State v. Smith

• Decision Date: 29 August 1979
• Docket Number: 62415,Nos. 62414,s. 62414
• Citation: 282 N.W.2d 138
• Parties: STATE of Iowa, Appellee, v. James Milton SMITH, Appellant (two cases).
• Court: Iowa Supreme Court

Page 138

282 N.W.2d 138

STATE of Iowa, Appellee, v. James Milton SMITH, Appellant (two cases).

Nos. 62414, 62415.

Supreme Court of Iowa.

Aug. 29, 1979.

Michael J. Pitton, of Carlin & Darbyshire, P. C., Davenport, for appellant.

Thomas J. Miller, Atty. Gen., Thomas McGrane and Lona J. Hansen, Asst. Attys. Gen., for appellee.

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

REYNOLDSON, Chief Justice.

Defendant James Milton Smith appeals from judgment on verdicts finding him guilty of burglary in the second degree in violation of section 713.3, Supplement to the Code 1977, and subject to sentencing as a habitual offender pursuant to section 902.8. We affirm.

January 20, 1978, defendant was arrested in Davenport for the offenses of first-degree burglary and carrying a concealed weapon. A two-count trial information was filed charging him with those crimes. It was later amended to add habitual offender allegations. Defendant appeared, pled not guilty, obtained appointed counsel, and subsequently waived his right to a speedy trial. Trial was scheduled for July 24.

July 20, State moved for permission to offer the testimony of the burglary victim Eunice Hein, whose name did not appear on the trial information or on the minutes of testimony. When hearing on this motion commenced, the State withdrew the motion and filed a motion to dismiss which alleged the inadvertent and unintentional failure to give timely notice of Hein's additional testimony and the State's intention to file a new information charging defendant with burglary in the second degree, based on the same testimony, and to charge defendant as a habitual offender. State further alleged "(t)he interest (Sic ) of justice demand that the defendant be given a full and fair opportunity to prepare for trial and furthermore, necessitate the State being given the opportunity to fully and fairly present its case . . . ." Defendant resisted both motions. Trial court dismissed the first information and, with defendant's consent, arraigned him at once on the new trial information.

Before trial commenced on August 2, trial court overruled defendant's motions to dismiss and to exclude Hein's testimony. The court also overruled defendant's motion for a different trial judge based on prior encounters with defendant. Defendant's in-trial objection to Hein's testimony was overruled.

The jury could have found defendant and Raymond Ballou rode around Davenport in Ballou's car on the evening of January 20. Police had them under surveillance because of a burglary tip. Ballou parked in a residential area and defendant left on foot. Unseen, he broke into Hein's home and took some jewelry. Hein's testimony was limited to identifying the recovered jewelry and negativing consent to defendant's entry into her home.

Following defendant's conviction for second-degree burglary, the same jury was used for the habitual offender proceeding. Over defendant's objection that the State must prove beyond a reasonable doubt the contemporaneous conviction of a class "C" or "D" felony, trial court simply instructed the jury that they had just convicted defendant of a class "C" felony.

The jury found defendant was a habitual offender. Trial court then sentenced him to a term of not more than fifteen years.

As grounds for reversal defendant contends trial court (1) erred in allowing Hein's testimony after the failure of the State to give ten-day notice, (2) erred in denying defendant's motion for a different trial judge, (3) erred in instructing the jury as a matter of law that defendant had just been convicted of second-degree burglary, a class "C" felony, and finally, (4) that he was deprived of effective assistance of counsel.

I. Allowing testimony without ten-day notice.

The motion for leave to introduce Hein's testimony was filed July 20, 1978. It alleged the prosecuting attorney had just discovered her name and the minute of her testimony had been omitted from the trial information "and immediately after that discovery, an additional minutes (Sic ) of testimony was prepared and served upon counsel for the defendant." The attached clerk's proof of service shows a copy of the motion was mailed to defense counsel on the same day. A sheriff's return of service discloses the notice of additional testimony was served on defendant on July 20. At a subsequent court proceeding defendant's lawyer stated he had not received "actual" notice until July 24, although he indicated he had earlier knowledge of the effort to obtain Hein's testimony.

At the July 26 hearing on the additional testimony motion, the prosecuting attorney stated he could not "give the Court what I think it could accept as good cause or legitimate reason for not having that witness on the minutes of testimony . . . . The reason that that witness was not there is because someone forgot to put it on there." He moved to withdraw the motion. He then presented a motion to dismiss the information filed and indicated he was ready to file the substituted charge. Trial court indicated that "since the county attorney does have available to it the ability to correct the matter, I'm going to grant the dismissal." Defense counsel objected, pointing out the purpose of Iowa R.Crim.P. 27(1) was not to allow the State to escape the ten-day notice requirement.

