State v. Peterson, 53922

• Decision Date: 09 September 1971
• Docket Number: No. 53922,53922
• Citation: 189 N.W.2d 891
• Parties: STATE of Iowa, Appellee, v. James Ray PETERSON, Appellant.
• Court: Iowa Supreme Court

Page 891

189 N.W.2d 891

STATE of Iowa, Appellee, v. James Ray PETERSON, Appellant.

No. 53922.

Supreme Court of Iowa.

Sept. 9, 1971.

STUART, Justice.

The Palo Alto county grand jury returned an indictment charging James Ray Peterson with breaking and entering with intent to commit larceny contrary to section 708.8, The Code, 1966. Following a plea of not guilty, the matter proceeded to trial by jury which returned a verdict of guilty. Defendant's motion for new trial and judgment notwithstanding the verdict (perhaps intended as a motion in arrest of judgment section 788.1) being overruled, he was sentenced to the men's reformatory at Anamosa for a term not to exceed 10 years.

From this final judgment defendant appeals contending the court erred in failing to sustain: (1) his motion to dismiss the charge for lack of speedy trial; (2) his motion for mistrial; and (3) his objection to the introduction into evidence of a weapon.

The indictment was returned September 30, 1968 as the result of a break-in at an Emmetsburg supermarket. About 5 a.m. September 7 as the meat cutter entered the market to report for work he heard a pounding noise coming from one of the back rooms and noticed the safe was gone. The butcher immediately went to a filling station across the street and caused the matter to be reported to the police. Two police officers arrived at the supermarket within a very few minutes. As they were surveying the area three individuals fled from the store's rear entrance, two escaped under police gun fire in a 1960 Chevrolet. The third man, Peterson, attempted to elude the police by hiding under a gas truck parked at a garage across the street from the supermarket. He was discovered almost immediately, arrested and placed in the police car. Later that morning he was charged by preliminary information with the crime mentioned.

A service station operator who lived nearby was awakened by the officers' gunshots. He telephoned the police and was advised there had been a break in at the supermarket and was asked to go to the area and help, which he did. Later in the morning, within an hour of the time of hearing the shots, this witness returned to the scene and found a loaded revolver with the hammer cocked on the undercarriage of the gas truck mentioned.

I. Defendant contends the court erred in failing to dismiss the charge against him for lack of a speedy trial.

Defendant was arraigned and entered a plea of not guilty October 3. October 28 he filed motion for production and inspection and reproduction of reports, pictures and all matters of evidence material to the law suit; a motion to suppress evidence, alleged admissions and confessions and to disclose all exculpatory evidence. October 30 defendant filed motion in limine. The same day defendant filed a motion to order the State's witnesses to talk and cooperate with defendant's counsel. November 21, defendant filed application and authorization for expert witnesses. At the same time, by a separate instrument, he filed demand for speedy trial under section 795.2. The transcript reveals a copy of the demand was maileld to the county attorney.

July 3, 1969 the court entered its order for authorization for expert witnesses on defendant's behalf. July 9, the court sustained defendant's motion in limine. All other rulings by the court in regard to the above motions were entered July 10.

In the meantime, defendant made no effort to obtain a ruling on his demand for speedy trial by calling the matter to the court's attention or go on record in resisting the delay. The court in an order entered July 18 stated that it had been brought to its attention this cause was ready for trial. The matter was set for 10 a.m. August 13 and a jury panel ordered.

August 13 defendant moved to dismiss the charge for lack of speedy trial. The motion was overruled and the matter proceeded to trial.

Defendant's motion is based on Code section 795.2. This section as amended by Regular session, Sixty-second General Assembly, chapter 400, section 259 and in effect at the time material here provided:

'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. An accused not admitted to bail and unrepresented by legal counsel, shall not be deemed to have waived his privilege of dismissal to be held to make demand or request to enforce a guarantee of speedy trial, and the court on its own motion shall carry out the provisions of this section as to dismissal.'

This section was later amended by the Second session, Sixty-third General Assembly, chapter 1283, section 1 by deleting the words 'to be held' and inserting in lieu thereof the words 'or be held', a change not of material significance here.

