State v. Elliston , 1968 Iowa Sup. LEXIS 884 ( 1968 )

RAWLINGS, Justice

(dissenting).

I respectfully dissent.

In Division IV of the majority opinion is this statement: “Although not placing our approval on the trial court’s rather brusque, summary and somewhat angry manner of denying counsel’s motion for continuance we do not find the court abused his judicial discretion or that an injustice to appellant resulted.” This hardly portrays the true situation.

For some reason, not disclosed by the record, counsel was not retained by defendant until 24 hours before time scheduled for trial.

When defendant and his attorney entered the courtroom this is what happened, as disclosed by the record before us.

“MR. KUTMUS: [Defense Counsel] Comes now the defendant Marvin Elliston, through his attorney William Louis Kut-mus, and requests for a separate trial in this case, and let the record show that four defendants are being tried together, wherein two of the defendants, one by the name of Marvin Williams and Anthony Colbert, these two individuals are — strike that. These two individuals’ cases are being tried together with the defendant Mr. Elliston, and it’s counsel’s opinion that these cases should be segregated in that the facts do not arise out of the same circumstances. At this time, Your Honor, the defendant, Marvin Elliston, through his attorney, William Kutmus, moves for a continuance for the reason that I was retained yesterday, July 18, 1967, concerning this matter. The case was scheduled and is scheduled for trial on the 19th of July, one day later, and in view of that, Your Honor, I believe the cases bear out that an attorney has a right to prepare his case, and in view of this counsel for the defendant, Mr. Elliston, feels that he has had not enough time to prepare this case. For that reason, Your Honor, the defendant’s attorney, William Kutmus, moves to continue his case.

“THE COURT: Motion will be overruled.

“MR. BERGESON: [Assistant Polk County Attorney] Your Honor, for the' purposes of the record the State would like to state that it does not in any way offer resistance to defense counsel’s motion and would point out to the Court Section 234.1 where it states that one case may be tried and convicted alone.

“THE COURT: I know what the law is, and all the motions are overruled. You gentlemen ready for trial ?

“MR. KUTMUS: Honor, I still have a record to be made, if I may.

“THE COURT: All right.

“MR. KUTMUS: At this time, Your Honor, the counsel for the defendant, Mr. Elliston, moves and demands for a jury trial as guaranteed to him by the Sixth Amendment of the United States Constitution. We would argue that the defendant’s due process has been violated if this jury demand is not granted. Since the defendant would have to be charged with notice that the rules of this Court provide a three-day notice to be filed or requested orally to the Court by the defendant, and that three-day notice begins three days prior to the date of trial. Such a rule, which has been promulgated by the Municipal Court Judges, is not a public record. It’s a record that’s available primarily to the attorneys in and around Polk County, and in view of that I believe to charge the defendant with a special kind of knowledge as to the rules of this particular Court would be in violation of due process. In view of that, Your Honor, the defendant moves for a jury trial.

“THE COURT: Your motion will be overruled.

“MR. KUTMUS: At this time, Your Honor, the defendant requests to withdraw the plea of not guilty and demur to the Information.

“THE COURT: I thought they cut out demurrers.

“MR. KUTMUS: There is [sic] three pleas in Iowa, Your Honor, guilty, not guilty, demur.

“THE COURT: All right, you may demur.

“MR. KUTMUS: Your Honor, for clarity of the record, I am demurring to the information prior to entering a plea of not guilty. I believe the rules of criminal procedure provide for that method of procedure. To begin with the counsel for the defense would ask and request that the Court grant him sufficient time to prepare a brief, a written brief, to sustain his demur [sic].

“THE COURT: Your motion is overruled. We had that matter up yesterday.

“MR. KUTMUS: Then, Your Honor, at this time I will argue that Chapter 742.1 or 743.1 under the 1966 Iowa Code is unconstitutional for the following reasons: That the statute on its face is unconstitutional in that it’s void for vagueness. In other words, there are no divide [sic] lines, no standards established or set forth in said 743.1 to put the defendant on notice of whether or not he’s in violation of any particular act. That’s [sic] Chapter 743.1 of the Iowa Code is unconstitutional in that said act does not at all contemplate the intention of the defendant to do a wrongful act. Hence, since the requirement of intent is not specified in the statute we would assail the statute as being unconstitutional for want of such intent. That 743.1 is unconstitutional in that it abridges the first Amendment of the United States Constitution as well as Article 1, Section 20 of the Iowa Constitution which allows for lawful assembly, or the assembly of persons more than one, and that said act abrogates and abridges this right.

“(Off the record discussion between counsel and the Court.)

“That the said statute in question is unconstitutional in that it violates the Fifth Amendment of the United States Constitution as well as the 14th Amendment in that said statute does not provide for notice to him of the variance which is incorporated in the Information. In connection with this the statute is too broad, and to protect myself, Your Honor, I want to stress the fact that I was notified yesterday that this case was pending today for trial, and I would again reiterate my request for a motion for continuance.

“THE COURT: You still haven’t shown me anything yet where you are entitled to one as far as your motion is concerned. You haven’t brought out anything yet. Gentlemen, are you ready for trial? Let’s get to trial bn this matter.

s< * i}C ⅝

“MR. BERGESON: At this time, Your Honor, I would like to call Lt. Moran to swear to these Informations.

