State v. Van Rees

Citation246 N.W.2d 339
Decision Date20 October 1976
Docket NumberNo. 58503,58503
PartiesSTATE of Iowa, Appellee, v. Terry Boyd VAN REES, Appellant.
CourtIowa Supreme Court

Irish, Skinner & Wieslander, Altoona, for appellant.

Richard C. Turner, Atty. Gen., Thomas Mann, Jr., Asst. Atty. Gen., and Kenneth Whitehead, County Atty., for appellee.

Heard before MOORE, C.J., and LeGRAND, REES, UHLENHOPP and REYNOLDSON, JJ.

LeGRAND, Justice.

This case arose out of bizarre happenings on April 15, 1974. As a result, Terry Boyd Van Rees, the defendant, was charged with violating § 742.1, The Code, 1973, which makes it an indictable misdemeanor to knowingly and willfully resist an officer in the discharge of his duties. Following a jury trial, he was found guilty and was subsequently sentenced to a term of one year in jail. Sentence was suspended, and defendant was placed on probation for two years. He has appealed and we reverse.

The events leading up to defendant's conviction began when he drove his Thunderbird automobile into a parked truck in the city of Reasnor. He departed the scene and drove to his home. Several neighbors reported this matter to the sheriff's office. Harold Smith, a deputy sheriff, was dispatched to investigate.

When Deputy Smith arrived at defendant's home, defendant was standing in his yard talking with Sam Gray, who later was an important witness to this case. The deputy walked into defendant's yard and attempted to engage him in conversation concerning the hit-and-run accident, after first identifying himself and stating his purpose. Almost immediately defendant and the deputy engaged in a dispute which continued for some time with ever increasing rancor. Defendant ordered Smith from his property. He refused to answer any questions except to deny having been in an accident. There is testimony--disputed--that defendant, a very large man, repeatedly threatened to kill the deputy if he did not leave; that he attempted to choke him; and that on several occasions defendant seemed to be 'going for' Smith.

This verbal altercation spilled over from defendant's yard to an area designated in the evidence as an alley or alleyway, where Smith had parked his squad car. Smith went to his car to radio for help. Defendant followed closely behind. While Smith was entering his car, defendant slammed the car door against his leg. There is evidence this was done violently and that it severely bruised Smith's leg. There is other evidence that the incident was of no consequence.

What began as a routine investigation of a minor hit-and-run accident terminated when Deputy Smith shot defendant in the leg to avoid, according to him, serious physical assault. Eventually defendant's leg was amputated. At the time of trial, there was pending against the city and the deputy a personal injury suit brought by defendant for two million dollars. This assumes some significance in our later discussion.

Defendant raises the following issues:

1. Failure of the State, without good cause, to file an information within 30 days after he was held to answer, as required by § 795.1, The Code;

2. Error in overruling defendant's demurrer to the information;

3. Error in trial court's refusal to give requested instructions;

4. Error in limiting cross-examination of the State's witnesses;

5. Error in the admission of evidence; and

6. Error in overruling defendant's motion for dismissal because the State withheld exculpatory evidence.

I. FAILURE TO COMPLY WITH S 795.1

A preliminary information was filed on April 16, 1974, charging defendant with a violation of § 742.1, The Code. On April 24, 1974, defendant, through his attorney, waived preliminary hearing. The matter was bound over to the grand jury. On May 10, 1974, while defendant was in the hospital, he called the county attorney concerning the charges against him. He admits he requested that no charge be filed until he was out of the hospital. Following this conversation, the county attorney withheld filing an information until June 14, 1974, fifty-one days after defendant was held to answer.

Now defendant says he is entitled to a dismissal because the State failed to file the charge within 30 days as required by § 795.1, The Code. In State v. Gorham, 206 N.W.2d 908, 913 (Iowa 1973), we set new standards for the State's compliance with § 795.2, the speedy trial statute. In State v. Morningstar, 207 N.W.2d 772, 775 (Iowa 1973), we said the same principles are applicable to § 795.1 cases.

Since Gorham and Morningstar we have had occasion to consider what circumstances toll the running of these statutes. We have recognized delay attributable to defendant as good cause. State v. Fryer, 243 N.W.2d 1, 5 (Iowa 1976); State v. Truax, 232 N.W.2d 861, 863 (Iowa 1975); State v. Montgomery, 232 N.W.2d 525, 527 (Iowa 1975) and citations.

