No. 2-810 / 01-1937
Filed April 4, 2003
Appeal from the Iowa District Court for Washington County, E. Richard Meadows and James Q. Blomgren, Judges.
The State of Iowa appeals the district court's dismissal of the trial information on the ground of speedy trial violation. AFFIRMED.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, and Barbara A. Edmondson, County Attorney, for appellant.
John Sandre and Richard McConville of Coppola, Sandre, McConville Carroll, P.C., West Des Moines, for appellee.
Senior judges assigned by order pursuant to Iowa Code section 602.9206 (2003).
The State appeals the district court's dismissal of the indictment against defendant Peter Christian-Glass. Defendant was charged with sexual abuse in the third degree and manufacturing a controlled substance. The dismissal was based on Iowa's speedy trial rule. We affirm the trial court's dismissal.
The speedy trial rule was Iowa Rule of Criminal Procedure 27(2)( b). It is now Iowa Rule of Criminal Procedure 2.33(2). It provides:
If a defendant indicted for a public offense has not waived the defendant's right to a speedy trial the defendant 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.
The problem in this case is that the State, as prosecutor, did next to nothing, factually and legally, for too long. Our speedy trial rule was adopted for sound reasons of constitutional law respecting fairness and prejudice. Recognizing this, the trial judge found its application necessary.
The speedy trial rule clearly states that defendant must be brought to trial within ninety days after indictment is found. If not, the court must order the indictment to be dismissed unless good cause to the contrary is shown. The State relies on the "good cause" exception.
The indictment charging defendant with a sexual abuse crime was filed on August 27, 1999 in Washington County. (A trial information was filed in lieu of an indictment). The alleged offense occurred on August 30, 1996; an arrest warrant issued on September 13, 1996.
The State says that it was looking for the defendant in order to arrest him from September 1996 until, by the State's calculation, he was arrested on August 9, 2001. He was arraigned on August 10, 2001, and a trial date of November 6, 2001 was set. By this calculation the State argues the elapsed time of eighty-eight days met the statutory requirement for speedy trial.
The State relies on the case of State v. Lyles, 225 N.W.2d 124 (Iowa 1975). That case held that since arraignment is a prerequisite for trial, the State had the right to wait for arraignment to have a trial date set. In Lyles, the time delay was attributable to the defendant who failed to show up and advise the authorities that he was present for arraignment.
The difficulty with the State's position is that the facts fail to support it. Of course, arraignment presupposed a custodial presence of some sort. The State sees this date as August 9, 2001. On that date, defendant was arrested on a Washington County warrant upon conclusion of defendant's trial in Johnson County on another charge. Aware of defendant's presence for the Johnson County trial, a detainer was placed on him by the Washington County authorities on May 18, 2001. Even before that date, on May 4, 2001, defendant was arrested in Poweshiek County by a sheriff on the basis of two arrest warrants in his possession, one from Johnson County and one from Washington County. The State attempts to discount this fact, claiming defendant was arrested then only on the Johnson County warrant. However, the arresting deputy sheriff from Poweshiek County testified that defendant was taken into custody on the arrest warrants from both Johnson and Washington Counties. The deputy stated that his authority for arresting defendant on May 4, 2001, came from the arrest warrants in Johnson County and Washington County. After this arrest, defendant was charged in Poweshiek County with a separate crime.
Of course, the State's effort to ignore defendant's arrest on May 4, 2001 and its detainer on May 18, 2001, is made to avoid the speedy trial mandate. However, the rule counts the ninety days from the indictment date, August 27, 1999. But even if the arrest date of May 4, 2001 is considered, a period of ninety-eight days still elapsed until arraignment and another eighty-eight days elapsed until the trial date. This occurred during a time when the Washington authorities knew exactly where defendant was. He was in the Johnson County or Poweshiek County jail. From defendant's arrest on May 4, 2001 until the date set for trial on November 6, 2001, 186 days elapsed. Counting from August 27, 1999, the information date, as the statute states, the time elapsed until the date set for trial is 702 days.
