State v. Florie

• Decision Date: 19 August 1987
• Docket Number: No. 85-1014,85-1014
• Citation: 411 N.W.2d 689
• Parties: STATE of Iowa, Appellee, v. James E. FLORIE, Appellant.
• Court: Iowa Supreme Court

Page 689

411 N.W.2d 689

STATE of Iowa, Appellee, v. James E. FLORIE, Appellant.

No. 85-1014.

Supreme Court of Iowa.

Aug. 19, 1987.

Barry M. Anderson, Keokuk, for appellant.

Thomas J. Miller, Atty. Gen., Pamela Greenman Dahl and Bruce C. McDonald, Asst. Attys. Gen., and Gordon Liles, Asst. Co. Atty., for appellee.

Considered by HARRIS, P.J., and McGIVERIN, LARSON, SCHULTZ, and CARTER, JJ.

CARTER, Justice.

Appellant, James E. Florie (defendant), appeals from his conviction of murder in the second degree. Because the killing occurred in 1977, the information alleged an open charge of murder under Iowa Code section 690.1 (1977). The offense of murder in the second degree was punishable under Iowa Code section 690.3 (1977). Formal charges for the offense were first brought against defendant in an information filed September 19, 1977. That information was dismissed on November 7, 1977, but the charge was reinstated by an information filed October 29, 1984.

The more than seven-year delay in bringing defendant to trial has been made the subject of a constitutional speedy trial issue on this appeal. Other issues raised on the appeal relate to (a) the sufficiency of the evidence to support defendant's conviction; (b) the timeliness of the information under pre-1978 law; (c) the admissibility of certain statements on the basis that they had been uttered by co-conspirators in the course of a conspiracy; (d) the propriety of allowing two witnesses to testify for the State who were not listed in the minutes of evidence at the time the trial commenced; (e) the failure of the court to give certain jury instructions requested by defendant; (f) failure of the court to disqualify the prosecuting attorneys from participating in the trial; and (g) miscellaneous rulings involving admissibility of evidence.

The court of appeals considered all of the foregoing issues and affirmed defendant's conviction. In reviewing the decision of the court of appeals, we reach a similar result.

The body of James Varner was discovered near the Des Moines River in Lee County on May 29, 1977. His death was attributed to a blow or blows to the head and a large abdominal wound. A criminal investigation ensued by the Lee County Sheriff's Office and the Iowa Bureau (now Division) of Criminal Investigation. The investigation focused on three suspects: Michael Burrows, Jack Hall, and defendant. Only defendant was charged in the September 1977 information. In moving to dismiss the information on November 7, 1977, the State urged, successfully, that dismissal was in the interests of justice because certain material witnesses had changed their stories and other witnesses could not be located. Defendant resisted the granting of the dismissal order unless it was with prejudice. ¹ The court granted the State's request, but expressly declined to consider the effect of its ruling on a claimed denial of right of speedy trial in the event defendant was subsequently recharged.

The October 1984 information which reinstated murder charges against defendant in the Varner killing also charged Burrows and Hall with the crime. Separate trials of the three defendants were ordered. At defendant's trial, the State offered testimony of defendant's sister that she was present at Burrows' residence when Burrows and Hall discussed killing Varner in order that the latter not testify against Burrows in a pending criminal prosecution. Other evidence presented indicated that on May 29, 1977, the date that Varner's body was found, defendant and Hall went to the residence of defendant's sister and her husband. Defendant used a hose to wash his automobile both inside and out, soaking the vehicle's upholstery in the process.

After washing the car, Hall and defendant watched the 5 p.m. news on television. The first story on the newscast was a report of the Varner murder. Evidence was presented that defendant became visibly agitated and told his brother-in-law to tell the police if they asked that he was fishing at the "A" ditch near Quincy, Illinois, at the time Varner was killed. A witness testified that he accompanied the defendant and Hall to the "A" ditch subsequent to the time that Varner's body was found in order that they might wet their fishing tackle in the event it was examined by law enforcement officials.

