State v. Knox, 89-294

Decision Date19 December 1990
Docket NumberNo. 89-294,89-294
PartiesSTATE of Iowa, Appellee, v. John Albert KNOX, Jr., Appellant.
CourtIowa Supreme Court

Linda Del Gallo, Appellate Defender, and B. John Burns, Asst. Appellate Defender, for appellant.

Thomas J. Miller, Atty. Gen., Ann E. Brenden and James Kivi, Asst. Attys. Gen and Diann Wilder-Tomlinson, County Atty., for appellee.

Kasey W. Kincaid, K.J. Walker, and Michael A. Giudicessi, Des Moines, for amicus curiae.

Considered by McGIVERIN, C.J., and LARSON, SCHULTZ, CARTER, and ANDREASEN, JJ.

LARSON, Justice.

John Albert Knox, Jr., was convicted of first-degree murder, Iowa Code §§ 707.2(1), 707.2(2) (1989), and first-degree sexual abuse, Iowa Code §§ 709.1(1), 709.2 (1989). He appealed, and we affirm.

I. Right to Speedy Trial.

Knox was charged by county attorney's information on June 19, 1987. Four days before trial, the State moved to dismiss the information without prejudice, and the motion was sustained. On February 4, 1988, Knox was indicted by a grand jury, and he was tried on that indictment.

Knox argues that he was denied his right to speedy trial under Iowa Rule of Criminal Procedure 27(2), which requires trial within ninety days after indictment. He claims that the State's last-minute motion to dismiss was a bad-faith attempt to avoid the speedy trial deadline. See State v. Gansz, 403 N.W.2d 778, 780 (Iowa 1987) (dismissal "without adequate cause and [which] impacted unfavorably upon a defendant's speedy trial rights" warrants dismissal on speedy-trial grounds).

Iowa Rule of Criminal Procedure 27(1) grants the trial court discretion to order dismissal of any pending criminal prosecution in the furtherance of justice. A dismissal under rule 27(1) does not bar another prosecution if the offense charged is a felony or aggravated misdemeanor. Our review of the trial court's rule 27(1) dismissal is for abuse of discretion. State v. Brumage, 435 N.W.2d 337, 341 (Iowa 1989). We will not find an abuse of discretion unless the defendant shows that the trial court's discretion was exercised on grounds clearly untenable or clearly unreasonable. Id.

The State's motion to dismiss was the result of newly discovered evidence. Just prior to trial, the State was informed that there was an unidentified blood print on the sheet removed from the victim's bed. Analysis of the blood print made just two days before the State moved to dismiss showed it not to be that of the defendant. The State's motion stated that the newly discovered evidence was of an exculpatory nature, and the State was uncertain whether it was "morally, ethically and legally fair" to proceed against the defendant. It sought dismissal to allow it to conduct further investigation. The trial judge granted the State's motion, finding it was in the interest of justice.

We have held that facilitating the gathering of evidence is a proper reason for a rule 27(1) dismissal, see Brumage, 435 N.W.2d at 340; State v. Fisher, 351 N.W.2d 798, 801 (Iowa 1984); State v. Johnson, 217 N.W.2d 609, 612-13 (Iowa 1974), and Knox has failed to demonstrate any bad faith on the part of the State in seeking the dismissal to allow further investigation. Knox, in fact, did not resist the motion, apparently agreeing that there were legitimate grounds for it.

Defendant claims that the State's recharging him without new evidence demonstrates the dismissal was obtained in bad faith. Defendant's contention is without merit. The fact that a subsequent investigation fails to discover new evidence does not necessarily establish that the prior dismissal was without merit. Furthermore, contrary to Knox's contention, new evidence was uncovered after the dismissal. The State submitted the stained sheet to fingerprint experts, one of whom testified that the bloodstain could have been a composite handprint and footprint. He further explained that a positive identification of the printmaker could not be made, even if the maker's identity had been known, because the fabric material of the sheet made it impossible. In the subsequent investigation, the State also found two Negroid hairs. One of these hairs was consistent with defendant's pubic hair and the other with his head hair. This additional evidence was also introduced at trial.

Knox has failed to demonstrate that the dismissal in the furtherance of justice lacked adequate cause, that it was obtained in bad faith, or that the court otherwise abused its discretion. We believe the furtherance of justice, for both the State and the defendant, was served.

