State of Iowa v. Basil Jamaal Hill ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 12-2275
Filed June 10, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
BASIL JAMAAL HILL,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Romonda D. Belcher
(motion to dismiss and trial), District Associate Judge, and Richard G. Blane II
(simple misdemeanor appeal), Judge.
A defendant challenges his conviction for criminal trespass for remaining
on the Iowa State Capitol grounds after they were closed to the public.
AFFIRMED.
Sally Frank of Drake Legal Clinic, for appellant.
Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney
General, John P. Sarcone, County Attorney, and Linda Zanders, Assistant
County Attorney, for appellee.
Heard by Tabor, P.J., and Bower and McDonald, JJ.
2
TABOR, P.J.
Basil Hill appeals his conviction for criminal trespass. He contends he
was justified in remaining on the Iowa State Capitol grounds with other Occupy
Iowa protestors after the hours of closure because they were exercising their
rights to free speech and assembly under the United States and Iowa
Constitutions. He also argues the district associate court should have
consolidated the trials of several protestors, granted his motion for discovery, and
denied the State’s motion to amend the original complaint.
While the federal and state constitutions guarantee robust rights to free
speech and assembly, those guarantees are not absolute. U.S. Const. amend. I;
Iowa Const. art. I, §§ 7, 20; see State v. Baker, 688 N.W.2d 250, 255 (Iowa
2004); State v. Lacey, 465 N.W.2d 537, 540 (Iowa 1991). The State may impose
reasonable restrictions on the time, place and manner of protected speech—
even in traditional public forums. See Ward v. Rock Against Racism, 491 U.S.
781, 791 (1989). Because the restrictions at issue here met those constitutional
standards, we affirm the denial of Hill’s motion to dismiss his trespass
prosecution. We also deny relief on Hill’s claims involving consolidation,
discovery, and amending the complaint.
I. Background Facts and Proceedings
On Sunday, October 9, 2011, an Iowa State Patrol officer arrested Hill for
criminal trespass, a simple misdemeanor, in violation of Iowa Code section
3
716.7(2)(b) (2011).1 The arrest occurred at 11:15 p.m., fifteen minutes after the
grounds had closed to the public.
Hill and hundreds of other protestors had gathered at the state capitol
starting at noon that day as part of the “Occupy Iowa” movement.2 At 3:00 p.m.,
the protestors decided they wanted to stay at that location and formed a “legal
committee” to look into obtaining a permit. A committee member spoke with an
Iowa State Patrol officer and learned the capitol grounds closed at 11:00 p.m.
The protestors also learned they could not obtain a permit to stay after that hour
because the Department of Administrative Services (DAS), the state office that
issued permits, was closed on weekends.
At 10:30 p.m. State Patrol Captain Mark Logsdon came to the capitol
grounds and informed the protestors they were welcome to stay until 11:00 p.m.,
but they would have to leave at that time or face arrest. He told them again at
10:45 p.m. About twenty protestors stayed past 11:00 p.m. and were arrested for
trespassing.
1
This section defined trespass as:
Entering or remaining upon or in property without justification after being
notified or requested to abstain from entering or to remove or vacate
therefrom by the owner, lessee, or person in lawful possession, or the
agent or employee of the owner, lessee, or person in lawful possession,
or by any peace officer, magistrate, or public employee whose duty it is to
supervise the use or maintenance of the property.
Iowa Code § 716.7(2)(b) (2011).
2
According to protestor and former state legislator Ed Fallon, the Iowans wanted to
show solidarity with the Occupy Wall Street movement that started in New York City in
September 2011 to express concern over corporate corruption.
4
Hill and his co-defendants filed a motion to dismiss their trespass charges,
claiming the “curfew”3 enforced at the capitol abridged their free speech and
assembly rights. The motion asserted the curfew did not constitute a content-
neutral time, place, and manner restriction. The motion also alleged the state
regulations regarding permit applications were unconstitutional because they did
not allow for emergency protests.
After holding a day-long evidentiary hearing, the district associate court
denied the motion to dismiss. The court ruled from the bench that the motion to
dismiss did not challenge Iowa Code section 716.7, and the court would not allow
the defendants to “bootstrap their defense of justification arising from a claim of a
violation of the constitutionality of an administrative process” of which they did
not avail themselves. The court ruled the motion to dismiss was “not the proper
avenue or remedy” to challenge the constitutionality of the administrative rules or
their implementation.
