State v. King, 56913

• Decision Date: 22 January 1975
• Docket Number: No. 56913,56913
• Parties: STATE of Iowa, Appellee, v. Mack KING, Jr., Appellant.
• Court: Iowa Supreme Court

Page 337

225 N.W.2d 337

STATE of Iowa, Appellee, v. Mack KING, Jr., Appellant.

No. 56913.

Supreme Court of Iowa.

Jan. 22, 1975.

Rehearing Denied March 14, 1975.

Harold C. Lounsberry, Davenport, for appellant.

Richard C. Turner, Atty. Gen., Jim P. Robbins, Asst. Atty. Gen., and Edward N. Wehr, County Atty., for appellee.

Heard by MOORE, C.J., and MASON, UHLENHOPP, REYNOLDSON and McCORMICK, JJ.

MOORE, Chief Justice.

Defendant, Mack King, Jr., appeals from conviction and sentence for the crime of robbery with aggravation, in violation of Code section 711.2. We affirm.

On the evening of July 7, 1973 an armed robbery occurred at the Medd-o-Lane Dairy in Davenport, Iowa. Early the next morning a second armed robbery occurred at Cal and Bob's Supermarket, also in Davenport. A victim of the second robbery provided a license plate number and description of the car used by the robber to flee the scene of the crime. Shortly thereafter defendant was apprehended while driving his automobile, which closely matched that description and which bore an almost identical license plate number. Search of the automobile produced evidence further implicating defendant in the robberies. A white paper sack of many coins such as taken in the dairy robbery was found in defendant's automobile.

On July 31, 1973 three county attorney's informations were filed, each charging defendant with the crime of robbery with aggravation in violation of Code section 711.2. The Medd-O-Lane Dairy armed robbery information was docketed as criminal number 16733. The information which charged defendant with armed robbery of the Clayton Motel was docketed as criminal number 16734. The record discloses little concerning this matter. The information, docketed as criminal number 16735 charged the defendant with armed robbery of Cal and Bob's.

Defendant was first tried for the Cal and Bob robbery and was acquitted by jury verdict. He was then brought to trial for the armed robbery of Medd-O-Lane, was found guilty, and thereafter sentenced to serve a term of not to exceed 25 years in the state penitentiary. From this conviction and sentence, defendant has appealed. As we point out infra some of defendant's assigned errors involve issues not raised in the trial court. Ordinarily matters not raised in the trial court, including constitutional questions, cannot be effectively asserted for the first time on appeal. State v. Ritchison, Iowa, 223 N.W.2d 207, 213; State v. Lyon, Iowa, 223 N.W.2d 193, 194 and citations.

I. Defendant first asserts the trial court erred in denying his motion to dismiss based on Code section 795.2, frequently referred to as our speedy trial statute. He claims no 'good cause' was shown to justify delay of his trial beyond 60 days from the filing of the county attorney's information. The record demonstrates defendant was the primary cause of the delay.

As previously stated, the information leading to the conviction now on appeal and two other informations were filed July 31, 1973. Trial for the armed robbery of Cal and Bob's, criminal number 16735, was set to commence September 17, 1973. On September 5, 1973 defendant filed a notice of alibi witnesses and motions to suppress, to inspect physical evidence, for return of seized property and for a bill of particulars. The State filed a motion for continuance of number 16735 which was granted on September 13, 1973 for the reason defendant's motions could not be set, heard and ruled upon prior to September 17, 1973, the scheduled trial date. Trial of that charge, number 16735, commenced October 15, the earliest open trial date after disposition of the motions. On October 18, 1973 defendant was acquitted by a jury verdict.

On October 23, 1973 defendant filed a motion to dismiss the Medd-O-Lane charge (number 16733) pursuant to Code section '795.5', on the basis 60 days had elapsed since the information was filed, and trial had not commenced. Like the trial court we consider the motion as having been made under the provisions of section 795.2.

The State filed its resistance, and the trial court denied defendant's motion to dismiss for the following reasons: (1) delay of the first trial beyond the 60-day period allowed under section 795.2 was required in order to provide ample time to consider defendant's pretrial motions in that case; (2) the court docket was congested during the months of August through November, preventing earlier disposition of the cases and (3) defendant was entitled to separate trials on each information before different jury panels, and since defendant and his counsel were engaged in the jury trial of the first cause during October, his second trial could not be set to commence any earlier than November 13, the date a new jury panel was to be called.

