Hahn v. State, 64659
| Decision Date | 17 June 1981 |
| Docket Number | No. 64659,64659 |
| Citation | 306 N.W.2d 764 |
| Parties | Thomas Allen HAHN, Appellant, v. STATE of Iowa, Appellee. |
| Court | Iowa Supreme Court |
Kjas T. Long of Gottschalk, Shinkle & Long, Cedar Falls, for appellant.
Thomas J. Miller, Atty. Gen., Richard L. Cleland, Asst. Atty. Gen., and Patricia A. McGivern, Asst. Black Hawk County Atty., for appellee.
Considered by UHLENHOPP, P. J., and HARRIS, McGIVERIN, LARSON and SCHULTZ, JJ.
Thomas Allen Hahn contends, in his appeal from the denial of postconviction relief, chapter 663A, The Code 1977, that the trial court erred in (1) denying his attempts to secure the presence of two inmate-witnesses at the postconviction hearing, or as an alternative, to order the deposition of one of the witnesses; and (2) denying postconviction relief under the evidence presented. We affirm the trial court.
Hahn was convicted and sentenced on May 25, 1977, to a term of fifty years for the crime of rape, § 698.1, The Code 1975. On July 26, 1978, his postconviction relief application was filed, asserting that he had not understood the consequences of his plea, that the plea was coerced, and that his counsel was ineffective. He also alleged, without specificity, that material evidence was recently discovered. He later filed amendments to the application to assert other grounds which are not involved in this appeal. Prior to the hearing on his postconviction application Hahn filed an "Application for Subpoena" to require the attendance of three witnesses: Betty Kuehn, a visiting worker with a local group called "Jail Concerns," Austin Druin, an inmate of the penitentiary at Fort Madison, and Dennis Fry, an inmate in the medium security prison in Mount Pleasant. No reason was given for their requested attendance, except that the "individuals have information which is crucial to the presentation of the plaintiff's case at his postconviction hearing ...." 1
Noting that "(n)o showing has been made to the court that the prisoners Austin Druin or Dennis Fry would be of any benefit to plaintiff or the State in resolving constitutional questions," and "the tremendous expense to the taxpayers," the trial court denied the application for testimony by the inmate witnesses. The order provided, however, that "(i)f counsel for the plaintiff can show the court wherein the testimony of those witnesses are material to any issues raised by the plaintiff, the court will reconsider the application." Hahn made no subsequent showing of the need for the "live" testimony as suggested.
Following the court's refusal to order their live testimony, interrogatories were served upon Fry and Druin. Fry did not respond to the interrogatories; however, after he was transferred to a "halfway house" in Waterloo, Hahn requested and obtained an order for taking his deposition. This deposition revealed that prior to Hahn's guilty plea, Fry had assaulted Hahn, apparently for revenge, while both were confined in the Black Hawk County jail.
No request was made to take the deposition of Druin, who remained in prison. However, Hahn again applied for an order for Druin's personal appearance at the postconviction hearing, stating the responses to written interrogatories "indicate(d) that Mr. Druin had some information which would be vital to the plaintiff's postconviction relief hearing." The trial court refused, stating in its order that any testimony by Druin would have to be in the form of answers to written interrogatories. A "Resistance to Court's Order" (apparently an application to reconsider) was filed, asserting incompleteness of Druin's answers and arguing his in-person testimony was "vital" to Hahn's case, again without details as to the purpose of his testimony. No ruling on this motion appears, but we assume from the circumstances that it was overruled. See State v. Walker, 304 N.W.2d 193, 195 (Iowa 1981).
The postconviction hearing proceeded with the testimony of Hahn, Ms. Kuehn, and another "Jail Concerns" visitor. In addition, Fry's deposition, Druin's answers to interrogatories and a transcript of the prior guilty plea proceedings were made a part of the record. The trial court, concluding that Hahn had not been "under any extraordinary strain which could reasonably be found to invalidate his plea" and that the other grounds relied upon in the application had not been established, denied postconviction relief. On appeal, Hahn challenges the trial court's rulings only as to his requests for the subpoenas and in denying his requested relief "against the weight of the evidence."
I. Refusal to order Druin's appearance. In his first assignment of error, Hahn challenges the trial court's refusal "to allow (him) to procure the presence of two incarcerated individuals to testify at the hearing or at least to allow the oral deposition of Austin Druin." However, we do not find any indication in the record that he preserved error as to the court's refusal to order in-court testimony by Fry. Following the court's refusal to order the personal appearance of either witness, Hahn took the deposition of Fry. Hahn's later application to procure in-court testimony was limited to Druin; Fry was not mentioned. Any objection to the refusal of the trial court to order Fry's in-court testimony was thus waived. Similarly, Hahn's application to take the deposition was limited to Fry; he made no request to take Druin's deposition. Because Hahn made no request for Druin's deposition, he may not claim the trial court erred in failing to order it. Thus, despite the fact several issues are encompassed in Hahn's assignment of error concerning these witnesses, we address only one: Was it error for the court to deny the request for in-court testimony of inmate Druin?
Hahn contends that Druin's answers to interrogatories were less effective than his live testimony would have been, that the trial court would have been in a better position to assess Druin's credibility had he testified in person and that, in any event, he had the right under Article I, Section 10 of the Iowa Constitution to have compulsory process issue for this witness. In that section the Constitution provides:
In all criminal prosecutions, and in cases involving the life, or liberty of an individual the accused shall have a right to a speedy and public trial by an impartial jury; to be informed of the accusation against him, to have a copy of the same when demanded; to be confronted with the witnesses against him; to have compulsory process for his witnesses; and, to have the assistance of counsel.
In an early case in which a defendant charged with murder sought the attendance of an imprisoned witness, this court said that a defendant
possesses no absolute right under the Constitution or the statute in question (providing for testimony by imprisoned witnesses) to demand the personal attendance of a convict in the penitentiary or county prison under an order of the court ....
State v. Kennedy, 20 Iowa 372, 373 (1866); see also State v. Wiltsey, 103 Iowa 54, 55-56, 72 N.W. 415, 415 (1897) (). The parameters of the constitutional right of compulsory process, delineated in Kennedy and Wiltsey as to criminal trials, should be no broader in a postconviction relief case, which is generally considered to be civil in nature. See Emery v. Fenton, 266 N.W.2d 6, 10 (Iowa 1978); ABA Standards for Criminal Justice, Post-Conviction Remedies § 1.2, at 25, § 4.6, at 72 (1968) (). We conclude that an order for the personal appearance of Druin was not constitutionally mandated; moreover, the means of implementing any right of compulsory process would lie within the discretion of the trial court. See Kennedy, 20 Iowa at 373. For the reasons discussed later, we conclude the trial court here did not abuse this discretion.
Resolving the constitutional issue, however, still leaves the question whether the personal appearance is mandated by our postconviction statute, chapter 663A. That chapter grants considerable latitude to the court as to the form of evidence which may be considered. For example, section 663A.7 provides that "(t)he court may receive proof of affidavits, depositions, oral testimony, or other evidence, and may order the applicant brought before it for hearing." (Emphasis added.) The applicant himself may, in the discretion of the court, be denied the right to appear personally.
The American Bar Association's Advisory Committee on Sentencing and Review has recognized the need for a full presentation of the relevant facts: ...
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