Opinion
No. 1-943 / 00-2074.
Filed January 28, 2002.
Appeal from the Iowa District Court for Marion County, DARRELL GOODHUE and JERROLD W. JORDAN, Judges.
George Samuel Bloom appeals from the judgment and sentence entered by the district court following a bench trial and guilty verdict for the offense of possession of methamphetamine with intent to deliver in violation of Iowa Code section 124.401(1)(c)(6) (1999). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and David Adams, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Mary Tabor, Assistant Attorney General, for appellee.
Considered by SACKETT, C.J., and MAHAN and HECHT, JJ.
Defendant-appellant George Samuel Bloom appeals from the judgment and sentence entered by the district court following a bench trial and guilty verdict for the offense of possession of methamphetamine with intent to deliver in violation of Iowa Code section 124.401(1)(c)(6) (1999). Defendant claims on appeal that the district court erred in finding the issuance of a search warrant for defendant's hotel room was supported by probable cause, that he was rendered ineffective assistance of counsel, and that the court erred in denying his right of allocution at the sentencing hearing. We affirm but preserve defendant's ineffective assistance claims for postconviction proceedings.
On January 2, 2000 a confidential informant notified the Knoxville Police Department that defendant and another individual, Gary Galvin, were "cooking" methamphetamine in room 28 of the Red Carpet Motel in Knoxville. Officers began to survey the room that day. During their surveillance and within a time span of about an hour and a half, they observed three cars make brief stops in front of the room. Their occupants would enter the room for a short time and then leave in the cars. Upon stopping one of the cars, officers found the driver in possession of a type of scale which testimony indicated was often used in the drug trade. Furthermore, officers noticed a couple of individuals appearing to be "look-outs," and they were told by the hotel manager that "crowds" had been going into and leaving the room in question.
Some of the officers became concerned that there was a possibility that any evidence of drug possession or use in the room would be destroyed. After being given a key by the hotel manager, these officers knocked on the door of room 28, announced their presence, and, after hearing scrambling, entered the room. One officer found defendant attempting to flush methamphetamine. The officers then awaited a search warrant. After another group of officers on the scene (who had left for a warrant before the first group had broken into the room) had obtained a warrant, they executed a search, finding incriminating evidence including scales testing positive for methamphetamine residue, baggies, a notebook containing names and measurements, pre-cut seals, syringes and other such paraphernalia.
The trial court, finding no exigency justifying the warrantless search, suppressed the evidence obtained pursuant to the warrantless entry. Defendant claims on appeal that the additional evidence found after the issuance of the warrant was also inadmissible due to the illegal search and should have been suppressed as well. The State counters that this issue was not properly preserved for appellate review.
We find that this issue was not properly preserved for appellate review. To preserve error on a trial court's suppression ruling, a defendant must alert the trial court to the specific objection upon which the defendant seeks to exclude the evidence. State v. McPhillips, 580 N.W.2d 748, 750 (Iowa 1998). Defendant's motion to suppress applied only to that evidence obtained before the execution of the search warrant. The district court noted this, indicating in its ruling on the motion to suppress that it was suppressing only the evidence obtained prior to the execution of the search warrant.
Defendant sought to suppress the evidence obtained after the execution of a search warrant in a motion in limine filed on the date of trial, April 4, 2000. Defendant pled guilty instead of going to trial, but he later filed a motion in arrest of judgment, withdrew his guilty plea, and was scheduled for another trial on September 12, 2000. On September 13, 2000, the day after trial began, defendant filed an amended motion in limine and a separate motion to clarify, modify and expand ruling, again attempting to suppress the evidence. Iowa Rules of Criminal Procedure 10(2)-10(4) require that motions in limine be filed no later than nine days before the trial date. Motions which do not adhere to these guidelines are waived. Iowa R. Crim. P. 10(3). See State v. Ball, 600 N.W.2d 602, 604 (Iowa 1999). Moreover, a motion in limine is generally insufficient to preserve error. State v. Frazier, 559 N.W.2d 34, 39 (Iowa Ct.App. 1996). We find this issue was not preserved and therefore decline to address it.
Defendant further contends his counsel was ineffective by failing to file a timely motion to suppress and in failing to demand a hearing on material inconsistencies in the search warrant affidavit. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Generally ineffective assistance of counsel claims are preserved for postconviction proceedings to allow trial counsel an opportunity to defend the charge. State v. Mulder, 313 N.W.2d 885, 890 (Iowa 1981). Accordingly, we preserve this claim for postconviction proceedings so the facts can be further developed. See State v. Bass, 385 N.W.2d 243, 245 (Iowa 1986).
Defendant's third claim on appeal is that he was denied the right of allocution at his sentencing hearing. Under Iowa Rule of Criminal Procedure 22 (3)(d) defendant has the right to make a statement on his own behalf regarding punishment. See State v. Craig, 562 N.W.2d 633, 635 (Iowa 1997). This right is personal to defendant and is not properly recognized unless he is apprised of an opportunity to address the court himself. See id. at 636. We review challenges to the trial court's adherence to sentencing rules for errors at law. See State v. Edgington, 601 N.W.2d 31, 32 (Iowa 1999). Defendant argues that "at no time during the sentencing hearing were there questions asked by the court or statements made by the court to suggest to the defendant that he could personally voice any arguments or make any other statements in mitigation of his sentence. . . ." We disagree. At the sentencing hearing the court addressed defendant, stating, "Does the Defendant or counsel have anything they wish to present. . . . concerning sentencing?" After defendant then took the stand to testify on his own behalf, the court asked again, "The Defendant have any further evidence to present or any information concerning recommendations for sentencing?" Although defendant's attorney answered this request, we believe that, given that the court directly addressed the defendant, and the fact that defendant had just finished testifying, the defendant would have been aware of his right to speak in court. Even if this were not so, however, the court called upon both defendant and his attorney prior to the testimony, as has been previously stated, specifically addressing each of them to allow for any input regarding sentencing. We find defendant's right to allocution was decidedly not violated.
AFFIRMED.