State v. O'Connell

• Decision Date: 21 February 1979
• Docket Number: No. 61172,61172
• Citation: 275 N.W.2d 197
• Parties: STATE of Iowa, Appellee, v. Thomas Joseph O'CONNELL, Appellant.
• Court: Iowa Supreme Court

Page 197

275 N.W.2d 197

STATE of Iowa, Appellee, v. Thomas Joseph O'CONNELL, Appellant.

No. 61172.

Supreme Court of Iowa.

Feb. 21, 1979.

Kjas T. Long, Waterloo, for appellant.

Richard C. Turner, Atty. Gen., Faison T. Sessoms, Jr., Asst. Atty. Gen., David H. Correll, Black Hawk County Atty., and R. James Sheerer, Harry W. Zanville and Jay A. Nardini, Asst. Black Hawk County Attys., for appellee.

Considered en banc.

REYNOLDSON, Chief Justice.

Defendant Thomas Joseph O'Connell appeals from judgments imposing concurrent life sentences for the second-degree murder of his wife Carole and first-degree murder of his daughter Colleen. We affirm.

The bodies of Carole and Colleen were discovered in their burning mobile home on the morning of March 29, 1977. Defendant had left for work about two hours before the fire was discovered. The jury could have found the burn time of the mobile home was at least two hours. An autopsy indicated Carole had been killed by strangulation before the fire was set and that eight-month-old Colleen died of smoke inhalation.

Defendant was charged with murder by separate county attorney's informations. The two charges were consolidated for trial.

Assisted by different counsel defendant appeals, raising seven issues for review which we state and treat in the following divisions.

I. Was defendant denied his right to speedy trial?

Defendant contends his statutory and constitutional rights to speedy trial were violated.

The informations in this case were filed April 8, 1977. On the same day counsel was appointed for defendant, who pled not guilty to each charge. Trial was scheduled for May 17.

On the May 9 deadline set by the arraigning judge for filing additional minutes of testimony, State filed and served on defendant minutes for twenty additional witnesses. Defense counsel successfully moved for continuance to enable him to investigate and interview these witnesses. Trial was rescheduled for June 20, seventy-three days after the informations were filed.

State filed and served additional minutes of testimony on June 2, 14, and 16 without objection. Defendant filed five separate motions on June 14 which were ruled on by the court. State timely complied with these rulings and trial commenced as rescheduled.

The following from § 795.2, The Code, 1975, is pertinent:

If a defendant indicted for a public offense, whose trial has not been postponed upon His application, be not brought to trial within sixty days after the indictment is found, the court must order it to be dismissed, unless good cause to the contrary be shown.

(Emphasis supplied.) See present rule 27(2)(b), Rules of Criminal Procedure (ninety days).

The issue of speedy trial was not raised until sentencing. Defendant then personally stated:

Under habeas corpus, I was not honored a sixty-day trial in accordance with 2795.2 (sic) of the Iowa Code. I would further like to state that I gave no written or verbal consent to delay. I did not sign power of attorney.

We have held the § 795.2 speedy trial right is waived if a defendant who is represented by counsel delays until adverse verdict to move for dismissal. State v. Paulsen, 265 N.W.2d 581, 585 (Iowa 1978). But defendant raises an issue of first impression in this jurisdiction: that the statutory right is fundamental and personal to him and can be waived only by him, on the record and only after being fully advised of the nature of the right. He asserts no authority other than the § 795.2 phrase "his application." State argues § 795.2 was waived by defense attorney's continuance motion.

We have enforced the § 795.2 provision which denies statutory speedy trial rights to a defendant "whose trial has * * * been postponed upon his application." See State v. Manning, 224 N.W.2d 232, 235-36 (Iowa 1974); State v. Shockey, 214 N.W.2d 146, 150-51 (Iowa 1974). This rule applies here if defendant is bound by his lawyer's continuance motion.

Ordinarily a criminal defendant is bound by his or her counsel's actions taken on the client's behalf. Faretta v. California, 422 U.S. 806, 820, 95 S.Ct. 2525, 2534, 45 L.Ed.2d 562, 573 (1975); State v. Benson, 247 Iowa 406, 410, 72 N.W.2d 438, 441 (1955); Shores Co. v. Iowa Chem. Co., 222 Iowa 347, 350-51, 268 N.W. 581, 582-83 (1936). See also § 610.16(1) (attorney has authority to execute in client's name any instrument necessary in the prosecution or defense of an action). The word "his" in § 795.2 must be read in conjunction with § 610.16(1) and supportive case law.

