State v. Anderson

• Decision Date: 15 July 1981
• Docket Number: No. 65306,65306
• Citation: 308 N.W.2d 42
• Parties: STATE of Iowa, Appellee, v. John Michael ANDERSON, Appellant.
• Court: Iowa Supreme Court

Page 42

308 N.W.2d 42

STATE of Iowa, Appellee, v. John Michael ANDERSON, Appellant.

No. 65306.

Supreme Court of Iowa.

July 15, 1981.

William Wegman, Black Hawk County Public Defender, Waterloo, for appellant.

Thomas J. Miller, Atty. Gen., Roxann M. Ryan, Asst. Atty. Gen., and David H. Correll, County Atty., for appellee.

Considered by REYNOLDSON, C. J., and HARRIS, ALLBEE, McGIVERIN, and SCHULTZ, JJ.

McGIVERIN, Justice.

John Michael Anderson appeals his conviction for first-degree sexual abuse in violation of sections 709.1-.2, The Code 1979. He alleges that several errors by the trial court require a new trial. We affirm the conviction.

In April 1978 Anderson rented a room in a home owned and occupied by an 85-year-old widow in Waterloo. Anderson was twenty-six and on probation. Shortly after moving in he came uninvited into the widow's living quarters at around 6:45 a. m. This frightened the woman and she called the police. After a conference with police and his probation officer, Anderson was persuaded to move to another house in Waterloo.

At approximately 4:00 a. m. on April 19, 1978, the widow called police to report that she had just been beaten and sexually abused. The victim immediately identified her attacker as Anderson. Police arrested him later that morning.

A trial information charged Anderson with first-degree sexual abuse. Defendant waived a jury and the matter was tried to the court, which found Anderson guilty. The court found that the victim had been sexually abused. Entrance to the victim's home was gained by breaking glass in a side door. In the process the assailant cut his hand and this resulted in fresh blood on the victim's bedding during the sexual abuse crime. A sample of the blood was compared to a sample of Anderson's blood. The two samples contained four identical genetic markers. An expert testified that the statistical frequency of these four markers appearing in a person was less than two in one hundred for Anderson's race, which is black.

Defendant was sentenced on May 31, 1979. §§ 709.2, 902.1. He appeals to us, raising the following issues:

I. Does this court have jurisdiction to hear the appeal and, if not, should a delayed appeal be allowed?

II. Is the phrase "substantial risk of death" as used to define serious injury unconstitutionally vague?

III. Was the evidence sufficient to support a finding of serious injury to the victim?

IV. Did the trial court abuse its discretion in denying defendant's motion for a lineup under section 810.2?

V. Was defendant denied his constitutional rights to confront witnesses and be present at trial when he was not present at a hearing on a motion to dismiss?

VI. Was defendant denied a right to have a speedy conclusion to his prosecution?

I. Jurisdiction. The first issue we must consider is whether this court has jurisdiction to hear the appeal. The parties have briefed the issue and defendant has also filed an application to treat his direct appeal, if untimely, as a delayed appeal. We grant the application for a delayed appeal.

The problem in this case is to determine the correct procedure to perfect an appeal where, within sixty days after final judgment, defendant filed a timely motion for a new trial based on newly discovered evidence, but did not file a notice of appeal from the final judgment until after the ruling on the motion. The ruling on the motion for new trial was beyond sixty days from the final judgment. A review of the facts will assist in illustrating the problem.

On May 31, 1979, judgment of guilty of first-degree sexual abuse was entered against defendant. New counsel was appointed to handle the appeal. He had sixty days until July 30, 1979, to perfect an appeal. § 814.4, The Code. On July 16, 1979, counsel made a timely postjudgment motion for a new trial based on newly discovered evidence. The motion was overruled on June 6, 1980, and on July 10, 1980, defendant filed his only notice of appeal. From this set of facts we must determine the consequences for our appellate jurisdiction. Our problem is with jurisdiction over an appeal from the May 31, 1979, judgment. Of course, an appeal from the June 6, 1980, denial of the motion for new trial would have been timely. § 814.4; Iowa R.Crim.P. 23(4)(c).

The May 31, 1979, judgment of guilty, which sentenced defendant to life in prison, was an appealable final judgment. State v. Clayton, 217 N.W.2d 685, 687 (Iowa 1974). The manner of taking an appeal in a criminal case is governed by statute. Iowa R.App.P. 101. A defendant has sixty days from the entry of final judgment to take an appeal. § 814.4. In this case, sixty days from the May 31 final judgment was July 30, 1979. § 4.1(22).

