IN THE COURT OF APPEALS OF IOWA
No. 15-1583
Filed December 21, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JERRY WAYNE CUNNINGHAM JR.,
Defendant-Appellant.
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Appeal from the Iowa District Court for Boone County, James B. Malloy,
District Associate Judge.
Jerry Cunningham Jr. appeals his judgment and sentence for possession
of methamphetamine, second offense. AFFIRMED.
Andrew J. Boettger of Hastings, Gartin & Boettger, LLP, Ames, for
appellant.
Thomas J. Miller, Attorney General, and Jean C. Pettinger and Tyler J.
Buller, Assistant Attorneys General, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
2
VAITHESWARAN, Judge.
The district court found Jerry Cunningham Jr. guilty of possession of
methamphetamine, second offense. On appeal, Cunningham challenges (1) the
court’s denial of his motion to dismiss the prosecution based on a speedy trial
violation and (2) the court’s denial of his motion to suppress evidence arguably
gained pursuant to a statutory nurse-patient privilege.
I. Dismissal Motion
The ninety-day speedy trial rule states:
If a defendant indicted for a public offense has not waived the
defendant’s right to a speedy trial the defendant must be brought to
trial within 90 days after indictment is found or the court must order
the indictment to be dismissed unless good cause to the contrary
be shown.
Iowa R. Crim. P. 2.33(2)(b). “In determining whether there is good cause for a
delay, [reviewing courts] focus only on one factor, the reason for the delay.”
State v. Campbell, 714 N.W.2d 622, 627 (Iowa 2006). Our review is for an abuse
of discretion. Id.
We begin with the pertinent dates for application of the ninety-day speedy
trial rule. The State filed its trial information on June 11, 2015. Cunningham
failed to appear for his arraignment on June 23, and the district court granted a
continuance to June 30. Cunningham again failed to appear on June 30, and the
district court issued a bench warrant for his arrest. The warrant was served on
July 27. Cunningham was arraigned on August 4 and demanded his right to a
speedy trial. The district court entered an order setting pretrial conference for
September 8 and a jury trial for September 22. Cunningham filed a motion to
suppress on August 25, which was scheduled for hearing on September 11. The
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district court denied the motion on September 16. A bench trial took place on
September 21.
Cunningham did not waive his right to be tried within ninety days; the
ninetieth day to be tried fell on September 9, 2015.
After the speedy trial deadline expired, Cunningham moved to dismiss the
trial information. The district court denied the motion. The court cited
Cunningham’s failure “to appear for his original arraignment” and his failure to
appear for the rescheduled arraignment and found the delays “attributable to”
Cunningham’s disappearance.
Cunningham does not deny his unavailability. He simply argues, “Absent
evidence in the record that the State took affirmative steps to secure an earlier
trial date that would comport with the speedy trial timeline, the State failed to
meet its burden to establish good cause for the delay and the matter should have
been dismissed.” This argument is appealing at first blush because Cunningham
ultimately appeared for arraignment in time to hold trial within the speedy trial
deadline. But his lengthy absence rendered an earlier trial date impractical. See
Iowa R. Crim. P. 2.11(4) (“Motions hereunder, except motions in limine, shall be
filed when the grounds therefor reasonably appear but no later than 40 days after
arraignment.”); Campbell, 714 N.W.2d at 628 (“The decisive inquiry in these
matters should be whether events that impeded the progress of the case and
were attributable to the defendant or to some other good cause for delay served
as a matter of practical necessity to move the trial date beyond the initial ninety-
day period required by the rule.”).
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Confronted with a virtually identical fact pattern, the Iowa Supreme Court
held just that. See State v. Lyles, 225 N.W.2d 124, 126 (Iowa 1975). In Lyles,
“[t]he county attorney’s office notified the pretrial release office on at least four
occasions . . . that defendant was to appear for arraignment.” 225 N.W.2d at
125. The defendant finally appeared one month after the trial information was
filed and was arraigned approximately two weeks later. Id. at 126. Trial was
scheduled sixty-eight days after the trial information was filed. Id. This was eight
days following the then-existing1 speedy trial deadline. Id. at 125-26. The
defendant moved to dismiss the case. Id. at 125. The district court denied the
motion. Id. The Iowa Supreme Court affirmed the ruling after finding that the
delays in processing the case were “attributable to the defendant, not the State.”
Id. at 126. The court continued:
Although the State, not the defendant, has the obligation to bring a
defendant to trial, delay attributable to the defendant may
constitute good cause preventing the State from carrying out its
obligation. The State’s duty to provide a defendant a speedy trial
does not require that it play a game of hide-and-go-seek with him.
Id. The court further explained that “[a]rraginment is a prerequisite to trial, unless
waived,” the State “had a right to wait until arraignment to have a trial date set,”
and “[w]hen defendant was arraigned and entered a plea of not guilty his trial
was promptly set.” Id.
Like the defendant in Lyles, Cunningham disappeared before he could be
arraigned. As in Lyles, the district court reasonably concluded the delay in
1
The case was decided under Iowa Code section 795.2 (1973), which states in pertinent
part: “If a defendant indicted for a public offense, whose trial has not been postponed
upon his application, be not brought to trial within sixty days after the indictment is found
the court must order it to be dismissed, unless good cause to the contrary is shown.”
