*1 though completed the State never Iowa, Appellee,
federally STATE of required application. This meet- ing produced for the time first information previously that the ticket had been in the Christopher Clay MCNEAL, Appellant. April
hands two individuals Texas. Shaw confirmed same informa- 15-1606 No. tion. A then trip Texas was made and several were spent Supreme Court Iowa. unsuccessfully trying to talk to the two Filed June Lacking any Texas individuals. further leads, last State decided recourse post It the video. took some to set time that,
up an so appropriate doing vehicle posting did occur until October point,
2014. At that the defendant was
identified. record, judicial
On this a reasonable charges
factfinder could decide that year within after the offense by
should have been the State discovered diligence.
with reasonable See Iowa Code
§ put way, To 802.5. another one could no more
conclude there were than nine unjustifiable
months of between Jan-
uary 2012 October 2014. emphasized
It to be needs protects
Code section 802.5 also defen- limiting any possible fraud
dants exten- years.
sion three See id. stated,
For I affirm the reasons finding district court’s the State tampering- prosecution
commenced
charge year discovery “within one .after aggrieved party.” offense
all other concur the court’s respects, opinion.
well-reasoned *3 Smith, Appellate
Mark C. Defend- er, Knipfer, Appellate L. Assistant Shellie Stone, Student, Defender, Corey Law appellant. Miller, General, Attorney Thomas J. Sloven, Attorney Louis S. Assistant Gener- al, Wilber, County Attorney, and Matthew Zacharias, Jacobmeier, Amy Jon Shockey, County Christine M. Assistant Attorneys, appellee.
MANSFIELD, Justice. case, are asked review (cid:127) district court’s decision to commence postpone criminal trial but to July presentation evidence eight days expiration after the June 29 grant- trial deadline. The court Browning diagnosed eventually at the State’s re- postponement ed epidural a lineal fracture unavailability on the of medi- quest based hematoma in his skull based an examination Dr. experts. cal Treves. Several after the John as- review, the district we conclude On our sault, Browning of the shop, told the owner as- abuse did not its discretion. We head hit me [McNeal] “Oh God. deciding that the district sume without Later, Browning a hammer.” saw McNeal procedure of a start-and-stop use court’s him, asking why confronted McNeal should deadline avoid something that.” McNeal he would “do like as a analyzed under same standards “Well, you replied, shaking a hammer straightforward extension you just beat to it.” me. *4 Nevertheless, that under trial deadline. by po- McNeal interviewed When was law, that the court within find acted we lice, shop he at he claimed was at addition, we conclude discretion. instead, day. that he was all Asked where other with- appeal issues are defendant’s responded “get[s] McNeal that he around” the deci- Accordingly, out we vacate merit. was at the “other end of town.” and court of affirm the appeals of the and sion charged McNeal On March the State convictions and sentence. defendant’s murder, attempted see Iowa Code 707.11(1) (2015), § first-degree burglary, Background Proceed- I. Facts and 713.3(l)(c), § injury resulting see id. willful ings. 708.4(1), § injury, in serious id. see assault participating felony, in a see id. while 22, 2015, February Brown- On Matthew 708.3(1), § a dangerous and assault with working shop. in a tool The ing alone was 708.1(2)(c). § weapon, see id. The State defendant, McNeal, Christopher entered gave notice that it would also seek the began shop repairing a wheelchair mandatory five-year minimum sentence of dropped Browning he had off earlier. that if the that confinement found McNeal shop’s asked McNeal because the leave “dangerous weap- of a possession was not want owner did there. McNeal McNeal on,” i.e., a commit- sledgehammer, while him, ignored kept wheel- working on the § ting felony. forcible id. See 902.7. chair, asked if Browning he had pled guilty demanded a McNeal drugs to share. he Browning replied that pursuant Rule of Iowa Browning not. him to again asked 2.33(2)(6). The Criminal Procedure leave, time using voice and raised in this was June 29.1 deadline gesturing to sledgehammer McNeal awith However, Trial was set for June 9. next thing The remem- Browning hand. date, exchange following took leaving shop. was McNeal bered that. regarding plea negotiations: place Browning awoke hours later with blood THE This case set for to his face COURT: feeling frozen “[t]errible.’’ morning. doing? trial this are we What sledgehammers shop One from the Well, missing Honor, that went never Your night and MR. TENNY: plea agreement located. been a there has offered parties required seem fore the trial to commence Mon- to have assumed that Friday, day, deadline ended on unless shown. However, Sunday, dispute there Johnson, is no that 336-37 State ninety days June 28 was from March 30. 1974); 4.1(34). § see Iowa Code also 2.33(2)( n ) Rule of Criminal there- Procedure I—initially understanding the State. And as Mr. our [I]t [McNeal] it, considering McNeal last but as came that last week had a night, I he no longer understand wishes plea‘deal. June, And then -on the 9th of plea agreement. to accept He’s pretty much fell everything apart they asked the if State consider wishing terms take years, every- total of five concurrent on plea offer that was made. understand, thing; I from what n And so then has been work- .agreeable is not that. ing since time to schedule the ex- pert witnesses in this case we have. you’re THE wanting COURT: So ... [W]e been unable nail down just make a offer? record times that our experts our—where are Right. MR. ex- TEÑNY: And I’ve available case. State under- plained jail all of I last this. was available, say that—And when I stands I night p.m. Mr. talking until 6:00 next,week, mean we’re sup- I McNeal about this offer also and—and t,o posed Tuesday, start trial on explained potential risk there’s 23rd.... way that it out could turn worse for him Now, are, think, there five to seven *5 if larger he’s convicted on doctors named the trial information. total, know, charges, you prove three that The we need to plea (cid:127)Under proposed agreement, in inju- this case the serious elements pled guilty McNeal would have to willful ry in are unavailable. is Europe, One one injury injury causing serious in this case neurosurgeon a in surgery, is and is next causing bodily in injury injury and willful inconvenience, can’t obviously, week and (2). 708.4(1), § unrelated id. case. people surgery, need brain that and remaining charges All would be dismissed. radiologist the other is a that is unavail- carry charges a Neither those would commitments, able because of work as incarceration, mandatory, term of minimum well. and the State concur- would recommend on, The prosecutor went sentences, resulting an in- rent overall in flux in a little terms of [W]e’re bit ten-year determinate sentence. Converse- is certainly what our schedule is. This rejected, if ly, State offer was would, not a the State nor- informed situation that proceed McNeal would itself in or to mally all find find itself charges the trial want informa- sentences, tion, in, noticing request to be this late. But consecutive witnesses or dangerous-weapon-forcible-felony representation under- seek Notably, attempted standing going to plea enhancement. that the offer was taken, mini- charge mandatory simply murder carried not or had noticed years mum term of to attempted seventeen these to one-half schedule 902.12(2). prison. trial, know, § See id. you come last .in week. record, rejected plea On the McNeal time,