Defendant's lawyer agreed to immediate arraignment on the new trial information and stated he could be ready for trial by the following Wednesday, August 2, which, with allowance for a defense requested continuance, was within the 90-day speedy trial limit on the first information. Trial was rescheduled for that date. Before the trial commenced on August 2 district court considered a motion to dismiss filed by defendant and questioned whether defendant had been prejudiced in trial preparation. In response to the court's inquiry as to whether Hein's deposition had been taken, defense counsel stated, "We have had . . . a chance to speak with her informally, so there is no problem as far as preparing for trial within . . . the new charge."

Defendant preserved the error, if any, with respect to the Hein testimony by pretrial and post-trial motions and by trial objections. He now asserts the dismissal provisions of Iowa R.Crim.P. 27(1) were abused and manipulated to circumvent defendant's right to the ten-day notice required by Iowa R.Crim.P. 18(2).

We have examined the new relevant Iowa rules 18(2) and (3). ¹ For the purposes of this appeal they are the equivalent of sections 780.10 through 780.13, The Code 1977, except defendant ordinarily is now entitled to a ten-day rather than a four-day notice of additional testimony. Our decisions under the former statutes therefore will apply in resolving the issue confronted here.

Because rule 18(2) requires notice of additional testimony to be served on counsel if defendant has one it is clear defendant's lawyer did not have ten-day notice of Hein's testimony.

Had the State not withdrawn the motion for leave to present additional testimony and had it been favorably ruled on, error could not have resulted unless defendant was denied a continuance. State v. King, 256 N.W.2d 1, 9 (Iowa 1977); State v. Sevcik, 239 N.W.2d 571, 572 (Iowa 1976). It appears to us there is no significant difference between the court's rule 27(1) dismissal and the subsequent refiling in this instance, and sustaining a rule 18(3) motion for leave to introduce testimony without the requisite ten-day notice. In the latter event rule 18(3) gives defendant only two alternatives: a continuance, or proceeding to trial with examination of the new witness being "strictly confined to the matters set out in (the) motion."

Here defense counsel made no motion for continuance. When the court first set trial for July 31, two days before it actually commenced, defense counsel said, "Well, that's fine . . . ."

This court has a long history of not reversing on the ground of technical defects in procedure unless it appears in some way they have prejudiced the complaining party or deprived him or her of full opportunity to make defense to the charge presented in the indictment or information. State v. Rank, 214 N.W.2d 136, 138 (Iowa 1974); State v. Conley, 176 N.W.2d 213, 215 (Iowa 1970); State v. Jensen, 245 Iowa 1363, 1369, 66 N.W.2d 480, 483 (1954); State v. Heft, 155 Iowa 21, 26-27, 134 N.W. 950, 953 (1912). This includes defects relating to minutes of testimony. State v. Walker, 281 N.W.2d 612 (Iowa 1979); State v. Johnson, 259 Iowa 599, 604, 145 N.W.2d 8, 11 (1966); State v. Burk, 88 Iowa 661, 665-67, 56 N.W. 180, 181-82 (1893); State v. Guisenhause, 20 Iowa 227, 230 (1866).

The record in this case plainly shows defendant was not surprised by the Hein testimony. The new information charged him with a lesser offense. He had adequate time to prepare his defense. He did not ask for a continuance and trial date was fixed to his satisfaction. In this instance we find admission of the Hein testimony to be harmless if it was an error on trial court's part. See State v. Trudo, 253 N.W.2d 101, 107 (Iowa), Cert. denied, 434 U.S. 903, 98 S.Ct. 299, 54 L.Ed.2d 189 (1977); State v. Shea, 218 N.W.2d 610, 615 (Iowa 1974).

In so finding, we do not condone the inattention of the prosecuting attorney, nor do we place a stamp of approval on the device used here to bypass the necessity of the motion for leave to submit additional testimony. Of course, we consider it important that a different offense was charged in the new trial information and the weapon count was dropped.

II. Overruling motion for a different trial judge.

Defendant contends trial court abused its discretion in not recusing himself because of their prior courtroom encounters. He does not make a satisfactory record disclosing details of these encounters or their number. Apparently defendant jumped bail and failed to appear on a charge before this judge, who then issued a warrant for...