State v. Barrett, 85-967

• Decision Date: 18 February 1987
• Docket Number: No. 85-967,85-967
• Citation: 401 N.W.2d 184
• Parties: STATE of Iowa, Appellee, v. Bryan Kirby BARRETT, Appellant.
• Court: Iowa Supreme Court

Page 184

401 N.W.2d 184

STATE of Iowa, Appellee, v. Bryan Kirby BARRETT, Appellant.

No. 85-967.

Supreme Court of Iowa.

Feb. 18, 1987.

Paul Papak, Iowa City, and J.W. Conway and Marie Prince-Cohen, of Conway & Prince-Cohen, Muscatine, for appellant.

Thomas J. Miller, Atty. Gen., and James W. Ramey, Asst. Atty. Gen., for appellee.

Considered by HARRIS, P.J., and McGIVERIN, LARSON, CARTER, and WOLLE, JJ.

CARTER, Justice.

Defendant, Bryan Kirby Barrett, appeals his conviction of two counts of murder in the first degree in violation of Iowa Code sections 707.1 and 707.2 (1985). He contends the district court erred in admitting, over his timely objections and motions to suppress, entries which he had made in personal journals. He also contends the district court erred in allowing expert testimony concerning the results of tests performed on certain physical evidence in the case. Because we find that the contents of one of the personal journals should have been excluded and the improperly admitted evidence was prejudicial to defendant, we reverse the judgments of conviction.

Early in the morning of February 23, 1979, the bodies of two women were discovered at different locations several miles apart in a rural area south of Muscatine. The first body found was that of nineteen-year-old Cynthia Kay Walker who had been shot three times and was lying in the middle of a gravel road. The second body was that of twenty-one-year-old Carol Ann Willits. It was discovered seated behind the wheel of an automobile parked on a blacktop road with lights on and motor running. Carol Ann Willits had been shot once through the right temple.

Found in the car near Willits's body was a note in her handwriting addressed to defendant, which stated in part, "I'm sorry I've caused you so much trouble" and "I hope you find your peace/I found mine." The letter concluded, "Love and good-bye." Also found in the car was a three-page letter addressed to Willits from defendant advising her that her romantic feelings for him were not reciprocated. The letter was in an envelope addressed to Willits which had been postmarked in the Muscatine, Iowa, post office. Next to the letter, on the floor of the car, was a torn valentine in an envelope addressed to defendant from Cynthia Kay Walker. Strands of Walker's hair were also found in the automobile.

Defendant was not formally charged with these crimes until November 1984. The theory of the State's case against him is that he murdered Walker in order to obtain the proceeds of a life insurance policy in which she was the insured and he was the named beneficiary. This theory is premised upon defendant also killing Willits and laying false clues to suggest that she had murdered Walker and then committed suicide.

During the trial, the court received in evidence over defendant's timely objections and motions to suppress the contents of two personal journals kept by him. One of these covered the months of April through July 1977. Its handwritten, dated entries, consisting of 143 pages, relate defendant's feelings about his then wife and their pending divorce and child custody dispute. These entries describe various plans and schemes to cause harm or death to defendant's wife and several persons believed to be taking her side in the child custody dispute. This journal at one point suggests that a possible reason for defendant killing his wife is "profit." Other reasons are also mentioned. The journal also contains suggestions for causing injury to total strangers, not involved in the affairs of defendant or his wife, so that authorities would believe that a serial assailant was involved. At the time this journal was written, defendant had not met either Walker or Willits.

Life insurance is not mentioned in the journal, but the State offered evidence that, two months prior to the first dated entry, defendant had forged his wife's signature on an application for life insurance and obtained a policy in which he was the named beneficiary. Defendant and his wife were divorced in August 1977. The life insurance was kept in force until that time, and his wife was not made aware of its existence until the investigation of the death of Cynthia Walker.

The second journal, which is not dated, is also in defendant's handwriting. ¹ In his trial testimony, defendant indicated this journal was written by him in the fall of 1984. It contains no reference to either Walker or Willits or the circumstances surrounding their deaths. It contains a draft of a note from defendant to his parents with respect to his contemplated suicide. It also contains a draft of a ransom note for the kidnapping of some unidentified woman. Further, it describes plans for the kidnapping and murder of a Des Moines Register paper carrier. These plans include planting false clues for the authorities indicating the crime was committed by some unidentified person other than defendant. They suggest that it is defendant's intention to convince authorities that this person committed the crime in order that defendant might collect a reward.

After deliberating approximately five days, the jury found defendant guilty of murder in the first degree in the deaths of both Walker and Willits. This appeal is from the judgment and sentence entered on that verdict. Other facts bearing upon the issues will be discussed in connection with the legal contentions presented.

I. Admissibility of Evidence of Other Planned Wrongful Acts.

Defendant's first contention is that the district court erred in admitting the contents of the two personal journals over his timely objections and motions to suppress. He bases his argument on the provisions of Iowa Rules of Evidence 403 and 404. He urges the only conceivable function of this evidence was to present a generalized self-portrait of his character for purposes of establishing that he acted in conformity with that character in perpetrating the crimes with which he was charged. This, he suggests, is not permitted under Iowa Rule of Evidence 404. In addition, he argues that even if the evidence is determined to have some relevancy to the issues on trial its probative value is substantially outweighed by the danger of unfair prejudice. This circumstance, he urges, requires exclusion of the evidence under Iowa Rule of Evidence 403.

The State responds to these contentions by urging that the challenged evidence was relevant and admissible in order to establish facts in issue which tend to link defendant with the crimes. The nature of the State's contentions in this regard is discussed more fully later in this opinion.

Iowa Rule of Evidence 404 provides:

(a) Character evidence generally. Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:

(1) Character of accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same;

(2) Character of victim.

(A) In criminal cases. Subject to Iowa R.Evid. 412, evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in any case where the victim is unavailable to testify due to death or physical or mental incapacity to rebut evidence that the victim was the first aggressor;

(B) In civil cases. Evidence of character for violence of the victim of assaultive conduct offered on the issue of self defense by a party accused of the assaultive conduct, or evidence of peaceable character to rebut the same;

(3) Character of witness. Evidence of the character of a witness, as provided in Iowa R.Evid. 607, 608, and 609.

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Both the defendant and the State refer to subsection (b) of rule 404 as an exclusionary rule vis-a-vis evidence of other crimes or wrongful acts. We have so described it in our decisions. E.g., State v. Emerson, 375 N.W.2d 256, 260 (Iowa 1985). Subsection (b), we believe, purports to exemplify how subsection (a) of the same rule applies to evidence of specific acts tending to show bad character.

The language of the first paragraph of rule 404(a) suggests that its exclusionary ambit includes situations where the proponent of the evidence tenders it with the avowed purpose of establishing propensity based on character. We believe, however, that the exclusionary force of the rule applies equally to instances where the proponent offers the evidence for another avowed purpose, but the court determines that in fact its only relevancy is to illustrate the character of the accused for purposes of establishing other actions in conformity with that character.

A specific rule is required in order to exclude such evidence because it otherwise qualifies for admission under general relevancy standards. As explained in United States v. Fosher, 568 F.2d 207 (1st Cir.1978),

[t]he inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudice one with a bad general record and deny him a fair opportunity to defend against a particular charge.

Id. at 212 (quoting Michelson v. United States, 335 U.S. 469, 475-76, 69 S.Ct. 213, 218, 93 L.Ed. 168, 174 (1948) (footnote omitted)).

The primary thrust of subsection (b) of rule 404 is to illustrate some but not all situations in which evidence relevant to establish some legitimate issue in the case is not rendered inadmissible because it also reveals...