State v. Smith, 95-1497

• Decision Date: 26 November 1997
• Docket Number: No. 95-1497,95-1497
• Citation: 573 N.W.2d 14
• Parties: STATE of Iowa, Appellee, v. George SMITH, Jr., Appellant. George SMITH, Jr., Appellant, v. STATE of Iowa, Appellee.
• Court: Iowa Supreme Court

Page 14

573 N.W.2d 14

STATE of Iowa, Appellee, v. George SMITH, Jr., Appellant.

George SMITH, Jr., Appellant, v. STATE of Iowa, Appellee.

No. 95-1497.

Supreme Court of Iowa.

Nov. 26, 1997.

Kermit L. Dunahoo and Jeffrey T. Mains of Dunahoo Law Firm, Des Moines, for appellant.

Thomas J. Miller, Attorney General, Susan M. Crawford and Karen Doland, Assistant Attorneys General, Thomas J. Ferguson, County Attorney, and Ray Walton, Assistant County Attorney, for appellee.

Considered by McGIVERIN, C.J., and LAVORATO, NEUMAN, ANDREASEN, and TERNUS, JJ.

McGIVERIN, Chief Justice.

Defendant George Smith, Jr., challenges his conviction and sentences for assault with intent to inflict serious injury, in violation of Iowa Code section 708.2(1) (1993), and terrorism, in violation of Iowa Code section 708.6. Defendant claims error by the trial court and postconviction court and ineffective assistance of counsel by trial counsel and postconviction counsel. We find no merit in defendant's claims and therefore affirm.

I. Background facts and proceedings. This case stems from events that occurred on July 25, 1993, in a Waterloo park. During an argument, defendant George Smith, Jr., allegedly fired a number of shots from a gun at a group of people. He also shot and injured George McLemore.

Smith was arrested and charged by trial information with willful injury concerning the injury to McLemore, see Iowa Code section 708.4, terrorism, see Iowa Code section 708.6, and going armed with intent, see Iowa Code section 708.8. He also was charged with committing those acts while in possession and control of a firearm, in violation of Iowa Code section 902.7, and being an habitual offender, in violation of Iowa Code section 902.8.

Defendant Smith was charged by separate trial information with several drug-related offenses that allegedly occurred on July 7 and 13, 1993. The drug case against defendant Smith was tried first, and Smith was convicted on all charges in that case.

The jury trial on the shooting-related charges began on January 10, 1995. After hearing the evidence presented, the jury found with regard to the willful injury charge that Smith was guilty of the lesser included offense of assault with intent to inflict serious injury, an aggravated misdemeanor. See Iowa Code § 708.2(1). The jury further found that Smith was guilty of the terrorism charge, but not guilty of going armed with intent. Smith was later separately tried on the habitual offender status, and the jury found that he twice previously had been convicted of felony offenses and thus was an habitual offender. See id. § 902.8. The trial court sentenced Smith to indeterminate prison terms of two years on the assault conviction and fifteen years on the terrorism conviction, to be served concurrently.

Defendant Smith appealed from the judgment and sentences entered upon his convictions for assault with intent to inflict serious injury and terrorism. While that appeal was pending, Smith applied for, and we granted, a limited remand so that he could file an application for postconviction relief in district court and develop a record to raise several other issues that he claimed occurred before the appeal. See id. § 822.3; Iowa R.App. P. 12(g). We also stayed the appeal. An application for postconviction relief was filed and an evidentiary trial held. The postconviction court denied relief to Smith.

We now will consider all issues raised by defendant Smith. Additional facts will be set forth as appropriate in discussing those issues.

II. Standards of review. We employ several different standards of review in this case depending upon the issue being addressed.

Because defendant's double jeopardy and ineffective assistance of counsel claims involve constitutional questions, our review in connection with those issues is de novo. See State v. Finnel, 515 N.W.2d 41, 43 (Iowa 1994) (double jeopardy); State v. Risdal, 404 N.W.2d 130, 131 (Iowa 1987) (ineffective assistance of counsel). Similarly, defendant's contention regarding a violation of his right to be present during trial proceedings involves a constitutional claim, so that our review is de novo. State v. Meyers, 426 N.W.2d 614, 616 (Iowa 1988). Error necessitates reversal unless we conclude the error was harmless beyond a reasonable doubt. Id.

We review speedy trial issues for correction of errors at law. State v. Finn, 469 N.W.2d 692, 693 (Iowa 1991). We are bound by the district court's findings of fact if supported by substantial evidence. Id.