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scheduling trial was attributable to Cunningham’s two-month absence, which
constituted good cause for setting a trial date beyond the speedy trial deadline.
Finding no abuse of discretion, we affirm the district court’s denial of
Cunningham’s motion to dismiss.
II. Suppression Motion
The pertinent facts underlying Cunningham’s suppression motion are as
follows. Boone police officers found Cunningham in an alley in a “very
intoxicated” state. They transported him to a hospital, where a nurse undressed
him in preparation for a physician’s examination. The nurse found a substance in
Cunningham’s pocket that turned out to be methamphetamine. “[D]ue to hospital
policy on contraband and unknown substances,” the nurse notified police.
Cunningham moved to suppress the evidence on the ground that it was
made available to the State in violation of a statutory nurse/patient privilege. See
Iowa Code § 622.10 (2015). The district court denied the motion, reasoning as
follows:
The testimony established that the drugs and paraphernalia
obtained were a result of the nurse changing the defendant’s urine
and vomit soiled clothing to get him ready to be seen by the doctor.
[The nurse] stated that it was not part of her duty to look for drugs
on the defendant. The information was not obtained to enable the
physician to treat the patient skillfully.
Our review is on error. State v. Henneberry, 558 N.W.2d 708, 709 (Iowa
1997). The district court’s fact findings bind us if supported by substantial
evidence. See, e.g., State v. Bower, 725 N.W.2d 435, 448 (Iowa 2006); see
also, e.g., State v. Staat, 192 N.W.2d 192, 197 (Minn. 1971) (“Whether . . .
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foundational facts have been established is a question of fact to be determined
by the trial court.”).
Iowa Code section 622.10 prohibits certain identified individuals “who
obtain[] information by reason of” their employment from “disclos[ing] any
confidential communication properly entrusted to the person in the person’s
professional capacity, and necessary and proper to enable the person to
discharge the functions of the person’s office according to the usual course of
practice or discipline” when testifying.2 The Iowa Supreme Court has formulated
a three-part test for application of this provision: “(1) the relationship . . . ; (2) the
acquisition of the information or knowledge during this relationship; and (3) the
necessity of the information to enable the physician to treat the patient skillfully.”
Henneberry, 558 N.W.2d at 709.
Cunningham focuses on the court’s application of the third element. He
contends that, contrary to the district court’s determination, the nurse’s discovery
of the methamphetamine would have assisted the physician in treating him.
The State concedes the existence of an enumerated relationship. See
State v. Deases, 518 N.W.2d 784, 787 (Iowa 1994) (noting State concession to
the existence of a professional relationship and applying test to a nurse’s
2
Section 622.10(1) provides:
A practicing attorney, counselor, physician, surgeon, physician
assistant, advanced registered nurse practitioner, mental health
professional, or the stenographer or confidential clerk of any such person,
who obtains information by reason of the person’s employment, or a
member of the clergy shall not be allowed, in giving testimony, to disclose
any confidential communication properly entrusted to the person in the
person’s professional capacity, and necessary and proper to enable the
person to discharge the functions of the person’s office according to the
usual course of practice or discipline.
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communication); see also Staat, 192 N.W.2d at 197 (holding “the physician-
patient privilege extends by implication to nurses or attendants who are
employees or acting under the direction of the physician examining or treating
the patient”). The State zeros in on the term “communication” as used in section
622.10, arguing: (1) “communication” under section 622.10 does not cover the
discovery of incidental items unrelated to treatment,” (2) “the interaction between
[the nurse] and [Cunningham] cannot be classified as a communication,” and (3)
“the communication [was not] necessary to the treatment.”
“‘Communication’ . . . has been interpreted to mean ‘all knowledge and
information gained by the physician in the observation and personal examination
of the patient in the discharge of his duties.’” Henneberry, 558 N.W.2d at 709.
(citation omitted). Information contained in hospital records and blood samples
have been found to be within the scope of “communication” as used in section
622.10. See id. Under this definition, we will assume without deciding that the
nurse’s discovery of the methamphetamine was a communication, and the
interaction between the nurse and Cunningham was a communication. That
leaves for our review whether the “communication” was necessary for treatment.
At the suppression hearing, the nurse testified members of the medical
team “don’t necessarily look for drugs”; the doctors do “[n]ot necessarily” need to
know if drugs are found on a patient; and the physician determines how to treat
an intoxicated patient “depending on their blood tests, urine tests.” Her testimony
supported the district court’s determination that the communication was not
necessary for treatment.
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We recognize other portions of the nurse’s testimony could have
supported a contrary determination. However, it was the district court’s
prerogative as fact-finder to weigh the testimony as it saw fit. See State v.
Shanahan, 712 N.W.2d 121, 131 (Iowa 2006) (“[B]ecause the district court had
the opportunity to assess the credibility of the witnesses, we do give deference to
those findings.”); Staat, 192 N.W.2d at 199 (“[W]e find adequate evidentiary
support in this record for the trial court’s conclusion that the evidence failed to
establish all essential facts to require the suppression of all testimony relating to
the confiscated bottles of narcotic drugs. We are mindful that the trial court could
have justifiably decided otherwise and barred admission of the drugs.”). We
conclude the district court did not err in overruling Cunningham’s motion to
suppress.
We affirm Cunningham’s judgment and sentence for possession of
methamphetamine, second offense.
AFFIRMED.