State v. Gorham
Decision Date | 25 April 1973 |
Docket Number | No. 55433,55433 |
Citation | 206 N.W.2d 908 |
Parties | STATE of Iowa, Appellee, v. Larry Allen GORHAM, Appellant. |
Court | Iowa Supreme Court |
John C. Platt and Jon M. Kinnamon, Cedar Rapids, for appellant.
Richard C. Turner, Atty. Gen., Fred M. Haskins, Asst. Atty. Gen., and William G. Faches, County Atty., Cedar Rapids, for appellee.
Considered en banc.
Defendant, Larry Allen Gorham, appeals from judgment entered on jury verdict finding him guilty of breaking and entering. We reverse.
The sole issue here presented is whether Judge Maxwell, by order entered October 29, 1971, erred in overruling defendant's motion to dismiss predicated on asserted denial of a speedy trial in violation of his statutory and constitutional rights.
An orderly approach to that problem necessitates a prefatory reference to the transcript of all record entries and papers on file in the office of the trial court clerk, which are now before us. See The Code 1971, Sections 793.6, 793.18.
It is thereby revealed that in support of the aforesaid motion to dismiss defendant invoked both Code § 795.2 and U.S.Const., amend. VI. He has also urged and here argues the so-called demand-waiver rule, specifically and by judicial construction inherent in § 795.2, is constitutionally proscribed. Gorham further contends trial court's order, being foundationed upon absence of any trial demand, citing supportively Pines v. District Court, 233 Iowa 1284, 10 N.W.2d 574 (1943), is reversibly erroneous.
We shall later refer to other salient facts as they relate to matters here to be considered.
Since 1943 this court has repeatedly held, under the various speedy trial statutory enactments in this jurisdiction an accused, unless not admitted to bail and unrepresented by counsel, waives right to a dismissal for failure to demand a speedy trial. See, E.g., State v. Peterson, 189 N.W.2d 891, 892--894 (Iowa 1971); State v. Allnutt, 261 Iowa 897, 900--905, 156 N.W.2d 266 (1968); State v. Long, 256 Iowa 1304, 1306--1308, 130 N.W.2d 663 (1964); Pines v. District Court, Supra.
Now, for the first time since issuance of the opinion in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), we are called upon to determine the propriety of our aforesaid demand-waiver rule.
Klopfer v. North Carolina, 386 U.S. 213, 221--226, 87 S.Ct. 988, 992--995, 18 L.Ed.2d 1 (1967), unmistakably determined the Sixth Amendment right to speedy trial is applicable, via the Fourteenth Amendment, to state prosecutions.
Then Smith v. Hooey, 393 U.S. 374, 376--383, 89 S.Ct. 575, 576--579, 21 L.Ed.2d 607 (1969), held that incidents of a federal prisoner's second-class citizenship do not abridge his speedy trial rights and he is not, by reason of incarceration, precluded from effectively asserting a violation thereof.
Even more predictably the court said in Dickey v. Florida, 398 U.S. 30, 37--38, 90 S.Ct. 1564, 1568--1569, 26 L.Ed.2d 26 (1970):
(Emphasis supplied).
The thought thus expressed was accentuated in a special concurrence by Justice Brennan, 398 U.S. at 48--51, 90 S.Ct. at 1574--1575 where he predictably observed: 'The view that an accused loses his right to a speedy trial by silence or inaction is open to question * * *.' This is followed by an in depth analysis of the subject with abundant supportive citations. See also United States v. Baron, 336 F.Supp. 303 (S.D.N.Y.1971); Glasgow v. State, 469 P.2d 682, 684--687 (Alaska 1970); People v. Collins, 388 Mich. 680, 202 N.W.2d 769, 771--772 (1972).
There, after repudiating the applicability of a fixed or rigid time limitation to constitutionally mandated speedy trial rights, the court proceeded to discuss the so-called demand-waiver rule. In so doing it said, 407 U.S. at 523, 92 S.Ct. at 2188--2191:
'We do not establish procedural rules for the States, except when mandated by the Constitution. We find no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months. The States, of course, are free to prescribe a reasonable period consistent with constitutional standards, but our approach must be less precise. (Emphasis supplied).
'The second suggested alternative would restrict consideration of the right to those cases in which the accused has demanded a speedy trial. Most States have recognized what is loosely referred to as the 'demand rule' (demonstrably cited is Pines v. District Court, 233 Iowa 1284, 10 N.W.2d 574 (1943)), although eight States reject it. 1 It is not clear, however, precisely what is meant by that term. * * * We shall refer to the former approach as the demand-waiver doctrine. The demand-waiver doctrine provides that a defendant waives any consideration of his right to speedy trial for any period prior to which he has not demanded a trial. Under this rigid approach, a prior demand is a necessary condition to the consideration of the speedy trial right. This essentially was the approach the Sixth Circuit took below.
'Such an approach, by presuming waiver of a fundamental right from inaction, is inconsistent with this Court's pronouncements on waiver of constitutional rights. The Court has defined waiver as 'an intentional relinquishment or abandonment of a known right or privilege.' Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Courts should 'indulge every reasonable presumption against waiver', Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 812, 81 L.Ed. 1177 (1937), and they should 'not presume acquiescence in the loss of fundamental rights', Ohio Bell Tel. Co. v. Public Utilities Comm'n, 301 U.S. 292, 307, 57 S.Ct. 724, 731, 81 L.Ed. 1093 (1937). In Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962), we held:
Id., at 516, 82 S.Ct., at 890.
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