Opposition — Trudo v. Iowa

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In The

Supreme Court of the United States

October Term, 1977

—

No. 77-106

fy

Vv

RICK E. TRUDO,

Petitioner,

vs.

THE STATE OF IOWA,

Respondent.

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PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF IOWA

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BRIEF FOR RESPONDENT IN OPPOSITION

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RICHARD C. TURNER

Attorney General of lowa

State Capitol

Des Moines, to wa 50319

RAY SULLINS

Assistant Attorney General

State Capitol

Des Moines, Iowa 50319

Attorneys for Respondent

COCKLE PRINTING CO., 1822 St. Marys Ave., Omaha

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TABLE OF CONTENTS

Opinion Below 0

Jurisdiction —

DS a eee

Statement of the Case

OER Ac RE TN ODD OSI Miche PVE

li EEA Ny OIE RE i cr Ot IPT

CITATIONS

Cases:

Baker v. United States, 401 F. 2d 958 (DC

NE oo ea ee

Blunt v. United States, 404 F. 2d 1283 (DC

Cir. 1968), cert denied 394 U. S. 909 (1968)

aos eee ee ee eew ener ceeerees coos

ssiictiaidaini i)

or

a 5, 6

Davis v. United States, 411 U. S. 233 (1973) 0. ~= 8

Estelle v. Williams, 425 U. S. 501 (1976)

Francis v. Henderson, 425 U. S. 526 (1976) ........ . 8

Henry v. Mississippi, 379 U. S. 443 (1965) a

Iowa Civil Liberties Union v. Critelli, 244

N. W. 2d 564 (Iowa 1976) 6, 7

Robinson v. United States, 459 F. 2d 847 (DC

A I eek ol

Segurola v. United States, 275 U. S. 106

RRS AIRE enero ie ta sone oer

il

CITATIONS—Continued

Pages

State v. Satterfield, 257 Iowa 1193, 136 N. W.

a 7

State v. Trudo, 253 N. W. 2d 101 (Iowa 1977) ....1, 4,6

United States v. Abshire, 471 F. 2d 116 (5th

I SI lect dilcanin sah oo eect deaceenicedialiataainitiaoaainttiel ease 5

United States v. Farnkoff, 535 F. 2d 661 (1st

PE SIE Ui Nasciciaiassicecemensccatetcianath 8

United States v. Franklin, 452 F. 2d 926 (8th

Si RN ih cicihcciaid il ncespciesebteiameshniinae 4

United States v. Mauro, 507 F. 2d 802 (2d

Cir. 1974), cert denied 420 U. S. 991 (1975) ..... 7,8

United States v. Park, 531 F. 2d 754 (5th Cir.

1976) 5

United States v. Peterson, 524 F. 2d 167 (4th

Cir. 1975), cert denied 423 U. S. 1088 (1976) .... 8

United States v. Rajewski, 526 F. 2d 149 (7th

Cir. 1975) Datdent ae

United States v. Rollins, 522 F. 2d 160 (2d

Cir. 1975), cert denied 424 U. S. 918 (1976) ..... 8

Wainwright v. Sykes, — U. S. —, 97 S. Ct.

2497 (1977) —. 8

Wangrow v. United States, 399 F. 2d 106 (8th

Cir. 1968), cert denied 393 U. S. 933 (1968) —...

qr

ili

CITATIONS—Continued

Pages

Constitutional and Statutory Provisions:

Amendment XIV, §1, United States Constitution 2

lowa Code, § 204.401 (1) (1975) WW... oe 3

+

7

Bae CT, ST CTT) aie.

Iowa Code, § 795.2 (1973). ...................

Miscellaneous:

ABA Standards Relating to Joinder and Sever-

ance, § 3.1 (a) (Approved Draft, 1968) 0. 4

Annot., 59 A. L. BR. 2d 841 (1958) _.____ 4

Federal Rules of Criminal Procedure, Rule 12 ..... 6,8

Federal Rules of Criminal Procedure, Rule 14. 4

Federal Rules of Crimina! Procedure, Rule 41(f) 6

Fifth Judicial District of lowa Rules of Prac-

ON RR eee See 3, 9

2 Wharton’s Criminal Procedure § 302 (12th Ed.

1975) 4

In The

Supreme Court of the United States

October Term, 1977

No. 77-106

fy

Vv

RICK E. TRUDO,

Petitioner,

vs.

