State v. Gathercole

• Decision Date: 18 September 1996
• Docket Number: No. 94-1798,94-1798
• Citation: 553 N.W.2d 569
• Parties: STATE of Iowa, Appellee, v. Rayford Doyle GATHERCOLE, Appellant.
• Court: Iowa Supreme Court

Page 569

553 N.W.2d 569

STATE of Iowa, Appellee, v. Rayford Doyle GATHERCOLE, Appellant.

No. 94-1798.

Supreme Court of Iowa.

Sept. 18, 1996.

Linda Del Gallo, State Appellate Defender, and Andi S. Lipman, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Ann E. Brenden, Assistant Attorney General, John P. Sarcone, County Attorney, and James Ward, Assistant County Attorney, for appellee.

Considered en banc.

LARSON, Justice.

This defendant, Rayford Gathercole, was convicted of first-degree robbery, Iowa Code §§ 711.1, 711.2 (1993), and possession of a firearm by a felon, Iowa Code § 724.26. We affirm.

I. The Facts.

Gathercole was charged with a January 30, 1994 robbery of a Breadeaux pizza store in Des Moines. According to the evidence, an employee, Kathleen Boatwright, was working alone at approximately 10 p.m. when she received a telephone call placing a pizza order. The male caller appeared to be calling from a pay phone, judging by the traffic noise in the background. The information given by the caller later turned out to be fictitious.

Within twenty minutes of the call, Ms. Boatwright saw a white male, who she later identified as Gathercole, enter the store with a black male. Both men pulled ski masks over their faces after they entered. The man later identified as Gathercole pointed a silver-plated pistol at her, pushed her into a bathroom, and locked the door. Eventually, a deliveryman arrived. He released Ms. Boatwright from the restroom and called the police. Six hundred dollars was missing from the till.

The day after the robbery, police officers learned that at the time of the robbery an individual named Greg Sangster had observed a vehicle in the area occupied by a black male and a white male. Sangster worked at a used car lot nearby, and he became suspicious about the car and its occupants. He wrote down the license number, which he provided to the police. The car was owned by Gathercole's wife.

The officers obtained a search warrant for the defendant, the vehicle, and the defendant's residence. A search of the defendant's person revealed a loaded silver gun, which Ms. Boatwright identified as being similar to the one used in the robbery. A search of the defendant's car revealed two gray ski masks and a five-dollar bill.

Ms. Boatwright, on seeing a photographic array, identified the defendant as the white male perpetrator. An officer interrogated the defendant, who admitted being in the area on the evening of the robbery but denied any involvement in it. A warrant for Gathercole's arrest was issued on February 7, 1994, but it could not be served on him at that time because he had left the state. He was arrested in Des Moines on February 23, after he was returned from Utah, and the county attorney's information was filed on April 5, 1994.

II. The Issues.

Gathercole contends that (1) he was not indicted within forty-five days of his arrest as required by Iowa Rule of Criminal Procedure 27(2)(a), (2) the arrest warrant was issued without probable cause, and (3) the jurors were improperly permitted to listen to Gathercole's tape-recorded interview.

A. The timely indictment issue. Gathercole was arrested as a fugitive in Utah on February 11, 1994, when a Utah trooper checked his license plate and learned of the outstanding Iowa arrest warrant. The Utah officer, apparently proceeding under a section of Utah's uniform extradition act equivalent to Iowa Code section 820.14, took Gathercole before a Utah judge to be advised of the charges against him and of his rights concerning extradition procedures.

On February 14, Gathercole waived extradition. Utah authorities so notified Iowa and requested that Gathercole be picked up within ten days. Transcor America, Inc., a private corporation, retrieved him in Utah on February 17, 1994, and delivered him to Des Moines authorities on February 22. The arrest warrant was served in Des Moines the following day.

Gathercole moved to dismiss the case on the ground that the county attorney's information, filed on April 5, 1994, was not filed within forty-five days of his arrest. In resolving this issue, the critical question is when was Gathercole "arrested" for purposes of Iowa Rule of Criminal Procedure 27(2)(a). This rule provides:

When an adult is arrested for the commission of a public offense, ... and an indictment is not found against him within forty-five days, the court must order the prosecution to be dismissed, unless good cause to the contrary is shown or the defendant waives his right thereto.

The State argues that Gathercole was arrested on February 23, when the arrest warrant was served on his return from Utah. The county attorney's information filed on April 5, 1994, was therefore within the forty-five-day limit of rule 27(2)(a). Gathercole contends, on the other hand, that the information was beyond forty-five days of his arrest because, he claims, the arrest occurred on February 17, when Transcor took possession of him.

