State v. Thomas, 56830

• Decision Date: 16 October 1974
• Docket Number: No. 56830,56830
• Citation: 222 N.W.2d 488
• Parties: STATE of Iowa, Appellee, v. Reedy THOMAS, Appellant.
• Court: Iowa Supreme Court

Page 488

222 N.W.2d 488

STATE of Iowa, Appellee, v. Reedy THOMAS, Appellant.

No. 56830.

Supreme Court of Iowa.

Oct. 16, 1974.

Dale E. Sharp, Ames, for appellant.

Richard C. Turner, Atty. Gen., Fred M. Haskins, Asst. Atty. Gen., Des Moines, Ruth M. Harkin, Co. Atty., and Robert L. Huffer, Asst. Co. Atty., for appellee.

Considered en banc.

REES, Justice.

Defendant was informed against by county attorney's true information filed in the Municipal Court of the City of Ames on May 21, 1973, with unlawful possession of a controlled substance, namely, marijuana, in violation of section 204.401, subparagraph 3, The Code, 1973. He was tried to a jury, convicted and sentenced, and now appeals. We affirm.

During the evening hours of May 19, 1973 a witness observed two men walking in an alley in Ames, and also noticed a dark blue Chevrolet automobile with Ohio plates parked near his apartment. The witness entered his own living quarters and continued to observe the two men, and saw one of them carrying from the direction of a house located at 924 Kellogg in Ames a large object appearing to be furniture which the man then placed in the trunk of the Chevrolet automobile. The witness then called the police department. Shortly thereafter the automobile was stopped by officers responding to the call and defendant and the other occupant of the car were arrested. An inspection was then made of the residence at 924 Kellogg Street, and evidence was found indicating the dwelling had been forcibly entered.

A search warrant was subsequently obtained authorizing the search of the Chevrolet automobile, the warrant directing the peace officer to search for 'furniture'. The automobile was searched and a phonograph, some tools and seven plastic bags of a green plantlike material were seized.

In order to fully understand the issues presented by this appeal, a detailed chronology of proceedings must be set out. As stated above, defendant was arrested on March 19, 1973. A preliminary information was filed charging defendant with possession of marijuana on the following day, March 20. On March 29 defendant appeared with his counsel before then Municipal Judge McKinney, indicated his intention to plead not guilty, and requested a preliminary hearing, which was set for April 17. On April 17 the Municipal Judge made the following handwritten note on the record: 'Court advised that county attorney is filing his information in this case. Case continued pending said filing. JLM.' There is no showing in the record as to whether defendant or his counsel was present on April 17 when the handwritten note was entered on the record.

On May 21, 1973 the county attorney's true information was filed. On May 23 defendant filed his motion to suppress the use of any evidence at trial obtained as the result of the execution of the search warrant, and the search of his automobile, on the grounds the search violated his rights under the 4th Amendment to the United States Constitution for that it was not conducted in a lawful manner, the items seized were not specified in the warrant and there was no reasonable relationship between the search authorized by the warrant and the seizure of the marijuana. Hearing was had on the motion to suppress on May 30. Evidence was introduced, and at the close of the hearing the court orally overruled the motion to suppress.

Also on May 30, 1973, defendant filed his written request for the personal appearance of an employee or technican of the State Criminalistics Laboratory at trial. No ruling appears to have been entered on said request.

On July 26, 1973 defendant filed a motion to dismiss, asserting he had been charged by preliminary information in the Municipal Court of Ames on March 20, 1973, he had appeared on March 29, 1973, and that a preliminary hearing was set at that time for April 17, 1973. He further stated the preliminary hearing was not held because the court had been informed by the county attorney that a true information was to be filed, and that the same was subsequently filed on May 21, 1973, and that thereafter a trial date was set for June 18, 1973 but continued at the request of the county attorney's office. He asserted that more than 30 days had elapsed between the time he was charged and the filing of the county attorney's information, more than 60 days had elapsed between the date of the filing of the county attorney's information and the date defendant would be brought to trial, and that no good cause had been shown or could be shown on the part of the State for the delay in the filing of the county attorney's information and in bringing defendant to trial. The motion of the defendant to dismiss was overruled.

On August 7, 1973 defendant filed a written motion for separate trial, asserting his trial jointly with Michael Ellens, his companion when arrested, would be to his prejudice. It is noted Ellens and defendant were not informed against jointly, but were charged by separate informations with the commission of the same offense under the same conditions and circumstances. The motion for separate trial was overruled, and trial commenced on August 7, 1973.

Defendant presents the following issues for review:

(1) The search of defendant's automobile was conducted in an unlawful manner and not pursuant to a valid search warrant.

(2) Defendant was not timely charged by county attorney's information.

(3) Defendant was not timely tried for the alleged offense.

(4) Defendant's joint trial with his co-actor Michael Ellens was improper in view of defendant's objections thereto.

(5) Trial court erred in permitting the witness Eck to testify, the name of the witness not having been endorsed on the information nor any notice of additional testimony naming him having been served on defendant.

(6) Trial court erred in admitting into evidence Exhibit 2, a large plastic bag containing several smaller plastic bags of a green plantlike material.

I. We give consideration first to defendant's second issue presented for review, namely, his contention he was not timely charged by county attorney's information, the information not having been filed in conformity with § 795.1, The Code, 1973.

Defendant was arrested on March 19, 1973 and on the following day was charged in Municipal Court in Ames with the crime of possession of marijuana. On March 29 he appeared in the Municipal Court, indicated his intention to plead not guilty, and requested a preliminary hearing, which was set forth April 17. On April 17 the order referred to in the foregoing chronology was entered by the court, and the matter was continued pending the filing of a true information which the court had been informed the county attorney intended to file. The county attorney's information was filed 34 days thereafter, on May 21.

Defendant cites and relies on State v. Mays, 204 N.W.2d 862 (Iowa 1973) and State v. Morningstar, 207 N.W.2d 772 (Iowa 1973). While defendant contends he was 'effectively held to answer on April 17, 1973, if not before', we cannot conclude his contention in this regard is borne out by the record. No preliminary hearing was held and there is no showing in the record of any express waiver of same. Our pronouncements in State v. Mays and State v. Morningstar, Supra, control here, and we are constrained to hold, and do hold, defendant has made no showing of the deprivation of his right to speedy indictment. His contention otherwise is without merit.

II. In the third issue presented for review, defendant asserts he was not timely tried for the offense charged and was denied a speedy trial as guaranteed him by § 795.2, The Code, 1973.

As noted above, the county attorney's true information was filed on May 21, 1973. Two days later defendant filed a motion to suppress evidence. Hearing on the motion was held on May 30, and the motion was overruled the same day. On July 26 defendant filed a motion to dismiss, claiming he had not been informed upon within 30 days from the date he first appeared in Municipal Court--March 29, and had not been brought to trial within 60 days after the county attorney filed his information, and that no good cause had been shown or could be shown for the delay. The motion to dismiss was overruled on August 6.

There is no question the defendant was not brought to trial within 60 days as is required by § 795.2 of the Code. While admitting the delay, the State argues that the 18-day violation did not require dismissal because there was a showing of cause therefor. Though the State itself made no showing of good cause, and filed no resistance to defendant's motion to dismiss, the court took judicial notice of the transition to the Unified Court System and the administrative confusion over the handling of jury trials during the transition period. The transition to the Unified Court took place July 1, 1973. The defendant contends the court was not justified in taking judicial notice of such transition, and the circumstances so judicially noted did not constitute good cause as envisioned by the statute.

The trial court was justified in taking judicial notice of the fact the judicial system was being reorganized during the month of July, 1973. Courts properly take judicial notice of the public and private official acts of judicial departments of the state, and may take judicial notice of the ordinary course of business in an office of the court. They may judicially notice where the courts are sitting and where they formerly sat. The court has judicial knowledge of its own administrative structure. 31 C.J.S. Evidence §§ 44, 45, page 1000.

We conclude the circumstances judicially noticed by the court, and the fact of the reorganization of the court structure constituted good cause for the court's overruling of defendant's motion to dismiss. Good cause was shown for the delay in trial, and there is no substantial merit in defendant's contention otherwise.

III. Defendant contends the search of...