State v. Reynolds, 58173

• Decision Date: 16 February 1977
• Docket Number: No. 58173,58173
• Parties: STATE of Iowa, Appellee, v. Robert James REYNOLDS, Appellant.
• Court: Iowa Supreme Court

Page 434

250 N.W.2d 434

STATE of Iowa, Appellee, v. Robert James REYNOLDS, Appellant.

No. 58173.

Supreme Court of Iowa.

Feb. 16, 1977.

Philip F. Miler, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Joseph S. Beck, Steven K. Sandblom and Richard H. Doyle, IV, Asst. Attys. Gen., and Carroll Wood, County Atty., Webster City, for appellee.

REES, Justice.

The defendant in this case was charged by separate county attorney's informations with the crimes of receiving or aiding in concealing stolen goods in violation of § 712.1, The Code, 1973, and conspiracy to receive or aid in concealing stolen goods in violation of § 719.1, The Code, 1973. The two cases were consolidated for trial and tried to a jury which returned a verdict of guilty as to both charges. Defendant now appeals. We affirm.

The defendant Reynolds and two confederates, Robert Larry Anderson and Jerry Jean Bainter, had arranged to procure a stolen tractor for delivery to a state agent, one James D. Barr, for the sum of $10,000. There were several contacts and conversations between defendant and Barr which detailed the arrangements for the delivery of the tractor to Barr. The arrest of the defendant was made on the farm where the stolen tractor had been secreted in a machine shed and on which farm the arrangements for the sale were to be completed.

Defendant states for review eight issues which he contends dictate and require a reversal of this case. We shall treat each issue separately Infra.

I. Speedy Trial issue.

Defendant contends trial court erred in overruling his motion to dismiss both informations for failure to comply with the statutory speedy trial mandate set out in § 795.5, The Code, 1973. It was the defendant's calculation that 105 days elapsed from the filing of the information on October 7, 1974, to the date of his motion to dismiss which was filed on January 22, 1975, during the week preceding the date set for trial. Defendant asserts that no good cause was demonstrated for the 45-day delay beyond the statutory limit.

Section 795.2, The Code, 1973, provided as follows:

'795.2 Delay in trial. 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 or be held to make demand or request to enforce a gunarantee of speedy trial, and the court on its own motion shall carry out the provisions of this section as to dismissal.'

Our review of the trial court's determination of the question of good cause is not De novo. Where the determination of the trial court is supported by substantial evidence in the record we must affirm. State v. Albertsen, 228 N.W.2d 94 (Iowa 1975); State v. Grady, 231 N.W.2d 869 (Iowa 1975); State v. LaMar, 224 N.W.2d 252 (Iowa 1974).

The rationale upon which trial court found good cause for the delay is set out in the order overruling the motion to dismiss. Trial court noted defendant had moved for a continuance in his Webster County trial on December 13, 1974, which motion was supported by his physician's certificate from which it appeared defendant had been hospitalized with a bleeding duodenal ulcer and would not be physically able to stand trial until sometime between January 15 and February 1, 1975. Trial commenced on January 27, 1975, within the period defendant's physician stated he would be physically unable to attend trial. It appeared, therefore, the defendant was physically unable to stand trial from the period commencing December 13, 1974 and terminating January 27, 1975. The record indicates trial commenced apparently in contradiction of the physician's directive but defendant did not seek a continuance beyond January 27. Certainly the defendant's physical inability to stand trial made known in advance to the court is good cause for a delay during the disability.

It is true the motion for continuance based on defendant's physical disability was not filed in this case in Hamilton County, but was in fact filed in a case pending against the defendant in Webster County and the court file in the Webster County case was made a part of the record in the matter before us here. Defendant's Illness, as reflected by the record, constituted good cause for the delay from December 13, 1974 to January 27, 1975.

The period prior to defendant's illness was 67 days from the filing of the indictment on October 7 to the filing of the affidavit of illness on December 13. Trial court set out the factors it considered in determining that good cause existed for this short delay. Trial court noted that defendant had filed a pretrial motion and demurrer. Some time must be allotted for consideration of and ruling on defense motions by the trial court. State v. Truax, 232 N.W.2d 861, 863 (Iowa 1975).

