State v. Campbell, 63050

CourtUnited States State Supreme Court of Iowa
Citation294 N.W.2d 803
Docket NumberNo. 63050,63050
PartiesSTATE of Iowa, Appellee, v. Charles Robert CAMPBELL, Jr., Appellant.
Decision Date16 July 1980

Harold J. DeLange II, Wehr & DeLange, Davenport, for appellant.

Thomas J. Miller, Atty. Gen., Kathy Krewer, Asst. Atty. Gen., William E. Davis, Scott County Atty., and Richard J. Brown, Asst. Scott County Atty., for appellee.

Considered by LeGRAND, P. J., and UHLENHOPP, McCORMICK, ALLBEE and McGIVERIN, JJ.

ALLBEE, Justice.

Defendant Charles Robert Campbell, Jr. appeals his conviction of operating a motor vehicle while under the influence of alcoholic beverage, a violation of section 321.281, Supplement to the Code 1977. Finding no merit in the two grounds of error that defendant asserts, we affirm the conviction.

I. Use of excluded evidence for impeachment purposes. The first error defendant asserts was the admission of evidence concerning the administration and results of a breath test. Defendant took the test on May 12, 1978, following his collision with another car in Davenport and subsequent arrest for OMVUI. Immediately before taking the test, he was asked to sign an implied consent form, which, inter alia, stated, "YOU ARE NOT ENTITLED TO CONSULT AN ATTORNEY PRIOR TO CONSENTING OR REFUSING TO THE WITHDRAWAL OF A BODY SPECIMEN."

Before trial, defendant filed a motion to suppress all evidence concerning the taking and results of the breath test. Trial court granted the motion because of the impropriety of the form's statement in view of our decision in State v. Vietor, 261 N.W.2d 828 (Iowa 1978). Vietor indicated that the statutory predecessor to section 804.20, Supplement to the Code 1977, section 755.17, The Code 1977, granted defendants charged with OMVUI a limited statutory right to counsel before deciding whether to take or refuse a chemical test under implied consent procedures, and held that denial of the opportunity to exercise that right required that evidence of the defendant's refusal to take the test be excluded from the OMVUI trial. Id. at 830-32.

At trial, near the conclusion of presentation of evidence by the defense, the State asked permission to introduce evidence regarding the breath test solely for purposes of impeachment. After listening to arguments of both parties, trial court ruled the rebuttal evidence admissible for purposes of impeachment, 1 citing the rule followed in Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971); and in Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954). That rule is that unlawfully obtained evidence ruled inadmissible against a defendant in the prosecution's case in chief may nonetheless be used to impeach the defendant's assertions made upon direct examination.

In addressing this ground of asserted error, we first note the common issues involved in cases of this nature which are not raised by the parties' arguments here. First, defendant does not here dispute the general validity of the impeachment exception to the exclusionary rule, which was accepted by this court in State v. Washington, 257 N.W.2d 890, 894-96 (Iowa 1977), cert. denied, 435 U.S. 1008, 98 S.Ct. 1881, 56 L.Ed.2d 390 (1978). Nor does he claim that the breath test was improperly performed or that for any other reason its results were unreliable. Finally, the State does not assert that any basis for its rebuttal was provided by defendant's statements elicited during cross-examination. Consequently, the narrow issue before us is whether defendant's statements on direct examination opened the door to permissible impeachment by suppressed evidence.

We conclude that they did. The prosecution carefully excluded from its case in chief any reference to the administration or results of the breath test. Its case against defendant consisted of the testimony of witnesses who observed defendant on the night in question to be lacking physical coordination; speaking in a slurred, hesitant manner; emitting an odor of alcoholic beverage; and suffering from watery, bloodshot eyes and a flushed face. Defendant then presented evidence, by his own testimony and that of acquaintances, that he normally speaks in a slow and deliberate fashion, has watery eyes, walks slowly and with a limp and gives off a medicinal type of odor. His unusual gait and lack of balance while standing he attributed to back problems. Additionally, he testified that, because of other health problems, he frequently sipped a cough medicine, which had an odor. Defendant also testified that he had drunk only two or, at the most, three drinks in the approximately two-hour period he spent at a restaurant-lounge before the accident occurred. Finally, defendant called as his witness Dr. Perkins, a physician serving as Scott County Medical Examiner, whom he asked to estimate the blood-alcohol level of a person of defendant's weight who had consumed three one-ounce drinks of alcohol over a two-hour period. Dr. Perkins responded that the level would be .03% by weight. He also stated, in response to questions propounded during his direct examination, that this level would not affect a person's ability to drive, that the level at which driving becomes dangerous is .1% and that six or seven drinks would have to be consumed in a two-hour period to reach that level. During the cross-examination of Dr. Perkins by the State, he testified that a person of defendant's size would have to consume eight to ten drinks within a two-hour period to attain a blood-alcohol level of .175%. It was at the conclusion of Dr. Perkins's testimony that the State sought and received permission to introduce testimony concerning the manner of administration and results of the breath test given to defendant immediately following his arrest. Those results showed that his blood-alcohol level was .175%.

