IN THE COURT OF APPEALS OF IOWA
No. 15-1463
Filed October 26, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DELANDRES THOMPSON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark D. Cleve
(motion to dismiss) and Mark J. Smith (trial), Judges.
The defendant appeals from his convictions for criminal mischief in the
second degree, assault on a police officer while using or displaying a dangerous
weapon, and felony eluding. AFFIRMED.
Courtney T. Wilson of Gomez May L.L.P., Davenport, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., Bower, J., and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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BLANE, Senior Judge.
After a jury trial, Delandres Thompson was found guilty of criminal
mischief in the second degree; assault on a police officer while using or
displaying a dangerous weapon; and eluding, as a class “D” felony. On appeal,
Thompson argues the trial court erred (1) in failing to grant his motion to dismiss
for violation of the speedy-indictment rule, (2) in admitting testimony at trial
regarding gunshots, and (3) in not granting a continuance when he was
voluntarily absent from trial after a recess. Because we find no error, we affirm.
I. Factual Background.
On October 17, 2014, around 12:45 a.m., a tow-truck driver in the area of
Sturdevant and River Drive in Davenport observed a silver Pontiac Grand Prix
drive by at a high rate of speed; he also heard two or three shots go off from the
vehicle. Davenport Police Officer Donnie Pridemore was investigating a hit-and-
run accident when he saw the silver Grand Prix and also heard a popping sound.
As the vehicle sped away from Pridemore, he heard more noise, which he then
identified as gunfire. At that time, Pridemore used his radio to message other
officers in the area to check for the vehicle he had observed. While he was
putting out that call, he heard “several more shots to the north” and “more shots
off in the distance.”
Based on this, other officers responded to the area. Sergeant Geoffrey
Peiffer was on duty as the street supervisor. When he heard Officer Pridemore’s
report, he positioned his squad car in the Grand Prix’s projected path. After the
Grand Prix went past his position at a high rate of speed, Sergeant Peiffer alerted
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nearby units to the vehicle’s current location. Based on the other officers’ reports
of gunshots, Sergeant Peiffer authorized the department’s vehicle pursuit policy.
One of the officers, Officer Hebbel, was able to catch up to the silver
Grand Prix and get behind it. Officer Hebbel activated his squad car lights and
sirens, and he observed the vehicle at a high rate of speed. The vehicle did not
slow down or stop in response to the lights and sirens. The vehicle eventually
was unable to make a turn, ran into a stop sign, and crashed into a tree. At that
point, Officer Hebbel parked his squad car behind the Grand Prix and exited.
Officer Hebbel then ordered the occupants to stay in their vehicle and show their
hands. The passenger exited and ran while the Grand Prix reversed,
sideswiping Officer Hebbel’s squad car. Hebbel had to jump out of the way to
avoid being struck, and he began firing his weapon at the driver of the vehicle.
The Grand Prix then struck another squad car before taking off in a different
direction. The pursuit continued until officers eventually lost sight of the vehicle.
During the investigation, officers found a semi-automatic .45 caliber firearm next
to where the driver’s side of the vehicle crashed into the tree.
As the investigation proceeded during the early morning hours, Officer
Pridemore located the Grand Prix, which was parked and unoccupied. Officers
canvassed houses in the area, and Officer Pridemore observed blood on the
doorway of a house. An emergency services team entered the home and found
Thompson hiding under a bed. The keys to the silver Grand Prix were found
under the bed where Thompson was hiding. Thompson was handcuffed,
searched, and then transported to the Davenport Police Department, where he
was interviewed.
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On October 17, 2014, following his arrest, a preliminary complaint was
filed charging Thompson with driving while barred. On November 14, 2014, a
trial information was filed charging Thompson with driving while barred as a
habitual offender in Scott County case number AGCR365750. On December 5,
2014, preliminary complaints were filed against Thompson charging him with
three class “D” felonies arising out of the events of October 17, 2014: criminal
mischief in the second degree, in violation of Iowa Code section 716.4 (2013);
assault on a police officer while using or displaying a dangerous weapon, in
violation of section 708.3A(2); and eluding law enforcement while exceeding the
speed limit by 25 miles per hour and participating in commission of another
felony offense, in violation of section 321.279(3)(a). The trial information
charging Thompson with these same felonies was filed on January 7, 2015, in
Scott County case number FECR366651.
On February 10, Thompson filed a motion to dismiss the trial information
filed in FECR366651. Following a hearing the trial court denied the motion. On
March 20, 2015, Thompson’s counsel filed a motion in limine. Prior to trial, his
counsel orally amended the motion to include a request the court exclude
evidence of the gun shots fired during the events of October 17, 2014. The trial
court denied the motion. Before the trial commenced, Thompson stipulated to
being the driver of the identified Pontiac Grand Prix.
