State v. Gowins

• Decision Date: 17 October 1973
• Docket Number: No. 55840,55840
• Citation: 211 N.W.2d 302
• Parties: STATE of Iowa, Appellee, v. Larry D. GOWINS, Appellant.
• Court: Iowa Supreme Court

Page 302

211 N.W.2d 302

STATE of Iowa, Appellee, v. Larry D. GOWINS, Appellant.

No. 55840.

Supreme Court of Iowa.

Oct. 17, 1973.

Robert D. Taha, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Fred M. Haskins, Asst. Atty. Gen., and Ray Fenton, Co. Atty., for appellee.

Heard before MOORE, C.J., and MASON, RAWLINGS, LeGRAND and UHLENHOPP, JJ.

RAWLINGS, Justice.

Appeal by defendant from judgment on jury verdict finding him guilty of willful escape, The Code 1971, Section 247A.6. We affirm.

Defendant, Larry D. Gowins (Gowins), was first charged with escape in violation of Code § 745.1, which provides:

'If any person committed to the penitentiary or to the men's or women's reformatory shall break such prison and escape therefrom or shall escape from or leave without due authority any building, camp, farm, garden, city, town, road, street, or any place whatsoever in which he is placed or to which he is directed to go or in which he is allowed to be by the warden or any officer or employee of the prison whether inside or outside of the prison walls, he shall be deemed guilty of an escape from said penitentiary or reformatory and shall be punished by imprisonment in said penitentiary or reformatory for a term not to exceed five years, to commence from and after the expiration of the term of his previous sentence.'

July 10, 1972, trial thereon commenced in Polk District Court. A jury was duly empaneled, witnesses testified on behalf of the prosecution and the State rested. Defendant promptly moved for a dismissal. That motion was overruled. Subsequently defendant rested, then renewed his dismissal motion. Trial court, upon reconsideration, ordered the case dismissed and in so doing noted the cause was 'filed under the wrong section.'

Thereafter a county attorney's information was filed charging defendant willfully failed to return to the Half-Way House, Des Moines, in violation of Code § 247A.6, which states:

'Any inmate relased from actual confinement under a work release plan who willfully fails to return to the designated place of confinement at the time specified in the plan shall be guilty of a felony and upon conviction be subject to the penalty provided in section 745.1.'

To that accusation Gowins ultimately entered a 'plea of former jeopardy'. In support thereof he contended, (1) the offense last charged arose out of the same facts upon which the first cause was predicated, and (2) the prior cases was dismissed at conclusion of all evidence after both the State and defendant had rested. Gowins' attendant motion to dismiss was overruled. Trial, guilty verdict and judgment followed upon the § 247A.6 offense charged.

In support of a reversal defendant contends overruling of the aforesaid former jeopardy based motion to dismiss violates his rights under the U.S. Const., amend. V.

I. All doubts regarding applicability to state court prosecutions of the Fifth Amendment protection from double jeopardy were effectively put to rest in Benton v. Maryland, 395 U.S. 784, 794--795, 89 S.Ct. 2056, 2062--2063, 23 L.Ed.2d 707 (1969).

II. By way of exclusion we turn now to Ashe v. Swenson, 397 U.S. 436, 445--446, 90 S.Ct. 1189, 1195--1196, 25 L.Ed.2d 469 (1970), where the court held collateral estoppel is part of the Fifth Amendment's guarantee against double jeopardy. There the majority concluded an armed robbery defendant, after having been acquitted by jury verdict of robbing one victim in a single, multi-victim poker game should not have been tried for the robbery of another player victim. In brief the court determined, by acquittal on the first charge the jury had dispositively found defendant was not one of the robbers. See also 51 A.L.R.3d 693.

It is at once apparent the collateral estoppel doctrine is not instantly applicable.

