State of Iowa v. Jerry Wayne Cunningham Jr. ( 2016 )


Menu:
  •                     IN THE COURT OF APPEALS OF IOWA
    No. 15-1583
    Filed December 21, 2016
    STATE OF IOWA,
    Plaintiff-Appellee,
    vs.
    JERRY WAYNE CUNNINGHAM JR.,
    Defendant-Appellant.
    ________________________________________________________________
    Appeal from the Iowa District Court for Boone County, James B. Malloy,
    District Associate Judge.
    Jerry Cunningham Jr. appeals his judgment and sentence for possession
    of methamphetamine, second offense. AFFIRMED.
    Andrew J. Boettger of Hastings, Gartin & Boettger, LLP, Ames, for
    appellant.
    Thomas J. Miller, Attorney General, and Jean C. Pettinger and Tyler J.
    Buller, Assistant Attorneys General, for appellee.
    Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
    2
    VAITHESWARAN, Judge.
    The district court found Jerry Cunningham Jr. guilty of possession of
    methamphetamine, second offense. On appeal, Cunningham challenges (1) the
    court’s denial of his motion to dismiss the prosecution based on a speedy trial
    violation and (2) the court’s denial of his motion to suppress evidence arguably
    gained pursuant to a statutory nurse-patient privilege.
    I.     Dismissal Motion
    The ninety-day speedy trial rule states:
    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 90 days after indictment is found or the court must order
    the indictment to be dismissed unless good cause to the contrary
    be shown.
    Iowa R. Crim. P. 2.33(2)(b). “In determining whether there is good cause for a
    delay, [reviewing courts] focus only on one factor, the reason for the delay.”
    State v. Campbell, 
    714 N.W.2d 622
    , 627 (Iowa 2006). Our review is for an abuse
    of discretion. 
    Id.
    We begin with the pertinent dates for application of the ninety-day speedy
    trial rule. The State filed its trial information on June 11, 2015. Cunningham
    failed to appear for his arraignment on June 23, and the district court granted a
    continuance to June 30. Cunningham again failed to appear on June 30, and the
    district court issued a bench warrant for his arrest. The warrant was served on
    July 27. Cunningham was arraigned on August 4 and demanded his right to a
    speedy trial. The district court entered an order setting pretrial conference for
    September 8 and a jury trial for September 22. Cunningham filed a motion to
    suppress on August 25, which was scheduled for hearing on September 11. The
    3
    district court denied the motion on September 16. A bench trial took place on
    September 21.
    Cunningham did not waive his right to be tried within ninety days; the
    ninetieth day to be tried fell on September 9, 2015.
    After the speedy trial deadline expired, Cunningham moved to dismiss the
    trial information.   The district court denied the motion.        The court cited
    Cunningham’s failure “to appear for his original arraignment” and his failure to
    appear for the rescheduled arraignment and found the delays “attributable to”
    Cunningham’s disappearance.
    Cunningham does not deny his unavailability. He simply argues, “Absent
    evidence in the record that the State took affirmative steps to secure an earlier
    trial date that would comport with the speedy trial timeline, the State failed to
    meet its burden to establish good cause for the delay and the matter should have
    been dismissed.” This argument is appealing at first blush because Cunningham
    ultimately appeared for arraignment in time to hold trial within the speedy trial
    deadline. But his lengthy absence rendered an earlier trial date impractical. See
    Iowa R. Crim. P. 2.11(4) (“Motions hereunder, except motions in limine, shall be
    filed when the grounds therefor reasonably appear but no later than 40 days after
    arraignment.”); Campbell, 
    714 N.W.2d at 628
     (“The decisive inquiry in these
    matters should be whether events that impeded the progress of the case and
    were attributable to the defendant or to some other good cause for delay served
    as a matter of practical necessity to move the trial date beyond the initial ninety-
    day period required by the rule.”).
    4
    Confronted with a virtually identical fact pattern, the Iowa Supreme Court
    held just that. See State v. Lyles, 
    225 N.W.2d 124
    , 126 (Iowa 1975). In Lyles,
    “[t]he county attorney’s office notified the pretrial release office on at least four
    occasions . . . that defendant was to appear for arraignment.” 
    225 N.W.2d at 125
    . The defendant finally appeared one month after the trial information was
    filed and was arraigned approximately two weeks later. 
    Id. at 126
    . Trial was
    scheduled sixty-eight days after the trial information was filed. 
    Id.
     This was eight
    days following the then-existing1 speedy trial deadline.             
    Id. at 125-26
    .     The
    defendant moved to dismiss the case. 
    Id. at 125
    . The district court denied the
    motion. 
    Id.
     The Iowa Supreme Court affirmed the ruling after finding that the
    delays in processing the case were “attributable to the defendant, not the State.”
    