THE STATE OF IOWA,

Respondent.

f\

V

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF IOWA

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vy

BRIEF FOR RESPONDENT IN OPPOSITION

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OPINION BELOW

The opinion of the Iowa Supreme Court, State v.

Trudo, 253 N. W. 2d 101 (lowa 1977), is set forth in the

Appendix to the Petition.

—

a

JURISDICTION

The jurisdictional requisites are adequately set forth

in the Petition.

\

QUESTIONS PRESENTED

1. Was Petitioner denied due process of law as guar-

anteed by the Fourteenth Amendment to the United States

Constitution because of the trial court’s order that the

two charges pending against Petitioner be tried jointly?

— )

2. Was Petitioner denied due process of law as guar-

anteed by the Fourteenth Amendment to the United States

Constitution by the trial court’s refusal to entertain Peti-

tioner’s motion to suppress made after the time preseribed

by local rule of practice for the making of such motions?

>

STATEMENT OF THE CASE

On October 5, 1975, officers of the Des Moines, Iowa,

Metropolitan Area Narcotics Squad went to Petitioner’s

residence to execute a search warrant. They came in con-

tact with Petitioner, indicated that they knew Petitioner’s

roommate, and said that they wanted to buy some mari-

Juana from the roommate. Petitioner replied that he sup-

plied his roommate and invited the officers inside the

house. The parties then negotiated and agreed upon a

price for the sale of a quantity of marijuana. Petitioner

left the house and returned a few minutes later with five

(9) pounds of marijuana. Petitioner then told the offi-

cers to pick the pound which they wanted and accepted

* payment for the one which they selected. The

officers then arrested Petitioner and executed the search

warrant, seizing the other four pounds of marijuana and

the officers

assorted paraphernalia.

3

On November 6, 1975, Petitioner was charged by sep-

arate county attorney informations with delivery of mari-

juana and possession of marijuana with intent to deliver,

both in violation of 6 204.401 (1) of the Code of Iowa.

Trial on both charges was set for January 5, 1975. Peti-

tioner was arraigned November 12, 1975. On December

15, 1975, the trial court sua sponte ordered tne consolida-

tion for trial of the two charges against Petitioner. On

December 24, 1975, Petitioner filed a motion to suppress

certain evidence obtained in the search of his premises.

On December 26, 1975, the motion was overruled as un-

timely under Local Rule of Practice 26 (F), which re-

quires that all pre-trial motions be made within 17 days

of arraignment. On January 5, 1976, the date of trial,

Petitioner took exception to both rulings.

At trial, Petitioner objected to testimony on the same

grounds as stated in his untimely suppression motion and

renewed his objection in a motion at the close of the

State’s evidence. All such objections and motions were

overruled. On January 7, 1976, Petitioner was convicted

of both offenses and on February 6, 1976, was sentenced

to concurrent sentences of five years in the Iowa Men’s

Reformatory. The Lowa Supreme Court affirmed the con-

viction on April 20, 1977.

ARGUMENT

Petitioner suggests that the trial court erred in sua

sponte ordering the consolidation of the possession and

delivery of marijuana charges pending against him. In

its consideration of this case, the lowa Supreme Court

held, as a matter of state law, that the trial court had the

authority to consolidate the two charges pending against

Petitioner for a single trial. State v. Trudo, 253 N. W. 2d

101, 104 (lowa 1977). This holding was in conformity

with the practice of the majority of the states and with

that recommended by the American Bar Association. 2

Wharton’s Criminal Procedure §302 (12 Ed. 1975);

Annot., 59 A. L. R. 2d 841 (1958); ABA Standards Relat-

ing to Joinder and Severance § 3.1 (a), at 46-47 (Approved

Draft, 1968). The only question remaining is whether

such a rule violates the Due Process Clause of the Four-

teenth Amendment. Respondent submits that it does not.

The lowa Supreme Court specifically pointed out that

either the defendant or the State could move for sever-

ance after the trial couri’s joinder order. State v. Trudo,

supra at 104. Petitioner never formally made such a mo-

tion, but merely “took exception” to the ruling. Petition-

er’s Brief at 4. Petitioner clearly had a duty to make

motion for severance, even under prevailing federal stand-

ards. United States v. Franklin, 452 F. 2d 926 (8th Cir.

1971). The State contends that such a procedure was in-

sufficient to preserve any alleged error in this respect,

and that the petition should be denied on that basis.