We agree with the trial court that good cause for the delay was shown. Defendant was hospitalized with a serious injury. He requested a delay in the criminal proceedings to be brought against him. Failure to meet the terms of § 795.1 was at his request and for his convenience. We hold this constitutes delay attributable to defendant. He is not entitled to relief under § 795.1.

II. FAILURE TO ALLEGE PLACE OF CRIME

Defendant demurred to the information, claiming it was fatally defective because it failed to specifically allege the crime was committed on defendant's property. He relies on § 773.10, The Code, which provides:

'An indictment need contain no allegation of the place of the commission of the offense, except in those cases in which the place is a material ingredient of the offense.'

Defendant's contention is without merit. A violation of § 742.1 may occur on a defendant's own property as well as on neutral ground. This is a circumstance which may well affect the evidence necessary to convict in certain cases; but under the present record an allegation that the crime was committed on defendant's property was not 'a material ingredient of the offense.'

III. REFUSAL TO GIVE REQUESTED INSTRUCTIONS

This issue raises the recurring theme of defendant's trial--that Deputy Smith was illegally on his property and that he was entitled to resist him by all necessary means, including force.

Defendant objects to the court's failure to give three requested instructions. All of them sought to establish that Deputy Smith could not have legally entered defendant's premises without a warrant except with defendant's consent. As it is admitted there was no warrant, defendant wanted the jury instructed he could not be convicted unless consent to the entry was shown beyond a reasonable doubt.

The obligation of the court to instruct is well settled. Even without a request, the court must instruct on all material issues so that the jury understands the matters which they are to decide. State v. Ritchison, 223 N.W.2d 207, 211 (Iowa 1974); Gibbs v. Wilmeth, 261 Iowa 1015, 1022, 157 N.W.2d 93, 97--98 (1968). Instructions must state applicable legal principles in the light of the evidence. Hagenson v. United Telephone Company of Iowa, 209 N.W.2d 76, 82--83 (Iowa 1973) and citations.

We cannot agree that an officer is acting illegally when he entered upon a person's property to question him in investigating a complaint that a crime has been committed.

Ordinarily an officer of the law who goes upon private property under such circumstances is not a trespasser. United States v. Barnett, 492 F.2d 790, 791 (5th Cir. 1974); United States v. Knight, 451 F.2d 275, 278 (5th Cir. 1971); Mandamus denied 405 U.S. 965, 92 S.Ct. 1171, 31 L.Ed.2d 240 (1972); State v. Dalebout, 480 P.2d 451, 452 (Or.App.1971) (based on an Oregon statute); Gardner v. State, 6 Md.App. 483, 251 A.2d 901, 907 (Md. Ct. of Special App. 1969); State v. Lukus, 149 Mont. 45, 423 P.2d 49, 53--54 (1967); Heinze v. Murphy, 180 Md. 423, 24 A.2d 917, 920 (Md.1942).

The rule is stated this way in 75 Am.Jur.2d Trespass § 43 at 38 (1974):

'Conduct otherwise a trespass is often justifiable by reason of authority vested in the person who does the act, as, for example, an officer of the law acting in the performance of his duty.'

See also 1 Harper and James, The Law of Torts (1956), § 1.20, page 56.

In the present case, Deputy Smith had been directed to investigate the hit-and-run accident. Leaving the scene of an accident is a misdemeanor. § 321.264 and § 321.482, The Code. Law officers, including deputy sheriffs, are obligated under § 748.4 to investigate crimes. We hold Smith was entitled to enter defendant's premises to carry out this duty. For this limited purpose he was not a trespasser and did not require defendant's consent.

What we have said does not, of course, permit an officer to enter one's home or to conduct a search or make a seizure without a warrant or other authority.

We find the trial court's instructions were adequate and properly set out the principles involved under the facts shown by the evidence. There was no error in refusing defendant's requested instructions.

IV. ERROR IN ADMITTING EVIDENCE

Another recurring objection was defendant's insistence the area adjacent to his property where Deputy Smith allegedly parked his car and where some of this altercation took place was not a public alley, as described by some of the witnesses. We have already said the officer was not illegally on defendant's property. Whether this narrow strip was a public alley or was private property would not change the result. Furthermore, we believe there was sufficient evidence to show it was a public alley. We find no error in the admission of this testimony.

Defendant also strenuously objected to the testimony of a number of witnesses concerning the hit-and-run accident and the damage done to the vehicle which was struck.

Defendant says this testimony was hearsay; that it related to the commission of another crime and was therefore inadmissible; and that it was irrelevant to any issue in this case.

The testimony of the deputy sheriff...

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