agreement. At the same he declined that one of three The State added to waive the Accord- deadline. Europe not from witnesses would be back ingly, the 23. trial was rescheduled to June Crys- Dr. until June That witness was Seluk, then, 16,.-the physician who had been listed parties Before on tal June original prosecutor to The ex- returned court. lead with the minutes plained, proposed jury The that a March 30. along all the case “Dr. named Seluk been
could be selected June still The yet time as unavailable.” “until then be such could continued “horribly that it have been added would to [the] able then schedule the State is profession- to inconvenient” have medical expert witnesses.” up to on June when als scheduled show parties At made record point, going thought plea to be both sides and the plea more on the State’s offer once entered. unwillingness accept defendant’s hearing arguments, After these offer. concluded, clear, “I think it’s court then court asked the defense The country one the doctors out proposal to have the State’s address 30th, a prob- until that’s June 23rd by a re- on June jury picked 23 followed I think is a cause to lem. And there At experts until the were available. cess trial.” adjust scheduling first, respond counsel defense thus that the court ordered could the State proposal, but instead asked proof impaneled five- single reconsider indeterminate July until 7. Yet the commence year charges. all sentence resolve added, counteroffer, cit- again declined this July 7, going get need them [W]e ing in this ... and the “the facts very And if there’s latest. still injuries to the victim.” doing surgery or one Europe doctor counsel then that the explained Defense is, you’ll just or whatever until State’s offer had not arrived subpoena get them and them here on Initially, intend- the defendant had day do them. without it, accept preparations ed had been *6 23, allegedly made prosecutor On June a hearing to on both sides for a made improper during jury selection comments However, occur June the defendant the venire for a different case. Because change of heart” on had “a June jury going also to used to select was the objected Defense counsel to the State’s case, for moved a for McNeal’s McNeal to take a hiatus for proposal trial the granted The the mistrial. district court expert witnesses. Defense counsel claimed for jury motion and reset selection witnesses the State had known about these p.m. on 26. At the approximately 12:30 not along all but had them until after listed sworn, selected, 26th, jury a was and ad- (This be- partially June 9. incorrect monished. original cause the minutes 7, later, July Eleven State Seluk.) Dr. counsel add- included Defense Treves, witnesses, Dr. including four called “everyone per- ed that knows that medical neurosurgeon who had éxamined De- get sonnel are difficult to court.” including Browning hospital, at the urged, counsel fense The not call Dr. defense did Seluk. Now, present State can whatever closing arguments, Following witnesses. 23rd, they have on June those at jury approximate- the case received available, present who are their case p.m. evening, jury re- ly 4:45 That way, good or in that this—it would be verdict, guilty of finding McNeal turned case, reason settle as—as we’ve— of assault with the lesser included offenses know, you requesting. as we’re injury, to inflict criminal intent serious causing responded by correcting trespass, injury serious The willful that McNeal explained, injury. as to Dr. also found the record Seluk. She
703 in possession dangerous weapon Bond, of a substantial v. evidence. 340 State 1983). (Iowa at time the assault. N.W.2d 279 “Statutes implementing right rules to a merged The assault conviction construction, receive ‘a liberal willful-injury-causing-serious-injury convic- designed to purpose’ effectuate [their] conviction, On tion. the latter due to protecting liberty.” citizens’ State Tay- v. enhancement, weapon received a McNeal lor, (Iowa 2016) (altera- N.W.2d ten-year mini- mandatory sentence with a tion in original) 21A (quoting Am. Jur. 2d mum term of years. incarceration five § (2016)). Law Criminal at 187 § id. McNeal 902.7. also received one-year concurrent crimi- sentence deter-, review court’s We a district trespass charge. nal mination whether the State carried bur good McNeal den to show for appealed. argued He cause Winters, bifurcating court’s 16 order abuse of discretion. district (Iowa 2005). jury selection the rest of N.W.2d the trial Neverthe less, only-has, should be treated as extension of the court “circum deadline, which cause beyond scribed” discretion hold lacking. argued also ninety-day McNeal (quoting deadline. Bond, 279); Miller, evidence was insufficient his sustain see N.W.2d convictions, (“The that his counsel inef- trial court’s discretion N.W.2d at failing object fective evidence to avoid is cir [the rule] dismissal under drug hearsay his use the admission of exceptions cumscribed the limited testimony, that the mandate.”). district court erred the rule’s allowing sledgehammer a demonstrative “Sufficiency of evidence claims jury. to be shown to the We transferred are correction reviewed errors at appeal appeals. court of law, uphold and we will verdict if sub stop- of appeals court found it.” State supports stantial evidence v. Ra procedure and-start have the effect (Iowa mirez, 2017). 884, 890 bringing to trial on McNeal We ineffective-assistance-of-counsel review expiration before the Parker, novo. claims de It then there was deadline. determined 2008). “[T]he delay granted shown *7 may prong or prejudice consider either the July speedy the district court to 7 under duty first, failure to find breach It standards. therefore reversed preclude will relief.” State either one for McNeal’s convictions remanded (Iowa 2015). 159, 169 Lopez, 872 N.W.2d reaching appel- dismissal without his other rulings Finally, on demonstrative evidence arguments. late are an discretion. reviewed abuse Thornton, 670, granted application for
We State v. 498 N.W.2d 674 State’s 1993); (Iowa Henderson, further review. State v. 1978). 173, 179(Iowa N.W.2d II. of Review. Standards Assuming McNeal Not III. Even Was ap a court’s We review district “Brought July Until Trial” plication procedural governing rules Finding of District Court’s trial for speedy correction errors at law. Within Dis- Good Cause Was Its (Iowa Miller, 637 N.W.2d cretion. 2001); Finn, State v. (Iowa 1991). findings of The district court’s Rule of Criminal Procedure n by 2.33(2)(¾) if binding upon supported provides, fact are us one, delay or of- been a short public for a extent has
If
indicted
a defendant
has not demanded a
not waived the defendant’s
has
defendant
fense
trial,
defendant
speedy
prejudiced,
or is not
a
right
speedy
a
brought
good
to trial within
reason
constitute
must
weaker
will
hand,
is
the court
delay
found
if the
after indictment
On the
or.
