State v. Barrett

• Decision Date: 16 August 1989
• Docket Number: No. 87-1325,87-1325
• Citation: 445 N.W.2d 749
• Parties: STATE of Iowa, Appellee, v. Bryan Kirby BARRETT, Appellant.
• Court: Iowa Supreme Court

Page 749

445 N.W.2d 749

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

No. 87-1325.

Supreme Court of Iowa.

Aug. 16, 1989.

Rehearing Denied Sept. 15, 1989.

Thomas J. Miller, Atty. Gen., Ann E. Brenden, Asst. Atty. Gen., and James W. Ramey, III, Sp. Prosecutor, for appellee.

Lylea Dodson Critelli of Nick Critelli Associates, P.C., Des Moines, for appellant.

Considered en banc.

HARRIS, Justice.

In State v. Barrett, 401 N.W.2d 184 (Iowa 1987), we reversed defendant's convictions of two murders and remanded for a new trial. Following remand, defendant was retried and again convicted on both murder charges. He brought this appeal assigning numerous errors in his second trial. The court of appeals, being equally divided, affirmed his convictions by operation of law. We affirm.

The facts are most bizarre. For the most part they will not be repeated, having been detailed in our opinion on the first appeal. The bodies of two young women, Cynthia Walker and Carol Willits, were found several miles apart along a rural Muscatine County road. The circumstances made it appear, as defendant insists, that Ms. Willits had committed suicide after murdering Ms. Walker. The State's theory was that defendant murdered Walker to obtain life insurance benefits and thereafter murdered Willits in such a way to suggest the murder-suicide theory espoused by the defendant.

I. A number of assignments challenge discretionary trial court rulings. Owing to a trial court's superior vantage point at trial, certain trial court determinations are placed initially within that court's province. They will not be disturbed on appeal unless we determine the trial court's discretion was abused. Abuse exists only when the discretion was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable. State v. Pappas, 337 N.W.2d 490, 493 (Iowa 1983).

II. One challenged discretionary ruling allowed testimony by an expert witness for the State. Vincent DiMaio, a physician and forensic pathologist, is the chief medical examiner and director of the regional crime laboratory for Bexar County (San Antonio), Texas. He testified extensively concerning his conclusion that Carol Willits did not commit suicide but was murdered.

The challenged testimony came during Dr. DiMaio's redirect testimony. He testified it was common practice for forensic pathologists to discuss cases when coming to professional conclusions. The witness was then asked whether he "found any of your colleagues who have given you persuasive reason to disregard your opinion that this was a homicide as opposed to a suicide in the death of Carol Willits?" Over the defendant's hearsay objection, the trial court allowed the witness to state that, no, his colleagues had not caused him to change his opinion.

In State v. Judkins, 242 N.W.2d 266 (Iowa 1976), the trial court allowed an expert witness to testify that his opinion was confirmed by a handwriting expert. We disapproved the testimony, finding it was indirect or obscured hearsay. Id. at 267.

Since our Judkins holding we adopted the Iowa rules of evidence. Rule 703 provides:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the trial or hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

Other states, interpreting a similar rule, have allowed testimony not unlike that challenged here.

A very similar challenge was at issue in State v. Jones, 322 N.C. 406, 368 S.E.2d 844, 846 (1988). A fingerprint expert testified regarding an office quality control system whereby identifications were verified by a second examiner before the report could be mailed out. Id. The court held this testimony was properly admitted as part of the basis for the expert's opinion. Id. Federal courts also follow this rule. See, Lewis v. Rego Co., 757 F.2d 66, 73 (3d Cir.1985) (discussions with colleagues admissible as kind of material on which experts base their opinions); United States v. Posey, 647 F.2d 1048, 1051 (10th Cir.1981) (chemist allowed to testify regarding review of other chemist's analysis); American Universal Ins. Co. v. Falzone, 644 F.2d 65, 66 (1st Cir.1981) (fire marshal allowed to testify on opinion as to cause of fire based in part on reports of other investigators).

We have a liberal tradition in the admission of opinion testimony. See State v. Halstead, 362 N.W.2d 504, 506 (Iowa 1985). The liberal tendency is evident in the adoption of the rule of evidence 703. We are, however, inclined to disapprove this challenged testimony.