Interpreting § 795.2 in this light, we conclude the legislature intended speedy trial rights would be waived by continuance motions made by the Defense, not merely those made by defendant.

This holding is consistent with the rationale used and result reached by other courts confronting this question. Townsend v. Superior Court, 15 Cal.3d 774, 543 P.2d 619, 126 Cal.Rptr. 251 (1975); People v. Carr, 9 Ill.App.3d 382, 292 N.E.2d 492 (1972); State v. McBreen, 54 Ohio St.2d 315, 376 N.E.2d 593 (1978); State v. Franulovich, 18 Wash.App 290, 567 P.2d 264 (1977). It is also consistent with our observation in State v. Brandt, 253 N.W.2d 253, 255-56 (Iowa 1977), that the acts or omissions of defendant Or counsel can constitute good cause for delay beyond sixty days. If counsel can act for defendant in ways that can attribute delay to defendant, counsel should be able to waive the statute altogether.

Although defendant refers to a constitutional right to speedy trial in arguing his main premise, no constitution or constitutional provision is cited. The issue is deemed waived. Rule 14(a)(3), R.App.P.; Miller v. International Harvester Co., 246 N.W.2d 298, 304 (Iowa 1976); State v. Vick, 205 N.W.2d 727, 729 (Iowa 1973). We observe in passing that under the balancing test delineated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), we detect no constitutional violation in these circumstances.

II. Was testimony improperly admitted relating to defendant's prior assaults on his wife?

One of defendant's pretrial motions was a motion in limine. It was directed against potential testimony from thirteen prosecution witnesses regarding defendant's prior assaults on Carole, her fear of defendant, and the general state of their relationship before and after marriage. Defendant sought "to prohibit disclosure of questionable evidence until the Court during trial in the jury's absence has been presented an offer and objection." Defendant asserted the described evidence

is too remote in time to be material for any issue in this case, is an attempt to prove the current charge by proof of prior criminal acts and is an attempt to establish past conduct and character on the part of the defendant.

State resisted. Trial court sustained the motion as it related to four witnesses who would have testified to events prior to the February 29, 1976, marriage of defendant and Carole. The motion was overruled as to nine witnesses. Six of these persons testified. From this evidence the jury could have found the following facts.

One year before Carole's death defendant struck her "real hard in the back of the head and * * * two or three times in the face," chipping a tooth and causing a swollen lip. The assault occurred because Carole refused to have sexual intercourse with defendant.

In August, 1977, only ten days before Colleen was born, defendant "hit" and "beat" Carole on her face and torso, causing bruises and swelling. Clothed only in bikini panties, Carole ran from her mobile home and sought refuge with neighbors. Earlier in the day defendant had become angry when he learned he would not be permitted in the delivery room.

In December, 1976, Carole again fled her mobile home after defendant struck her several times in the face during an argument.

The jury could have found that during these incidents Carole feared for her life and the child's safety, believed defendant wanted to hurt her and Colleen, and believed defendant became very violent when angry.

This evidence was introduced with but two objections, both made when the first witness began to testify about the prior assaults. These objections merely referred to the motion in limine and mentioned only the first witness. Trial court overruled the "general objection" and reserved rulings on "specific matters that relate to specific objections."

While much of the above testimony was hearsay, the motion in limine did not raise that ground. Defendant made a hearsay objection only when officer Gary McCormack was relating circumstances surrounding the first assault. This witness testified he and a fellow officer had responded promptly to a call at the O'Connell mobile home. When they arrived Carole was sobbing, her eyes were red, her cheeks were wet, and the left upper portion of her lip was swollen. A tooth had been chipped and she had some particles of tooth in a little handkerchief or kleenex held in her hand. Over the hearsay objection officer McCormack was permitted to testify Carole "said that her husband had hit her real hard in the back of the head and that he had struck her two or three times in the face and that he knew quite a bit about karate."

After the officers had been at the mobile home about ten minutes her "sobbing and intense crying had quieted down quite a bit." They then took her to the police department where her injuries were photographed and her statement was taken. She then expressed fear of her husband and said, "(H)er husband had come home and wanted to have sexual intercourse, and she refused him, and he got mad."

On appeal defendant contends admission of this prior assault evidence over objections made in his limine motion was error. He also asserts trial court erroneously admitted the above-quoted portions of McCormack's testimony because they constituted hearsay.

We turn first to the motion in limine. A close study of our decisions discloses our rulings on the preservation issue ordinarily...