cause.
other
one,
to be dis-
long
order the indictment
must
or if the defendant
has been
con-
good
trial,
missed unless
cause
preju-
or is
speedy
has demanded
diced,
necessary
trary be shown.
stronger
is
reason
constitute
cause.
will
purposes
appeal,
For
that McNeal was
deciding
assume without
Miller,
(emphasis
omit-
637 N.W.2d
to trial on June
the date
not
335).
ted)
Petersen,
(quoting
288 N.W.2d
and sworn.
impaneled
when
“most,
all,
if not
cases
have noted that
We
Jones,
13, 17
see State v.
281 N.W.2d
But
speedy-trial
on
justifying reversal based
(“We
1979)
(Iowa
...
hold that a
now
numbering
delays
weeks
violations involve
‘brought to
... when the
is
trial’
defendant
Id,
months,
days.”
not
sworn.”).
impaneled
We will
jury is
Here,
postponement
was relatively
rather,
consider,
whether
district
minimal—eight days past
speedy
“good
finding
abused
discretion
defendant
claim
deadline.
does
trial,”
adjust
scheduling
Although
any resulting prejudice.
these
against
require
measured
do
eliminate the
State’s
considerations
ments.
duty
delay,
for the
show valid reason
caselaw on the
Our
strong.
to be as
the reason does not have
2.33(2)(6)
fairly
requirements under rule
good-cause
district court’s
it clear
“We have made
well established.
finding is
abuse
reviewed
an
discre
only
one fac
good cause ‘focuses
tion, although
discretion is circum
Winters,
delay.’”
tor:
the reason
scribed:
Nel
(quoting
State v.
son, Yet ruling review trial court’s We “delay cannot be evaluated speedy-trial motion dismiss based vacuum,” consider entirely in a we also grounds of discretion. abuse How- surrounding one, such as the ever, circumstances a narrow that discretion is delay, length provide whether it relates circumstances trial, right his to a asserted cause for of the trial. delay. prejudice resulted whether Campbell, State v. 714 N.W.2d Miller, (quoting at 205 State v. 637 N.W.2d (citations (Iowa 2006) omitted). Petersen, 332, 335 288 N.W.2d view, the court here con- In our 1980)); Winters, accord 690 N.W.2d at *8 properly weighed fac- and relevant sidered Hence, sur explained, these as we finding good delaying the tors cause rounding essentially operate circumstances proof July of It presentation until acted sliding on scale: its within discretion. of the failure period, The shortness the First, speedy the State demonstrated the of the defendant to demand expert trial, problem unavailability are witness prejudice the absence of was beyond the legitimate only insofar as due to circumstances State’s considerations explained of The State they strength the the reason control. needed affect that, experts of This to call three its listed medical delay. means whatever relating injury. Two the to the serious realized he several had other trials sched- neurosurgeon experts, radiologist, uled May informally “requested he the of June 23 be- unavailable week prosecutor’s the consent to a continuance.” cause of work commitments. Id. prosecutor, the Unbeknownst de- fense cases, counsel rescheduled his other importantly, by
Most as emphasized never continuance, asked the for a court, expert—Dr. third Se- and appeared trial on May 24. Id. The country luk—was out of the would not prosecutor believed been had con- returning speedy until after the due to the tinued earlier conversation and Although deadline. made a num- ready try was not the case. Id. Trial was June, expert designations ber witness therefore continued June 14. Id. Six designa- Dr. Seluk not a was last-minute date, days before that tion; State moved for rather, designated had been she continuance “because a material March 30 the trial information when was another expert witness was on Treves, vacation out. filed. And though even Dr. thé state” the time .the trial. neurosurgeon, rescheduled could have named been ear- Id. Trial was continued lier, again to July expert designations all witness com- (cid:127) Id. plied the rule. R. Crim. P. 2.19(2) (“Additional may ... -witnesses appeal, On the defendant claimed that presented prosecuting attorney if the fourteen-day his consti- violated prosecuting attorney given has de- tutionai statutory rights tri- attorney of ... a fendant’s record minute al. both rejected We and con- claims such evidence ... witness’s least ten cluded there delay, cause for the before the tri- the commencement reasoning, al.”). The first passed trial date The State also demonstrated that some basis an honest misunderstanding of delay in preparation its trial was under- counsel. reasonably be- standable because had the case believed attorney lieved that defendant’s plea. on a It guilty be resolved took wanted the case continued and was to everyone surprise, including defense file a motion for continuance. The second counsel, when the defendant declined date was fulfilled because expected, State’s offer on As June 9. absence a witness. significantly that offer out to be turned Id. at 335. more favorable than the This case several simi- important bears
trial outcome. cases, larities both Petersen. .to expert witness una We have addressed diligence State was blameless vailability justification as a for ex before hindsight. could have been criticized in Yet tending In Peter trial deadline. cases, bottom line both sen, that good we held existed to date with the rescheduled trial conflicted postpone days past fourteen expert of at one schedule least material one deadline witness, fact which expert State’s vacation the court’s attention before trial. That was . during a rescheduled trial date 288 enough past brief justify extension at 334-35. Trial in Petersen *9 speedy trial deadline. May been initially scheduled for well before the It that the defendant deadline. be noted should However, Id. at in 334. after Petersen. defense counsel did demand Browning’s was injury this one whether serious. just that explained Id. But we in only testimony one all three puzzle—it of the Medical was needed piece why a “less serious reason” three factors areas. delay. Id. other two justify