3
The parties refer to the capitol closure hours as a curfew. A curfew is defined as “a
regulation that forbids people (or certain classes of them) from being outdoors between
certain hours.” Black’s Law Dictionary 387 (7th ed. 1999); see City of Maquoketa v.
Russell, 484 N.W.2d 179 (Iowa 1992) (holding curfew ordinance unconstitutional where
all minors were prohibited from being on streets, sidewalks or public places within the
city between 11 p.m. and 6 a.m.). The word curfew is derived from Old French “couvre
feu” that was a command to “cover the fire” when the bell rang at a fixed hour. Bryan A.
Garner, Garner’s Dictionary of Legal Usage 239 (3d ed. 2011). Because the term
curfew evokes the idea of a more sweeping prohibition on movement throughout a city,
we will not use it in our analysis. We will instead refer to the hours of capitol grounds
closure at issue here.
5
Hill’s trespass prosecution proceeded to trial with one co-defendant.4
Before trial, the State filed a motion in limine seeking to prevent Hill and his co-
defendant from offering evidence regarding their “free speech rights” or arguing
that “free speech rights” could constitute justification under section 716.7. Hill
resisted, citing State v. Williams, 238 N.W.2d 302, 308 (Iowa 1976), for the
proposition that freedom of speech could constitute justification under the
trespass statute. The district associate court denied the State’s motion in limine,
reasoning that “without justification” was an element of the State’s case and the
defendant was allowed to present his “individual reasons for being on the
property.” The court “tempered” its ruling by precluding the defendants from
discussing the “nature and cause” of the Occupy Iowa movement.
At trial, the State presented the testimony of Iowa State Patrol Captains
Mark Logsdon and Mike Winter, as well as DAS deputy director Caleb Hunter.
The defense did not offer any evidence.
At the close of trial, the court instructed the jurors that the phrase “without
justification” as used in the marshalling instruction protected entry onto public
property “for the purpose of exercising one’s right to free speech, assembly, or to
petition the government for a redress of grievances.” The court also instructed
the jury that “[t]he right of peaceful protest does not mean that everyone with
opinions or beliefs to express may do so at any time and at any place.” The
court further informed the jurors that the State may regulate speech in public
4
We will discuss the pretrial motions seeking to amend the complaint, to consolidate
defendants, and for discovery in more detail below when we address the defendant’s
assignments of trial error.
6
forums if (1) the regulations are content-neutral, (2) the regulations are
reasonable time, place, and manner restrictions narrowly tailored to serve an
important government interest; and (3) the regulations leave open adequate
alternative places for speech but need not be the least restrictive or intrusive
means. The jury found Hill guilty of criminal trespass.
Hill appealed his simple misdemeanor conviction to the district court under
Iowa Rule of Criminal Procedure 2.73(1). Hill argued the district associate court
erred in not deciding the constitutional validity of closing the capitol grounds. Hill
also argued the court erred in allowing the closure to prove the trespass charge
because the implementation of that closure did not comply with the state
administrative rule requiring the hours to be posted. Hill further challenged the
district associate court’s denial of his motion to consolidate, motion for discovery,
and the court’s granting of the State’s motion to amend the complaint to add an
additional trespass alternative. The district court denied Hill’s appeal, finding the
hours of closure for the capitol grounds and the permit rules did not “unduly
infringe on First Amendment freedoms.”
Hill then sought discretionary review under Iowa Code section 814.6(2)(d),
which the Iowa Supreme Court granted on February 7, 2013. After briefing was
completed, on March 2, 2015, the supreme court transferred the case to us.
II. Scope and Standards of Review
Hill raises several issues, which require us to apply varying standards of
review. His challenge to the denial of his motion to dismiss on constitutional
7
grounds calls for de novo review in light of the totality of circumstances. See
Baker, 688 N.W.2d at 252; State v. McKnight, 511 N.W.2d 389, 391 (Iowa 1994).
We review Hill’s challenges to the district associate court’s rulings on
consolidation and discovery for an abuse of discretion. See State v. Clark, 814
N.W.2d 551, 563 (Iowa 2012); State v. Hajtic, 724 N.W.2d 449, 457 (Iowa 2006).
“To establish an abuse of discretion, a defendant must show sufficient prejudice
to constitute denial of a fair trial.” State v. Leutfaimany, 585 N.W.2d 200, 203
(Iowa 1998). We review a ruling allowing the State to amend a criminal charge
for errors at law. Cf. State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997) (analyzing
rule 2.4(8) for amending trial information).
III. Motion to Dismiss
Hill’s foremost challenge is to the constitutionality of his conviction.5 In his
motion to dismiss, he claimed the trespass prosecution violated the First
Amendment of the United States Constitution6 and article I, sections 7 and 20 of
the Iowa Constitution.7
5
Hill’s counsel asserted a statutory ground for relief at oral argument, contending the
restrictions on public use of the capitol complex to the hours of 6 a.m. to 11 p.m. was not
“posted in conspicuous places” on the grounds as required by Iowa Code section
8A.322(3) and state regulations. See Iowa Administrative Code Provision 11-100.4(13).
The State acknowledged the lack of posted hours could be problematic if Hill had been
charged with violating section 8A.322(3). But because Hill was charged with trespassing
under section 716.7(2)(b) and had actual notice from the state patrol that he was not
allowed to stay past 11:00 p.m., we reject his statutory claim.
6
The First Amendment to the United States Constitution prohibits Congress from making
any law “abridging the freedom of speech.” U.S. Const. amend. I. The First Amendment
is binding on the states through the Fourteenth Amendment. U.S. Const. amend. XIV;
Gitlow v. New York, 268 U.S. 652, 666 (1925).
7
Section 7 states: “Every person may speak, write, and publish his sentiments on all
subjects, being responsible for the abuse of that right. No law shall be passed to
restrain or abridge the liberty of speech.” Section 20 states: “The people have the right
8
On appeal, Hill argues the Iowa Constitution “goes further” than the United
States Constitution in guaranteeing the right to petition the government. Hill
contends he and his fellow Occupy Iowa protestors were assembling on the
capitol grounds to make their views known to their representatives. But Hill does
not advocate for Iowa courts to adopt a different test under the state
constitutional provisions than the United States Supreme Court has applied
under the First Amendment. Our supreme court has generally viewed the federal
and state constitutional provisions as coextensive. See, e.g., City of West Des
Moines v. Engler, 641 N.W.2d 803, 805 (Iowa 2002); State v. Milner, 571 N.W.2d
7, 12 (Iowa 1997); Des Moines Register & Tribune Co. v. Osmundson, 248
N.W.2d 493, 498 (Iowa 1976). Accordingly, we will interpret the scope of the
state constitutional provisions to track with the federal interpretations of the First
Amendment.
On appeal, Hill claims the district associate court erred in denying the
motion to dismiss for two reasons. First, he argues the hours of closure on the
state capitol grounds constituted a “prior restraint” on free speech without a
compelling state interest. Second, he attacks the process for obtaining a permit
to remain on the grounds after hours as unconstitutional. He contends the permit
scheme “gives unbridled and absolute power to an issuing authority”—namely
the DAS—and does not accommodate the constitutional requirement for
freely to assemble together to counsel for the common good; to make known their
opinions to their representatives and to petition for a redress of grievances.”
9
spontaneous protests. Before turning to the merits of Hill’s claims, we address
the question of error preservation.
A. Preservation of Error
The State advances several error preservation arguments. First, the State
argues the administrative rules concerning how permits are issued “never came
into play.” Because Hill did not apply for a permit before Sunday, October 9,
2011, neither the DAS nor the state patrol exercised any discretion in regard to
his right to remain overnight on the capitol grounds. Accordingly, the State
argues Hill does not have standing to challenge the constitutionality of the permit
scheme. We agree Hill lacks standing to attack administrative requirements that
were not applied to him. See generally State v. Henderson, 269 N.W.2d 404,
405 (Iowa 1978).
But one aspect of the permit scheme did affect Hill’s rights and is properly
before us—that is the inability to apply for a permit on weekends or after work
hours. We will discuss that aspect of the permit scheme below as it impacts the
right to spontaneous protests.
Second, the State argues Hill did not preserve error on his claims
concerning the denial of his motion to dismiss “because he chose below to
submit this question to the jury.” The State contends a judge and not a jury
should have determined “whether the park’s nightly closure is a constitutionally
valid time, place, or manner restriction because it is a legal question rather than a
factual question.” The State argues the proper way for this case to have
proceeded was for the district associate court to have given a preliminary ruling
10
on the constitutionality of the trespass prosecution. If the court decided the
closure was a constitutional restriction on expressive conduct, the State contends
Hill should have been precluded from arguing to the jury he was not guilty
because he was acting “with justification.” See Williams, 238 N.W.2d at 308
(holding phrase “without legal justification” expressly allowed and protected entry
on public property for the purpose of reasonably exercising First Amendment
rights). But because Hill sought a jury determination of the constitutional issue,
the State urges he waived this appellate challenge to the denial of his motion to
dismiss.
While we agree it was unusual for the jury to be instructed on the
constitutional free speech issues, we find no authority for concluding Hill’s
successful request to proceed in that manner constituted a waiver of his legal
arguments properly raised in the motion to dismiss.
Third, the State argues Hill’s challenge to the constitutionality of the
administrative rules is not preserved because the district associate court did not
address the merits of his claims in denying the motion to dismiss and Hill did not
file a motion under Iowa Rule of Civil Procedure 1.904(2). Generally, a motion
for enlargement is necessary to preserve error when the district court fails to
resolve an issue, claim, or legal theory properly submitted for adjudication. See
Meier v. Senecaut, 641 N.W.2d 532, 539 (Iowa 2002). In this case, because the
district court considering the simple misdemeanor appeal did reach the merits of
Hill’s constitutional claims, we have that ruling available for our review.
11
B. Hours of Closure
By state regulation, the capitol grounds are open for seventeen hours
each day—from 6:00 a.m. to 11:00 p.m.—and are closed to the public for the
remaining seven hours overnight. Members of the public may arrange for a
permit to stay after 11:00 p.m., but they can only apply for a permit from DAS
during normal working hours Monday through Friday.
Hill contends the ban on around-the-clock protests on the state capitol
grounds, in the absence of a permit, violated his right to free speech and
assembly. Our analysis of that contention begins with some points of common
ground between the parties. Both sides agree the Occupy Iowa protestors were
engaging in expressive conduct protected by the First Amendment and the
parallel provisions of the Iowa Constitution. See Clark v. Community for Creative
Non-Violence, 468 U.S. 288, 293 (1984). Both sides agree the state capitol
complex is a “quintessential public forum” calling for the highest level of scrutiny
when restrictions on expression take place there. See Perry Educ. Ass’n v. Perry
Local Educators’ Ass’n, 460 U.S. 37, 45 (1983). And both sides agree: “In such
places, the government’s ability to permissibly restrict expressive conduct is very
limited: the government may enforce reasonable time, place, and manner
regulations as long as the restrictions are content-neutral, are narrowly tailored to
serve a significant government interest, and leave open ample alternative
channels of communication.” United States v. Grace, 461 U.S. 171, 177, (1983)
(internal citations omitted). For the hours of closure on the capitol grounds to
12
pass muster under this high level of scrutiny, all three elements must be satisfied.
We will address each element in turn.
1. Content neutral
The principal inquiry in determining content neutrality is whether the
government has regulated speech because of a disagreement with the message
it conveys. Ward, 491 U.S. at 791. A content-neutral regulation addresses “only
the time, place, or manner of speech.” State v. Musser, 721 N.W.2d 734, 743
(Iowa 2006).
In this case, the State presented evidence the overnight closure applied to
all members of the public who had not prearranged for a permit. The rule
allowed the DAS and state troopers to plan ahead for security personnel and to
take measures to ensure proper sanitation and safety for members of the public
when a permit was obtained.
On appeal, Hill claims it was questionable whether the closure hours were
content neutral in practice, citing testimony at the motion to dismiss hearing that
one witness regularly walked across the grounds to take photographs of the
capitol after 11:00 p.m. and was never told to leave by state troopers. By
contrast, Captain Logsdon testified if troopers working the overnight shift
encounter people on the capitol complex, they remind them of the closure hours
and tell them they “need to move on.” The captain testified it was his job to “treat
everyone the same” regardless of the content of their communication and he
harbored no animosity toward Hill’s group or its message.