The specific source of Transcor's authority to transport Gathercole to Iowa is not in the record, although this stipulation appears in the transcript of the hearing on Gathercole's motion to dismiss:

MR. THOMAS [defense counsel]: I just wanted to make sure that the State was stipulating to the fact that this corporation that picked up Mr. Gathercole was an agent for either the Des Moines Police Department or the Polk County Sheriff's Office in picking Mr. Gathercole up.

MR. WARD [prosecuting attorney]: I'd stipulate that they were hired by the State to pick up the defendant.

MR. THOMAS: And that the pick up was made on February 17, 1994?

MR. WARD: Yes.

A transporting agent, such as Transcor, is an integral part of any extradition proceeding. Under 18 U.S.C. § 3182, which implements the constitutional provisions for extradition and sets the parameters of state extradition procedures, an asylum state shall deliver the fugitive to the "agent of [the demanding state] when he shall appear."

The Uniform Criminal Extradition Act, found in Iowa Code chapter 820, provides in part:

[T]he governor [of the demanding state] shall issue a warrant ... to some agent commanding the agent to receive the person so charged if delivered to the agent and convey the person to the proper officer of this county in this state in which the offense was committed.

Iowa Code § 820.22 (emphasis added).

An interstate extradition compact, which has been adopted by Iowa in addition to our uniform act, provides the following with respect to such an agent:

The local prosecuting authority of the demanding state shall cause a warrant to be issued to an agent, commanding the agent to receive the fugitive when delivered to the agent and convey the fugitive to the proper officer of the local jurisdiction in the demanding state.

Iowa Code § 818.9 (emphasis added).

Despite Gathercole's contention that he was "arrested" by Transcor on February 17 when it took possession of him, neither 18 U.S.C. § 3182 nor the Iowa extradition statutes suggest that an agent has the power to make an arrest. In fact,

[t]he agent, as such, has nothing to do with securing the requisition from the governor of the demanding state, nothing to do with having it honored by the governor of the asylum state, and no duty to arrest and secure the fugitive. His duty is to conduct or transport the fugitive to the demanding state after the executive authority of the asylum state has delivered such fugitive to him....

35 C.J.S. Extradition § 20, at 446 (1960) (emphasis added) (citations omitted).

In addition, it is stated that

[t]he obligation of the extradition agent is limited to transporting the accused to the demanding state after his surrender by the authorities of the asylum state; the officer has no right to gather an armed force and rearrest a fugitive by violence, although he may use all precaution to prevent his escape and may follow in hot pursuit to recapture.

31A Am.Jur.2d Extradition § 147, at 856 (1989).

The wording of Iowa Code sections 818.9 and 820.22 (quoted above), as well as Utah's identical uniform-act provision, Utah Code § 77-30-22 (1953), makes it clear that an agent is not given any powers of arrest.

We define an "arrest" in speedy-trial cases by our general law of arrest under Iowa Code chapter 804 because rule of criminal procedure 27(2) and Iowa Code section 804.14, which describes the manner of making arrests, were enacted together. State v. Schmitt, 290 N.W.2d 24, 26 (Iowa 1980); see also State v. Davis, 525 N.W.2d 837, 839 (Iowa 1994).

Any "arrest" by Transcor fails the test for a valid arrest under Iowa Code chapter 804. It was not based on a warrant (Iowa Code § 804.1); Transcor was not a peace officer (Iowa Code § 804.6); and the "arrest" was not based on a public offense committed in the presence of Transcor (Iowa Code § 804.9). In fact, any arrest attempted to be made in Utah by an Iowa agent for an Iowa offense would be void. See State v. Lyrek, 385 N.W.2d 248, 250 (Iowa 1986) (warrant of arrest issued in one state may not be executed in another); Drake v. Keeling, 230 Iowa 1038, 1043, 299 N.W. 919, 922 (1941) (same). The arrest in Utah by the Utah officer was not in any sense an arrest for the Iowa offense; rather, it was based on Gathercole's status as a fugitive from justice. See Lyrek, 385 N.W.2d at 250; 31 Am.Jur.2d Extradition §§ 23, at 766; 58, at 790 (1989).

Gathercole does not argue that the arrest by Transcor was a legal arrest on the Iowa charge; he argues that it was the same as an arrest because he was restrained by Transcor. We reject this argument for two reasons. First, it would, as a practical matter, render all extradition procedures ineffective if an agent were considered to exercise arrest power simply by physically restraining the fugitive. Such a de facto, but illegal, arrest would immediately entitle the fugitive to be released through habeas corpus. Cf. Iowa Code § 820.10 (...