State v. Rouse

• Decision Date: 23 April 1980
• Docket Number: No. 63811,63811
• Citation: 290 N.W.2d 911
• Parties: STATE of Iowa, Appellee, v. James Emery ROUSE, Appellant.
• Court: Iowa Supreme Court

Page 911

290 N.W.2d 911

STATE of Iowa, Appellee, v. James Emery ROUSE, Appellant.

No. 63811.

Supreme Court of Iowa.

April 23, 1980.

Rehearing Denied May 16, 1980.

Jon M. Kinnamon of Kinnamon, Kinnamon, Russe & Meyer, Cedar Rapids, for appellant.

Thomas J. Miller, Atty. Gen., Kathy Krewer, Asst. Atty. Gen., and Keith D. Collins, Asst. Benton County Atty., for appellee.

Considered by REYNOLDSON, C. J., and HARRIS, McCORMICK, ALLBEE and LARSON, JJ.

LARSON, Justice.

This defendant appeals a conviction of second-degree burglary, in violation of section 713.3, Supplement to the Code 1977. He asserts that the trial court erred (1) in overruling his motion to dismiss the trial information for failure to hold a preliminary hearing within ten days after his arrest, (2) in failing to submit an instruction on the lesser-included offense of criminal trespass, and (3) in overruling his motion for new trial, based upon alleged misunderstanding by a juror of the element of intent. We affirm the trial court on each of the issues assigned.

I. The preliminary hearing. On December 27, 1978, the defendant was arrested. On the following day, he was brought before a magistrate and requested a preliminary hearing which was then scheduled for January 19, 1979. Defendant, being unable to post bond, remained in custody. On January 11 a county attorney's information was filed, and on the same day the county attorney notified defendant's counsel that the scheduled preliminary hearing would therefore not be held. On January 25, 1979, defendant filed a motion to dismiss, relying on Iowa R.Crim.P. 2(4)(a):

The magistrate shall inform the defendant that he or she is entitled to a preliminary hearing unless the defendant is indicted by a grand jury or a trial information is filed against the defendant or unless he or she waives the preliminary hearing in writing or on the record. . . . If the defendant does not waive the preliminary hearing, the magistrate shall schedule a preliminary hearing and inform the defendant of the date of the preliminary hearing. Such hearing shall be held within a reasonable time but in any event not later than ten days following the initial appearance if the defendant is in custody and no later than twenty days if he or she is not in custody. Upon showing of good cause, the time limits specified in this paragraph may be extended by the magistrate.

This court consistently held, prior to adoption of rule 2(4)(a), that the filing of a timely county attorney's information cuts off the right to a previously scheduled preliminary hearing. E. g., State v. Grady, 231 N.W.2d 869, 874 (Iowa 1975); State v. Franklin, 163 N.W.2d 437, 440 (Iowa 1968). The wording in rule 2(4)(a) that a defendant "is entitled to a preliminary hearing unless . . . indicted by a grand jury or a trial information is filed" makes it clear that this principle was retained by our new rules of criminal procedure. See 4 J. Yeager & R. Carlson, Iowa Practice: Criminal Law and Procedure § 963, at 209 (1979). The State accordingly argues that the filing of the information obviated the preliminary hearing requirement. The defendant does not appear to challenge this position but contends that, as of the end of the ten-day period following his initial appearance, neither a preliminary hearing nor a trial information had been provided, that his statutory rights were therefore violated and that the charges against him must be dismissed.

A habeas corpus proceeding has been held to be a sufficient remedy for a defendant who claimed that his constitutional right to a preliminary hearing had been denied; neither dismissal of a charge nor voidance of a subsequent conviction was required. See Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 865, 43 L.Ed.2d 54, 68 (1975); State v. Henderson, 268 N.W.2d 173, 176 (Iowa 1978); State v. Lee, 222 N.W.2d 471, 473 (Iowa 1974). In view of the adoption of rule 2(4)(a), we must now determine the appropriate remedy for a defendant whose statutory right to a preliminary hearing within ten days of his initial appearance is violated. Defendant contends that the above cases are no longer controlling, because the rule now imposes specific time limits and evidences an intent by the legislature to deal harshly with their infraction. He asserts that the only resolution of this case which will insure full compliance with the rule is to reverse the subsequent conviction and order the information to be dismissed.

