State v. Paulsen

• Decision Date: 19 April 1978
• Docket Number: No. 60412,60412
• Citation: 265 N.W.2d 581
• Parties: STATE of Iowa, Appellee, v. James Kenneth PAULSEN, Appellant.
• Court: Iowa Supreme Court

Page 581

265 N.W.2d 581

STATE of Iowa, Appellee, v. James Kenneth PAULSEN, Appellant.

No. 60412.

Supreme Court of Iowa.

April 19, 1978.

Mattson & Gilliam, Waterloo, for appellant.

Richard C. Turner, Atty. Gen., Thomas A. Evans, Jr., Asst. Atty. Gen., and David H. Correll, County Atty., for appellee.

Considered by MOORE, C. J., and RAWLINGS, LeGRAND, REES and HARRIS, JJ.

REES, Justice.

Defendant was charged by county attorney's information with the crime of assault with intent to do great bodily injury in violation of § 694.6, The Code, 1975, and also charged with being a habitual criminal in violation of § 747.5, The Code. He pleaded not guilty to the information charging him with assault with intent to do great bodily injury, was tried to a jury, convicted and sentenced. Subsequently, his identity was established as to two prior felony convictions and he was adjudged a habitual criminal and sentenced. He now appeals. We affirm.

The county attorney's information charging defendant with the crime of assault with intent to do great bodily injury was filed on August 18, 1976. On September 3 defendant appeared in open court with counsel for arraignment, pleaded not guilty and October 19, 1976 was set as the date for trial. Defendant was then incarcerated in the county jail of Black Hawk County under an order dated August 31, 1976, in which the court stated defendant had violated the terms of his release which had been set by the pretrial services unit of the district court and his bond was then set at $10,000. Motions filed by the defendant to reduce bond were overruled, and on October 1, 1976 he filed a motion for change of venue, which was overruled. On the date set for trial (October 19) defendant moved for a continuance due to the illness of his counsel, and the trial was rescheduled with a pretrial conference set for November 5, 1976.

On the date of the pretrial conference, the State filed an amended information and a supplemental information, setting out the fact that defendant had been twice before convicted of felonies and was a habitual criminal. Defendant had previously waived his right to a speedy trial and withdrew his waiver of such right on November 5, following the filing of the supplemental and amended informations. A demurrer to the amended and supplemental informations and a motion to dismiss filed by the defendant were overruled and the cause came on for trial on November 16, on which date defendant filed four motions in limine. The jury returned a verdict of guilty on November 19, and on December 17 defendant filed a motion in arrest of judgment and for a new trial, both of which motions were overruled. Defendant thereupon filed a motion which he termed a "motion of adjournment of the case" together with affidavits and exhibits in support thereof, which was treated by the court as a motion for change of venue under the provisions of chapter 747, The Code, and was overruled. Defendant then orally moved for dismissal of the cases for a claimed violation of § 795.2, The Code, which was also overruled. The court then ordered that the matter proceed to trial to a jury on the sole question of defendant's identity with respect to the habitual criminal charge, but in open court following agreement of the parties to reopen the case on certain conditions, defendant admitted his identity with respect to the prior convictions, and he was adjudged a habitual criminal and sentenced on January 7, 1977. This appeal followed.

The assault with intent to do great bodily injury was bottomed upon an incident as the result of which defendant was charged with kicking six-year old Curtis Murphy, the son of Patricia Murphy, with whom defendant had been living. It was asserted he kicked the boy in the stomach, causing severe damage to one of his kidneys requiring emergency surgery in order to remove part of the damaged kidney.

The defendant states the following issues for review which he contends necessitate reversal:

(1) Trial court erred in denying defendant's demurrer and motion to dismiss the amended and supplemental informations charging him with assault with intent to commit great bodily injury and with being a habitual criminal, on the ground of the State's failure to comply with the provisions of § 795.1, The Code.

(2) The trial court erred in overruling defendant's motion to dismiss the amended and supplemental informations on the ground of the State's failure to comply with § 795.2, The Code.

(3) The trial court erred in overruling defendant's objections to the testimony of the prosecuting witness, Curtis Murphy, and in finding the child competent to testify.