Rule of evidence 703 does not go so far as to completely overrule our holding in Judkins. It does not empower one expert witness to state other experts also subscribe to the witness's stated conclusion. Additional foundation testimony, missing here, would be required in order for this testimony to be admissible under rule 703. To form a basis for admitting the challenged statement it would first be necessary to show that the opinion of his colleagues was the type of "fact or data" reasonably relied upon by experts in the field in reaching their conclusions.

The usual facts or data, under the rule, would ordinarily be lab or other test results, charts, texts, etc. We agree with defendant's challenge to the testimony, but defer for now considering whether it amounts to abuse requiring a reversal.

III. We find no abuse in another evidentiary ruling. Although defendant did not testify the record revealed that defendant told the police he had a sexual relationship with Ms. Willits. A prosecution witness who was a friend of Carol Willits later testified of her good character and her relationship with defendant. She stated Ms. Willits had firm convictions against premarital sex. On redirect examination the prosecutor asked the witness what she would think if defendant said he had sex with Carol as early as December of 1978. The defense objected to the question on the ground of hearsay, that it was speculative and self-serving, and it improperly asked the witness to express an opinion on the credibility and truthfulness of defendant. After the court overruled the objection the witness answered that she "wouldn't believe that to be true."

Barrett contends the trial court erred in admitting this testimony because the credibility of the witnesses or parties to a lawsuit is within the sole province of the fact finder. He cites State v. Myers, 382 N.W.2d 91 (Iowa 1986). The case has no application to the facts here.

Myers involved expert opinion testimony on the credibility of a complaining witness who was a child and allegedly the victim of sexual abuse. Id. at 97. The testimony here, by a layperson, did not so much address defendant's credibility as it stated an opinion about Carol Willits' character and behavior. Indeed the witness told the jury she scarcely knew defendant and had only met him a couple of times.

IV. As in defendant's first trial, the State relied heavily on a journal written by defendant in 1977, in which he described a plot to kill his wife. In the journal defendant related a plan, later abandoned, to kill his wife in order to recover life insurance proceeds. Because of the similarity between that plan and the State's theory in the killings here, the State contends the journal was admissible to establish a pattern of behavior. In defendant's first appeal we agreed the journal was admissible to demonstrate motive under Iowa rule of evidence 404(b).

Defendant however contends the foundation for admitting the journal was not established on the retrial. In preparing for the second trial defendant took special note of the language in our first opinion relating to admitting the journal:

...the somewhat irregular circumstances surrounding defendant's actions in obtaining insurance on the life of his estranged wife approximately two years earlier....

Barrett, 401 N.W.2d at 188. Accordingly, at his second trial, defendant more fully explored the events surrounding his purchase of his wife's life insurance policy. He contends it was bought after she had lost her job and, because it was an employment benefit, also had lost her life insurance. Defendant thinks this showing dissipated any sinister implications which may have been associated with the wife's insurance policy.

We think defendant's additional testimony does not destroy the foundation for the journal. Defendant's new explanations for his wife's life insurance do not preclude the possibility that a later malicious motive took hold. The new explanations go only to the weight the jury should accord the journal, not to its admissibility. There was no abuse in admitting the journal.

V. Defendant's first trial took place in Muscatine County. On remand following our earlier opinion he moved for and was granted a change of venue to Cedar County, where this trial was held. Asserting that pretrial publicity would also deny him a fair trial in Cedar County, defendant moved for a second change of venue. This request was denied and defendant cites the denial as a separate assignment of error.

A defendant who seeks a reversal on such a basis must show either actual prejudice on the part of the jury or must show that the publicity attending the case was so pervasive and inflammatory that prejudice must be presumed. State v. Spargo, 364 N.W.2d 203, 207 (Iowa 1985). Our review is de novo; we reverse only if the trial court abused its discretion in denying the motion. Id.

Barrett argues his case is similar to State v. Robinson, 389 N.W.2d 401 (Iowa 1986), and should likewise be reversed. In Robinson we found:

Nearly everyone on the jury panel had heard or read about the case and many were acquainted with the prosecution witnesses.... All panel members except one knew something about the...