Assuming arguendo that error has been preserved,

it is clear that no due process violation occurred from the

joinder of the charges. Towa Code 4 204.408 (1975), the

statutory provision under which the trial court proceeded,

is similar in effect to Rule 14, Federal Rules of Criminal

Procedure, since both allow severance of charges where

a joint trial would substantially prejudice the defendant.

Rule 14 has been interpreted as providing three bases for

qv

a finding of prejudice: (1) that the jury may cumulate

evidence of the separate crimes; (2) that the jury may

improperly infer criminal disposition from one charge

and treat it as evidence of guilt on the other; or (3) that

the defendant may be confounded or embarrassed in pre-

senting defenses to the separate charges in a single trial.

Blunt v. United States, 404 F. 2d 1283 (DC Cir. 1968),

cert denied 394 U. S. 909 (1969). Assuming (without con-

ceding) that these tests represent the minimum standard

of due process, that standard was met in this case.

The first two reasons are not applicable to this case,

since the evidence on the possession charge would have

heen admissible on the delivery charge since both arose

out of the same transaction and involve common elements

of proof. United States v. Rajewski, 526 F. 2d 149 (7th

Cir. 1975); United States v. Abshire, 471 F. 2d 116 (5th

Cir. 1972); Robinson v. United States, 459 F. 2d 847 (DC

Cir. 1972); Baker v. United States, 401 F. 2d 958 (DC Cir.

1968): Blunt v. United States, supra. Since this is true,

only the third reason—the interference with the raising

of a defense—could be a ground for reversal. The bur-

den of making such a showing is on Petitioner. Blunt v.

United States, supra. Absent a convincing demonstration

of a need to testify on one charge and to refrain from

testifying on the other sufficient to outweigh the interest

of judicial economy gained by the joint trial, the motion

for severance will be denied. Baker v. United States, su-

pra; Wangrow v. United States, 399 F. 2d 106 (8th Cir.

1968), cert denied 393 U. S. 933 (1968). Such a decision

will be reversed only where it constitutes an abuse of dis-

cretion by the trial court. United States v. Park, 531 F.

2d 754 (5th Cir. 1976); Blunt v. United States, supru.

Here, Petitioner neither presented any evidence nor suz-

gested any specific way in which such prejudice occurred.

Therefore, no error was committed in ordering a joint

trial of the charges. Blunt v. United States, supra.

Petitioner suggests an additional ground for the

granting of a writ of certiorari in this case in the trial

court’s holding that he had waived his right to object to

the admissibility of certain evidence introduced at trial

by his failure to comply with a local procedural rule

placing a time limit upon such motions. The Iowa Su-

preme Court has held, as a matter of state law, that the

trial court had authority to enact such rules. State v.

Trudo, supra; Iowa Civil Liberties Union v. Critelli, 244

N. W. 2d 564 (Iowa 1976). Therefore, the only remain-

ing question is whether such a rule operates so as to deny

a defendant due process of law. Respondent submits that

it does not.

While it is true that a procedural default in a state

court will not bar review of a federal constitutional claim

in this Court where to do so would be “to force resort to

an arid ritual of meaningless form,” such a default will

bar review where the rule serves a “legitimate state in-

terest” and the defendant’s conduct thwarts affectuation

of the policy behind the rule. Henry v. Mississippi, 379

U. S. 443, 448-449 (1965). An examination of Local Rule

26 (F) and the analogous federal provision, Rule 41 (f)

and 12(b) of the Federal Rules of Criminal Procedure,

will reveal that there are strong interests behind the rules

which justify denial of relief in this case.

7

In Iowa Civil Liberties Union v. Critelli, swpra, the

lowa Supreme Court detailed the backlog of cases pend-

ing in the Polk County District Court (in which Peti-

tioner was tried) in November, 1975, only two months

prior to Petitioner’s trial. This backlog of cases seri-

ously impeded the ability of the State to comply with

lowa Code § 795.2 (1975), which requires that a criminal

defendant be tried within sixty days of his indictment or

the filing of an information by the County Attorney, a

provision designed to implement the Sixth Amendment

right to a speedy trial. State v. Satterfield, 257 lowa

1193, 1195, 186 N. W. 2d 257, 258 (1965).