Within sixty days of May 31 defendant's lawyer discovered new evidence that indicated that a defense of diminished responsibility could possibly have been raised at trial. See State v. Collins, 305 N.W.2d 434 (Iowa 1981). He wanted to get defendant a new trial. Under our rules, a motion for a new trial based on newly discovered evidence could be made anytime within two years after final judgment. Iowa R.Crim.P. 23(2)(a), (b)(8).

At this point, defendant's lawyer faced a dilemma. If he filed a notice of appeal from the May 31 judgment, he would protect his right to appeal. However, the filing of a notice of appeal would extinguish the trial court's jurisdiction to rule on his postjudgment motion for a new trial. State v. Williams, 285 N.W.2d 248, 266 (Iowa 1979), cert. denied, 446 U.S. 921, 100 S.Ct. 1859, 64 L.Ed.2d 277 (1980); Cleesen v. Brewer, 201 N.W.2d 474, 476 (Iowa 1972). But see State v. Gatewood, 179 N.W.2d 520, 521 (Iowa 1970). On the other hand, if he filed his new trial motion, the sixty days for appealing the May 31 judgment might run before the court ruled on the motion. On July 16, 1979, he decided to file the motion for a new trial and did not file a notice of appeal from the May 31 judgment before July 30, 1979.

Unfortunately, our statutes and rules do not cover the procedure for perfecting an appeal in a criminal case where, prior to the expiration of the appeal period, a timely postjudgment motion is filed. This problem does not arise often because most motions for a new trial or to arrest judgment in a criminal case are made before final judgment. Iowa R.Crim.P. 23(2)(a), (3) (b). But see State v. Boone, 298 N.W.2d 335 (Iowa 1980). In civil cases, the rules cover this situation. For example, when a timely motion for a new trial is made after judgment in a civil case the time to appeal does not begin running until a ruling on the motion. Iowa R.App.P. 5(a).

We conclude that section 814.4 required defendant to file his notice of appeal from the May 31 judgment within sixty days, regardless of whether a timely postjudgment motion was filed during that time. Unlike civil cases, there is no express provision for tolling the appeal period in a criminal case until after a ruling on the postjudgment motion for new trial based on alleged newly discovered evidence.

We are aware that some of our cases have allowed a criminal appeal within sixty days after a ruling on a postjudgment motion. Boone, 298 N.W.2d at 337; State v. Gillespie, 271 N.W.2d 686, 688 (Iowa 1978). Unlike Anderson's case, these cases involved guilty pleas where a postjudgment motion was required before taking an appeal. Gillespie, 271 N.W.2d at 688. There was also an identity of issues between those raised in the postjudgment motion and those raised on appeal. In Anderson's case, he was not required to make his new trial motion before appealing and the issues he seeks to raise here are not related to the issue of newly discovered evidence raised in his postjudgment motion.

Defendant contends that our reading of the statutes and rules will result in multiple appeals. That is, under our holding today, he claims he would have to file a notice of appeal within sixty days from the May 31 judgment, and after that appeal was decided, get a ruling on his new trial motion. He then would have to take another appeal if dissatisfied with the ruling on the motion. He urges us, in effect, to apply Iowa R.App. 5(a) on civil cases to criminal appeals and toll the running of the appeal period until there is a ruling on postjudgment motions made within the time to appeal. We decline to do so.

Since a new trial motion based on newly discovered evidence in a criminal case may be filed anytime within two years after final judgment, Iowa R.Crim.P. 23(2)(b)(8), it is quite possible to have two appeals the first from the final judgment and the second from a denial of the new trial motion. We decline to adopt by judicial fiat a rule tolling the appeal period when a postjudgment motion is filed within the appeal period from the final judgment.

In addition, the problem of the possibility of two appeals may easily be handled in these cases. For example, defendant could have filed a timely notice of appeal from the May 31 judgment and also asked this court to grant a limited remand to allow the trial court to rule on the timely postjudgment motion. If the postjudgment motion were denied and defendant sought to appeal that ruling, we could consolidate it with the appeal from the final judgment. This procedure would follow the statutes and eliminate the need for us to judicially prescribe a rule here.

Finally, we must comment on another matter. Defendant's lawyer was aware of the appellate jurisdiction problems in this case. To protect his right to appeal, he requested and received an order from the trial court "staying" the time for taking an appeal. This order has no effect. The parties to a case or a trial court ordinarily cannot determine the jurisdiction of this court. Boone, 298 N.W.2d at 336; Hollister Convalescent Hospital, Inc. v. Rico, 15 Cal.3d 660, 666, 542 P.2d 1349, 1354, 125 Cal.Rptr. 757, 762 (1975); 4 Am.Jur.2d Appeal and Error § 293 (1962); see Iowa R.App.P. 20.

Defendant has also filed an application to...