During the second day of trial, the court recessed for lunch at 11:45 a.m.
and announced it would reconvene at 1:30 p.m. Defense counsel told Thompson
to be back at 1:15 p.m. At 1:44 p.m. the court, with counsel present, went back
on the record. Thompson was not present at that time, and the court questioned
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defense counsel as to whether he knew of his client’s whereabouts. Defense
counsel indicated that he assumed Thompson went to lunch. Counsel requested
that he be allowed to check the hall. A brief recess was again taken from 1:45
p.m. to 1:57 p.m. When defense counsel returned to the courtroom, he indicated
that he did not find Thompson. Thompson’s trial attorney orally moved to
continue the trial, which the court denied. The trial judge determined that
Thompson had voluntarily absented himself from the trial and recommenced trial
in his absence. Thompson did not return for the remainder of the trial. Defense
counsel filed a motion in arrest of judgment and motion for new trial, asserting
the defendant’s right to be present at trial was violated. The trial court denied
these motions.
II. Analysis.
A. Speedy Indictment. A district court’s decision regarding a motion to
dismiss for lack of speedy indictment is reviewed for correction of errors at law.
State v. Dennison, 571 N.W.2d 492, 494 (Iowa 1997). We are bound by the
findings of fact of the district court if they are supported by substantial evidence.
State v. Lyrek, 385 N.W.2d 248, 250 (Iowa 1986).
Under Iowa Rule of Criminal Procedure 2.33(2)(a), the State must file an
indictment (trial information) within forty-five days of a defendant’s arrest.
Thompson moved to dismiss, arguing “the State was required to file its trial
information no later than 45 days subsequent to the defendant’s arrest on
October 17, 2014, or by December 1, 2014.” The State resisted, arguing,
“Defendant was not arrested until December 5, 2014, for the crimes underlying
this case.”
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Thompson argues that his arrest on October 17, 2014, started the
speedy-indictment clock for all offenses he committed during the events on that
date. He relies on State v. Wing, 791 N.W.2d 243, 249 (Iowa 2010), and argues
the district court should have applied the analysis “whether a reasonable person
in Defendant’s position would have believed he was arrested for subsequent
charges when he was arrested on a single original offense.” In determining
whether any arrest occurred for speedy-indictment purposes, the Iowa Supreme
Court’s current approach is to assess “whether a reasonable person in the
defendant’s position would have believed an arrest occurred, including whether
the arresting officer manifested a purpose to arrest.” Wing, 791 N.W.2d at 249;
see also State v. Miller, 818 N.W.2d 267, 272 (Iowa Ct. App. 2012) (an individual
may be arrested for one offense without being arrested for every crime arising
from the same event).
Here, the State did not argue Thompson was not arrested on October 17,
2014. Instead, the State demonstrated he was arrested and charged with a
different offense (driving while barred) on October 17, 2014. The speedy-
indictment requirement “does not extend to a different offense not charged in the
complaint related to the arrest.” See State v. Edwards, 571 N.W.2d 497, 499
(Iowa Ct. App. 2007). “Clearly, his arrest on the other charges did not preclude
the State from filing separate charges arising out of the same incident or episode
after the forty-five-day period had expired.” State v. Dennison, 571 N.W.2d 492,
497 (Iowa 1997) (citing State v. Lies, 566 N.W.2d 507, 508–09 (Iowa 1997)).
The trial court was correct to determine the Wing analysis as “factually and
legally distinguishable from the present case.”
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The Iowa Supreme Court has confirmed that Wing does not change the
applicable framework for analyzing speedy-indictment issues in cases where
multiple charges could arise out of one incident. See State v. Penn-Kennedy,
862 N.W.2d 384, 389–90 (Iowa 2015) (noting speedy-indictment rule was not
triggered by arrest that resulted in prosecution of separate offense arising from
same arrest.). Penn-Kennedy confirms that the reasonable-person standard
from Wing does not control the speedy-indictment issue in this case. Thompson
was charged with driving while barred after his arrest, and a separate trial
information was timely filed (AGCR365750). He was subsequently arrested for
and charged with additional offenses arising out of the same incident, those
being challenged here, so he “was in no different position than all other
defendants who face the possibility of multiple criminal prosecutions arising out
of the same episode.” See id. at 390 (citing Dennison, 571 N.W.2d at 493; Lies,
566 N.W.2d at 509). As such, the trial court correctly concluded “the controlling
Iowa law is in direct opposition to the Defendant’s position,” and Thompson’s
speedy-indictment challenge fails.
