State v. Orozco

290 N.W.2d 6, 1980 Iowa Sup. LEXIS 809
CourtSupreme Court of Iowa
DecidedMarch 19, 1980
Docket62554
StatusPublished
Cited by14 cases

This text of 290 N.W.2d 6 (State v. Orozco) is published on Counsel Stack Legal Research, covering Supreme Court 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. Orozco, 290 N.W.2d 6, 1980 Iowa Sup. LEXIS 809 (iowa 1980).

Opinion

LARSON, Justice.

This defendant appeals his convictions on three counts of delivery of a controlled substance for profit in violation of section 204.-401, The Code 1977. He alleges error in the trial court’s (1) holding a pretrial hearing without recording it and in the absence of the defendant, (2) failure to grant his motion to dismiss based on unreasonable preac-cusatorial delay, and (3) finding there was sufficient chain-of-custody foundation for admission of drug evidence. He also alleges (4) that there was insufficient evidence to support the verdict. We find no reversible error on any of the issues assigned and therefore affirm the trial court.

I. Pretrial hearing. Prior to trial, the defendant filed combined motions to dismiss and for discovery. The dismissal motion was based upon the claim of unreasonable delay, which is discussed in Division II.

The discovery motion requested (1) access to written reports concerning the charges, (2) revelation whether informants were used and, if so, their names and addresses, (3) inspection of the physical evidence, (4) access to any tape recordings made by electronic eavesdropping during the investigation, and (5) divulgence of any exculpatory evidence. Defendant’s attorney was informed by telephone at 9:40 a. m. that a hearing would be held on the motions at 1:00 that afternoon before Judge Stone. He objected to this short notice because his client had no telephone, there was not enough time to contact him before the hearing and his client had requested to be present at all hearings. The hearing was held despite these objections. At the commencement of the hearing, defendant’s attorney requested a delay until a court reporter was available. The court, however, decided to “proceed until the court reporter gets here.” As it turned out, the reporter never arrived so there is no transcript of the proceedings. However, defense counsel provided a narrative which has become a part of the record.

The discovery motion was granted except for the part involving informants. As to that, Judge Stone ruled “that if the minutes of testimony do not disclose the fact the State will disclose whether or not an informant was used.” He forbade disclosure of any informant’s identity, however, unless the defense made a showing of need. Thus, the trial court granted defendant nearly everything he asked for and allowed him the opportunity to reassert at a later time the only item denied. The court postponed hearing on the motion to dismiss after defense counsel “indicated that in order to sustain his burden with regard to the motion, he would have to present evidence through the defendants themselves and through subpoenaed witnesses.” A hearing *9 on the motion to dismiss was held at a later date, and the defendant was present for that hearing. The motion to dismiss was denied.

Defendant asserts that the holding of the pretrial hearing in his absence and the failure to perpetuate the record of it acted to deny him due process and require reversal of his conviction. The failure to record the proceeding does not constitute reversible error. Counsel’s narration, recorded shortly thereafter, provided a record sufficiently complete to allow appellate review under the circumstances of this case. See State v. McFarland, 287 N.W.2d 162, 164 (Iowa 1980).

Defendant’s presence at the first hearing was not required by due process. “[T]he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.” Snyder v. Massachusetts, 291 U.S. 97, 107-08, 54 S.Ct. 330, 333, 78 L.Ed. 674, 679 (1934), quoted in State v. Gruber, 281 N.W.2d 636, 638 (Iowa 1979). This means that he “has a right to be present whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to” present his case. Id. (quoting Snyder, 291 U.S. at 105-06, 54 S.Ct. at 332, 78 L.Ed. at 678). Defendant’s right to a fair and just hearing was not thwarted by his absence in this case, in view of the fact he gained virtually everything he requested and his right to assert the balance of his requests at a later date was preserved by the court’s order.

Our decision that these actions do not require reversal does not mean we approve of them. No interest in judicial economy justifies holding a hearing on pretrial motions on such short notice where the result is the inability of defendant to attend or properly prepare for it. Appellate counsel’s comment that judicial proceedings should avoid the appearance of impropriety through back-room disposition of litigated matters is well taken. Every reasonable accommodation should be made to insure that defendants receive, not only the process to which they are constitutionally due, but also that process which will serve to dispel their suspicions as to the integrity of our legal system.

II. Preaccusatorial delay. The sales in question were made to a state undercover agent on September 28, 1977. On November 22, 1977, local officials acting without knowledge of the state investigation executed a search warrant of defendant’s residence. On April 1, 1978, defendant was arrested. An information was filed on April 6. The delay between the commission of the offense and the initiation of the prosecution was the basis of defendant’s motion to dismiss.

He asserts that any undercover investigation was destroyed by the November search and “[f]rom that point on, there was absolutely no reason to delay the arrest — except for the specific purpose of jeopardizing the preparation of a defense to the charges.” He alleges specific prejudice from the fact that during the intervening period he lost or destroyed a sales slip which “could have” shown that he was in Marshalltown that day. However, he only searched his home for his own copy of the sales slip. The Marshalltown seller was not contacted.

A determination of this issue involves “a balancing test in which the trial court weighs the reasonableness of the delay against the.prejudice to the defendant.” State v. Burrell, 255 N.W.2d 119, 121 (Iowa 1977). In order to require reversal a two-part test must be met:

1. The . . . delay must be unreasonable and without justification; and
2. The delay must have resulted in actual prejudice to [the] defense.

State v. Schlick, 257 N.W.2d 59, 61 (Iowa 1977). “A mere claim of general inability to reconstruct the events of the period in question is insufficient to establish the requisite prejudice. . . Burrell, 255 N.W.2d at 121 (quoting United States v. Golden, 436 F.2d 941, 943 (8th Cir.), cert. denied, 404 U.S. 910, 92 S.Ct. 236, 30 L.Ed.2d 183 (1971)). Accord, State v. Kantaris, 280 N.W.2d 389

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Bluebook (online)
290 N.W.2d 6, 1980 Iowa Sup. LEXIS 809, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-orozco-iowa-1980.