In this regard, we find the failure of the legislature to specifically provide such a sanction in the language of the rule to be highly probative. Compare Iowa R.Crim.P. 2(4)(a) with Iowa R.Crim.P. 27(2)(a)-(b) (dismissal required upon failure to indict or try within prescribed time limits). We do not believe that rule 2(4)(a), in requiring a preliminary hearing or indictment within ten days is such a significant departure from the language of section 761.1, The Code 1977, requiring the magistrate to "immediately proceed with the preliminary examination," to warrant a conclusion that the legislature intended violation of the time limits of the rule to be grounds for dismissal.

We adhere to our previous view and hold that habeas corpus, not dismissal, is the proper remedy for alleged failure to comply with the time requirements of rule 2(4)(a). We hasten to point out, however, that processing of criminal matters with reasonable celerity has been a concern of the legislature, as shown by their enactment of rule 2(4)(a), and similar time-limiting rules. See, e. g., Iowa R.Crim.P. 27. It is also a concern of the courts, and we view failures to observe statutory time limits with disapproval. It is undisputed here that defendant was in custody and that no judicial determination of probable cause by preliminary hearing, indictment or trial information was provided within ten days as required by rule 2(4)(a). We cannot ascribe to the legislature, however, an intent to meet such failure by a remedy as severe as dismissal; nor, as discussed above, is such result mandated upon constitutional grounds. We find defendant's first assignment to be without merit.

II. Instruction on lesser-included offense. Appellate counsel, who did not represent defendant at trial, asserts that the court erred because it did not submit trespass, under section 716.7, as a lesser-included offense in a charge of burglary, under section 713.1. The appellant, however, is confronted with two hurdles in attempting to urge this error on appeal. He waived any such error by the record made at trial, and he failed to enter proper objection at trial to preserve the issue even without the waiver.

When final instructions were submitted to defendant's counsel for objections, if any, he said "I have no objection to those instructions." Such a statement amounts to "an express disclaimer of exceptions to instruction(s) . . .." State v Jackson, 223 N.W.2d 229, 232 (Iowa 1974). Accord, State v. Williams, 285 N.W.2d 248, 268-69 (Iowa 1979); State v. Veverka, 271 N.W.2d 744, 749 (Iowa 1978); State v. Rosewall, 239 N.W.2d 171, 175 (Iowa 1976). The defendant therefore waived his right to assert this issue on appeal.

Even without regard to this waiver, moreover, the defendant lost his right to assert this error by failing to preserve it at the trial level. His trial counsel did not submit a requested instruction to include trespass nor did he object to the court's failure to submit it. Appellant contends, however, that he is relieved of these responsibilities under Iowa Rule of Criminal Procedure 6(3) which now provides that "it is the duty of the trial court to instruct the jury . . . as to all lesser (included) offenses of which the accused might be found guilty under the indictment and upon the evidence adduced, even though such instructions have not been requested." But this rule does not increase the responsibility of the trial judge in submitting included offenses nor diminish the responsibility of counsel to preserve error on it; rule 6(3) merely restates the existing rule as to the court's duty to instruct. We held, even before enactment of the rule, that it is "the trial court's duty to instruct a jury fully and fairly, even without request . . .." State v. Sallis, 262 N.W.2d 240, 248 (Iowa 1978) (alleged error in failure to instruct on included offense of second-degree murder). The existence of that duty on the part of the court, however, did not relieve counsel of the responsibility of urging proper objection or exception. "(O)ur adversary system imposes the burden upon counsel to make a proper record to preserve error, if any, in this factual circumstance by specifically objecting to instructions in their final form, requesting instructions and voicing specific exception in event they are refused." Ibid.

Iowa R.Crim.P. 18(7)(f) ¹ provides in part that "(t)he rules relating to the instruction of juries in civil cases shall be applicable to the trial of criminal prosecutions." Iowa R.Civ.P. 196, thus incorporated into the trial of criminal cases, provides in part:

Before jury arguments, the court shall give to each counsel a copy of its instructions in their final form, noting this fact of record and granting reasonable time for counsel to make objections, which shall be made and ruled on before arguments to the jury. Within such time, all objections to giving or failing to give any instruction must be made in writing or dictated into the record, out of the jury's presence, specifying the matter objected to and on what grounds. No other grounds or objections shall be asserted thereafter, or considered on appeal. But if the court thereafter revises or adds to the instructions, similar specific objection to the revision or addition may be made in the motion for new trial, and if not so made shall be deemed waived. All instructions and objections, except as above provided, shall be part of the record. (Emphasis added.)

Rule 196 clearly requires...