would out, things As turned this medical testi- and a factors, relatively “a short” entirely mony came from one witness—Dr. defen- prejudice to the significant lack of However, gainsay Treves. does dant, in both Petersen and present Seluk, ear, Dr. potential importance of here. Id. nose, specialist. Dr. throat Treves opposed adjust- Although McNeal Browning’s opine hearing could not his ment in the trial schedule asserted testimony, Treves loss. his Dr. admitted noteworthy that he rights, it is evaluating that Dr. Seluk was and follow- by the contest the reasons offered did not Dr. ing hearing issue. If Seluk had unavailability of State for the the medical trial, appeared presumably she would why or the reasons for State’s regarding Browning’s per- have testified signifi- their was needed. This is hearing loss in manent his left ear. Later cant when a court exereises trial, Browning in the allowed to testi- discretion, it often from the takes cue objection that he was fy without defense give-and-take parties’ arguments. of the suffering hearing “from inner neuro [an] questioned prose- Had counsel defense Still, percent loss of left ear.” [his] una- representations regarding the cutor’s proof confirm the limits the medical vailability three medical witnesses presented, had been counsel defense testimony, need their dis- might Browning trict forced court have insisted on some- admit cross exami- thing any than rather nation “Dr. prosecutor’s more Treves didn’t do hear- added.) professional brief statements these sub- ing tests (Emphasis [him].” ject areas. closing argument, re- trial, transpired Given what later peatedly emphasized to the grounds adjusting the trial schedule percent ninety hearing loss amounted to they appear strong today less than un- injury. If counsel suc- serious defense doubtedly appeared to the district court on cessfully objected Browning’s lay testi- call Dr. 16. The State decided not to loss, mony permanent hearing about his Seluk, from the though even her absence possibly Dr. Seluk have been called would country primary had been the reason testify after all. granting the motion. State’s But does not mean the district court abused its dis- likely The district court act- finding cretion in cause on June if ed within its discretion it had done what 16—namely, McNeal for on asked hindsight, Even the State’s concern begin ordered entire trial to on June missing proof legiti- about medical 23, including presentation proof. trial, ultimately mate. At Furthermore, if the court had been (1) disputed points: important three wheth- ultimately aware fact Dr. Seluk victim, cor- Browning, er recall could trial, testify at would not we think the rectly February events received; probably would have done what the (2) given the blow he whether defendant asked on June In that hit Browning had been his head event, sledgehammer presume would have injury his suffered (3) way (say, accidentally); way present its case. some other found *10 Regardless, evaluating though should not certainly one could fault the State good-cause the June 16 determination for not starting and concluding plea the subsequent negotiations based on Given There, events.2 more diligently. Id. here, parties’ record arguments plea negotiations at the began shortly time, court date, the district took before the reasonable trial but scheduled unlike prosecutor’s case, of action. present course plea negotiations When professional disputed statements even continued after the speedy trial dead- counsel, accepted defense the court line prosecutor taking without the action to Although them. clearly defense counsel address that Id. deadline. speedy rights, on his client’s stood he Mount, Additionally, in State v. we up-
also on trying seemed focused use the held district court’s decision to resched- situation to obtain plea a more favorable 29, ule trial to September commence on offer from the State. At close of six after the trial deadline presentation court hearing, the allowed the 497, expired. would have 422 N.W.2d July 7, delayed evidence to be' until (Iowa 1988), grounds overruled on other no further. by State Royer, 436 N.W.2d 639-40 (Iowa 1989). opinion Our illustrates how Petersen, In we also addition take prac- we considered the matter guidance from a case in which we found tical perspective the trial who judge plea negotiations to constitute on the scene and had to make the on-the- delay past for a trial trial dead spot determination: LaMar, line. See State v. 224 N.W.2d (Iowa 1974). LaMar, parties options: [T]he court had two schedule engaged plea bargaining jury County two in Story several trials where weeks around the ordinarily only time trial. one scheduled would be prosecutor at time; 253. The later any given testified session at three September he had or four conversations latter until 28. In counsel, in each judgment, defense one de court’s alterna- neither had acceptable. fense counsel there tive was first indicated would dis- likely plea. guilty rupt county be a Id. at 254. After the the trial calendar in passed judge] trial deadline district [another ne which court gotiations through, fell already assigned September 23. The assigned unfairly the case next available second would burden Considering date. Id. it to requiring subpoenas reissue circum case, arrangements stances of that we affirmed the dis redo travel for numerous cause, trict finding court’s al- out-of-state witnesses. reviewing ruling "complete to sever ... district court based on record discretion, ruling”); the time of the court's abuse of it makes to consider sense Stanford Reformatory, v. Iowa State they the facts and circumstances as existed (Iowa 1979) (finding no abuse of discretion when the ruled. We said so rejecting reopen a motion to even expressly Whitley in other contexts. See v. C.R. time, though of hind- the benefit "at Serv., Inc., Pharmacy 389-90 sight proof the offer of .. .(cid:127) it would (Iowa 2012) (holding that the district court’s appear could have made of that much been discovery dispute appropri- sanction in a evidence]”); Marriage see also [the In re existing ate circumstances "[b]ased O’Brien, App. 491 N.W.2d Ct. made”); the time the decision was State v. 1992) ("We only to the look reasons advanced Clark, (Iowa 1991) (up- 464 N.W.2d when the was made motion continuance (cid:127) issue.”). ruling holding in our the district court’s a motion review of *11 prove to Likewise, that evidence was used in cates putting ourselves