    Id. at 126
    . The court continued:
    Although the State, not the defendant, has the obligation to bring a
    defendant to trial, delay attributable to the defendant may
    constitute good cause preventing the State from carrying out its
    obligation. The State’s duty to provide a defendant a speedy trial
    does not require that it play a game of hide-and-go-seek with him.
    
    Id.
     The court further explained that “[a]rraginment is a prerequisite to trial, unless
    waived,” the State “had a right to wait until arraignment to have a trial date set,”
    and “[w]hen defendant was arraigned and entered a plea of not guilty his trial
    was promptly set.” 
    Id.
    Like the defendant in Lyles, Cunningham disappeared before he could be
    arraigned.    As in Lyles, the district court reasonably concluded the delay in
    1
    The case was decided under Iowa Code section 795.2 (1973), which states in pertinent
    part: “If a defendant indicted for a public offense, whose trial has not been postponed
    upon his application, be not brought to trial within sixty days after the indictment is found
    the court must order it to be dismissed, unless good cause to the contrary is shown.”
    5
    scheduling trial was attributable to Cunningham’s two-month absence, which
    constituted good cause for setting a trial date beyond the speedy trial deadline.
    Finding no abuse of discretion, we affirm the district court’s denial of
    Cunningham’s motion to dismiss.
    II.      Suppression Motion
    The pertinent facts underlying Cunningham’s suppression motion are as
    follows.    Boone police officers found Cunningham in an alley in a “very
    intoxicated” state. They transported him to a hospital, where a nurse undressed
    him in preparation for a physician’s examination. The nurse found a substance in
    Cunningham’s pocket that turned out to be methamphetamine. “[D]ue to hospital
    policy on contraband and unknown substances,” the nurse notified police.
    Cunningham moved to suppress the evidence on the ground that it was
    made available to the State in violation of a statutory nurse/patient privilege. See
    