B. Evidence of “Gunshots.”
Evidentiary rulings under Iowa Rule of Evidence 5.403 are reviewed for
abuse of discretion. State v. Huston, 825 N.W.2d 531, 536 (Iowa 2013). “A court
abuses its discretion when its discretion was exercised on grounds or for reasons
clearly untenable or to an extent clearly unreasonable.” State v. Long, 814
N.W.2d 572, 576 (Iowa 2012).
1. Issue Preservation. The State first contends Thompson failed to
preserve this issue for appeal since his counsel did not object to the evidence
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regarding “gunshots” when presented during the trial. The State argues
Thompson’s motion in limine and the court ruling denying it do not preserve the
issue for appeal. See State v. Tangie, 616 N.W.2d 564, 568–69 (Iowa 2000)
(stating a ruling on a motion in limine is generally not sufficient to preserve error
for evidentiary challenges on appeal; and if a motion in limine does not
definitively resolve an evidentiary issue with ultimate finality, a timely objection
during trial is necessary to preserve error). However, more recently, our
supreme court has clarified the rule:
The key to our analysis is to determine what the trial court
ruling purported to do. State v. O’Connell, 275 N.W.2d 197, 202
(Iowa 1979). “A ruling [on a motion in limine] only granting or
denying protection from prejudicial references to challenged
evidence cannot preserve the inadmissibility issue for appellate
review.” Id. However, “if the ruling reaches the ultimate issue and
declares the evidence admissible or inadmissible, it is ordinarily a
final ruling and need not be questioned again during trial.” Id.
State v. Alberts, 722 N.W.2d 402, 406 (Iowa 2006). Upon our review of the
record, the trial court held a hearing on the motion and ruled that “the State has a
right to bring that evidence [of gunshots] in concerning the surrounding facts.”
Thus, the court’s ruling reached the ultimate issue and preserved the issue for
appeal.
2. The Merits. “All relevant evidence is admissible, except as otherwise
provided by the Constitutions of the United States or the state of Iowa, by statute,
by these rules, or by other rules of the Iowa Supreme Court.” Iowa R. Evid.
5.402. However, rule 5.403 provides that relevant evidence may be “excluded if
its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue
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delay, waste of time, or needless presentation of cumulative evidence.” Iowa R.
Evid. 5.403.
The balancing of probative value against the grounds for exclusion is for
the trial court’s discretion. State v. Harmon, 238 N.W.2d 139, 144–45 (Iowa
1976). The exercise of that discretion occurs in two steps. The court must first
determine whether the evidence has some probative value; if it does, the court
must then weigh the probative value against the policy grounds for exclusion.
State v. Mitchell, 633 N.W.2d 295, 298 (Iowa 2001).
In this case, reference to gun shots prior to the pursuit of the vehicle
driven by Thompson was relevant for the purpose of explaining the officers’
reason for pursuing the vehicle—that it was based on their department’s pursuit
policy related to gun offenses. Officer Pridemore testified that the Davenport
Police Department has a policy that only allows officers to pursue vehicles
involved in “[f]orcible felonies or anything relating to gun crimes, shots fired.”
Sergeant Peiffer testified that he “used the umbrella of a recent gun crime as the
ability to authorize the pursuit” under the circumstances. As such, evidence of
gunshots was relevant to show the reason police began pursuing Thompson’s
vehicle.
Thompson further argues that this evidence is still irrelevant because he
“was not charged with any crimes involving possession or use of a gun.” The
Iowa Supreme Court has rejected that “elements only” test because it would
exclude probative evidence and hinder efforts to tell a complete story about what
occurred. State v. Lyons, 210 N.W.2d 543, 546 (Iowa 1973).
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The defendant also relies on a prior opinion from this court to buttress his
argument that evidence of the gun shots was inadmissible. In State v. Cross,
No. 12-0138, 2013 WL 530774, at *4 (Iowa Ct. App. Feb. 13, 2013), a panel of
this court found repeated references to hearsay statements about a shot fired
prior to that defendant fleeing in a vehicle “likely influenced the jury to base its
decision on an improper factor, that is, the implicit assertion that [defendant] had
been involved in another crime or bad act, the shooting incident at the
fairgrounds.” However, the Cross case is distinguishable. First, the testimony
here was not hearsay but personal observations by the officers and witnesses
who heard gunshots coming from the silver Grand Prix. Second, this court held
that the trial court in Cross had “abused its discretion in failing to limit the State’s
evidence to general statements,” not that evidence of the gunshot was
inadmissible. See Cross, 2013 WL 530774, at *5. Rather, the evidence here fits
within the parameters set out in Cross for providing an explanation for officers’
decision to begin the vehicle pursuit. The evidence was therefore relevant and
probative.