The State explains the long delay after defendant's indictment, giving as the reason, that defendant was hiding out, using different names and couldn't be found. Apparently, defendant had used the names of "Milo Stancel" and "Peter Christian Glass." However, this should not have delayed finding him since the State knew this from the beginning. On September 5, 1996, a search warrant was executed on defendant's trailer, naming "Milo Stancel." During the search the officers found papers identifying defendant's actual name as "Peter Christian Glass."
In trying to find defendant during the next four and a half years, the evidence showed the preparation of a wanted poster, contacts with defendant's mother who denied knowing his whereabouts, and the checking of phone and utility records shortly after the indictment in 1996 for one month. Defendant's social security number, known to the State, was never used to check on defendant's whereabouts through Job Services of Iowa. By the State's own testimony, nothing was done by the State to locate defendant from early 1997 into 2001. During some of this time defendant was in Cedar Rapids teaching classes. Moreover, there is no evidence that defendant was even aware of the pending charge or the arrest warrant.
Some attention is made by the State regarding defendant's attorney in the Johnson County case checking to see if any charges were pending in Washington County. Finding none through the computer terminal in Washington County, she concluded there were no charges pending. She also inquired in writing of the Washington County attorney on November 11, 1996 and never received an answer. This inquiry was made after the filing of the Complaint and Affidavit, and arrest order filed on September 13, 1996. Nothing in this scenario establishes "good cause" for the State's position.
The State, not the defendant, has the obligation to bring a defendant to trial within the statutory time frame. State v. Lyles, 225 N.W.2d 124, 126 (Iowa 1975). "If trial is not commenced within the ninety day period prescribed by the rule, the indictment or information must be dismissed unless the defendant has waived the speedy trial right, the delay is attributable to the defendant, or good cause exists for the delay." State v. Orte, 541 N.W.2d 895, 898 (Iowa Ct.App. 1995).
In this case the inordinate delays in bringing the defendant to trial were of the State's own making. The "good cause" exception to our speedy trial rule does not and should not apply.
The district court judge properly analyzed this matter and is affirmed.
Harris, S.J., concurs; Habhab, S.J., dissents.
I respectfully dissent. I would reverse and remand for the reasons that follow.
The offenses that gave rise to the filing of the charges against the defendant occurred on August 30, 1996. The trial information charging the defendant with the crimes was filed on August 27, 1999. The complaint charging the defendant with sexual abuse stated that the defendant had left the area after the assault and that his whereabouts were unknown. An arraignment date was not fixed in the trial information; rather it stated it would be set upon his arrest.
It was not until May 4, 2001, that the defendant was located. He was arrested by Poweshiek County authorities for possession of drug paraphernalia, marijuana, and possession of a firearm as a felon. Following this arrest, he was held in Johnson County and tried there on sexual abuse charges that had been filed against him in 1993.
Washington County placed a detainer on the defendant while the Johnson County case was pending. On August 9, 2001, after the conclusion of the Johnson County trial, the Washington County authorities brought the defendant to the Washington County jail. He was arraigned on the charges now before him on August 10, 2001. His trial date was fixed for November 6, 2001.
It is evident that more than ninety days have passed without a trial following the filing of the trial information. But, although our main concern should center around the circumstances that took place between the date of the filing of the information and the trial date, we must nevertheless consider and weigh the actions of the defendant from the date of the criminal event to the date of his arraignment.
On August 30, 1996, the defendant and his wife lived in a trailer near where the victim, a then-fourteen-year-old girl (T.B.), resided with her parents. Defendant then used the assumed name of "Milo Stancel" and his wife was referred to as "Mary Stancel." The victim knew the defendant as "Milo." The Stancel name used by the defendant was the name of the former husband of the defendant's mother. The defendant's automobile was registered under the Stancel social security number. The complaint that was made was in the name of Milo Stancel.