Id. motive-—specifically, rule McNeal had judge who had that of the district to shoes find drugs Browning on to three in this case with “two shared demanding days discretion.3 and before” McNeal was abuse February 22 be- drugs Browning Remaining Issues. IV. allegedly struck There was he him. fore remaining ar- turn to McNeal’s nowWe Brown- proof that both McNeal and clear guments appeal. drugs, thereby diminishing ing used First, challenges the suf McNeal prejudice a case potential in where his con supporting ficiency of the evidence charged assaulting was McNeal However, testimony Browning’s victions. event, drug Browning. use that he and McNeal established for the as- helped provide-an-explanation shop in and that McNeal only people in failing Counsel was not ineffective sault. leave. Browning’s request to had refused to this object evidence. See State v. blacking Browning came after When Nelson, 791 N.W.2d 425-26 actually out, departing, was McNeal 2010) drug (finding dealing evidence had suffered a severe blow Browning in that was relevant to motive a murder head, sledgehammer of his and the side not excludable under rule case blow, of the missing. As a result 5.404(6)); Crawley, State 633 N.W.2d skull fracture and Browning suffered a (Iowa 2001) (finding evidence of claimed, injuries. later permanent McNeal admissible, drug prove.motive use unpersuasively, that he had vaguely committing forgery). he day in the that shop not been other end “get[s] around” and “at the attorney also his claims McNeal guilt suffi of town.”-The evidence failing object hear was ineffective cient. Aleksiak, testimony shop say Paul Browning Aleksiak that owner. testified counsel McNeal next claims that him, hit me in “Oh had told God. objected [McNeal] evidence of should head hammer.” decid pro Without drug impermissible use as McNeal’s quali such ing Evi whether statement pensity evidence under Iowa Rule 5.404(6). However, hearsay exception, indi- for a we conclude fy the record dence present any Taylor, 881 evidence to appeals court of cited State 3. The diligence attempting in its at think due in to locate decision. show We distinguishable. Taylor, the State Taylor deny could not Polk respect to the no action with took County County Story sheriff contacted the moved to dismiss deadline until light Taylor’s County upon in arrest Polk charges, approximately six weeks after County outstanding Story warrant. already passed. deadline had Id. at 74. simply generalized and The State claims a even been then claimed it had not State implausible problem. even communication Taylor’s until two aware whereabouts Id. 78-79. expiration trial dead after presents scenario—not This case a different however, Taylor, line. referred to justify effort to a missed an after-the-fact hearing showing the local at the letter generalized implausible awith deadline county her sheriff had been incar informed problem, timely motion communication county jail one month another ceration avoid the effects of deadline based expiration Id. at before the deadline. professional ex- uncontested statements about 75. We concluded "the did not unavailability the need pert witness showing good for the meet its burden ” experts. those delay* explained, Id. at We Waterman, opinion J., joins. that counsel was ineffective because which J., files a Appel, dissenting opinion was cumulative. See Hecht, (Iowa 2008) Wiggins JJ., Schaer, join. which. 757 N.W.2d *12 prejudice from (finding hearsay when CADY, (concurring Chief spe- Justice properly was cumulative of other admitted cially). Browning testimony). testified that while concur opinion majority. I I memory of hazy, his initial the assault was separately emphasize write its most im- he later recalled that McNeal have must point. portant sledgehammer. hit him also a This is with This is resolved the answer detective, testimony consistent a question good whether cause existed Browning’s who memory testified that had stop trial. good to start The cause improved days in the after the assault and necessary this action would be support Browning had identified McNeal as the good same to support extending cause assailant. commencement of a beyond See speedy-trial deadline. Iowa R. Crim. P. Finally, McNeal claims dis 2.33(2)(6); Brown, see also United States v. trict court erred when allowed the State (6th 2016) (conclud- F.3d 815 819 Cir. replica missing sledge display Act, ing, Speedy under the Federal Trial objection. hammer trial over his Brown “start-and-stop plan” must be examined ing'testified replica “[v]ery that the looked Act). compliance with the sledgehammer similar” to the that went missing night It assault. The district court decided to the replica made clear Our existed. review that is for decision original. not the replica The was not ad Miller, an discretion. See abuse State v. mitted into evidence. Under circum these 2001); N.W.2d State v. stances, the district court did abuse Bond, (Iowa 1983). N.W.2d replica discretion when it allowed Generally, unavailability of witnesses sledgehammer to be used demonstrative See, support good e.g., can cause. Henderson, evidence. N.W.2d Todd, (Iowa 1991); 468 N.W.2d (finding no 178-79 reversible error Petersen, experiment into admission evidence (Iowa 1980). dispute this case gun gun). not the actual presented the district court was whether enough to support find- evidence this Conclusion. V. ing. likely required more While reasons, foregoing For the we vacate the if I judge in evidence had been the trial appeals decision of the court of and affirm case, enough presented evidence was convictions sentence. McNeal’s - reasonably support finding OF OF DECISION COURT AP- cause. There evidence the defendant VACATED; PEALS DISTRICT COURT of a deal at backed out the eleventh AFFIRMED.
JUDGMENT hour, prosecutor scrambling left the which to coordinate for trial. An ele C.J., Cady, Zager, charged, injury of the crime Waterman ment willful JJ., C.J., join opinion. Cady, injury, files see Code causing serious Iowa Waterman, 708.4(1) (2015), concurring opinion J., required § which testi medical id, J., 702.18(1)-(2) joins. § Zager, separate concurring (defining files see mony, 2.33(2) added). Carter, P. injury”); (emphasis 602 R. Crim. State v. “serious (Iowa 1999) (describing incorporating speedy rule specific of medical to establish the use is contained in Rule of Crimi- rights injury). 2.33(2)(5), There was evidence the serious provides, nal Procedure working hard been of- public If for a a defendant indicted personnel the needed medical schedule has not the defendant’s fense waived testify at trial but had learned three medi- right -speedy the defendant unavailable. The cal doctors were evidence must be to trial within for their una- explained also reasons after indictment is found *13 vailability. must order to court the indictment be of lati- expresses notion Discretion good unless to the con- dismissed cause was The district court decision tude. trary be shown. out-of-bounds, expressed the notion 2.33(2)( n ) added). (emphasis Id. r. delay justified the short under was this by The settled law court established sup- the circumstances. The decision was thirty-five years that a defen- ago over was enough
ported by
evidence and fell within
“brought
purposes
is
to trial” for
dant
court’s
the district
discretion.
speedy
requirements
trial
“when
satisfying
impaneled
sworn.” State v.
