Kermit L. Dunahoo, Des Moines, for defendant-appellant.
Bonnie J. Campbell, Atty. Gen., Ann E. Brenden, Asst. Atty. Gen., Mary E. Richards, County Atty., and Michael Houchins, Asst. County Atty., for plaintiff-appellee.
Heard by OXBERGER, C.J., and SACKETT and HABHAB, JJ.
Defendant, convicted of first degree murder, contends on appeal the charge should have been dismissed because the State failed to comply with the speedy trial requirements. He further contends if the charge is not dismissed, he should be granted a new trial because of the admission of certain prejudicial evidence. We affirm.
Defendant-appellant Ruben Deases was convicted of murdering Jennifer Ann Gardner, his older brother Eustaguio Deases's girlfriend. A second brother Edward allegedly assisted him in the murder which was witnessed by a third brother, fourteen-year-old Johnny Deases. Johnny testified at trial.
From the testimony at trial the jury could have found the following facts. The victim Jennifer lived with Eustaguio in Ames. Eustaguio dealt in drugs. During Memorial Day weekend of 1989, Johnny, Edward and Ruben were all visiting in Eustaguio's home. Eustaguio flew to Texas the morning of May 28, 1989.
Jennifer, Johnny, Edward, and defendant were left in the apartment in Ames. Edward and Jennifer argued. Each accused the other of living off Eustaguio. Jennifer made a racial insult toward the Deases family. She pulled a gun and pointed it at the three brothers. The argument subsided. She put the gun away and went into a bedroom. The three brothers decided they needed to get rid of her. Edward wanted to work with Eustaguio in drug dealing. Edward and Ruben decided Johnny should kill Jennifer because, as a juvenile, he would receive a less severe penalty. Ruben told Johnny to go up behind Jennifer and choke her to death. Johnny agreed, went into the bedroom but could not bring himself to do it.
When he told Ruben he would not, Ruben was angry. About fifteen minutes later, Jennifer came back to the living room and sat on the couch. Ruben went behind her and picked her up off the couch in a choke hold. He held her in midair about forty-five seconds as she kicked her legs and gasped for air. Johnny asked Ruben to let her go. Ruben said it was too late. Ruben put Jennifer on the floor. Her face was blue. Ruben and Edward dragged her in the bathroom. She had a bowel movement and regained consciousness. She pushed herself up off the floor. She tried to speak; blood was coming from her mouth. Ruben used his foot to prevent her from getting up. Edward got a belt and made a loop with the belt. He put the loop around Jennifer's neck while Ruben held her down with his foot. Edward tugged on the belt, his foot on Jennifer's head. After strangling Jennifer for a minute or so, Edward handed the belt to Ruben. Ruben then pulled on the belt himself.
The three brothers then gathered Jennifer's belongings and put them in trash bags. Edward and Ruben put the body in the shower and took off Jennifer's clothes. Johnny later observed Ruben having sex with the body. The next time Johnny saw the body was just before 11:00 p.m. on the night of the 28th. Jennifer's body was in the shower with hot water running on it.
Later all three brothers went to the home of Chris Cox and used cocaine. They asked Cox what to do with a dead body. They told him they had killed Jennifer. Ruben and Edward left Johnny until 2:30 p.m. the next day at another friend's. When Johnny was picked up he heard Edward tell the host he had cut Jennifer's head off. When Johnny asked if it were true, Ruben said it was. Then the three brothers returned to Eustaguio's apartment. Johnny was told Jennifer's body was in a black trash bag Johnny had observed.
Edward and Ruben were surprised to learn from a radio report that Jennifer's head had already been found. Edward was pleased because the radio reports indicated the body had been decapitated with a fine cut.
At about 6:00 p.m. that day Johnny's brothers told him they were going to put what was left of Jennifer's body in water. Edward got a large box from a friend, telling him he needed it for Jennifer's body because they had killed her. Later that evening, a witness heard a loud splash at Little Wall Lake. Several days later, Jennifer's beheaded body was found in Little Wall Lake.