“THE COURT: All right, sign these Informations.

“(Lt. Moran signed and swore to the In-formations.)

« * * *

“THE COURT: Now gentlemen, if I were sure you were ready for trial we would go ahead. But here’s what I’m going to do. I don’t know if you’re ready or not. We are going to take a recess for about ten minutes. Make up your mind whether you are ready for trial or not during the next ten minutes.

“(A ten minutes recess was taken.)

“THE COURT: State may call its first witness.

“MR. KUTMUS: Your Honor—

“THE COURT: All right, what is it?

“MR. KUTMUS: At this time the defendant Marvin Elliston, through his attorney William Kutmus, requests the Court to grant him time, 24 hours, to make application for writ of certiorari to question the legality of your dection [sic] on the demur [sic],

“THE COURT: Let the record show that the motion is overruled. We are going to trial right now.

“MR. BER&SON: Your Honor, at this time comes now the County Attorney and makes a motion that each of these four Information — to amend the Infor-mations by deleating [sic] the words ‘attempt to incite a riot’ to ‘to the disturbance of others.’

“THE COURT: Your want to make this amendment before any evidence is taken ?

“MR. BERGESON: Yes.

“THE COURT: You may do so.

“MR. KUTMUS: In view of that, Your Honor, defendant again requests a motion for continuance to prepare himself for the amendment that has been made by the State.

“THE COURT: Motion overruled.

“MR. KUTMUS: At this time, Your Honor, the defendant Mr. Marvin Elliston respectfully demurs to the Information as amended in that said Information is insufficient on its face, vague and too broad, does not reveal a crime against the defendant, and that the Information on its face is a defense to the charge and we would urge the same demur [sic] that was heretofore urged prior to the amendment.

“THE COURT: Motion overruled.

“ * * *

“MR. KUTMUS: Your Honor, may I —I believe you stated at the — prior to the recess that you would grant us ten minutes in which to decide whether or not we were ready to try this case. In view of that, Your Honor—

“THE COURT: Your ten minutes are up.

“MR. KUTMUS: Yes Your Honor, and the defendant William — or Marvin Ellis-ton, through his attorney William Kutmus, respectfully states that this ten minute recess is not sufficient time to prepare for this case.

“THE COURT: All right, let’s take testimony.”

In my humble opinion the foregoing, standing alone, amply discloses this defendant was not accorded a fair trial. In support of this conclusion see Amendments 6 and 14, United States Constitution; Article 1, sections 9 and 10, Constitution of Iowa; Chapman v. State of California, 386 U.S. 18, 21-24, 87 S.Ct. 824, 827-828, 17 L.Ed.2d 705; Turner v. State of Louisiana, 379 U. S. 466, 471-472, 85 S.Ct. 546, 549, 13 L.Ed.2d 424; Rideau v. State of Louisiana, 373 U.S. 723, 726, 83 S.Ct. 1417, 1419, 10 L.Ed.2d 663; Gideon v. Wainwright, 372 U.S. 335, 342, 83 S.Ct. 792, 794-796, 9 L.Ed.2d 799, 93 A.L.R.2d 733; Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751; In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942; Powell v. State of Alabama, 287 U.S. 45, 70-71, 53 S.Ct. 55, 64-65, 77 L.Ed. 158, 84 A.L.R. 527; McDonald v. Moore (5 Cir.), 353 F.2d 106, 109-110; State v. Gionfriddo, 154 Conn. 90, 221 A.2d 851, 855; State v. Gurney, 249 La. 71, 185 So.2d 19, 21-22; State v. Borst, 278 Minn. 388, 154 N.W.2d 888, 889-895; 16A C.J.S. Constitutional Law § 591, page 659; 16 Am.Jur.2d, Constitutional Law, section 550, page 946 and 575, page 980; Annos. 17 A.L.R.3rd 1181, 1244; and Annos. 94 A.L.R. 2d 826. See also American Bar Association, Canons of Judicial Ethics 10 and 15, and Handbook for Judges, American Judicature Society, 1961, page 66.

In addition there exists a serious ques-ion as to whether a valid or legally sufficient information was on file until after defendant and his attorney walked into the courtroom. In this regard see sections 602.28, 762.2, 762.15, 773.43-773.47, Code, 1966, and State v. Ford, 222 Iowa 655, 269 N.W. 926.

By what authority did the court fix trial time until an information had been signed which complied with the statutory mandate? Surely an unsigned, unverified instrument does not qualify as an information charging commission of a public offense until signed and verified. In my opinion defendant was entitled to a continuance for this reason, if for no other. See in support hereof State v. French, 240 Iowa 1, 25, 35 N.W.2d 1.

Furthermore, belated amendment of the information accorded defendant an additional cause for continuance. See State v. Jennings, Iowa, 153 N.W.2d 485, 488, and State v. Bamsey, 208 Iowa 802, 804-805, 226 N.W. 57.

Understandably, in some cases, attorneys may unduly try the patience of the court. But in this instance there was no real or apparent provocation for trial court’s harsh and arbitrary conduct.

In my humble opinion section 743.1, Code, 1966, is sufficiently certain and specific to meet constitutional requirements. But this does not mean defendant was here dealt with fairly.

I would reverse and remand.

MASON, BECKER, and LeGRAND, JJ., join in this dissent.