State v. Knerr

426 N.W.2d 654, 1988 Iowa App. LEXIS 781, 1988 WL 79100
CourtCourt of Appeals of Iowa
DecidedMay 31, 1988
DocketNo. 87-652
StatusPublished

This text of 426 N.W.2d 654 (State v. Knerr) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Knerr, 426 N.W.2d 654, 1988 Iowa App. LEXIS 781, 1988 WL 79100 (iowactapp 1988).

Opinion

SACKETT, Judge.

Defendant, Merle LeRoy Knerr, appeals his conviction, after a jury trial, of second-degree burglary. See Iowa Code §§ 713.-1, .5 (1985). Defendant contends (1) the trial court abused its discretion in overruling his motion to dismiss for lack of speedy indictment, and (2) the trial court erred in overruling his motion for new trial based [655]*655upon the State’s use of handwriting analysis of juror questionnaires. We affirm.

I.

Defendant argues the trial court abused its discretion in overruling his motion to dismiss for lack of speedy indictment. Iowa Rule of Criminal Procedure 27(2)(a) provides the court must order the prosecution to be dismissed if an indictment is not found against the defendant within forty-five days of the defendant’s arrest. The term “indictment” includes trial informations. Iowa R.Crim.P. 5(5).

The undisputed facts in this case are the county attorney delivered the trial information to the clerk of court on Friday, October 24, 1986, which was the forty-fifth day following defendant’s arrest. Accompanying the trial information was an order setting the date for defendant’s arraignment and ordering the clerk of court to mail or deliver copies of the trial information and order to defendant’s attorney. Both the order and trial information were signed by a judge.

The clerk of court file-stamped the trial information and order, but the documents were neither docketed nor placed in the court file by the clerk of court until Monday, October 27, 1986. The clerk did not mail a copy to defendant’s attorney. Defendant’s attorney received his copy of the trial information on Monday, October 27 when he went to the clerk’s office. Defendant moved to dismiss for lack of speedy indictment. The trial court found the trial information was filed on October 24 and came within the forty-five day requirement of Iowa Rule of Criminal Procedure 27(2)(a).

Defendant contends the trial information was not filed until his attorney received a copy of it on October 27. That is not the issue. The statutory language provides the information must be “found” within the applicable time frame. The information was presented to the trial judge. The trial judge found the information to contain sufficient evidence, if unexplained, to warrant a conviction by a trial jury. The trial court ordered the clerk to deliver a copy to defendant’s attorney. The information was taken to the clerk’s office on the forty-fifth day following defendant’s arrest. These facts are sufficient to support a finding the information was “found” within forty-five days. We affirm the trial court on this issue.

II.

Defendant contends the trial court erred in overruling his motion for new trial based upon the State’s use of handwriting analysis of juror questionnaires. Defendant also argues he was prejudiced because he was deprived of his right to trial by a fair and impartial jury.

A. Handwriting analysis. After trial, but prior to sentencing, defendant filed a “Motion for Order Requiring County Attorney to Disclose Background Checks on Jurors, and For Relief.” Because the motion was granted we do not address the issue of its timeliness.

The motion stated in part:

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2. Defendant believes that the County Attorney, in selecting the jurors for his trial, may have had an unfair advantage by reason of his secretly obtaining the criminal histories and/or professional handwriting analysis of the prospective jurors.
3. Pursuant to State v. Bessenecker, [404 N.W.2d 134] (Iowa 1987) ... the Court should order the County Attorney to disclose any such juror investigation(s), and, if there has been such, then order appropriate remedial action, to-wit a new trial herein.

The trial court ordered the State to produce the results of the handwriting analysis of the jury panel for defendant’s use on appeal. The trial court overruled defendant’s motion for new trial, however, based on its findings the Bessenecker case did not apply and defendant had no right to discover the State’s handwriting analysis reports.

The trial courts are vested with broad discretion in granting or denying motions for new trial based on fair trial considerations. State v. Watt, 389 N.W.2d 408, 411 [656]*656(Iowa App.1986); see Iowa R.Crim.P. 28mm.

In State v. Bessenecker, 404 N.W.2d 134, 138 (Iowa 1987), the Iowa Supreme Court interpreted Iowa Code section 692.2(3)(a) (1985), which restricts the dissemination of criminal history data to instances in which “[t]he data is for official purposes in connection with prescribed duties — ” In reversing Bessenecker’s conviction, the court held the county attorney’s investigation of all jurors’ criminal backgrounds is not a prescribed duty within the meaning of the statute. Id. The court recognized limited situations in which the statute may allow the county attorney to have access to the rap sheet of an individual prospective juror. Id. Considerations of fairness dictate that in those situations the defendant must have equal access to the rap sheets obtained by the county attorney. Id.

We believe the holding in Bessenecker is limited to the court’s interpretation of section 692.2(3)(a). Under the statute, only the county attorney could obtain the rap sheets; the defendant had no right of access to them. We determine Bessenecker does not stand for the proposition, as defendant argues, that the Iowa Code does not permit the State to solicit information about prospective jurors by use of handwriting analysis.

It is a recognized practice for an attorney to make investigations of prospective jurors so that challenges can be utilized intelligently. Bessenecker, 404 N.W.2d at 136. There is no doubt that pretrial investigations of prospective jurors are both legal and common. V. Starr & M. McCormick, Jury Selection § 4.1, at 90 (1985). Some commentators recommend the use of handwriting analysis of juror questionnaires. See id. at 98; Katz, The Twelve Man Jury, 5 Trial, Dec.-Jan. 1968-69, at 39, 40.

The majority rule is that, absent a statute or rule of practice providing otherwise, defense counsel has no right of access to official State files concerning prospective jurors. Note, The Defendant’s Right to an Impartial Jury and the Rights of Prospective Jurors, 48 U.Cin.L.Rev. 985, 986 (1979). See also Annotation, Right of Defense in Criminal Prosecution to Disclosure of Prosecution Information Regarding Prospective Jurors, 86 A.L.R.3d 571, 574 (1978).

We find no authority to support defendant’s position the State’s use of the handwriting expert entitles him to a new trial. Furthermore, defendant has failed to show any prejudice he suffered because of the use of a handwriting expert in the jury selection process. See State v. Williams, 243 N.W.2d 658, 662 (Iowa 1976).

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Related

State v. Williams
243 N.W.2d 658 (Supreme Court of Iowa, 1976)
State v. Hobson
284 N.W.2d 239 (Supreme Court of Iowa, 1979)
State v. Bessenecker
404 N.W.2d 134 (Supreme Court of Iowa, 1987)
State v. Watt
389 N.W.2d 408 (Court of Appeals of Iowa, 1986)

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Bluebook (online)
426 N.W.2d 654, 1988 Iowa App. LEXIS 781, 1988 WL 79100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-knerr-iowactapp-1988.