The cases under the Federal Rules of Criminal Pro-

cedure, which provide for a waiver of the right to raise

a Fourth Amendment claim if not made by a time pre-

scribed by the court, identify other reasons for the rule,

such as avoidance of trial interruptions which may inter-

fere with the continuity of the jury’s attention and which

may lessen the deterrent effect of the criminal sanction,

avoidance of inconvenience to jurors and witnesses caused

by delays during trial, avoidance of waste of judicial and

prosecutorial resources where the defendant prevails and

trial is unnecessary, and the effectuation of the govern-

ment’s right to take an interlocutory appeal from an ad-

verse decision. United States v. Mauro, 507 F. 2d 802

(2d Cir. 1974), eert denied 420 U. 8. 991 (1975). As this

Court recognized in Segurola v. United States, 275 U.S.

106, 111-112 (1927):

“[E}xcept where there has been no opportunity to

present the matter in advance of trial (citations), a

court, when engaged in trying a criminal case, will

not take notice of the manner in which witnesses have

possessed themselves of papers or other articles or

personal property .. . because the court will not in

trying a criminal case permit a collateral issue to be

raised as to the source of competent evidence. To

pursue it would be to halt in the orderly process of a

cause and consider a question which has happened

to cross the path of such litigation and is wholly in-

dependent of it.”

Thus, the federal courts have frequently declined to

hear a claim that evidence was the product of an illegal

search and seizure where that claim was not raised prior

to trial as required by Rule 12. United States v. Farn-

hoff, 535 F. 2d 661 (1st Cir. 1976): United States v. Peter-

son, 524 F. 2d 167 (4th Cir. 1975), cert denied 423 U. S.

1088 (1976); United States v. Rollins, 522 F. 2d 160 (2d

Cir. 1975), cert denied 424 U. S. 918 (1976); United States

v. Mauro, supra. To hold otherwise would frustrate the

purposes of the rule, even though an (untimely) objec-

tion was made.

Petitioner’s reliance on the deliberate bypass stand-

ard used in habeas corpus cases is unavailing, since this

Court has now made clear that failure to comply with

Rule 12(b) or a state equivalent thereof constitutes a

bar even to habeas relief. Wainwright v. Sykes, — U.S.

-—, 97 S. Ct. 2497 (1977): Francis v. Henderson, 425 U. S.

526 (1976); Davis v. United States, 411 U. S. 233 (1973).

See Estelle v. Williams, 425 U. S. 501, reh. denied 426

U. S. 954 (1976). Where a party fails to assert or to

prove good cause for such a procedural default, as Peti-

tioner has failed to do, federal consideration of his claims,

either on direct appeal or in a collateral attack, is barred.

The petition in this case should be cenied on the grounds

that Petitioner’s procedural default in the state courts

precludes review in this Court.

CONCLUSION

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

ess rights by ordering consolidation of the two charges

against him. The charges could have been brought in a

single information under Iowa law, and the Iowa Supreme

Court followed the practice of the majority of the states

in holding that the trial court could sua sponte consoli-

date the charges. Applying the standards established by

the Court in the Federal Rules of Criminal Procedure,

the trial court was well within its discretionary powers

in refusing to order separate trials, even assuming that

Petitioner adequately preserved the error.

Petitioner’s due process rights were not violated by

the trial court’s refusal to entertain Petitioner’s untimely

motion to suppress certain evidence. Local Rule 26 (F)

is similar in effect to the Federal Rules of Criminal Pro-

cedure promulgated by this Court and is justified by

strong state interests. Failure to comply with such a

rule bars federal review of Petitioner’s claims. The fed-

eral courts have given the federal rules a similar effect,

and this Court has repeatedly denied certiorari in such

cases.

Since the rules promulgated by this Court are similar

to and would lead to the same result as the rules estab-

lished by the Iowa courts, it is beyond peradventure that

no due process violation oceurred in this case. This case

is not one in which “a state court has decided a federal!

question of substance ... in a way probally not in accord

with the applicable decisions of this court.’ Rule 19,

10

Rules of the United States Supreme Court. The petition

for a writ of certiorari should be denied.

Respectfully submitted,

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 Respondent

CERTIFICATE OF SERVICE

I, Ray Sullins, Assistant Attorney General for the

State of Iowa, hereby certify that on the 22nd day of

September, 1977, I mailed three (3) copies of the Brief

for Respondent in Opposition, correct first class postage

prepaid, to:

Phillip F. Miller

900 Des Moines Building

Des Moines, Lowa 50309

I further certify that all parties required to be served

have been served.

RICHARD C. TURNER

Attorney General of Iowa

State Capitol

Des Moines, lowa 50319

RAY SULLINS

Assistant Attorney General

State Capitol

Des Sioines, Iowa 50319

Attorneys for Respondent