Defendant caused delay of his first trial by filing many pretrial motions which could not be resisted, heard and ruled on within the 12 days remaining before scheduled trial date. Having caused that delay, defendant can not rely on it to invoke the provisions of section 795.2. State v. LaMar, Iowa, 224 N.W.2d 252, filed December 18, 1974; State v. Shockey, Iowa, 214 N.W.2d 146, 151; McCandless v. District Court, 245 Iowa 599, 606, 607, 61 N.W.2d 674, 678; Pines v. District Court, 233 Iowa 1284, 1291, 10 N.W. 574, 579; Cf. Barker v. Wingo, 407 U.S. 514, 529, 92 S.Ct. 2182, 33 L.Ed.2d 101, 116. See also, 21 Am.Jur.2d, Criminal Law, section 252.

Nor can defendant complain of delay of his second trial beyond the 60-day period fixed by section 795.2. The information filed July 31, 1973, charged defendant with three separate offenses which did not arise out of the same transaction and therefore could not have been joined in one information. Code sections 773.36 and 773.37. Cf. State v. Hunley, Iowa, 167 N.W.2d 645, 646, 647; State v. Cook, 261 Iowa 1341, 1348, 158 N.W.2d 26, 30, (there is no constitutional prohibition against the State's prosecuting different offenses at consecutive trials). The second trial was properly delayed until a new jury panel was selected. Such delay protected defendant's right and that of the State to an impartial jury. Delay which results from other proceedings concerning the defendant, including trial of other charges, should be considered in determining whether good cause exists. ABA Standards, Speedy Trial, section 2.3(a) (and comment). Cf. People v. Collins, 388 Mich. 680, 202 N.W.2d 769, 774; Gerberding v. United States, 8 Cir., 471 F.2d 55, 61.

Delay of the second trial was directly attributable to defendant. Trial court properly denied his motion to dismiss.

II. Defendant next asserts admission of evidence, introduced during State's rebuttal, implicating him in the robbery of Cal and Bob's Supermarket placed him '* * * in jeopardy for transactions previously placed before another jury.' Examination of the abstract of record and the trial transcript reveals that issue was not properly or timely raised in the trial court.

During pretrial hearing on defendant's motions, the trial court cautioned both counsel not to mention the Cal and Bob's robbery by name or by a prior robbery.

Defendant testified on direct examination regarding his activities on the night of July 7, the night of Medd-O-Lane robbery. He stated he left an Illinois race track at 10:30 P.M. and went to Percy's and other nightclubs in East Moline. During cross-examination the prosecutor asked defendant what happened after he left Percy's. Over defendant's materiality objection defendant stated he became engaged in a fight in which he received a shotgun wound and an injured hand.

On redirect examination defendant was asked by his counsel what questions were asked by the police officers who stopped him the following morning. Defendant stated they asked him about a robbery of Cal and Bob's Supermarket. He further stated he had been tried and acquitted on the Cal and Bob robbery charge.

The State presented extensive evidence in an attempt to demonstrate defendant received the gunshot and hand injury in the Cal and Bob robbery and not in a fight as he had testified. No objection was made to the testimony of the first such rebuttal witness. During examination of the next witness, an officer participating in the Cal and Bob investigation, defense counsel objected on the ground that reference to the Cal and Bob robbery was not material. The a prima facie showing of racial discrimination, objections on the ground the evidence was obviously for impeachment purpose and therefore admissible.

It is apparent from the record defendant failed to make proper and timely objection to alert the trial court of any claim of double jeopardy or collateral estoppel which he now argues.

The rule is well established that failure to object to evidence or move to strike the same at the time the record is made and when the grounds for objection or motion to strike are first apparent precludes the party from asserting on appeal admission of evidence was error. State v. Jewett, Iowa, 219 N.W.2d 559, 560; State v. Canada, Iowa, 212 N.W.2d 430, 432; State v. Williams, Iowa, 207 N.W.2d 98, 109; State v. Binkley, Iowa, 201 N.W.2d 917, 919. Application of this rule bars consideration of double jeopardy or collateral estoppel for the first time on this appeal.

III. It must be noted also the first specific mention of the former trial came during defense counsel's examination of his client. Defense counsel ignored trial court's prior warning that any mention of the prior trial would open the matter. Any error in the introduction of rebuttal evidence was invited by defense counsel's inquiry regarding the prior robbery. He cannot complain of rebuttal evidence in reference thereto. State v. Martin, Iowa, 217 N.W.2d 536, 544; State v. Morrison, Iowa, 183 N.W.2d 696, 699; State v. Sage, Iowa, 162 N.W.2d 502, 504.

IV. Defendant also asserts the trial court erred in denying his motion to quash the jury panel because of the absence of black jurors.

In his...