Waterman, J., joins
special
1979).
Jones,
(Iowa
I
281 N.W.2d
concurrence.
correctly applied
the district
believe
court
ZAGER,
(concurring specially).
Justice
scrupulously protected
this settled law and
majority
I concur in the well-reasoned
spirit
speedy
and intent of McNeal’s
I
opinion. also find that there
abuse
was
rights.
trial
of discretion
its
2.33(2)(&),
charge
rule
criminal
Under
to
mat-
bifurcate the trial in this
decision
go
“if
not com-
cannot
forward
trial does
agree
I
court that
ter.
the district
days
mence” within
of the State
ninety
circumstances of
under all
the facts and
filing
charging
instrument. State v.
case,
adjust
good
there was
cause
2016).
Taylor, 881 N.W.2d
Likewise,
scheduling of
the trial.
for trial well
Taylor,
case had been set
enunciated
expiration
ninety day
after the
re-
merely pretext
not a ruse or
avoid
Id. at
for the de-
quirement.
74. Counsel
However, I
speedy
rights.
McNeal’s
trial
citing
fendant filed motion to dismiss
necessary
on the
find
write
more
Id. That
speedy
violation
rule.
a viola-
basic issue whether there was
solely
case was
on whether there
decided
speedy
rights
tion of McNeal’s
at the
implied
Taylor’s
had been
waiver
brought
when McNeal
to trial
outset
speedy
to a
right
trial or whether there
ninety
by our
required
within
as
cause for
in the com-
Finding
rules.
to trial
McNeal was
my opinion,
of trial. In
that is
mencement
days,
ninety
I would vacate
within
Rather,
is no
not the issue
there
here.
appeals
of the court of
and affirm
decision
question that the trial
within
commenced
court.
the district
day
ninety
speedy trial rule.
2.38(2)
Rule of Criminal
Iowa
Procedure
recognize
speedy
rule
generally
public policy
declares it is
purposes.
serves several
that “criminal
con-
prosecutions
Iowa
proce-
purpose
the criminal
possible
cluded at the earliest
time consis-
both
provi-
parties.”
with a
trial to
rules and
constitutional
tent
both
dural
fair
sions is to “relieve an accused of
As
expected,
would be
is no
there
feder
anxiety
suspended
al or
associated with a
state consensus
when trial “com
prosecution
provide
reasonably
mences” for
purposes.
But
prompt
of justice.”
administration
The what all
appear
cases
focus on is the
length
indictment and
trial rules
of the recess'
perceived
and the
also aim prevent
the harm that arises
intent
spirit
to violate the
of the rule. The
“possible impairment
pivotal
federal case on bifurcation is Unit
Gonzalez,
accused’s
ed
(11th
defense due
diminished
States
ule here in fair order a trial to Supreme Court California heard a case parties, both consistent with Iowa Rule jury empaneled where a the final 2.38(2). Criminal Procedure day of and the period, I agree general proposition with the delay district court a of five or announced requirements may days not present be six evidence be before would 772, empaneling jury a simply avoided Cal.Rptr. ed. 35 Cal.3d 200 (1984). then delaying receipt of evidence. P.2d district court The here, However, may there be occasions delay announced the reason delay jury only when brief after the is congestion, sworn court and the reason for any speedy implica- does not raise jury selection and then the towas argument appeal tions. avoid McNeal’s dismissal. The ultimately that the trial for “an “brought was recessed unusual- court determined time, ly long period specific jury empan with the trial” does not mean when a is avoiding Id., Cal.Rptr. intent do not P.2d at dismissal.” eled. arguments Rather, agree that court either these is concluded ac applicable “brought here. is to trial” cused when testify not be judge nesses available called who been for trial
has ready try the time of trial. normally available is The must case to court conclusion. county, In urban there any busy are tri- to the its resources have committed felony working cases literally dozens ready al, parties must and the through way system. their When a ju- prospective panel proceed plea proceeding, prepara- case is set and sworn. rors must be summoned with witnesses is tion for trial and contact Id., P.2d at 1211-12 Cal.Rptr. going realistically place. not to take omitted). (footnote principles, these Under case, as the was aware that as soon a valid congestion deemed court trial, it took proceed case would Id., 200 Cal. the trial. reason to bifurcate experts steps to contact medical P.2d at 1212. Rptr. scheduling. Not schedul- surprisingly, ing than fourteen- conflicts arose with less Washington court also appellate As of trial. prior'notice date Circuit adopted the Eleventh Gonzalez expect, the final to would also brought test for when pretrial Becerra, conference on June immediate- Wash.App. State v. trial. See ly (1992). Becerra, district court defense advised 202, 831 P.2d problem scheduling its ex- counsel of defendant was concluded perts. prep- I find the State’s fault day to trial the 59th after trial, certainly aration for do find the case arraignment when was called-for punished for how handled Like should was chosen. Id. trial and way scheduling experts. of its wise, Appeals Court the New Mexico *15 reality of State handled its case is the days jury of eighteen between held a county, par- in busy conflicts a scheduling evidence presentation and selection late, plea proceed- a failed ticularly after six month not Mexico’s violate New ing. Rackley, v. speedy trial rule. State (Ct. 1212, 761, App. 998 P.2d N.M. reflects is What I believe record that noted, however,
2000). Rackley The court conference, at pretrial State ad- holding limited to the facts that was its pres- in the parties vised that a recess at it in that before case. may necessary entation of to evidence expert of its look at in case. The let’s the facts accommodate schedules So 30, ready proceed The to filed March witnesses. State was information was to presentment for originally 2015. Trial was scheduled trial and witnesses, 9, lay just plea to offer was all of its its June 9. Prior June a that, The offer Everything experts. to medical State did McNeal. indicated made that After if the court entertain bi- day. taken would be district trial, might solve the negotiations, contrary to furcation further re- The understanding parties, scheduling problem as well. district McNeal counsel, court, The with parties the final after a full discussion jected plea offer. with settled law con- seventy one into the and consistent now were Jones, was that would be day speedy period. Trial tained decided ninety 23, present best to all evidence one pretrial June final reset for with piecemeal, time rather than bifurcated for June Between conference scheduled also 16, con- the trial. The district court stated that the State and June made