13
The overnight closure of the state capitol grounds does not discriminate
based on a certain message or form of expression; it restricts the time, place or
manner of all expressive and non-expressive conduct alike. Despite the defense
evidence suggesting selective enforcement, we find the hours of closure to be
content-neutral restrictions. See Thomas v. Chicago Park Dist., 534 U.S. 316,
322 (2002) (ordinance denying all activity is content-neutral). Courts from other
jurisdictions have reached similar conclusions when addressing hour restrictions
for public forums. See, e.g., Occupy Sacramento v. City of Sacramento, 878 F.
Supp. 2d 1110, 1117–18 (E.D. Cal. 2012) (noting fact that city ordinance closing
parks from 11:00 p.m. to 5:00 a.m. applies to “all park users who have not
obtained a permit to remain in the park supports the conclusion that it is content-
neutral”); City of Chicago v. Alexander, 24 N.E.3d 262, 271-272 (Ill. App. Ct.
2014) (holding ordinance prohibiting the public from remaining in Grant Park
between 11:00 p.m. and 6:00 a.m. was content neutral); Cleveland v. McCardle,
12 N.E.3d 1169, 1174 (Ohio 2014) (finding ordinance prohibiting persons from
remaining in the public square between 10:00 p.m. and 5:00 a.m. without a
permit to be content neutral).
2. Narrowly tailored to significant government interests
The regulation also must be narrowly tailored to a significant government
interest. Narrow tailoring means the regulation is not “substantially broader than
necessary” to achieve the State’s legitimate end. See Ward, 491 U.S. at 802.
The regulation does not have to be the least restrictive or least intrusive means
of achieving the State’s legitimate content-neutral interests. Id. at 798.
 14
The State argues it has a legitimate interest in maintaining the good
condition of the capitol grounds so that they may continue to be enjoyed by the
general public. The State also asserts an interest in ensuring no one is injured or
placed in harm’s way while on the grounds. The State contends limiting middle-
of-the-night access to the grounds serves those interests because it guards
against purposeful or inadvertent damage to the property and allows for proper
daytime supervision.
Hill argues the hours of closure are not narrowly tailored because they are
“an outright ban on overnight protests unless a group can obtain a permit which
can be arbitrarily denied.” The State counters by citing Clark v. Community for
Creative Non-Violence, 468 U.S. 288, 296–97 (1984). In Clark, the United States
Supreme Court rejected a constitutional challenge to the prohibition against
camping on the national mall, finding the government had a substantial interest in
“conserving park property, an interest that is plainly served by, and requires for
its implementation, measures such as the proscription of sleeping that are
designed to limit the wear and tear on park properties.” 468 U.S. at 299. The
State argues the overnight closure of the Iowa capitol grounds at issue here is
even more narrowly tailored than the camping ban in Clark because people who
wish to stay overnight on the state capitol grounds may apply for a permit to do
so.
We agree with the State that seven hours of overnight closure of the
capitol grounds was a measure narrowly tailored to significant government
interests. Courts from other jurisdictions considering the nightly closure of public
15
places have rejected constitutional challenges similar to Hill’s issue. See
Michigan Up & Out of Poverty Now Coalition v. State, 533 N.W.2d 339, 346
(Mich. Ct. App. 1995) (finding closure of Michigan capitol grounds from 11:00
p.m. to 8:00 a.m. to be narrowly tailored to the government’s interest in protecting
the capitol grounds and the safety of those who use them); see also Occupy
Sacramento, 878 F. Supp. 2d at 1120 (holding park closure each night for six
hours was narrowly tailored to government interest in protecting parks from
“overuse and unsanitary conditions”); Alexander, 24 N.E.3d at 274 (finding use of
city parks between 11:00 p.m. and 6:00 a.m. would “impede the city’s ability to
achieve its goals of maintenances, preservation and crime reduction”); McCardle,
12 N.E.3d at 1176 (holding city’s interests in “safeguarding public health,
protecting against violence and criminal activity, and preserving the Public
Square would be achieved less effectively without the enactment and
enforcement” of Cleveland ordinance limiting late night activity without a permit).
We are persuaded by the reasoning in those cases.