II. Closure of Posttrial Hearing.

Knox contends that the court erred in failing to close a portion of the hearing on his motion for new trial in which he attempted to prove that the jury foreman was a member of the anti-Semitic and racist terrorist organization, Posse Comitatus. Knox moved to close the hearing during the testimony of two lay witnesses who allegedly had expressed concerns about retaliation by the jury foreman or the Posse Comitatus. The State resisted the motion, as did several members of the local news media. The district court denied closure, ruling that it would be an impermissible prior restraint. The court also found that any damage had already been done because the jury foreman knew the identity of the two witnesses.

Because this issue involves the potential violation of basic constitutional safeguards, our review is de novo, and we make our own evaluation of the record from the totality of the circumstances. Des Moines Register & Tribune v. District Court, 426 N.W.2d 142, 143 (Iowa 1988).

The first amendment implicitly guarantees the press and general public a right of access to criminal trials. 1 See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580, 100 S.Ct. 2814, 2829, 65 L.Ed.2d 973, 991-92 (1980) (plurality opinion). This right of access, however, is not unqualified. In Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 14, 106 S.Ct. 2735, 2743, 92 L.Ed.2d 1, 13-14 (1986), the Supreme Court stated that, before a criminal proceeding can be closed, the Court must make specific findings "demonstrating that, first, there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent and, second, reasonable alternatives to closure cannot adequately protect the defendant's free trial rights." In other words, closure must be necessitated by a compelling interest and must be narrowly tailored to serve that interest. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607, 102 S.Ct. 2613, 2620, 73 L.Ed.2d 248, 257 (1982).

Knox's argument that the hearing should have been closed because of the two witnesses who allegedly expressed apprehension about testifying is based on his fear that this impacted unfavorably on his right to a fair hearing. He failed, however, to introduce sufficient evidence from which it could be concluded there was a substantial probability that his right to a fair trial would be prejudiced. One of the two "frightened" witnesses did testify at the hearing and expressed no concerns about retaliation. Although the second witness was not present for the hearing, he was never actually subpoenaed and no evidence was presented to establish any specific reason for his failure to appear. Even assuming the witnesses were apprehensive, their concerns that they could be placed in danger does not necessarily require closure. Cf. Des Moines Register & Tribune Co. v. Osmundson, 248 N.W.2d 493, 500 (Iowa 1976) (confidentiality of juror list denied).

The trial court had no basis in the record for concluding any danger existed to the witness or that Knox's right to a fair trial was impaired by the open proceeding. Knox also failed to show, as required by the cases cited above, that no reasonable alternatives to closure could adequately protect his fair trial rights. We conclude that the trial court was correct in refusing to close the proceeding.

III. Striking the Sole Black Juror.

Defendant's third contention is that the trial court erred in overruling defendant's objection to the State's use of a peremptory challenge against the sole black juror on the panel. Knox claims that the strike violated his sixth amendment rights.

Under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (a due process case), a defendant must first establish a prima facie case of purposeful discrimination in selection of the jury panel. He may establish a prima facie case by showing that the prosecution's use of its peremptory challenges and any other relevant circumstances raise an inference that the government excluded prospective jurors on the basis of their race. Id. at 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87-88. In determining whether a defendant has established the requisite showing of purposeful discrimination, the court should consider all relevant circumstances including, but not limited to, a pattern of strikes against black jurors, as well as the prosecutor's questions and statements during voir dire. Id. at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88. Once a defendant makes a prima facie showing of purposeful discrimination, the state has the burden of articulating a clear and reasonably specific and neutral explanation for the peremptory challenge. Because the trial judge's finding whether purposeful discrimination exists will largely turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference. Id. at 98 n.21, 106 S.Ct. at 1724 n.21, 90 L.Ed.2d at 89 n.21.

In the present case, Knox argues that the necessary inference was raised sufficiently by the State's exclusion of the sole black juror. We find defendant's argument without merit. Merely showing that the State used a peremptory challenge to exclude this juror falls short of raising an inference of purposeful discrimination. See United States v. Vaccaro, 816 F.2d 443, 457 (9th Cir.), cert. denied, 484 U.S. 914, 108...

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