request for think it did not the State’s its deter- tact with witnesses and medical merely pretext “a ruse or key wit- bifurcation was expert of its mined that some rights.” Mr. speedy to void McNeal’s necessity State must show the of the wit nesses, agree. I diligence it exercised due attempting the presence to secure wit judge court On trial, that, nesses needed notwith ready try available and efforts, standing diligent the witnesses summoned, conclusion. The em- needed trial are unavailable. Note paneled and Except sworn on June 26. show, simply State must and not pro experts, the medical and McNeal claim, good The State bears the cause. ready proceed trial. McNeal burden such showing cause. State brought compliance to trial in our Olson, (Iowa v. N.W.2d Ct. regarding speedy rule trial. McNeal was 1995). App. brought also trial consistent with our long-standing precedent, determining prosecution whether established caselaw, support has offered federal and with factual established case- shown continuance, jurisdictions. from other cause for empha law There we have rights violation sized “the a prosecutor McNeal’s bare assertion” as he was here within trial deadlines could not be ninety Winters, days of met the indictment. insufficient. State (Iowa 2005). And, we have J.,
Waterman, joins special using ... precedents stated disfavor “[o]ur concurrence. generalities establishing good cause” “good cause to avoid trial must APPEL, (dissenting). Justice facts, rooted in conclusions.” State respectfully dissent. State’s case 2016). Taylor, a continuance made at simply plain These cases reinforce the text hearing nothingburger; was a rule—“good cause” must be shown panel of the of appeals clearly saw by facts the record and not simply through arguments faithfully ap- party seeking declared to avoid plied our it unanimously caselaw when 2.33(2)(b). mandatory dismissal under rule that the offer found State failed facts Sweet v. 200 Colo. Myers, 612 P.2d *16 support a continuance of trial for good banc) (1978) (en (finding unsupport 77 “shown” of cause under Rule Crimi- Iowa ed allegation that a material witness was 2.33(2)(6). nal Procedure We should do the to support unavailable insufficient continu same. “[tjhere ance support because be must only purpose
The of this the findings bifurcated record the the before court”). the attempt avoid 2.33(2)(6). of Such deadline rule a start- At the the hearing on motion to continue and-stop be strategy employed cannot only on prosecution the offered otherwise applicable avoid necessity of of question on the conclusions v. Stayton, deadlines. See United States the to be unavailable. witnesses claimed (2d 1986) F.2d 20 (holding Cir. Specifically, prosecution the offered the justification prosecution must show for de- conclusory. three of its declaration lay impaneling receipt between of eight designated medical witnesses who evidence). of were prove needed “to elements the qf injury In order avoid Iowa the serious unavail- [were] dismissal under 2.33(2)(6) That, of sum literally, Rule Criminal Procedure able.” was the witnesses, presentation of unavailability of on based the substance the State’s prosecution from bra that frees the the They of witnesses. necessity the the 2.33(2)(5). witnesses, of according mandatory provisions to the rule We necessary man State, emphasized neces- the say so. the double-barreled While rule, eight designated medi- which datory command under our sity three certainly by cal declared states “a be witnesses was State, necessity ninety days or the court the factual basis ... within required as not “shown” witnesses was must the indictment to be order dismissed hearing. by contrary the rule at the June good unless cause ” Miller, shown.’ State N.W.2d of ne- showing factual prosecution’s (Iowa 2001) (emphasis original) hearing thus a cessity the June 27(2)(t), (quoting R. Crim. P. now At nothingburger. yet there is more. And 2.33(2)(6)). simply rule The rule does not hearing, prose- time of the June wide-open vest with the trial discretion cution, remarkably, eight had listed medi- court, story, end of next case. We have providers as witnesses. minutes cal long that the court’s discretion is held redundancy testimony show re- substantial exceptions by limited “circumscribed testimony.4 No one garding expected their (emphasis to the mandate.” Id. rule’s add examining minutes ed); Bond, accord State 340 N.W.2d to the identify three essential witnesses (Iowa 1983). The re rule’s mandate indeed, case, and, description State’s quires cause be shown testimony of the medical witnesses facts, by supported by conclu record largely and based the same redundant sions. of medical set records. nothingburger simply This record does suggestion wafting some There
not cut it rule our caselaw. under the through majority opinion that defense prosecution do Mere conclusions adequate counsel not make an record did not entitle to avoid dismissal for hearing. at the The district court cause shown must be shown. Good interpreted failure of de- seemingly facts, conclusory based declarations challenge fense the assertions counsel prosecution. Taylor, prosecution in a fashion as advocated 77; Winters, 690 at 909. are majority. But where there necessity support facts As a result of these well-established offered specific who principles, phrase incantation are claimed mere unavailable, not an has no discretion but court discretion” is abracada- “trial hearing, prosecution Any post-hoc Dr. Seluk claim that 4. At the brane.” instance, Seluk, Crystal necessary hearing not assert that Dr. witness related to *17 required question was a on the hearing. witness loss raised at the June 16 was not Browning’s hearing damage or to Matthew Moreover, by such a claim is belied the record testimony ear. In the were minutes that further available on 16 and is 16, part of the record on June Dr. Seluk’s by the fact that Dr. Seluk weakened nearly testimony described identical to testify prosecution. at trial called experts, designated Dr. Eve- that of two other nothing sug- in the minutes to There is also According lyn Reher Kerns. and nurse Tracie gest eight professionals medical that of the minutes, Dr. Reher Kerns would listed, radiologist specific neurologist had among testify, things, “hemotym- about other designated wit- different from other panum ear].” middle Seluk [blood Dr. Nearly witnesses were all the medical nesses. offering testimony was described as testifying as about subdural hematoma listed Browning “had evidence of obvious hemo- Browning’s as a of the blow to head. result tympanic tympanum mem- with an intact
715
Lovasco,
to dismiss
action
United
783,
v.