3. Open ample alternative channels of communication
We now turn to the question of open ample alternative channels of
communication. A government regulation leaves open such channels where it
“does not attempt to ban any particular manner or type of expression at a given
place or time.” See Ward, 491 U.S. at 802. The hours of closure at issue here
do not foreclose any particular manner or type of expression on the capitol
grounds. The grounds are open seventeen hours a day, 365 days a year. A
desire to stay after hours only requires the users to seek a permit. Hill and his
16
fellow protestors had a full opportunity during the open hours to voice their
grievances on the capitol grounds. The overnight closure did not deny them an
adequate means of sending their message. See Occupy Sacramento, 878 F.
Supp. 2d at 1121; Michigan Up, 533 N.W.2d. at 346.
To recap, we find the overnight closure of the state capitol grounds was a
reasonable time, place, and manner restriction because the regulation was
content-neutral, narrowly tailored to serve a significant government interest, and
left open ample alternative channels of communication.
C. Availability of Permit Application Process
Hill argues his constitutional right to spontaneously protest overnight on
the capitol grounds was thwarted by the absence of a provision in the Iowa
administrative code for obtaining a permit on short notice. DAS deputy director
Caleb Hunter testified at the motion to dismiss hearing that his department did
not have a mechanism in place to process permit applications on the weekend.
He testified permit applications are accepted during regular work week hours and
typically take about one day to process. Hill asserts on appeal: “If a group wants
to protest over an event that has recently occurred, a permit scheme must allow
that kind of spontaneous action.”
The State responds that assuming spontaneity may sometimes play a role
in protected speech, Hill’s situation does not fall into that category. The State
points out Hill and his fellow protestors were expressing solidarity with a
movement that had been ongoing for nearly a month at the time of his arrest.
The record did not reveal any sudden events calling for an immediate response,
17
according to the State. The district court also was unsympathetic with Hill’s
spontaneity argument, highlighting that the Sunday meeting of the Occupy Iowa
group had been scheduled earlier in the week when a permit could have been
sought. The district court wrote: “As the saying goes—‘Your lack of planning
does not create an emergency.’”
We recognize the timing of speech, especially political speech, is often
crucial to its resonance. See N.A.A.C.P. v. City of Richmond, 743 F.2d 1346,
1356 (9th Cir. 1984) (“A spontaneous parade expressing a viewpoint on a topical
issue will almost inevitably attract more participants and more press attention,
and generate more emotion, than the ‘same’ parade twenty days later.”). But it is
also reasonable for a government agency to need time to process permit
applications. See Long Beach Area Peace Network v. City of Long Beach, 574
F.3d 1011, 1037 (9th Cir. 2009) (holding “a twenty-four hour advance notice
requirement for a spontaneous event is not categorically unconstitutional”). The
constitutionality of the delay in issuing a permit will depend on factors such as
“the definition of a spontaneous event and the availability of means of
expression.” Id.
In the situation at issue, we do not find Hill’s inability to apply for a permit
from DAS on the Sunday afternoon in question amounted to a justification for
remaining on the capitol grounds after being notified by the state patrol of the
11:00 p.m. closing time. Hill and his fellow protestors gathered at noon for a
planned rally. For eleven hours they were allowed to protest outside the capitol
without any restraint. While we might be able to conceive of an instance where
18
the limited availability of the DAS permit process impinges too greatly on the
spontaneity of a political protest, that hypothetical situation is not before us today.
See Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 58–59 (1976) (declining to
consider arguments in the abstract about the uncertain effect of the ordinance on
the First Amendment rights of other litigants).
We do not find Hill’s trespass conviction constitutionally invalid because of
his inability to apply for an after-hours permit from DAS during the weekend.
IV. Defense Motion to Consolidate
Hill and twelve other defendants filed a motion to consolidate their trials.
Hill’s counsel argued consolidation would serve judicial efficiency, would be more
convenient for the parties and witnesses, and would save counsel time by not
requiring her to prepare for and participate in multiple trials.8 The State resisted.
After hearing arguments, the district associate court rejected the notion that
joining thirteen defendants into one trial would be judicially efficient. The court
envisioned an unwieldy pool of potential jurors. Accordingly, the court denied the
motion to consolidate all of the codefendants’ cases into a single trial.9
At issue is Iowa Rule of Criminal Procedure 2.71, which provides:
Two or more defendants who are alleged to have participated in the
same transaction or occurrence or series of transactions or
occurrences from which the offense or offenses charged arose may
8
On appeal, Hill argues the court’s refusal to consolidate all of the trials resulted in
inconsistent verdicts, which he contends we can consider because they are a matter of
public record. We decline to consider this ground for consolidation because it was not
raised at trial.