The delay in this case is a short one. Defendant waited 15 days after filing of the information before filing his motion and demurrer. The time consumed by defendant in preparing his motion and demurrer cannot be ignored when examining a lesser time of delay following the 60-day period. State v. Donnell, 239 N.W.2d 575, 579 (Iowa 1976).

Trial court further observed that one of the district judges became disabled shortly after the information was filed in this case. An unanticipated administrative difficulty resulted. The illness of a judge may be a factor in determining good cause for a short delay. State v. Jannings, 195 N.W.2d 351 (Iowa 1972).

Other factors are entitled to consideration in determining good cause for delay of trial. Length of delay, prejudice to the defendant and demand for a speedy trial all enter into consideration. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. Donnell, supra. In this case defendant was at liberty on bond, was represented by counsel and did not request a speedy trial until January 22, 1975.

After a full review of all the relevant factors, we find no abuse of discretion in trial court's determination that good cause existed for the delay in trial.

II. Entrapment Instruction issue.

Defendant states an issue for reversal in connection with the entrapment instruction given by trial court which employed the phrase 'normally law-abiding person'. Defendant requested an instruction with that phrase deleted, but suggested no alternative to the court, although on appeal here he asserts a preference for the phrase 'average person'. The trial court instructed the jury that entrapment consists of the law enforcer using persuasion 'likely to cause normally law-abiding persons to commit the offense'.

The entrapment defense theory is designed to protect the public from being induced to commit crimes. The availability of the defense of entrapment deters police action which cannot be countenanced, and the emphasis on the conduct to be deterred justified our adoption of an objective standard in connection with the entrapment question in State v. Mullen, 216 N.W.2d 375 (Iowa 1974). In Mullen we enunciated the rule that conduct is forbidden which would induce a normally law-abiding person to commit a crime.

Defendant appears to confuse the objective and subjective standards in entrapment. He claims he is stripped of protection against entrapment because he is not a 'normally law-abiding person'. He fails to discern the fact that if the police did act so as to induce a normally law-abiding person to commit a public offense he would have been acquitted by the jury under the instruction given. The jury was not instructed to consider the identity of the defendant in determining the entrapment issue. This is in conformity with the objective standard adopted in State v. Mullen, supra. See also State v. Leonard, 243 N.W.2d 75 (Iowa 1976).

III. Prosecutor's Closing Argument issue.

The record discloses that defendant moved for a mistrial following certain remarks made by the prosecutor which he contends were calculated to inflame and prejudice the jury. The criticized remarks on the part of the prosecutor were that he thought the evidence showed the defendant was a fence, and he defined a fence as one who buys and sells stolen property. The trial court in overruling defendant's motion for a mistrial bottomed on such statement held that the prosecutor's comment could fairly be applied to the evidence. Trial court indicated that he found no prejudice to the defendant in the comment which had been prefaced by the ameliorating phrase 'I think the evidence shows'. The record indicates the prosecutor had merely summarized the evidence and had made reference to the defendant, using a colloquial term for one who receives stolen property.

Counsel is allowed a certain latitude in arguments to the jury which includes reasonable interpretations of the evidence. State v. Brewer, 247 N.W.2d 205 (filed November 17, 1976); State v. Phillips, 226 N.W.2d 16 (Iowa 1975). The jury is directed to consider the arguments of both counsel in a criminal case and to deliberate on the issues presented. Trial court when called upon must determine whether or not an argument to a jury by counsel is prejudicial. As a reviewing court, we are removed from the situation, and it is difficult for us to determine here the effect of the comments. However, we find no abuse of discretion after a full consideration of the trial court's determination to overrule the motion for a mistrial. State v. Monroe, 236 N.W.2d 24 (Iowa 1975); State v. Fryer, 243 N.W.2d 1 (Iowa 1976).

IV. Consolidation of Informations issue.

As noted above, defendant was charged with two specific crimes by separate county attorney's informations. The State moved to consolidate the cases prior to trial. Defendant then objected to the consolidation, asserting the prosecutor's motion was untimely, that...