State v. