State v. Gorham

Decision Date25 April 1973
Docket NumberNo. 55433,55433
Citation206 N.W.2d 908
PartiesSTATE of Iowa, Appellee, v. Larry Allen GORHAM, Appellant.
CourtIowa 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.

RAWLINGS, Justice.

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.

I. The focal point of this controversy is Code § 795.2, which provides:

'If a defendant indicted for a public offense, whose trial has not been postponed upon his application, be not brought to trial within sixty days after the indictment is found, the court must order it to be dismissed, unless good cause to the contrary be shown. An accused not admitted to bail and unrepresented by legal counsel, shall not be deemed to have waived his privilege of dismissal or be held to make demand or request to enforce a guarantee of speedy trial, and the court on its own motion shall carry out the provisions of this section as to dismissal.'

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.

II. Viewed in retrospect, several United States Supreme Court decisions presaged material changes to come within the ambit of speedy trial rights.

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):

'The right to a speedy trial is not a theoretical or abstract right but one rooted in hard reality in the need to have charges promptly exposed. If the case for the prosecution calls on the accused to meet charges rather than rest on the infirmities of the prosecution's case, as is the defendant's right, the time to meet them is when the case is fresh. Stale claims have never been favored by the law, and far less so in criminal cases. Although a great many accused persons seek to put off the confrontation as long as possible, The right to a prompt inquiry into criminal charges is fundamental and the duty of the charging authority is to provide a prompt trial.' (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).

III. Any doubts which may have existed under the foregoing pronouncements were finally laid to rest in Barker v. Wingo, cited above.

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:

"Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandably rejected the offer. Anything less is not waiver.' Id., at 516, 82 S.Ct., at 890.

'The Court has ruled similarly with respect to waiver of other rights designed to protect the accused. See, E.g., Miranda v. Arizona, 384 U.S. 436, 475--476, 86 S.Ct. 1602, 1628--1627, 16 L.Ed.2d 694 (1966); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

'In excepting the right to speedy trial from the rule of waiver we have applied to other fundamental rights, courts that have applied the demand-waiver rule have relied on the assumption that delay usually works for the benefit of the accused and on the absence of any readily ascertainable time in the criminal process for a defendant to be given the choice of exercising or waiving his right. But it is not necessarily true that delay benefits the defendant. There are cases in which delay appreciably harms the defendant's ability to defend himself. Moreover, a defendant confined to jail prior to trial is obviously disadvantaged by delay as is a defendant released on bail but unable to lead a normal life because of community suspicion and his own anxiety.

'The nature of the speedy trial right does make it impossible to pinpoint a precise time in the process when the right must be asserted or waived, but that fact does not argue for placing the burden of protecting the right solely on defendants. A defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process. Moreover, for the reasons earlier expressed, society has a particular interest in bringing swift prosecutions, and society's representatives are the ones who should protect that interest. (Emphasis supplied).

'It is also noteworthy that such a rigid view of the demand rule places defense counsel in an awkward position. Unless he demands a trial early and often, he is in danger of frustrating his client's right. If counsel is willing to tolerate some delay because he finds it reasonable and helpful in preparing his own case, he may be unable to obtain a speedy trial for his client at the end of that time. Since under the demandwaiver rule no time runs until the demand is made, the government will have whatever time is otherwise reasonable to bring the defendant to trial after a demand has been made. Thus, if the first demand is made three months after arrest in a jurisdiction which...

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