    Iowa Code § 622.10
     (2015). The district court denied the motion, reasoning as
    follows:
    The testimony established that the drugs and paraphernalia
    obtained were a result of the nurse changing the defendant’s urine
    and vomit soiled clothing to get him ready to be seen by the doctor.
    [The nurse] stated that it was not part of her duty to look for drugs
    on the defendant. The information was not obtained to enable the
    physician to treat the patient skillfully.
    Our review is on error. State v. Henneberry, 
    558 N.W.2d 708
    , 709 (Iowa
    1997).     The district court’s fact findings bind us if supported by substantial
    evidence. See, e.g., State v. Bower, 
    725 N.W.2d 435
    , 448 (Iowa 2006); see
    also, e.g., State v. Staat, 
    192 N.W.2d 192
    , 197 (Minn. 1971) (“Whether . . .
    6
    foundational facts have been established is a question of fact to be determined
    by the trial court.”).
    Iowa Code section 622.10 prohibits certain identified individuals “who
    obtain[] information by reason of” their employment from “disclos[ing] any
    confidential communication properly entrusted to the person in the person’s
    professional capacity, and necessary and proper to enable the person to
    discharge the functions of the person’s office according to the usual course of
    practice or discipline” when testifying.2 The Iowa Supreme Court has formulated
    a three-part test for application of this provision: “(1) the relationship . . . ; (2) the
    acquisition of the information or knowledge during this relationship; and (3) the
    necessity of the information to enable the physician to treat the patient skillfully.”
    Henneberry, 
    558 N.W.2d at 709
    .
    Cunningham focuses on the court’s application of the third element. He
    contends that, contrary to the district court’s determination, the nurse’s discovery
    of the methamphetamine would have assisted the physician in treating him.
    The State concedes the existence of an enumerated relationship. See
    State v. Deases, 
    518 N.W.2d 784
    , 787 (Iowa 1994) (noting State concession to
    the existence of a professional relationship and applying test to a nurse’s
    2
    Section 622.10(1) provides:
    A practicing attorney, counselor, physician, surgeon, physician
    assistant, advanced registered nurse practitioner, mental health
    professional, or the stenographer or confidential clerk of any such person,
    who obtains information by reason of the person’s employment, or a
    member of the clergy shall not be allowed, in giving testimony, to disclose
    any confidential communication properly entrusted to the person in the
    person’s professional capacity, and necessary and proper to enable the
    person to discharge the functions of the person’s office according to the
    usual course of practice or discipline.
    7
    communication); see also Staat, 192 N.W.2d at 197 (holding “the physician-
    patient privilege extends by implication to nurses or attendants who are
    employees or acting under the direction of the physician examining or treating
    the patient”). The State zeros in on the term “communication” as used in section
    622.10, arguing: (1) “communication” under section 622.10 does not cover the
    discovery of incidental items unrelated to treatment,” (2) “the interaction between
    [the nurse] and [Cunningham] cannot be classified as a communication,” and (3)
    “the communication [was not] necessary to the treatment.”
    “‘Communication’ . . . has been interpreted to mean ‘all knowledge and
    information gained by the physician in the observation and personal examination
    of the patient in the discharge of his duties.’” Henneberry, 
    558 N.W.2d at 709
    .
    (citation omitted). Information contained in hospital records and blood samples
    have been found to be within the scope of “communication” as used in section
    622.10. See 
    id.
     Under this definition, we will assume without deciding that the
    nurse’s discovery of the methamphetamine was a communication, and the
    interaction between the nurse and Cunningham was a communication.             That
    leaves for our review whether the “communication” was necessary for treatment.
    At the suppression hearing, the nurse testified members of the medical
    team “don’t necessarily look for drugs”; the doctors do “[n]ot necessarily” need to
    know if drugs are found on a patient; and the physician determines how to treat
    an intoxicated patient “depending on their blood tests, urine tests.” Her testimony
    supported the district court’s determination that the communication was not
    necessary for treatment.
    8
    We recognize other portions of the nurse’s testimony could have
    supported a contrary determination.          However, it was the district court’s
    prerogative as fact-finder to weigh the testimony as it saw fit.       See State v.
    Shanahan, 
    712 N.W.2d 121
    , 131 (Iowa 2006) (“[B]ecause the district court had
    the opportunity to assess the credibility of the witnesses, we do give deference to
    those findings.”); Staat, 192 N.W.2d at 199 (“[W]e find adequate evidentiary
    support in this record for the trial court’s conclusion that the evidence failed to
    establish all essential facts to require the suppression of all testimony relating to
    the confiscated bottles of narcotic drugs. We are mindful that the trial court could
    have justifiably decided otherwise and barred admission of the drugs.”). We
    conclude the district court did not err in overruling Cunningham’s motion to
    suppress.
    We affirm Cunningham’s judgment and sentence for possession of
    methamphetamine, second offense.
    AFFIRMED.
    

Document Info

Docket Number: 15-1583

Filed Date: 12/21/2016

Precedential Status: Precedential

Modified Date: 12/21/2016