State v. Emery

• Decision Date: 25 June 1975
• Docket Number: No. 57692,57692
• Citation: 230 N.W.2d 521
• Parties: STATE of Iowa, Appellee, v. Earl Leroy EMERY, Appellant.
• Court: Iowa Supreme Court

Page 521

230 N.W.2d 521

STATE of Iowa, Appellee, v. Earl Leroy EMERY, Appellant.

No. 57692.

Supreme Court of Iowa.

June 25, 1975.

P. F. Elgin, Indianola, for appellant.

Richard C. Turner, Atty. Gen., John Grant Mullen, Asst. Atty. Gen., and Michael Hansen, Asst. County Atty., for appellee.

Heard before MOORE, C.J., and LeGRAND, REES, REYNOLDSON, and HARRIS, JJ.

HARRIS, Justice.

Defendant was convicted of robbery with aggravation in violation of §§ 711.1 and 711.2, The Code. His appeal raises questions of speedy indictment, on-the-scene identification in absence of counsel, and claimed prosecutorial misconduct. We affirm.

Earl Leroy Emery (defendant) was arrested March 20, 1974 following an armed holdup of a Des Moines grocery store by two masked gunmen. Ernest Hoopes drove by the store at the time, returning home from church with his son. His son first noticed the robbery taking place. Hoopes stopped the car and also observed it. He saw a third man crouched outside. He then saw the three men run and get into a red Pontiac Firebird.

Hoopes followed the car, observed the license number, had his son write it down, verified its accuracy, and thereafter stopped and phoned police. Police then stopped the car which was occupied by defendant and two other men. Upon a search it was learned the men each had considerable currency in his possession. Defendant had $158 in a roll of bills in his pocket and $1 in his billfold.

The police took the three back to the store and exhibited them to Martin Laugk, Mike Burns, and Steve Foldes who had observed the robbery. Observations of these witnesses will be described in a later division.

At trial defendant offered alibi evidence placing him in an Indianola tavern until 8:30 to 9:00 p.m. a half hour to hour after the robbery. Various witnesses, including defendant, testified defendant was using crutches at the time following an accidental shooting. Defendant's ability to walk without crutches became a disputed trial issue.

I. On March 21, 1974, the day following his arrest, defendant was taken before an associate district court judge who entered an order of commitment and set preliminary examination for March 27, 1974. This examination was never held or waived; trial was upon a county attorney's information filed April 24, 1974.

On April 24 defendant moved to dismiss because he had not been indicted within 30 days as required by § 795.1, The Code. The motion was overruled on the ground he had never been held to answer so the 30 day period had not begun to run. Defendant's first assignment challenges this ruling.

Under § 795.1, unless good cause is shown, a prosecution must be dismissed if an indictment is not returned within 30 days after a person is Held to answer for a public offense. According to our cases a defendant is not held to answer within the meaning of the statute until preliminary examination (chapter 761, The Code) is completed or waived. State v. Thomas, 222 N.W.2d 488, 491 (Iowa 1974); State v. Lee, 222 N.W.2d 471, 473 (Iowa 1974); State v. Sowle, 218 N.W.2d 573, 574 (Iowa 1974); State v. Morningstar, 207 N.W.2d 772, 775 (Iowa 1973).

By the foregoing rule the 30 day period did not start to run because defendant was never held to answer. Defendant urges the rule is inapplicable by reason of a peculiar error by the judge who set the preliminary examination. In setting the examination, and in ordering defendant committed pending the same, the judge used inappropriate forms. The forms used, though filled in by the judge so as to clearly and expressly set a preliminary examination, had been printed for use at a later stage in criminal proceedings. The form was obviously intended for use as a warrant of commitment prescribed by § 761.20, The Code. Such a warrant is intended for use after a preliminary examination is held and an accused is in fact held to answer.

The form accordingly contained the statement, untrue in this case, defendant was held to answer. The question then becomes whether the erroneous statement, incorporated by use of an improper form, changes the fact. We think not. Under the cases cited the question turns on what stage has been reached in the proceedings. A magistrate could not, after a preliminary examination was held or waived, prevent a 'held to answer' status from existing by erroneously finding it did not. Neither can he cause the status to exist by erroneously finding it did. Defendant's first assignment is without merit.

II. Defendant's second assignment challenges identification testimony gathered on the scene in a manner defendant believes was unnecessarily suggestive and conducive to irreparable mistaken identification. He relies on State v. Salazar, 213 N.W.2d 490 (Iowa 1973). The facts surrounding the on-the-scene identification generally are not disputed. Defendant and his two companions were taken to the store about 45 minutes after the holdup. Donnie Conz, one of the three, was first brought before the witnesses but none could positively identify him as one of the robbers. Defendant was next to be brought before the witnesses. Mike Burns positively identified defendant, stating he limped on the same leg, his pants and shoes were the same, and he had the same voice. Steve Foldes, another store employee, also identified defendant as one of the robbers. When Allen Brown, the third suspect, was brought in neither Burns nor Foldes could positively identify him.

Defendant claims two other facts are important. Defendant was handcuffed when he was brought to the store and was required (as were the others) to talk in the presence of the witnesses. Defendant testified he was required to say, 'This is a stickup.' Mike Burns, one of the witnesses, testified defendant was required to say, 'Get over there.' No attorney representing the accused was present at this time.

We believe defendant's second assignment is without merit. Defendant did not have a right to have his attorney present at the on-the-scene preindictment identification. In State v. Salazar, supra, at page 493, we said:

'Defendant concedes Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972) holds the right-to-counsel constitutional guarantees, recognized in the Wade and Gilbert decisions, have no application to this type of on-the-scene, preindictment, identification procedure. (Authorities).'

Salazar presented a factual situation strikingly similar to the instant case. In Salazar a gas station was held up by two persons who were soon arrested. They were returned to the station where about 12 policemen were gathered. Defendants were handcuffed and placed against a squad car for identification. We affirmed defendant's conviction. Our reasons need not be repeated here.

We do not believe this...