We apply an abuse of discretion standard when reviewing the district court's rulings on juror misconduct claims, discovery issues, evidentiary issues in general, and motions for new trial based on newly-discovered evidence. State v. Cullen, 357 N.W.2d 24, 27 (Iowa 1984) (juror misconduct); State v. Gates, 306 N.W.2d 720, 725 (Iowa 1981) (discovery); State v. Barrett, 445 N.W.2d 749, 750-51 (Iowa 1989) (evidentiary rulings); State v. Jefferson, 545 N.W.2d 248, 249 (Iowa 1996) (newly-discovered evidence).

III. Issues raised by defendant. A. Issues raised prior to sentencing. Defendant Smith challenges several aspects of his trial for assault with intent to inflict serious injury and terrorism and the habitual offender trial.

1. Trial for assault and terrorism. a. Speedy trial issue. Prior to the start of trial, defendant Smith filed a motion to dismiss, claiming that his right to a speedy trial was violated. Defendant contends the district court erred in overruling that motion. Defendant had not waived his right to a speedy trial.

Iowa Rule of Criminal Procedure 27(2)(b) provides:

If a defendant indicted for a public offense has not waived his right to a speedy trial he must be brought to trial within ninety days after indictment is found or the court must order the indictment to be dismissed unless good cause to the contrary be shown.

This rule also applies to charges brought by trial information. See Iowa R.Crim. P. 5(5); State v. Clark, 351 N.W.2d 532, 534 (Iowa 1984). Thus, a case not brought to trial within ninety days after indictment or filing of the trial information must be dismissed unless: (1) the defendant waived his right to a speedy trial; (2) the delay is attributable to the defendant; or (3) there is good cause for the delay. Finn, 469 N.W.2d at 694.

The trial information in defendant Smith's case was filed on August 17, 1994. Smith's trial began on January 10, 1995, 146 days after the filing of the trial information and 56 days beyond the ninety-day period mandated by Iowa Rule of Criminal Procedure 27(2)(b). Twenty-one days of that delay were attributed to Smith by the trial court because Smith requested a new lawyer shortly before the date originally set for trial. While Smith does not challenge that twenty-one-day delay he contends the additional thirty-five-day delay does not comport with the requirements set forth in rule 27(2)(b).

We believe, contrary to Smith's argument, that there is substantial evidence supporting the district court's determination of good cause for the delay in commencing trial in this case. Both the trial on the drug charges and the trial for assault and terrorism were scheduled to begin on the same day within the ninety-day period after the trial information was filed, and Smith filed a motion indicating his preference that the drug case go to trial first. Delay resulting from other proceedings concerning the defendant, such as trial on other charges, is a factor in determining whether good cause exists. State v. King, 225 N.W.2d 337, 340 (Iowa 1975). In addition, after completion of the trial on the drug charges, the district court had to schedule hearing on and then consider and rule on a number of pre-trial motions filed by Smith in the assault and terrorism case. Finally, the record shows defendant Smith agreed to the trial date in the assault and terrorism case. A defendant may not claim a violation of his speedy trial rights when he has acquiesced in the trial date set by the district court. State v. Gansz, 403 N.W.2d 778, 780 (Iowa 1987).

We find no error by the district court with regard to defendant's speedy trial claim.

b. Availability of witnesses for depositions. Upon defendant Smith's request, the district court ordered that the State subpoena several of the State's prospective witnesses so that Smith could depose them prior to trial. However, these witnesses did not appear for depositions when scheduled. Although the record does not indicate why the witnesses did not appear, the district court found that the State had made reasonable efforts to locate them and noted that they were available later for depositions before trial commenced. Smith contends the State violated discovery orders and that the district court should have suppressed the testimony of the witnesses or dismissed the charges against Smith.

We do not believe the district court abused its discretion in declining to impose sanctions against the State. Without deciding whether the State indeed violated any discovery orders, we conclude that the failure of the witnesses to appear did not prejudice defendant. The witnesses' trial testimony did not deviate from the minutes of testimony. Moreover, Smith was able to cross-examine the witnesses at trial.

c. Juror misconduct. Despite the trial court's admonition to the jury not to read any news accounts of the trial, one juror read such an account during a weekend recess from deliberations. The newspaper article read by the juror was factual and mentioned the drug charges against defendant Smith. Smith claims the trial court should have ordered a new trial because of this incident.

We have articulated a three-part test to determine whether a jury verdict must be impeached because of juror misconduct:

First, the evidence from the jurors must consist only of objective facts as to what actually occurred in or out of the jury room bearing on misconduct. Second, the acts or statements...