State v. Kimball, 55291

Decision Date20 December 1972
Docket NumberNo. 55291,55291
Citation203 N.W.2d 296
PartiesSTATE of Iowa, Appellee, v. James B. KIMBALL, Appellant.
CourtIowa Supreme Court

Whitesell Law Firm and Larry A. High, Iowa Falls, for appellant.

Richard C. Turner, Atty. Gen., Raymond W. Sullins, Asst. Atty. Gen., and Clark E. McNeal, Hardin County Atty., for appellee.

Heard before MOORE, C.J., and LeGRAND, UHLENHOPP, REYNOLDSON and HARRIS, JJ.

UHLENHOPP, Justice.

The principal question in this case relates to defendant's right to speedy trial.

The chronology of events is pertinent. In 1969 defendant James B. Kimball was convicted of falsely uttering a check. He appealed and this court reversed the judgment and ordered a new trial. State v. Kimball, 176 N.W.2d 864 (Iowa). On June 8, 1970, this court issued procedendo directing the district court to proceed with the cause. Attorney Don J. Wilson represented defendant continuously throughout those proceedings and until October 19, 1970. Defendant was in a federal penitentiary in Kansas when procedendo issued, having been convicted of a federal offense.

On October 14, 1970, the district court assigned the second trial for October 27, 1970. On October 19, 1970, Mr. Wilson filed a 'disclaimer' (withdrawal?) and a letter from defendant in which defendant asked for the date of trial and stated he was indigent. On the same day the clerk of district court mailed notice of the trial date to defendant. On October 26, 1970, the district court reappointed Mr. Wilson as defendant's attorney and the next day reassigned the trial for November 30, 1970.

On November 23, 1970, Mr. Wilson moved for a continuance, and trial did not begin on November 30th. On January 25, 1971, the district court reassigned the trial for March 16, 1971. On the latter date the case was called for trial. Neither Mr. Wilson nor defendant appeared, so trial could not go forward. The State unsuccessfully attempted by various proceedings to forfeit defendant's bail, but those proceedings are not controlling on the problems before us.

On April 28, 1971, by mail, defendant himself filed a motion to dismiss the case, based on the speedy trial clause of the Sixth Amendment to the United States Constitution made applicable to the states by the Fourteenth Amendment. Apparently this motion was not called to the court's attention at the time.

On June 28, 1971, the district court reassigned the trial for September 21, 1971, again reappointed Mr. Wilson as defendant's attorney, and issued a writ of habeas corpus prosequendum for the production of defendant at trial.

On August 4, 1971, the district court overruled defendant's motion to dismiss which was filed April 28, 1971, having been requested by letter from defendant to rule on it.

On August 17, 1971, Mr. Wilson applied to withdraw as defendant's attorney, and by letter defendant consented to the withdrawal. On August 31, 1971, the district court permitted Mr. Wilson to withdraw and appointed Whitesell Law Firm as defendant's attorneys, and that firm has since represented him. On September 13, 1971, the district court authorized defendant's attorneys to interview defendant in Kansas.

On September 15, 1971, defendant filed a motion asking, among other things, that the case be dismissed because defendant was not retried within 60 days as required by § 795.2 of the Code of 1971 and because he was not speedily tried as required by the Sixth Amendment to the United States Constitution made applicable by the Fourteenth Amendment. On September 21, 1971, the motion was overruled.

Prior to trial, defendant was brought to Iowa by a deputy United States marshal, and while in Iowa he was in the deputy marshal's custody pursuant to federal regulations. During the nights of the trial, he was incarcerated by the deputy marshal in Waterloo, Iowa. Each morning he was brought to the place of trial in Eldora in time to confer with his attorneys, and after adjournment each day he was also permitted to confer with them. He was with his attorneys, of course, throughout the trial itself.

Trial commenced September 22, 1971. The evidence showed that defendant bought some cattle at a sale barn for $10,475.36 and delivered his check to the sale barn in that amount. The check was drawn on the Security State Bank of Radcliff, Iowa, and was marked 'Special Account.' The sale barn endorsed the check with its endorsement stamp, 'Payable to the Order of the First National Bank, Eldora, Iowa.' The manager of the sale barn became suspicious about the check, however, and presented it directly to the Security State Bank the day after the check was received. That bank refused payment because defendant did not have funds there.

The evidence also showed that the Security State Bank had two signature cards signed by defendant. One was for a special account, but this account had not been opened by a deposit of funds. The other was a joint account of defendant and his wife. That account previously contained funds, but on the day the check was delivered it contained only 88 cents and on the next day it was overdrawn 12 cents. Exhibits B, the signature card for the joint account, and C, the bank record showing the status of that account, were introduced over defendant's objection.

