State v. Grimme, 68550

• Decision Date: 21 September 1983
• Docket Number: No. 68550,68550
• Citation: 338 N.W.2d 142
• Parties: STATE of Iowa, Appellee, v. Gary R. GRIMME, Appellant.
• Court: Iowa Supreme Court

Page 142

338 N.W.2d 142

STATE of Iowa, Appellee, v. Gary R. GRIMME, Appellant.

No. 68550.

Supreme Court of Iowa.

Sept. 21, 1983.

John R. Becker, Dubuque, for appellant.

Thomas J. Miller, Atty. Gen., Marcia Mason, Asst. Atty. Gen., and Michael S. McCauley, County Atty., for appellee.

Considered by REYNOLDSON, C.J., and UHLENHOPP, McGIVERIN, LARSON and WOLLE, JJ.

WOLLE, Justice.

Defendant Gary R. Grimme was charged, tried by jury, and convicted of the crime of willful disturbance in violation of Iowa Code section 718.3 (1981). Appealing from the conviction, he contends the trial court erred in denying his request to take depositions of certain state witnesses. He also contends the evidence was insufficient to sustain the conviction. The court of appeals found that the trial court abused its discretion in overruling defendant's motion to depose the state's witnesses filed on the day before trial. On further review, we vacate the decision of the court of appeals and affirm the judgment of conviction.

Defendant was charged with the serious misdemeanor of willful disturbance arising from an altercation on November 23, 1981 at the entrance to the room where the Dubuque County Board of Supervisors was holding a regularly-scheduled meeting. From the evidence the jury could reasonably have found that defendant was intending to enter the room to participate in the meeting at the same time that the county's personnel director, called by the board to attend, was walking up the stairs near the entrance to the meeting room. Just before the personnel director reached the top of the stairs defendant without provocation deliberately pushed the personnel director, causing him to fall into the room on his hands and knees. When the personnel director got up and turned around, defendant struck him on the jaw with his fist and began shouting angrily, using much abusive language directed at the supervisors. Defendant departed upon hearing that the police had been called. The altercation itself disrupted the meeting for one to four minutes, and the supervisors did not resume the business on their agenda for twenty to thirty minutes.

Defendant was arraigned on the charge of willful disturbance on December 23, 1981, and the trial court found him to be indigent and appointed as his attorney a lawyer whose office was in Dyersville, a town in Dubuque County about 25 miles from the city of Dubuque where defendant resides. Defendant met with his Dyersville attorney on the day of arraignment. Upon defendant's plea of not guilty, trial was scheduled for January 17, 1982.

On January 8, 1982 defendant's Dyersville attorney filed a motion for continuance of the scheduled trial, stating that he had had no contact with defendant since the arraignment despite several letters sent to him instructing him to stop by his office. Trial was rescheduled for February 1, 1982.

On January 27, the Dyersville attorney filed application for permission to withdraw as counsel, stating:

That despite numerous requests to do so, Mr. Grimme has failed to keep any appointments with this attorney, he has failed to keep this attorney advised of his phone number and address and that this attorney cannot be prepared for trial without being contacted by Mr. Grimme.

On February 1, the day set for trial, defendant appeared late and filed his own pro se motion to appoint new counsel, contending it was unreasonable for him to have to travel to Dyersville to confer with his court-appointed attorney. He also moved for dismissal of the charges based upon "failure to prosecute him within the time prescribed by Iowa law" and his constitutional right to speedy trial. On the same day, February 1, the trial court entered an order granting only the request to change court-appointed counsel. The trial court said in its order that it was appointing a Dubuque attorney because "it would be more convenient for Mr. Grimme to see and speak with an attorney whose office was in the city of Dubuque."

Trial was scheduled for February 17, 1982, so for more than two weeks before trial defendant was represented by an attorney in Dubuque with whom defendant could conveniently consult. He made no request for a continuance of the trial date. He made no request for depositions until the day before trial when he moved for permission to take depositions of six state witnesses. He now contends the trial court's denial of that motion denied him a fair trial.

I. The Motion to Take Depositions.

A. Iowa Rule of Criminal Procedure 12(5) [now rule 12(6) ] provided:

Depositions shall be taken hereunder within thirty days after arraignment, unless the period for taking is extended by the court for good cause shown.

Our discovery rules are to be liberally construed to effectuate the disclosure of relevant information to the parties, but we properly accord to our trial courts wide discretion in ruling upon discovery requests. State v. Gates, 306 N.W.2d 720, 725 (Iowa 1981); Pollock v. Deere & Co., 282 N.W.2d 735, 738 (Iowa 1979). As we recently said in State v. Gates:

This discretion vested in trial courts necessarily includes supervision of the exercise of discovery. Thus, although criminal defendants possess the right to depose witnesses to be called on behalf of the State, this right is subject to reasonable regulation.

306 N.W.2d at 725. Here, because the very belated motion to take depositions would have necessitated a continuance of the jury trial scheduled for the next day, the discretion vested in the trial court is very similar to the discretion accorded when a defendant requests a continuance of any scheduled trial. Our court has long held that in granting or denying continuances the trial court's discretion is "very broad." State v. McNeal, 261 Iowa 1387, 1393-94, 158 N.W.2d 129, 133 (1968). A trial court's ruling on a motion for continuance "will not be interfered with on appeal unless it clearly appears that the trial court has abused its discretion, and an injustice has resulted therefrom." State v. Elliston, 159 N.W.2d 503, 509 (Iowa 1968) (continuance denied though trial counsel employed the day before trial); see State v. Jacoby, 260 N.W.2d 828, 833 (Iowa 1977) (motions for continuance denied though filed seven days and four days before trial). In such cases the court may properly consider not just the interests of the state and defendant in a speedy and fair trial but also the orderly administration of the court's business. See K. Dunahoo, The Scope of Judicial Discretion in the Iowa Criminal Trial Process, 58 Iowa L.Rev. 1023, 1053-54 (1973). There are sound reasons for according this considerable discretion to the trial court's determination of motions which will delay trial. As this court aptly said in State v. Gartin, 271 N.W.2d 902 (Iowa 1978):

Trial court discretion is often accorded where, because of proximity to the trial process, the trial court is in as good or better position than the appellate court to make a determination in accordance with demands of justice.

271 N.W.2d at 910.

The defendant had the burden to show affirmatively that the trial court's discretion was abused. Here defendant failed to make such a showing; each reason defendant urges as alleged abuse of discretion is rebutted by support in the record for the trial court's denial of defendant's motion to take depositions.

Defendant contends he was unable to meet with the attorney from Dyersville during the 39 days that he was represented by that court-appointed attorney. We note, however, that they did meet in Dubuque on the day of defendant's arraignment, the very day which commenced the running of the usual 30-day period for taking depositions. Thereafter, the Dyersville attorney attempted repeatedly to get in touch with defendant; it was defendant who failed to respond to his attorney's letters, object to his attorney's suggestion that they meet in Dyersville, or promptly request appointment of other counsel. If defendant could not afford to travel to Dyersville he could at least have contacted the attorney by phone, left a phone number where he could be reached, or answered in writing the attorney's several letters requesting a meeting. When defendant appeared late on February 1 for the first scheduled trial, ...