After Ruben was apprehended, he was taken to a juvenile detention facility where he was heard making up rap songs. One was "she thought she was cool and I was a fool, and now she is dead and I'm ahead." Another, "I knew a girl named Jennifer Gardner. She was a dancer. She was going to mark my brother off, my brother did her in, and now I'm doing time." He also used words to the effect he had picked up the head and closed her eyes and said "sorry, bitch, but it had to be this way." Ruben was also overheard telling another of the students he had "helped kill this gal and helped behead her."
Ruben's first contention is the State failed to comply with speedy trial requirements and the case should be dismissed. Ruben was seventeen when the murder occurred. Consequently, he was under the jurisdiction of the juvenile court. He was arrested on June 1, 1989 for the murder. A petition was filed concerning Ruben in juvenile court. The State filed a motion to waive jurisdiction of Ruben to adult court. The motion was granted on June 19, 1989.
Edward, who was an adult, had earlier been charged by a county attorney's information. On June 19, the day Ruben was transferred to adult court, the county attorney moved for leave to amend Edward's trial information to add Ruben Deases as a defendant. The county attorney presented the judge with an amended and substituted information, adding Ruben's name as a codefendant on Edward's trial information. The judge did not approve the amended information.
The county attorney then filed a motion for leave to amend. The motion was brief and contained an order on the same page which read:
NOW ON THIS 19 day of June, 1989, the Court does hereby ORDER the State of Iowa is granted leave to Amend the Trial Information in the above-captioned case by adding Ruben Deases as defendant in the trial information previously filed.
The judge signed this order. The order was filed in its entirety on June 19, 1989. No amendment to the trial information was filed. On June 28, 1989, Edward Deases filed a resistance to the June 19 order granting leave to amend his trial information to add Ruben as a defendant. Edward contended the June 19 motion to amend was not timely. On July 27, 1989, the trial court vacated the order of June 19, 1989 granting leave to amend. Ruben did not participate in this proceeding. A hearing on the motion to amend was set for July 31, 1989. The hearing did not take place. Meanwhile, on June 21, 1989, Ruben had filed a written arraignment which recited Ruben had received a copy of the trial information charging him with murder in the first degree in violation of section 707.2(1) and that he was not charged by his true name, Ruben Deases.
On June 22, 1989, the county attorney filed another motion to amend the information to change the spelling from Rueben Deases to Ruben Deases. The trial court ordered the correction. On August 22, 1989, defendant moved to dismiss, claiming a speedy trial violation. On August 30, the defendant's motion was overruled. The State's motion to amend was granted. Finally on August 31, 1989, an actual amended information was filed naming Ruben and found by the trial judge to contain sufficient evidence to convict.
Ruben refused to plead to the amended information in a written response filed on September 5, 1989. The court arraigned Ruben and entered a not guilty plea on his behalf in an order on September 14. The order noted Ruben was presumed to have demanded a speedy trial unless he subsequently waived it. All deadlines for discovery, pretrial motions, and speedy trial were to commence from September 14.
Ruben filed a second motion to dismiss and a rule 179(b) motion on September 5, 1989. The rule 179(b) motion was granted on September 19, 1989, and the record was corrected to reflect that neither Ruben nor his attorneys had received a copy of an approved amended trial information until August 31. The second motion to dismiss was overruled on September 22, 1989.
Defendant contends the trial court erred in failing to grant a dismissal of the trial information because of lack of a speedy indictment. Defendant contends error was preserved, in that it was raised both before and after the trial information was filed. The State argues for a number of reasons error was not preserved. We reject the State's argument and address defendant's claim.
Ruben filed motions to dismiss on two separate grounds: (1) there was no trial information filed within forty-five days of his transfer from juvenile court, and (2) the State failed to refile an amended trial information within the mandatory twenty-day period under Iowa R.Crim.P. 10(6)(c) after
the order on July 27, 1989, vacating the order of June 19, 1989, granting leave to amend the trial information. The trial court found good cause for failure to promptly file the trial information. The trial judge also found the order vacating the June 19 order did not apply to Ruben. Ruben contends the trial ...