State v. Bradley, 50578
| Decision Date | 24 July 1962 |
| Docket Number | No. 50578,50578 |
| Citation | 254 Iowa 211,116 N.W.2d 439 |
| Parties | STATE of Iowa, Appellee, v. William Tyler BRADLEY, Appellant. |
| Court | Iowa Supreme Court |
Leo Ballard, Des Moines, for appellant.
Evan Hultman, Atty. Gen., John H. Allen, Asst. Atty. Gen., and J. T. Snyder, County Atty., Buena Vista County, for appellee.
On August 29, 1961, the county attorney of Buena Vista County filed in the Buena Vista District Court his information charging the defendant with the crime of assault with intent to inflict great bodily injury, in violation of Section 694.6 of the 1958 Code of Iowa, I.C.A.; and further charging him with being a habitual criminal as defined by Section 747.5. Specific convictions of previous offenses were charged. On September 7 next an amendment to the information was filed, which deleted two of the previous convictions charged and added another. The net result of the deletions and addition was that two previous convictions were alleged in conformity to Section 747.5. The amendment also set forth for the first time the names of witnesses by whom the state proposed to prove the identity of the defendant as the same person named in the two previous convictions, and with the name of each was an abstract of proposed testimony. On the same date a notice of the proposed additional testimony was served on the defendant.
To the information as amended the defendant entered his plea of Not Guilty. He was first arraigned on September 6, and again on September 11, after the information had been amended. For some time he refused the services of counsel, and he was in fact not represented until after the jury had been selected on September 11. The record shows that the trial court went to some lengths to advise him of his right to counsel and to urge him to procure the services of an attorney or to permit the court to employ one for him. On September 6, when he was first arraigned,
Again, on September 11, the Court brought the defendant to its chambers.
I. Against this background the proceedings opened. A jury was selected, 'the Court attempting in every way possible to preserve all the rights of this defendant, and assist him in every manner to see that he would obtain a fair and impartial trial.' The quotations are from the statement of the court as to what occurred preliminary to the commencement of the trial.
After the selection of the jury on September 11, the trial was adjourned until 10 a. m. on September 12. At that time the opening statement for the state was made, and the court advised the defendant of his right to make a statement in his own behalf. The defendant, having apparently thought better, or worse, of his own ability to defend himself, told the court he might desire counsel.
The court then adjourned the case until one p. m. to permit the defendant to decide definitely whether he wished the services of an attorney, and shortly thereafter it received a telephone call from defendant's present counsel, who resides in Des Moines, saying that he had been retained to represent the defendant. Mr. Ballard arrived in Storm Lake about 2 p. m., and was given time to confer with his client. About three p. m. defendant's counsel returned to the courtroom and filed a motion for a mistrial, which will be discussed. The motion being denied, counsel then requested additional time to familiarize himself with the case, and court was adjourned until September 14 at 10 a. m. The trial then proceeded with evidence for the state pertaining to the primary offense charged in the information.
When this was concluded, the state offered evidence concerning the previous offenses, to which defendant's counsel objected on technical grounds. This objection being overruled, the defendant asked a continuance until September 25 next; but the court granted a continuance only until September 18. This matter will likewise be further considered in a later division. The trial proceeded on September 18, with the result that a jury verdict of guilty of the primary offense was returned, and an interrogatory as to whether the defendant had been twice previously convicted was answered in the affirmative. From judgment and sentence in accordance with the verdict and the affirmative finding of the interrogatory the defendant appeals. Further facts will be detailed as we consider the errors relied upon for reversal.
II. Four errors are assigned. The first concerns a statement made by the county attorney in his opening remarks to the jury. At this time the defendant was not represented by counsel, but was still electing to try his own case although he had been repeatedly advised by the court of his right to an attorney; in fact had been warned that his best interest required that he have such representation. Mr. Ballard appeared for him a few hours after the opening statement for the state had been made, and promptly filed a motion for mistrial based on a remark made by counsel for the state. The objectionable statement as set forth in the motion for mistrial was this:
The defendant thinks that reference to him as one who 'has not adequately reformed' was so improper and prejudicial that it prevented him from receiving the fair trial to which he was entitled. The trial court did not agree; and we have repeatedly said that it has a considerable discretion in ruling upon such questions. In State v. Harless, 249 Iowa 530, 535, 536, 86 N.W.2d 210, 213, 214, we discussed a similar situation. There the prosecuting attorney had referred to the defendant as 'a professional criminal'. While we said there might be some distinction between a 'professional' criminal and a 'habitual' criminal, we held the trial court did not abuse its discretion in finding that the defendant had received a fair trial notwithstanding the prosecutor's remark. Authorities are cited; and see in addition thereto, State v. Jensen, 245 Iowa 1363, 1366, 1367, 1368, 66 N.W.2d 480, 482, and State v. Wheelock, 218 Iowa 178, 182, 254 N.W. 313, 316. It is not far-fetched to say that one who has been convicted of serious crimes in the past, and is again charged, has not reformed; certainly not to the point that the trial court abused its discretion in refusing to grant a motion for mistrial.
III. Error is predicated on the admission of the testimony of the witnesses who were not listed on the original information but were included in the notice of additional testimony served on the defendant on September 7. Since the trial was set for September 11 and the jury was drawn on that day, the defendant asserts that the four days notice required by Section 780.10 of the Code, I.C.A. was not given. These were all identifying witnesses whose testimony was needed in proving the previous crimes. None of the evidence elicited from them pertained in any way to the primary crime.
When the testimony of the first of these was offered on September 15, the defendant objected that four full days had not elapsed from the date of service of the notice of additional testimony until the beginning of the trial. It will be observed that nothing was done on September 11 except the selection and impaneling of the jury. Except for the ruling on the motion for mistrial, nothing further was done until September 14. When objection was made to the testimony of the first of the identifying witnesses offered, the county attorney then filed a motion to introduce the evidence with supporting affidavit, as defined in Section 780.11. The court granted the motion and permitted the introduction of the evidence.
The defendant urges that lack of diligence on the part of the state affirmatively appears; and a showing of diligence being required by Section 780.11, supra, it was error for the court to sustain the motion and allow the evidence.
In addition to the matter of diligence, questions of waiver, discretion of the trial court, and when a trial commences within the meaning of the statute are argued and disputed at some length by the opposing parties. The defendant says in his brief: 'The present fact situation would appear to be a case of first impression in Iowa.' The state has apparently concurred in this view; and so much effort, white paper and printer's ink has been expended in arguing irrelevant questions. The case is not one of first impression.
The defendant properly cites Section 4.1(23) as the governing statute. We quote it:
From this the defendant draws the conclusion that...
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