Peterson was at all times represented by counsel and the exception in the statute therefore has no application.

Of course, defendant was not brought to trial within 60 days from the return of the indictment. Therefore, he is entitled to a dismissal under the cited section unless he has waived his right to a speedy trial or unless good cause for postponing the trial beyond that time is shown.

In the colloquy between court and counsel at the August 13 hearing both sides conceded no one ever called to the court's attention defendant's demand for speedy trial. It was also developed the final reply to the motions involved was filed April 30, 1969; one continuance from December 21 to January 30 was granted defendant because of inability to have witnesses he desired present; because counsel on both sides were engaged in tax work further continuances were granted both parties for time to file briefs in support of their positions in respect to various motions. In addition the courtroom in the courthouse was being remodeled 'all winter long'. Hearings on the various motions had been conducted in the supervisor's office. Defendant's motion to dismiss was overruled.

In connection with this assignment defendant requests we reconsider the rule announced in State v. Allnutt, 261 Iowa 910, 156 N.W.2d 274. In the cited case the motion was submitted for the first time immediately prior to the commencement of trial. A copy had been delivered to the county attorney approximately 30 minutes before. We held the motion was too late.

There is another Allnutt case decided the same day, 261 Iowa 897, 156 N.W.2d 266. It is referred to in the briefs and arguments as the first Allnutt case. There the request for a speedy trial was made at arraignment but the motion for dismissal was not made until after trial and after return of the verdict. We held the motion was too late.

In the first Allnutt case, 261 Iowa at 901, 156 N.W.2d at 268, after discussing the purpose of the constitutional and statutory protection guaranteed defendant for a speedy trial, we said, 'It has long been held, both in this state and elsewhere, that a defendant, unless he is neither admitted to bail nor represented by counsel, may waive the constitutional and statutory provisions assuring him a speedy trial. * * * (Citing authorities)'

In both cases we held defendant had waived his right to a speedy trial under section 795.2 by his delay in failing to move for a dismissal.

Defendant has not persuaded us we should depart from the pronouncements made in these cases.

We point out again defendant's demand for speedy trial was filed November 21. He did nothing to call his case on for trial thereafter. He made no objections to the delays and failed to seek the aid of the court in enforcing his right until August 13, the day set for commencement of trial.

Although the record does not disclose when counsel was appointed for defendant, the clerk's transcript reveals defendant filed application for appointment of counsel and affidavit of financial condition October 3, 1968. The motion for production, inspection and reproduction of reports previously mentioned as filed October 28 was signed by defendant's present counsel. It is obvious defendant had the assistance of counsel from at least that date to the submission of the appeal.

Nowhere in the record are we told whether Peterson was incarcerated from the time of his arrest until August 13 but in the affidavit for appointment of counsel referred to defendant stated he was free on bond furnished by friends and relatives. This is not important in view of this wording of the statute, 'an accused not admitted to bail and unrepresented by legal counsel.' In State v. Johnson (Iowa, 1969), 167 N.W.2d 696, 700, in interpreting section 795.1, Failure to Indict, we declined to change the 'and' in that statute to mean 'or'. There is no logical reason why the similar language in 795.2 should be differently interpreted. We further held in the Johnson case that '* * * if a defendant is represented by counsel he must make a request or demand to enforce guarantee to speedy indictment or he shall be deemed to have waived such right'.

In Parrott v. Haugh (Iowa, 1968), 158 N.W.2d 766, 769, this court held the necessity of demand for trial under section 795.2 as amended is obviated only if the accused has not been admitted to bail And is unrepresented by counsel.

The reasons for the rule are well stated in State v. McTague, 173 Minn. 153, 216 N.W. 787, 788. There is also an exhaustive annotation on waiver or loss of accused's right to speedy trial in 57 A.L.R.2d 302, particularly at 308, 326, 336, citing the authorities of many jurisdictions adopting a similar principle. Additional authorities may be found in the Later Case Service to this annotation.

We adhere to the view a defendant represented by counsel waives his right to speedy trial under the constitution and the statutes in aid thereof if he does not resist postponement or move to bring his case on for trial.

Defendant's constitutional and...