State v. Ege

Citation274 N.W.2d 350
Decision Date24 January 1979
Docket NumberNo. 61545,61545
PartiesSTATE of Iowa, Appellee, v. Dennis Robert Joseph EGE, Appellant.
CourtUnited States State Supreme Court of Iowa

Dennis W. Parmenter, of Traeger & Koempel, West Union, for appellant.

Richard C. Turner, Atty. Gen., Ann Fitzgibbons, Asst. Atty. Gen., Walter L. Saur, Fayette County Atty., and Jay A. Nardini, Asst. County Atty., for appellee.

Considered en banc.

ALLBEE, Justice.

Defendant, Dennis Robert Joseph Ege, appeals his conviction for rape, a violation of § 698.1, The Code 1977. The crime which engendered this prosecution occurred in the early morning of July 31, 1977 in a county park near Oelwein. We shall treat further facts as they become relevant to the particular issues which have been raised.

I. It is first contended that trial court, acting through Judge L. D. Lybbert, erred in failing to suppress a b.b. pistol and certain clothing which defendant was wearing on the night of the crime. Defendant insists that the seizure of those items without benefit of a warrant was unreasonable and a violation of both the federal and state constitutions. Our review of such questions is de novo. State v. Iowa District Court In and For Johnson County, 247 N.W.2d 241, 245 (Iowa 1977); State v. Knutson, 234 N.W.2d 105, 106 (Iowa 1976). We call the attention of the trial bench to the need for findings of fact and conclusions of law in support of trial court rulings on motions to suppress. Such would be more helpful than the summary overruling of defendant's motion found in this record. See State v. Peck, 238 N.W.2d 785, 789 (Iowa 1976).

Testimony by defendant and his wife indicated that he had returned home in an extremely intoxicated condition at about 3:30 in the morning of July 31. He slept until 9:00. When he awoke and joined his family his face was red and flushed and he was "kind of incoherent." A discussion of defendant's drinking problem occurred that morning, during which he became quite emotional. After eating a sandwich for lunch, defendant returned to bed. He finally went to sleep and had been asleep for "a couple of hours" when Agent Ronald G. Makin, of the Bureau of Criminal Investigation, arrived at the Ege home. At the agent's request, defendant's wife awakened defendant. She did so only with some difficulty. She testified that defendant "didn't look good."

Agent Makin and the deputy sheriff accompanying him took defendant out to the deputy's car. Defendant was given the Miranda warnings and signed a waiver at 5:04 p. m. The peace officers testified that defendant was not drunk, that he seemed to be thinking logically and appeared to be normal. The deputy also said that Ege's appearance was the same as at other times when they had seen each other. Pursuant to a request by the BCI agent, defendant went back into the house, found the b.b. pistol and relinquished it to Makin. Defendant, again at Makin's request, also obtained the clothing he had been wearing on the previous evening and turned that over to the officers.

Defendant's version of the events in the deputy's car is that he was coerced into turning over the gun and clothing. He claimed to not know that he could refuse the officers' requests and that he was told that the evidence could be obtained through use of a warrant. The peace officers denied making any promises or threats and indicated that defendant's actions were voluntary responses to the officers' requests.

The legal principles involved are relatively simple. A seizure without search is subject to fourth amendment scrutiny. State v. Kramer,231 N.W.2d 874 (Iowa 1975). Searches and seizures conducted without a warrant are per se unreasonable unless they fit within one of several well defined exceptions. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967); State v. King, 191 N.W.2d 650, 654 (Iowa 1971). Therefore, absent a warrant, the burden is on the State to demonstrate that the officers' actions were lawful. 1 State v. Iowa District Court In and For Johnson County, 247 N.W.2d 241, 246 (Iowa 1977) (dicta). See also Whiteley v. Warden of Wyoming State Penitentiary, 401 U.S. 560, 566, 91 S.Ct. 1031, 1036, 28 L.Ed.2d 306, 312 (1971). Consent is one such exception. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-4, 36 L.Ed.2d 854, 858 (1973); State v. Ahern, 227 N.W.2d 164, 165 (Iowa 1975). The consent must be freely and voluntarily given and not a mere submission to authority. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). Contrary to defendant's contentions, however, knowledge of the right to refuse consent is only one factor to be considered in answering the question of voluntariness. Schneckloth, 412 U.S. at 227, 93 S.Ct. at 2047-8, 36 L.Ed.2d at 862-3. Nor does the fact that Ege claimed to be in an impaired physical condition control. Cf. State v. Russell, 261 N.W.2d 490, 493-5 (Iowa 1978) (Miranda waiver obtained from defendant suffering with burns); State v. Hahn, 259 N.W.2d 753, 757-8 (Iowa 1977) (Miranda waiver obtained from individual of subnormal intelligence); State v. Youngbear, 229 N.W.2d 728, 736 (Iowa 1975) (proof of intoxication goes to weight accorded incriminating statements rather than their admissibility).

