State v. Hamilton, 64159

• Citation: 309 N.W.2d 471
• Decision Date: 26 August 1981
• Docket Number: No. 64159,64159
• Court: United States State Supreme Court of Iowa
• Parties: STATE of Iowa, Appellee, v. Reed Wayne HAMILTON, Appellant.

Page 471

309 N.W.2d 471

STATE of Iowa, Appellee, v. Reed Wayne HAMILTON, Appellant.

No. 64159.

Supreme Court of Iowa.

Aug. 26, 1981.

John Wellman and Martha Shepard, Polk County-Des Moines Offender Advocate Office, Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., Shirley Steffe, Asst. Atty. Gen., Dan Johnston, Polk County Atty., and Robert Burnett, Asst. Polk County Atty., for appellee.

Considered by REYNOLDSON, C. J., and HARRIS, ALLBEE, McGIVERIN, and SCHULTZ, JJ.

SCHULTZ, Justice.

Late in the afternoon on January 25, 1978, Nick Pappas, Jr., a dealer in illicit drugs, and Cathy Larson were found dead in separate rooms of Pappas's residence in Des Moines. Both deaths were caused by wounds from a .38 caliber gun. On February 2, 1978, defendant was charged by separate trial informations with murder in the first degree in violation of sections 707.1-.2, The Code, for each death. The informations were consolidated for trial.

The matter came to trial in Union District Court on a change of venue. Defendant was found guilty by jury verdict of first-degree murder for the death of Cathy Larson and voluntary manslaughter for the death of Nick Pappas, Jr. in violation of sections 707.1-.2 and 707.4, The Code, respectively. Defendant appeals both convictions. He contends: (1) he was denied the right to a speedy trial; (2) a "deposition" containing premarital testimony of his wife was improperly admitted into evidence; (3) the evidence was insufficient to support the charges of first-degree murder; and (4) he should have been granted a mistrial because of surprise testimony regarding an alleged confession and because of prosecutorial and jury misconduct. We find merit in defendant's second contention and reverse and remand for a new trial.

I. Speedy trial. Defendant contends he was denied the right to a speedy trial. The facts underlying this contention are undisputed.

Defendant was charged, arraigned, and pled not guilty in February 1978. After a motion to suppress evidence was filed on his behalf, defendant executed and filed a waiver of his right to a speedy trial, which stated in part: "I understand that I may eventually be brought to trial on the above charges and when and if said trial occurs, I will be forever barred from raising as a defense that I was not afforded a speedy trial." Both defendant and the State sought and obtained appellate review of the trial court's ruling on the motion to suppress. In April 1979 the court of appeals filed its decision, and the State applied to this court for further review. We denied further review on June 8, 1979, and issued a procedendo on June 18, 1979.

Trial was set for August 13, 1979. On July 30 the trial was rescheduled for September 17, 1979, due to ill health of the district judge scheduled to preside. On August 9 defendant filed a written demand for a speedy trial, alleging that the trial date exceeded the ninety-day time limit imposed by Iowa R.Crim.P. 27. The trial court found that defendant had waived his right to a speedy trial and treated the demand as a withdrawal or revocation of the waiver. The court then ruled that the September 17 trial date was well within ninety days from the date of withdrawal.

On September 12 defendant filed a motion to dismiss on the basis that the time requirement of rule 27 had been exceeded and his right to a speedy trial had therefore been violated. At a hearing on the motion, defense counsel argued that the ninety-day period of rule 27(2)(b) commenced the date this court denied further review of the ruling on the motion to suppress. The trial court overruled the motion, again stating that the time period commenced on the date the waiver was withdrawn and that the September 17 trial date was within ninety days of the withdrawal.

On appeal defendant argues: (1) the ninety-day period of rule 27(2)(b) commenced on June 8, 1979, when this court denied further review, and (2) he was not brought to trial within one year after his arraignment, as required by rule 27(2)(c).

Rule 27(2)(b)-(c) provides:

2. Speedy trial. It is the public policy of the state of Iowa that criminal prosecutions be concluded at the earliest possible time consistent with a fair trial to both parties. Applications for dismissals under this subsection may be made by the prosecuting attorney or the defendant or by the court on its own motion.

....

b. If a defendant indicted for a public offense has not waived his right to a speedy trial he must be brought to trial within ninety days after indictment is found or the court must order the indictment to be dismissed unless good cause to the contrary be shown.

c. All criminal cases must be brought to trial within one year after the defendant's initial arraignment unless an extension is granted by the court, upon a showing of good cause.

