State v. Bradley, No. 50578

CourtUnited States State Supreme Court of Iowa
Writing for the CourtTHOMPSON
Citation254 Iowa 211,116 N.W.2d 439
PartiesSTATE of Iowa, Appellee, v. William Tyler BRADLEY, Appellant.
Decision Date24 July 1962
Docket NumberNo. 50578

Page 439

116 N.W.2d 439
254 Iowa 211
STATE of Iowa, Appellee,
v.
William Tyler BRADLEY, Appellant.
No. 50578.
Supreme Court of Iowa.
July 24, 1962.
Rehearing Denied Oct. 16, 1962.

[254 Iowa 212]

Page 440

Leo Ballard, Des Moines, for appellant.

[254 Iowa 213] Evan Hultman, Atty. Gen., John H. Allen, Asst. Atty. Gen., and J. T. Snyder, County Atty., Buena Vista County, for appellee.

THOMPSON, Justice.

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, 'the Court visited somewhat with the defendant attempting to explain to him his rights for counsel and that the Court would appoint such counsel for him if he so desired. At that time the Court attempted to show the defendant the necessity of counsel in this matter, and why he should either employ able counsel or have the Court employ one. He still maintained that he did not desire counsel nor did he want the Court to appoint [254 Iowa 214] one. That he was ready, willing, and able to proceed with his own case.'

Again, on September 11, the Court brought the defendant to its chambers. 'He again informed the defendant of his rights to counsel, and tried to explain the importance and necessity for such and urged him in every way within reason and within the discretion of the Court to either employ counsel or permit the Court to appoint counsel. This was again refused by the defendant and he stated to the Court that he did not desire counsel and that he wished to plead his own case. The Court

Page 441

then inquired of the defendant whether or not he was ready to go to trial. The defendant stated he was.'

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.

[254 Iowa 215] 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: 'I want to explain to you that the testimony here will be in reference to the brutal attack on Elmer Enderson. The prior charges are only for the purpose of showing that Mr. Bradley has not adequately reformed due to his prior convictions.'

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

Page 442

'professional' criminal and a 'habitual' criminal, we [254 Iowa 216] 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...

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11 practice notes
  • State v. Tornquist, No. 50537
    • United States
    • United States State Supreme Court of Iowa
    • March 12, 1963
    ...a six year old boy--were instruments likely to cause death and under such circumstances were dangerous weapons. State v. Bradley, Iowa, 116 N.W.2d 439, 445, holds that a shoe when used in kicking a victim may under some circumstances be a dangerous weapon. Little discernment is required to ......
  • State v. King, No. 56913
    • United States
    • United States State Supreme Court of Iowa
    • January 22, 1975
    ...13, 1973. Notice was served within the four-day time limitations of Code section 780.10. Code section 4.1(23); State v. Bradley, Iowa, 254 Iowa 211, 116 N.W.2d 439, 442, Defendant would read Code section 769.4, requiring Filing of minutes of testimony with the information, together with Cod......
  • State v. Van Voltenburg, No. 51788
    • United States
    • United States State Supreme Court of Iowa
    • January 10, 1967
    ...North Western Reporter, if reported therein. See Nelson v. Cities Service Oil Company, Iowa, 146 N.W.2d 261, 262, and State v. Bradley, 254 Iowa 211, 223, 116 N.W.2d It would also be helpful, when citing cases in the United States Supreme Court Reports, to provide us with the volume and pag......
  • State v. Kramer, No. 57528
    • United States
    • United States State Supreme Court of Iowa
    • July 31, 1975
    ...raising this issue by a motion to suppress. The notice given defendant's attorney was timely. Section 4.1(22), The Code; State v. Bradley, 254 Iowa 211, 217, 116 N.W.2d 439, 442--443 (1962); see State v. King, 225 N.W.2d 337, 342 (Iowa 1975). The sole issue is due In State v. Bruno, 204 N.W......
  • Request a trial to view additional results
11 cases
  • State v. Tornquist, No. 50537
    • United States
    • United States State Supreme Court of Iowa
    • March 12, 1963
    ...a six year old boy--were instruments likely to cause death and under such circumstances were dangerous weapons. State v. Bradley, Iowa, 116 N.W.2d 439, 445, holds that a shoe when used in kicking a victim may under some circumstances be a dangerous weapon. Little discernment is required to ......
  • State v. King, No. 56913
    • United States
    • United States State Supreme Court of Iowa
    • January 22, 1975
    ...13, 1973. Notice was served within the four-day time limitations of Code section 780.10. Code section 4.1(23); State v. Bradley, Iowa, 254 Iowa 211, 116 N.W.2d 439, 442, Defendant would read Code section 769.4, requiring Filing of minutes of testimony with the information, together with Cod......
  • State v. Van Voltenburg, No. 51788
    • United States
    • United States State Supreme Court of Iowa
    • January 10, 1967
    ...North Western Reporter, if reported therein. See Nelson v. Cities Service Oil Company, Iowa, 146 N.W.2d 261, 262, and State v. Bradley, 254 Iowa 211, 223, 116 N.W.2d It would also be helpful, when citing cases in the United States Supreme Court Reports, to provide us with the volume and pag......
  • State v. Kramer, No. 57528
    • United States
    • United States State Supreme Court of Iowa
    • July 31, 1975
    ...raising this issue by a motion to suppress. The notice given defendant's attorney was timely. Section 4.1(22), The Code; State v. Bradley, 254 Iowa 211, 217, 116 N.W.2d 439, 442--443 (1962); see State v. King, 225 N.W.2d 337, 342 (Iowa 1975). The sole issue is due In State v. Bruno, 204 N.W......
  • Request a trial to view additional results

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