9
The ruling did allow the defendants to be tried in pairs. Hill sought to challenge this
ruling by interlocutory appeal, but the Iowa Supreme Court denied the request.
19
be tried jointly whether the defendants are charged in one or more
complaints.
This rule on joinder for simple misdemeanor offenses is permissive. Such
rules vest wide discretion in the trial court to decide if consolidation is
appropriate. Cf. State v. Belieu, 288 N.W.2d 895, 900 (Iowa 1980) (analyzing
severance rule for indictable offenses).
We find the district associate court properly exercised its discretion in
denying the motion to consolidate the trials of all thirteen defendants. On appeal,
Hill does not contend he experienced ineffective representation or an unfair jury
selection process as a result of the separate trials. Hill opted not to call defense
witnesses, but made no record that any witnesses were unavailable. On this
record, Hill does not show he was prejudiced by the denial of the motion to
consolidate all of the codefendants’ trials. Furthermore, even if the court had
abused its discretion, the parties agree no viable relief exists for Hill because it is
impossible for us to remand for a joint trial.
V. Defense Motion for Discovery
On December 1, 2011, Hill filed a motion for discovery of information from
the prosecution, including photographs, videotapes, and other recordings by law
enforcement. On December 9, 2011, the district associate court issued a written
order stating: “[H]aving heard arguments of counsel and reviewed relevant case
law, [the court] hereby finds that the State has complied with the request for
discovery and production of evidence. Any additional request for discovery or
production of evidence is denied for the reasons stated forth on the record.”
20
Hill did not provide a transcript of the discovery proceedings as part of the
record in this appeal. Hill contends the short argument before the court at the
hearing on his motion for discovery was preserved in a digital recording and is
available to the appellate courts just as it was available to the district court. We
disagree. The Iowa Supreme Court ordered Hill’s counsel to arrange for a court
reporter to transcribe the proceedings necessary to Hill’s appellate arguments.
Because the defense did not provide a transcript of the discovery proceedings,
we deem this issue waived. See State v. Ludwig, 305 N.W.2d 511, 513 (Iowa
1981) (“It is defendant’s obligation to provide this court with a record affirmatively
disclosing the error relied upon.”).
VI. State’s Motion to Amend Complaint
The original complaint, filed October 10, 2011, charged Hill with criminal
trespass under Iowa Code section 716.7(2)(b) [now renumbered as section
716.7(2)(a)(2)] (defining trespass as remaining upon property without justification
after being requested to vacate). On April 6, 2012, the State filed a motion to
substitute a charge under the alternative in section 716.7(2)(a) [now renumbered
as section 716.7(2)(a)(1)] (defining trespass as entering property without express
permission with intent to commit a public offense) for the alternative in section
716.7(2)(b). The district associate court held a hearing on the State’s motion on
April 12, 2012. The April 12 hearing was not transcribed for this appeal. It
appears from a handwritten notation on the preliminary complaint that the district
associate court allowed the State to add, rather than substitute, the second
trespass alternative.
21
As with the discovery issue above, our ability to assess Hill’s claim is
hindered by the absence of a transcript showing the arguments urged before the
district associate court. Because Hill has not provided us with an adequate
record of the claimed error, we conclude the issue is not properly preserved for
our review.
Even if we were to rely on the district court’s summary of the parties’
arguments based on that court’s opportunity to listen to the digital recording, we
would still find the arguments currently raised by Hill to be unpreserved. Hill
insists the amendment had “no factual basis” and questions the prosecutor’s
ethics in moving to add the trespass alternative that required proof of the
defendants’ intent to commit a public offense with no evidence to support the
allegation. The district court stated it could not “find anywhere that the Defendant
raised this issue at the hearing on the motion to amend.” The district court could
not determine from its review of the record that the prosecution lacked a good
faith belief that a factual basis existed to request the amendment. Relying on the
district court’s rendition of the arguments raised in the simple misdemeanor
proceedings, we agree Hill’s claim concerning the amendment of the complaint is
not properly preserved.
AFFIRMED.