Thomas Hora

404 Bayers Building

230 West Third Street

Davenport, Iowa 52801

I further certify that all parties required to be served

have been served.

RICHARD C. TURNER

Attorney General of Iowa

State Capitol

Des Moines, Towa 50319

RAY SULLINS

Assistant Attorney General

State Capitol

Des Moines, lowa 50319

Attorneys for Respondent