An officer of the Security State Bank testified defendant had neither funds nor any arrangement with the bank for payment of the check.

At the conclusion of the evidence, defendant requested an instruction to the jury that refusal by the bank to make payment of a check presented in the usual course of business is material and competent evidence of lack of an arrangement, understanding, or funds to pay the check. The trial court refused to give the instruction.

The jury found defendant guilty, and the trial court pronounced sentence. Defendant appealed.

Defendant assigns four errors: the trial court erred in (1) denying defendant effective assistance of counsel, (2) admitting exhibits B and C, (3) refusing to give his requested instruction, and (4) overruling his motions regarding speedy trial.

I. Confinement in Waterloo. Defendant's contention that he was denied effective assistance of counsel is predicated on being confined nights in Waterloo. This contention is a factual matter, and the facts are against defendant. He was in custody of a deputy United States marshal who did, it is true, confine him nights in Waterloo. While so confined, defendant was not available to counsel. But the evidence shows that defendant was not otherwise denied access to his attorneys. Prior to trial, the district court authorized defendant's attorneys to visit him in Kansas. During trial, defendant was brought to Eldora before court opened to consult with his attorneys and was kept at Eldora after adjournment to confer with them. During the day, of course, he was with his attorneys. We cannot uphold this assignment of error on the facts. See Kime v. Brewer, 182 N.W.2d 154, 156 (Iowa) ('reasonable opportunity to perform the task'); United States v. Gordon, 455 F.2d 398 (8 Cir.).

II. Exhibits B and C. Defendant contends that the check was marked 'Special Account' and that the trial court should have admitted only bank records pertaining to that account--not exhibits B and C relating to his joint account. This, too, is largely a factual matter.

The State had to prove that defendant uttered the check 'with fraudulent intent' and that he did not have 'an arrangement, understanding, or funds with such bank, person, or corporation sufficient to meet or pay the same. . . .' Code, 1971, § 713.3. The proof by the State that defendant did not have funds in either of the accounts to pay the check negatived any contention that the check was mistakenly drawn on the wrong account and established that defendant did not have 'funds with such bank' sufficient to pay the check.

Trial courts have discretion on the question of relevancy of evidence. State v. Clark, 187 N.W.2d 717 (Iowa). The trial court did not abuse its discretion in admitting exhibits B and C III. Requested Instruction. Defendant's requested instruction was under § 713.4 of the Code of 1966 ('The fact that payment of said check . . . when presented in the usual course of business shall be refused by the bank . . . upon which it is drawn . . . shall be material and competent evidence of such lack of arrangement, understanding, or lack of funds.'). That statute was in effect when the check was uttered but not at the time of the second trial. ...

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8 cases
  • Iowa v. Buckley, 1--56537
    • United States
    • United States State Supreme Court of Iowa
    • 29 Agosto 1975
    ...6 and 14 of the United States Constitution and Art. I, § 10, of the Iowa Constitution is also without merit. See State v. Kimball, 203 N.W.2d 296, 300--301 (Iowa 1972). The trial court's order cannot be supported on either ground urged by defendant. The court erred in sustaining defendant's......
  • State v. Taylor, 55757
    • United States
    • United States State Supreme Court of Iowa
    • 17 Octubre 1973
    ...the level of unconstitutional deprivation of speedy trial. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101; State v. Kimball, 203 N.W.2d 296 (Iowa). As to the time lapse resulting from the order for deferred sentence, any delay was self-inflicted by defendant. Through his c......
  • State v. Fletcher, 95-0930
    • United States
    • Court of Appeals of Iowa
    • 26 Julio 1996
    ...State argues defendant's imprisonment did not deny him access to his counsel and did not necessarily prejudice him. See State v. Kimball, 203 N.W.2d 296, 299 (Iowa 1972) (citing Kime v. Brewer, 182 N.W.2d 154, 156 (Iowa The question is whether defendant's trial attorney had a reasonable opp......
  • State v. Coburn, 58736
    • United States
    • United States State Supreme Court of Iowa
    • 30 Julio 1976
    ...day 'make good' notice provision in Code § 713.4 is merely a rule of evidence, not an element of a § 713.3 offense. See State v. Kimball, 203 N.W.2d 296, 300 (Iowa 1972); State v. Callahan, 23 Conn.Sup. 374, 183 A.2d 861, 863--864 (1962); 35 C.J.S. False Pretenses § 21b at II. Ordinarily ev......
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