By stating that he had only consumed two or three drinks and then offering Dr. Perkins's testimony to explain the physiological effects of such consumption, defendant initiated the specific issues of the quantity of alcohol he had consumed and the resultant level of alcohol in his blood when he was driving. He thus opened himself up to rebuttal on these issues by the contradictory evidence of the State.

Defendant argues that he did not thus open the door to rebuttal because his direct examination contained no reference to the effect of the drinks upon him, the alcohol level of his blood or the breath test. He reasons that the results of the test were not contradictory to his statements, but rather to Dr. Perkins's statements. In conclusion, he asserts that as statements elicited from defendants during cross-examination have generally not been permitted to be used as a basis for impeachment by suppressed evidence, 2 statements made by a different defense witness likewise should not be impeachable with suppressed evidence.

We cannot agree that the results of the breath test were used to impeach Dr. Perkins's testimony. While it is true that trial court ordered that the State should be afforded the opportunity to impeach statements of either defendant or Dr. Perkins, its rebuttal evidence, in fact, contradicted only defendant's factual assertions. Dr. Perkins's testimony was expressed in terms of answers to hypothetical questions. It merely provided a conversion into blood-alcohol levels of the quantity of alcohol defendant said he had consumed. It did not in any way independent from defendant's testimony attempt to establish the amount of alcohol he actually had consumed or the actual alcohol level of his blood.

Of course, the inconsistency between defendant's testimony regarding his alcohol consumption and the State's evidence of the test results was most clearly shown by Dr. Perkins's conversion of defendant's testimony into blood-alcohol levels. However, Dr. Perkins's testimony regarding blood-alcohol levels was obviously solicited by defendant as part of his trial strategy. Thus, it did not suffer from the basic infirmity claimed to be associated with impeachment based in particular on a defendant's cross-examination: passing control of the impeachment exception to the exclusionary rule from the defendant to the prosecutor because of the broad latitude in cross-examining opposing witnesses traditionally accorded parties. See United States v. Havens, --- U.S. ----, ----, 100 S.Ct. 1912, 1917, 64 L.Ed.2d 559, 567 (1980) (Brennan, J., dissenting).

In response to defendant's argument that the rebuttal evidence was not sufficiently contradictory to his assertions made on direct examination to qualify for the impeachment exception, we have found helpful an examination of the nature of the contradiction required by other authorities. Although the exclusionary rule involved here is founded on our interpretation of a state statute while that involved in many of the examined cases was based on federal constitutional law, the competing policy concerns represented by an impeachment exception to both types of exclusionary rules make those cases persuasive here. On the one hand are the main purposes of the exclusionary rule of deterring illegal police conduct and preserving judicial integrity. See, e. g., Elkins v. United States, 364 U.S. 206, 217-18, 220-23, 80 S.Ct. 1437, 1444-47, 4 L.Ed.2d 1669, 1677-81 (1960). On the other hand is the "strong policy against countenancing perjury," New Jersey v. Portash, 440 U.S. 450, 458, 99 S.Ct. 1292, 1297, 59 L.Ed.2d 501, 510 (1979), also detractory to judicial integrity, People v. Disbrow, 16 Cal.3d 101, 127, 127 Cal.Rptr. 360, 377, 545 P.2d 272, 289 (1976) (dissenting opinion). The bases of this policy are "the importance of arriving at the truth in criminal trials, as well as the defendant's obligation to speak the truth in response to proper questions." United States v. Havens, --- U.S. at ----, 100 S.Ct. at 1916, 64 L.E.d. at 565

Our review of the aforementioned authorities has...

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    ...verdict-urging instruction had a coercive effect on the jury and, as such, constitutes an abuse of discretion. State v. Campbell , 294 N.W.2d 803, 808–13 (Iowa 1980). Some jurisdictions have banned Allen charge instructions because of their coercive effect on the jury. See, e.g. , State v......
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