(4) Trial court erred in admitting the hearsay testimony of witnesses based on the res gestae exception to the hearsay rule.

(5) Trial court erred in admitting testimony by an attending physician, Dr. Jacobo, concerning statements made to him by Curtis Murphy, the defendant contending that such testimony went beyond the bounds of the minutes of the testimony, unfairly surprised the defendant, and was highly prejudicial.

(6) Trial court erred in refusing to permit defendant to offer proof concerning statements made by the victim to a Waterloo police officer, allegedly made some time subsequent to the assault and at the scene of the alleged crime.

(7) Trial court erred in overruling defendant's motion for a mistrial based on the prosecution's failure to disclose that a prosecution witness had been promised immunity by the State in derogation of statutory and due process protections.

(8) Trial court erred in overruling defendant's motion for a change of venue based upon the defendant's claim supported by affidavits and other exhibits that the prejudice of the community and the inflamed passions of the local citizenry made it impossible for him to receive a fair trial in Black Hawk County.

(9) Trial court erred in overruling defendant's motion for a new trial based on defendant's claim the State had withheld exculpatory evidence.

(10) Trial court erred in overruling defendant's objection to the opinion testimony of physicians as to the force and nature of the trauma which purportedly caused the injury to Curtis Murphy in the face of defendant's assertion there was no adequate foundation for such testimony.

(11) Trial court erred in permitting a State's witness to use a medical mannequin in demonstrating the injury when such injury was not accurately represented by the mannequin and was not related to other relevant testimony, was untimely, and improperly before the jury.

I. In the first issue stated for review defendant contends trial court erred in overruling defendant's demurrer and motion to dismiss the amended and supplemental informations charging him with assault with intent to commit great bodily injury and being a habitual offender on the ground of the State's failure to comply with § 795.1, The Code, 1975. Section 795.1 provides in part "When a person is held to answer for a public offense, if an indictment be not found against him within thirty days, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown."

A county attorney's information was originally filed against the defendant on the assault charge on August 26, 1976. Defendant was formally arraigned and pleaded not guilty, and had at no time appeared before a magistrate for a preliminary examination. The amended and supplemental informations were filed on November 5, 1976.

Defendant claims the filing of the new informations violated § 795.1, The Code, since defendant was held to answer by the entry of a not guilty plea and his incarceration. The State asserts that § 795.1 does not come into operation since there was no preliminary information or waiver of such and, therefore, defendant was never held to answer within the meaning of § 795.1.

In State v. Proulx, 252 N.W.2d 426, 429-430 (Iowa 1977), we rejected a defendant's argument he was held to answer within the meaning of § 795.1 when he entered a not guilty plea since under said section a defendant is held to answer after a preliminary examination by a magistrate or defendant's waiver of it. See generally, State v. Morningstar, 207 N.W.2d 772, 775 (Iowa 1973); State v. Mays, 204 N.W.2d 862, 866 (Iowa 1973). Therefore, since the defendant was not held to answer within the meaning of § 795.1 by his entry of a not guilty plea and since there was no preliminary examination or waiver such as would permit the court to determine defendant's right to a speedy indictment had been violated, we hold the trial court did not err in overruling defendant's demurrer and motion to dismiss on said basis.

II. In his second issue stated for review, defendant contends his right to a speedy trial afforded him under § 795.2, The Code, was violated. Section 795.2 provides in pertinent part:

"If a defendant indicted for a public offense, whose trial has not been postponed upon his application, be not brought to trial within sixty days after the indictment is found, the court must order it to be dismissed, unless good cause to the contrary be shown."

Defendant contends trial court erred in not dismissing the charge upon defendant's motion after the verdict had been reached. He based such motion on the facts that the trial on the assault charge did not commence until November 16, and the trial on the habitual criminal charge did not begin until December 28, 1976. The State contends the defendant's failure to move for a dismissal until after the trial had been completed and a jury verdict returned was belated and such claim is unavailable to him.

We have said that a defendant can waive his right to a speedy trial if he raises the issue after a verdict has been returned unless he is unrepresented by counsel and not admitted to bail during the course of the proceedings. State v. Myers, 215 N.W.2d 262, 264 (Iowa 1974). Here, however, since the defendant was represented by counsel during all of...