The execution of a search warrant following the initial complaint resulted in drug charges. By then the defendant and his wife had left their trailer. When the officers conducted a search of the trailer a few days after the attack, they discovered the defendant and his wife were no longer there. They found documents revealing the defendant's name was "Peter Christian Glass" rather than Milo Stancel. They also found a packet from Cardinal Publishing containing a "new identity kit." At the time of this incident, the defendant was wanted on an outstanding warrant out of Johnson County on another sexual abuse complaint.
A few days after the attack, the Washington County Sheriff's Department questioned Theresa (Glass), the defendant's mother, in an attempt to locate him. She at first denied knowing where he was but later said he was out of town. The Sheriff's department continued their effort to locate the defendant. It obtained phone records from Glass and utility records from the Stancel trailer. About a month after the attack, they followed up on information from an anonymous caller that the defendant and his wife were seen at the Cedar Rapids airport.
The Sheriff's department continued to contact Glass in the year after the attack in an attempt to locate the defendant. In addition, a wanted poster was prepared that stated the defendant was wanted on a sexual abuse warrant, that he was also wanted on a Johnson County sexual abuse warrant, and that his mother was actively helping him avoid arrest.
In 1996 or 1997, Iowa State Trooper McVey was informed by a DCI agent that the defendant was wanted on outstanding warrants. He went to Glass's residence in Cedar Rapids on several occasions to speak to her about the location of her son. On occasions, he conducted a consensual search of the Glass home and at other times he took officers with him. Glass told McVey that she did not know where her son was but even if she did she would not tell him. She also told McVey that she was aware of the outstanding arrest warrants and that she and her son were working with an attorney to get it resolved and to get him help.
There were other occasions where law enforcement officers attempted to locate the defendant. Trooper McVey learned that the defendant was at a farm in rural Iowa County. He went to the farm but the defendant was not there. He did find documents with the defendant's name on them, but also found documents with the name of Peter Christianson. The defendant was eventually found by Poweshiek County authorities when a search warrant was executed on his home on May 4, 2001. At that time, he was living on a farm outside Victor. Even at this late date, the defendant refused to identify himself to officers. It was only after the officers stated they could identify him through fingerprints, that he admitted his name was Peter Christian Glass.
The defendant argues there were lapses of time when law enforcement officers did nothing in attempting to locate him. I find it difficult to disagree with this contention. But then the State did make diligent efforts to find the defendant and bring him to Washington County to face the charges against him. Their efforts, however, were thwarted by the various deceptive and evasive tactics of the defendant. Even his attorney, who represented him on the Johnson County charge, testified that at that time she wrote the letter of November 11, 1996, she did not know where the defendant was; that she at no time knew of his whereabouts during the time she represented him; she may have spoken to him on the phone once, "possibly twice"; that she did not call him, he would have called her "a couple times"; that the defendant did not turn himself in on the Johnson County warrants; and that she received her instructions from the defendant's mother. It also appears that the June 9, 1999, letter his attorney wrote to him concerning the lack of Washington County charges was mailed not to a street address of the defendant, but to a post office box in Cedar Rapids.
Beyond all doubt more than ninety days have elapsed without a trial following the filing of the trial information, but I believe the State has established that the defendant, by his own conduct, waived his speedy trial privilege. The right to a speedy trial is personal; it is one which a defendant may forego at his election. State v. Hamilton, 309 N.W.2d 471, 475 (Iowa 1981); State v. Magnusen, 308 N.W.2d 83, 85 (Iowa 1981). Although in both Magnusen and Hamilton written waivers were involved, I believe a defendant's conduct and evasive manner can bring about a waiver. As the court stated in Hamilton:
The obvious purpose of the time period contained in rule 27(2)(b) is to implement the constitutional provisions that require an expeditious trial. The rule was not intended to provide a defendant with a weapon to trap state officials and terminate prosecutions. Nor was it intended to be a device to give a defendant absolute immunity from prosecution.
Having determined that the defendant's conduct constituted a waiver, I would hold that the ninety days started running from the date he demanded a speedy trial, to-wit, August 10, 2001. With a trial date fixed as November 6, 2001, the ninety-day requirement would have been met.
Accordingly, I would reverse the trial court and remand for further proceedings.