III. On the other hand it must be inceptionally conceded Gowins was, in the constitutional sense, placed in jeopardy as a result of the first trial proceedings even though no jury verdict was returned. See State of Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 1069--1071, 35 L.Ed.2d 425 (1973); Smith v. State of Mississippi, 478 F.2d 88, 93 (5th Cir. 1973); United States v. Armco Steel Corporation, 252 F.Supp. 364, 370 (S.D.Cal.1966); Maes v. District Court, City & County of Denver, 503 P.2d 621, 623 (Colo.1972); Black's Law Dictionary, 'Jeopardy', page 969 (rev.4th ed. 1968); 21 Am.Jur.2d, Criminal Law, §§ 175--176; 22 C.J.S. Criminal Law §§ 241, 243; 58 Iowa L.Rev. 1000 (1973).

But the foregoing does not alone resolve the double jeopardy question here presented.

The constitutional proscription of double jeopardy does not mean that every time an accused is placed on trial he must go free absent a final judgment. See Wade v. Hunter, 336 U.S. 684, 688--689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949); State v. Farmer, 48 N.J. 145, 224 A.2d 481, 494--495 (1966).

More recently, in State of Illinois v. Somerville, Supra, the court dealt squarely with the matter of jeopardy once attached, absent an acquittal or conviction, and the related constitutional guarantee against double jeopardy.

In the cited case a mistrial was directed because the indictment was insufficient to charge a crime. On appeal the court held such a termination of the first proceeding did not bar prosecution of the accused on a subsequent valid indictment. In support of that holding the court informatively stated, 410 U.S. at 461--464, 93 S.Ct. at 1069--1070:

'The fountainhead decision construing the Double Jeopardy Clause in the context of a declaration of a mistrial over a defendant's objection is United States v. Perez, 9 Wheat. (22 U.S.) 579 (6 L.Ed. 165) (1824). Mr. Justice Story, writing for a unanimous Court, set forth the standards for determining whether a retrial, following a declaration of a mistrial over a defendant's objection, constitutes double jeopardy within the meaning of the Fifth Amendment. In holding that the failure of the jury to agree on a verdict of either acquittal or conviction did not bar retrial of the defendant, Mr. Justice Story wrote:

"We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution under urgent circumstances, and for very plain and obvious cases; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.' Id., at 580.

'This formulation, consistently adhered to by this Court in subsequent decisions, abjures the application of any mechanical formula by which to judge the propriety of declaring a mistrial in the varying and often unique situations arising during the course of a criminal trial. The broad discretion reserved to the trial judge in such circumstances has been consistently reiterated in decisions of this Court. In Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949), the Court, in reaffirming this flexible standard, wrote:

"We are asked to adopt the Cornero (9th Cir., 48 F.2d 69) rule under which petitioner contends the absence of witnesses can never justify discontinuance of the trial. Such a rigid formula is inconsistent with the guiding principles of the Perez decision to which we adhere. Those principles command courts in considering whether a trial should be terminated without judgment to take 'all circumstances into account' and thereby forbid the mechanical application of an abstract formula. The value of the Perez principle thus lies in a capacity for informed application under widely different circumstances, without injury to the defendants or to the public interest.' Id., at 691, 69 S.Ct. at 838.

'Similarly, in Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961), the Court again underscored the breadth of a trial judge's discretion, and the reasons therefor, to declare a mistrial.

"Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be obtained without discontinuing the trial, a mistrial may be declared without the defendant's consent and even over his objection, and he may be retried consistently with the Fifth Amendment.' Id., at 368, 81 S.Ct. at 1526.

'In reviewing the propriety of the trial judge's exercise of his discretion, this Court, following the counsel of Mr. Justice Story, has scrutinized the action to determine whether, in the context of that particular trial, the declaration of a mistrial was dictated by 'manifest necessity' or the 'ends of public justice.' The interests of the public in seeing that a criminal prosecution proceed to verdict, either of acquittal or conviction, need not be forsaken by the formulation or application of rigid rules that necessarily preclude the vindication of that interest. This consideration, whether termed the 'ends of public justice,' United States v. Perez, Supra, at 580 of 22 U.S. or, more precisely, 'the public's interest in fair trials designed to end in just judgments,' Wade v. Hunter, Supra, at 689 of 336 U.S., at 837 of 69 S.Ct. has not been disregarded by this Court.

'In United States v. Perez, Supra, and Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429 (1892), this Court held that 'manifest...