The court must next determine that the probative evidence was not unduly
prejudicial. “Unfair prejudice arises when the evidence would cause the jury to
base its decision on something other than the proven facts and applicable law,
such as sympathy for one party or a desire to punish a party.” State v. Taylor,
689 N.W.2d 116, 124 (Iowa 2004). Thompson argues he was prejudiced by this
evidence because it “likely provoked a response from the jury to punish a person
associated with guns or shooting guns.”
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Here, any potential prejudicial effect did not outweigh the probative value.
The evidence admitted was that gunshots came from defendant’s vehicle, not
that the defendant fired the shots or that the shots were fired at the witnesses. At
trial, defense counsel stipulated that the defendant had been driving the silver
Grand Prix, admitted that he had caused more than $4,000 in damage to the
police vehicles while doing so, and admitted that he was driving “at a minimum,
in a reckless manner.” The video evidence from the police car camera, which
shows the defendant rapidly accelerating backwards towards the officers,
renders any error of admission harmless. See State v. Martin, 704 N.W.2d 665,
673 (Iowa 2005) (holding that admission of prejudicial prior-bad-acts evidence
was harmless error because “the evidence of Martin’s guilt in this case was
overwhelming.”).
Thus, the trial court did not abuse its discretion in admitting evidence of
the gunshots.
C. Defendant’s Absence during Trial.
Because a defendant’s right to be present at trial involves a constitutional
right, the court reviews de novo the facts on which the voluntariness finding was
made. State v. Hendren, 311 N.W.2d 61, 62 (Iowa 1981).
A criminal defendant has a constitutional right to be present at all critical
stages of the trial. U.S. Const. amend. VI; Iowa Const. art. I, §§ 9, 10. The right
may be waived by the voluntary absence of the defendant. Hendren, 311
N.W.2d at 62; see Diaz v. United States, 223 U.S. 442, 458–59 (1912). Iowa
Rule of Criminal Procedure 2.27(2)(a) authorizes trial courts to resume
proceedings when a defendant is voluntarily absent, stating, in part, “In all cases,
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the progress of the trial or any other proceeding shall not be prevented whenever
a defendant, initially present: Is voluntarily absent after the trial or other
proceeding has commenced.” For a defendant’s absence to be voluntary, he
“must be aware of the processes taking place, of his right and of his obligation to
be present, and he must have no sound reason for remaining away.” State v.
Beloved, No. 14–1796, 2015 WL 8390222, at *2 (Iowa Ct. App. Dec. 9, 2015)
(quoting Taylor v. United States, 414 U.S. 17, 19 n.3 (1973)).
Thompson argues before proceeding with the trial, the trial court “should
have more sufficiently inquired into the circumstances of the defendant’s
disappearance to justify its finding of voluntary absence.” Here, the defendant
had been present at the trial from its start through the State’s case. Thompson
was aware of the trial process taking place. He was informed of his obligation to
return for the trial after the lunch recess—both by the trial judge and his own
counsel, who instructed him to return at 1:15 p.m. When the trial was to
reconvene, Thompson was not present. The trial judge gave defense counsel an
opportunity to look for Thompson in the courthouse hall and also called
Thompson’s mother in an attempt to locate him, both to no avail. Thompson was
absent and his counsel had no explanation. Thompson’s counsel orally moved
the court for a continuance due to his client’s absence. Based on these facts,
and pursuant to the rule, the trial judge made a finding that Thompson had
“voluntarily absented” himself from the trial, denied the continuance motion, and
ordered trial to proceed in Thompson’s absence.
It is significant that Thompson did not return at any time during the
remainder of the trial, including the jury’s return of the verdict. Following the trial,
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Thompson’s counsel filed a motion in arrest of judgment and for a new trial,
contending that Thompson had a right to be present and that the court erred in
denying the motion to continue. At no time has Thompson or his counsel
explained or provided a reason justifying Thompson’s absence and failure to
attend the remainder of the trial.
Further, the trial court was rightfully reluctant to presume Thompson had a
legitimate reason for not returning to the trial given prior behavior where he had
failed to attend a pretrial conference. See Beloved, 2015 WL 8390222, at *3
(providing the trial court’s assessment that “the defendant is just stalling trying to
avoid the inevitable resolution of this case,” based on previous actions of the
defendant throughout the trial justified a finding of voluntary absence.). The trial
court’s finding that Thompson had voluntarily absented himself is supported by
the record. There was no error in proceeding with the trial in Thompson’s
voluntary absence.
III. Conclusion
Finding the trial court did not commit any error as asserted by Thompson,
we affirm the verdict and sentence of the trial court.
AFFIRMED.