A. Commencement of ninety-day time period. If trial is not commenced within the ninety-day period prescribed by rule 27(2)(b), the trial must be dismissed unless: "(1) the defendant has waived his right to a speedy trial, (2) the delay is attributable to the defendant, or (3) there is 'good cause' for the delay." State v. Petersen, 288 N.W.2d 332, 335 (Iowa 1980). Defendant concedes that he waived his right to be tried within ninety days from the date formal charges were filed against him. However, he asserts that the revocation of his waiver caused the ninety-day period of rule 27(2)(b) to commence on the last day of any delay attributable to him, which he claims was the day we denied further review of the ruling on the motion to suppress. We disagree.

The obvious purpose of the time period contained in rule 27(2)(b) is to implement the constitutional provisions that require an expeditious trial. The rule was not intended to provide a defendant with a weapon to trap state officials and terminate prosecutions. Nor was it intended to be a device to give a defendant absolute immunity from prosecution. State v. Cennon, 201 N.W.2d 715, 718 (Iowa 1972); see State v. Zaehringer, 306 N.W.2d 792 (Iowa 1981).

When waiver of the right to a speedy trial is withdrawn, the State must have an adequate opportunity to prepare for trial. Under defendant's argument, however, a defendant could withdraw waiver eighty-nine days after the conclusion of an interlocutory appeal, and the State would be required to go to trial the following day. Such a result would not afford the State a fair trial.

When a case on appeal is remanded, absent waiver of the right to a speedy trial, the period during which the defendant must be tried commences on the date procedendo issues. State v. Lybarger, 263 N.W.2d 545, 547 (Iowa 1978). Similarly, when a mistrial occurs, the time period for retrial commences on the date of mistrial. State v. Wright, 234 N.W.2d 99, 103-04 (Iowa 1975) (adopting as rule of court same time limitations for retrial that are imposed by statute for initial trial). In both instances the time period commences on a date certain, known to both the defendant and the State on the date of commencement. Both parties are thus afforded adequate time to prepare for trial; yet, the defendant's right to a reasonably expeditious determination of innocence or guilt is protected. We believe that, in order to ensure both the State and the defendant a fair trial, the same rule is required here.

Although, by its express terms, rule 27(2)(b) is applicable only to an original trial, we have applied the speedy trial time limitations to retrials in other contexts. See Lybarger, 263 N.W.2d at 547; Wright, 234 N.W.2d at 103. We therefore hold as a rule of this court that when a waiver of the right to a speedy trial is withdrawn, the defendant must be tried within ninety days from the date of withdrawal unless good cause to the contrary be shown. Since defendant was tried within ninety days from the date he withdrew his waiver, the trial court correctly overruled his motion to dismiss.

In addition to his statutory claim under rule 27(2)(b), defendant contends he was denied the right to a speedy trial under the sixth and fourteenth amendments to the United States Constitution and article I, section 10 of the Iowa Constitution. This issue was not raised before the trial court, however. As we stated in State v. Moorhead, 308 N.W.2d 60, 64 (Iowa 1981) (citations omitted), "Matters not raised before the trial court cannot be raised for the first time on appeal, including constitutional issues."

B. Trial more than one year after arraignment. In his motion to dismiss defendant generally referred to the "time requirements" of rule 27. The one-year time period of subsection (2)(c) was not addressed in the motion or at the hearing on the motion. In fact, defense counsel stated on the record that he wanted the case set for trial in August, more than one year after defendant's arraignment. The issue concerning the one-year time period of subsection (2)(c) was not raised until this appeal. As we just noted, matters not raised before the trial court cannot be raised for the first time on appeal.

Furthermore, defendant waived his right to be tried within the one-year period prescribed by rule 27(2)(c). In State v. Magnuson, 308 N.W.2d 83 (Iowa 1981), defendant waived the ninety-day period of rule 27(2)(b) and obtained two continuances and a stay of trial. We held that defendant thereby prevented his case from being brought to trial within one year of arraignment and this constituted waiver of his rights under rule 27(2)(c). We stated: "Even though waiver is not mentioned in the rule, we find that a defendant may waive the requirements of trial within one year of arraignment. Because the right to speedy trial is personal, it is one which a defendant may forego at his election." Id.

In this case defendant waived the ninety-day period of rule 27(2)(b) and obtained an interlocutory appeal, which was not completed within one year after arraignment. As we stated in Magnuson, "Because defendant waived his right...