In examining all the surrounding circumstances, we find that the peace officers neither exerted a claim of authority upon Ege nor subjected him to subtly coercive questioning. Through the Miranda warnings and the waiver which he signed, Ege was informed of his basic rights to maintain silence and to obtain counsel. He was capable of understanding the position in which he had been placed and the alternatives which were available to him. He responded willingly to Agent Makin's straightforward requests for the b.b. pistol and his clothing. Trial court was correct in refusing to suppress that evidence.

II. Defendant's second contention is that he was denied his speedy trial right under § 795.2, The Code 1977. A recitation of the sequence of events preceding trial is necessary.

A preliminary information was filed August 1, 1977. By an order entered August 2, defendant was placed in the custody of the Mental Health Institute at Independence, due to his alcoholism and for mental evaluation. He was then charged by county attorney's information on August 22. Applications were made by the defense for his mental examination and evaluation and his hospitalization for those purposes. Orders pursuant to these applications were entered on August 29 and September 1. By order of September 7, trial was set for October 18. The motion to suppress which raised the issue considered in division I was filed on October 7 and overruled on October 11.

On October 14, a Friday, defense counsel filed a notice of intent to use an insanity defense as required by § 777.18, The Code 1977. 2 The proof of service attached to the notice stated that it had been mailed to the prosecutor on October 13.

On October 17, the county attorney moved for a continuance of four days, arguing that defendant's notice was untimely and that the prosecution required a psychiatric evaluation of defendant to meet its burden of proof. Defense counsel resisted the motion because granting the continuance would place the trial beyond the 60 day speedy trial period imposed by § 795.2.

Trial court, again acting through Judge Lybbert, found that good cause existed for continuing the trial beyond the speedy trial period because defendant had failed to file his notice until the prior Friday. It therefore set the trial for the next court day in Fayette County, October 25, 1977.

On October 19 the prosecutor moved for a second continuance. In support he submitted a letter from Paul L. Loeffelholz, M.D., of the Security Medical Facility at Oakdale, in which the doctor stated that a minimum of 30 days was required for a meaningful evaluation. The prosecutor also offered a professional statement in which he said that his office received the notice of the insanity defense on the morning of the 17th and that, due to administrative errands, he had not seen the notice until the afternoon of that day. He also stated that in examining reports of prior evaluations of defendant no insanity defense had been raised "that (he) viewed with alarm."

Defendant requested that his notice be withdrawn and that the case proceed to trial on the 25th. Trial court granted the continuance because the issue might be raised at trial and might require "recessing the trial for an extended period of time, in order that the State could then go ahead and complete the examination. . . ." The court found good cause for the delay because the defendant filed his notice only a short time before trial, and due to other matters which prompted the court "on its own motion (to) cause inquiry to be made as to the defendant's competency to stand trial. . . ." Trial was reset for November 15.

On October 26, after the 60 day period had expired, defendant filed a motion to dismiss the prosecution for failure to grant a speedy trial. The district court, Joseph C. Keefe, Judge, recited the reasons given by Judge Lybbert for the continuances, registered his agreement that those reasons constituted good cause and denied the motion. Trial was commenced on November 15.

The principles governing the disposition of this appeal were recently set out in State v. Lybarger, 263 N.W.2d 545, 546-7 (Iowa 1978), and State v. Moehlis, 250 N.W.2d 42, 46 (Iowa 1977). The State bears the burden of bringing defendant to trial in a timely fashion. Delay beyond the 60 day period may be excused by defendant's waiver of the right, by a delay attributable to defendant, or by a showing of other good cause for the delay.

The delay in this case cannot be justified on the sole basis that continuances were granted. Instead, the reasons for the continuances must be examined, to determine whether those reasons constitute good cause. State v. Hines, 225 N.W.2d 156, 160-1 (Iowa 19...

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