States
431 U.S.
800,
2044, 2054,
has not
under
been shown
the rule. See
97 S.Ct.
“nothing managerial wisely prior more than decision on consider- did rest its ations for prosecutor manipulate.” bargaining.-The the to had consis- plea
716
the
day before
trial until the
ability for
rights
on his
tently insisted
hearing.
June
Apparently,
proceeding.
throughout
the
on
the record
believe
majority
the
does
no
at all
thus
evidence
There was
simultaneously
may
the defendant
to
“working
hard”
prosecution
the
insisting on
bargaining
plea
while
pursue
prosecu-
witnesses. Behind the
schedule its
prosecution
But
rights.
the
assertions,
pre-
prosecution
tion’s bare
plea
of
collapse
after the
weeks
had two
at all of
efforts
no evidence
sented
up
to line
its medical witnesses
discussions
hearing.
posttrial
in the
Only
the June
event,
the fact that
any
for trial. In
of its effort
hearing was actual evidence
place
a short
take
over
discussions did
be-
prosecutor
that the
presented, namely,
to
nothing
has
whatsoever
of time
period
the witnesses
her efforts to schedule
gan
of
three of
whether
question
do
hearing.
day
one
before the June
witnesses
eight designated medical
diligence,
of
question
On the
due
prove
prosecution’s
to
necessary
Brown,
v.
is similar to United States
case
case.
Brown,
(6th
2016).
Cir.
F.3d
necessity of the
showing
of
for the
Appeals
The lack
Court
United States
here, but
dispositive
is
had
prosecutor
three witnesses
Circuit noted that
Sixth
only
“late
prosecution
prep”
is more. The
did
and was
there
“missed a week
due dili-
of’ the
Id. at 819.
getting
better
the issue
witness.
marginally
ahold
scheduling.
hearing,
Here,
of the office
prosecutor
At the
was out
gence in
hearing
prior
been
to the June
the week
prosecution declared
day
trying
the trial was
working
began
schedule witnesses
[June
“since
when
Brown,
here,
23,]
hearing.
for June
to schedule
before
rescheduled
in this case that we
that the witness
expert
indication
witnesses
there
pro-
appear
subpoenaed
no factual indication was
been
could not have
have.” But
Further,
was no indica-
those
were.
trial. Id.
there
as to what
efforts
vided
showing,
not be avail-
factual
tion that the witness would
prosecution, without
period
diligence
during
timely
claiming it exercised
able at some time
due
State,
what,
fact,
Id.)
But
see also Meine
scheduling the witnesses.
thereafter.
(1992) (stat-
do?
prosecution
Ark.
827 S.W.2d
not met its
ing prosecution had
burden
conelu-
glean that from the
cannot
One
continuance,
part,
where
failed
hearing,
presentation at the June
sory
into
doc-
subpoena
inquire
doctor
hearing, the details
posttrial
in a
but
testimony
to find a time
tor’s schedule
At
emerged.
diligence
due
prosecution’s
place).
to take
hearing, the
ad-
posttrial
Additionally, the State’s assertions
was out of the office
that she
mitted
insufficient. The State
unavailability were
the trial date was continued
9 when
unavail-
radiologist
suggested
only upon
returning
my
“[i]t
But
of “work commitments.”
able because
15th that
I started
the office
Clark,
Supreme Court
in State v.
diligently
get
working
these
Idaho, citing—ironically now—the Iowa
during
period
here.”
between
So
Nelson, 600
to June
the trial date was moved
when
(Iowa 1999),
thorough
that “a
declared
hearing,
prosecu-
and the June
delay repre-
for the
analysis of the reasons
diligently
tion
new witnesses
moved
add
determining
method
soundest
did not
sents the
minutes
135 Idaho
cause.”
constitutes
attempting avail- what
begin
determine their
*19
(2000).
P.3d
The Idaho
in fact. That
is a
approach,
conceivable
further
“the
stated
desire to accom-
perhaps,
it
ap-
does not reflect
witness’s]
modate
cannot
2.33(2)(6)
[a
schedule
proach
or
under rule
the existing
comprise
said
reason
rises
really
caselaw. What
seems to be at work
of a
for the
legal
delay.”
level
excuse
at
in this case
Douglas
what Justice
saw as
An
prece-
Idaho
court followed our
pressures”
“hydraulic
affirm convic-
today
The majority
dent.
does not.
expense
tions
enforcing
estab-
Ohio,
Terry
legal
lished
rules.
392 U.S.
witness,
The State declared one
neuro-
1, 39,
1868, 1889,
88 S.Ct.
Meine, at 154 (holding prose- 827 S.W.2d its speedy
cution failed meet trial bur- subpoena
den when failed doctor
inquire into doctor’s schedule to when find available). might
he Finally, prosecution asserted Iowa, Appellee, STATE Europe Dr. Seluk was until June timely Trial Fri- could have commenced on day, selection. The trial RUSSELL, Appellant. Andrew Lee could then on Monday, have resumed Tuesday, taking June with the No. 16-0807 showing Dr. evidence. There was Supreme Court of Iowa. Seluk could not have testified Wednes- this, day, July relatively simple, in1 Filed June straightforward trial. of this court has majority today Iowa Rule of apply
declined 2.33(2)(6) applica-
Criminal Procedure sub silentio It
ble caselaw. announces law, namely,
new rule of that a prosecu- conclusory
tor’s decla- unsubstantiated witnesses,
rations of the certain need unavailable, suffi-
which declares are are support majori-
cient a continuance. The
ty also shifts burden to effect prove prosecution’s
defense to
conclusory are basis assertions without a