Other evidence was presented that defendant and Hall arranged to have the tires removed from defendant's car and subsequently burned. At the time they were removed, those tires were in better condition than the replacement tires installed on the vehicle. Evidence was offered of comments by Hall to defendant that the latter had sufficiently covered up tracks made by the discarded tires at some undesignated location. Two witnesses testified that they had heard defendant admit that he was involved in killing someone. Other facts significant to the issues on appeal will be set forth in connection with our discussion of the legal issues which have been raised.

I. Denial of Constitutional Guarantee of Speedy Trial.

Defendant's first contention is that his constitutional right of speedy trial under the sixth amendment to the federal constitution was violated by the more than seven-year delay which ensued between the dismissal of the 1977 information and his trial on the 1984 information. As an alternative to that claim, in the event it is rejected, he asks the court to find that his right of due process was violated from the resulting delay and the prejudice engendered thereby.

Although none of defendant's arguments are expressly conditioned on the speedy trial provisions contained in article I, section 10 of the Iowa Constitution, analysis under the state constitution played a major role in the decision of the court of appeals which is the subject of our review. Consequently, we consider the speedy trial claim under both federal and state constitutions. We decline to consider issues involving a statutory guarantee of speedy trial because no such claim has been advanced by defendant at any stage of the appellate process. Accordingly, any reference to statutory speedy trial rights in our discussion is only for the purpose of comparison and illustration.

The court of appeals found no merit in defendant's claim that his federal sixth amendment rights had been violated. All members of that court agreed that any claims in this regard must be evaluated in light of the principles established in United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982). Under that standard, defendant's contentions were deemed to fail. Three members of the court of appeals concluded, however, that the court was required by article I, section 10 of the Iowa Constitution to employ an analysis involving the equivalent of a Barker v. Wingo ² balancing test. The other three members of the court of appeals believed that the principles espoused in MacDonald should control the state constitutional question rather than the Barker v. Wingo principles.

We agree with the court of appeals' conclusion that defendant's sixth amendment right of speedy trial must be considered in light of MacDonald. The Court held in that case that the time between the "good faith" dismissal of pending criminal charges by the prosecution and the filing of the same charges at a later date is not to be considered in determining whether the delay in bringing the accused to trial has violated the right of speedy trial guaranteed by the sixth amendment. MacDonald recognized, however, that the period of delay between the two criminal presentations may be the basis of constitutional challenge under the due process clause of the fifth or fourteen amendments in the same manner as other cases of preaccusatorial delay. The court of appeals considered such due process claims and found them to be without merit. We agree with that conclusion. The issue is controlled, we believe, by our opinion in the appeal of defendant's accomplice, George William [Jack] Hall, which presented the same issue on substantially similar facts. See State v. Hall, 395 N.W.2d 640, 643-44 (Iowa 1986).

Defendant urges the court of appeals erred in applying the MacDonald test by concluding that the dismissal of charges in 1977 was undertaken in "good faith." He observes that if that action was not in good faith MacDonald would implicitly permit a sixth amendment claim to be asserted based on a period of delay measured from the filing of the original charge. As a basis for that contention, he suggests that the State dismissed the case at that time in order to gain a tactical advantage.

In considering defendant's contention, we note that in this jurisdiction the State is held to a rather rigid statutory time period for bringing its case to trial. If not complied with, this may result in a dismissal with prejudice. ³ In situations where the State does not have enough evidence to go to trial, it soon faces a dilemma in which dismissal without prejudice may, indeed, amount to a tactical advantage. Notwithstanding that consequence, we have suggested that dismissals for purposes of "facilitating the state in gathering evidence, procuring witnesses, or plea bargaining" should not preclude reinstatement of the same charges at a later date. See State v. Fisher, 351 N.W.2d 798, 801 (Iowa 1984); State v. Johnson, 217 N.W.2d 609, 612-13 (Iowa 1974).

The language quoted from Fisher and Johnson may be unduly broad. We recently indicated that the State should not be accorded an unfettered avenue of escape from a statutory speedy trial predicament engendered by its own mishandling of a criminal case. See State v. Gansz, 403 N.W.2d 778, 780 (Iowa 1987). We do not believe, however, that such mishandling has been demonstrated in the present case. Moreover, defendant's speedy trial argument on this appeal is limited to constitutional claims. For purposes of a MacDonald analysis, we cannot find that the State acted in bad faith in dismissing the case in 19...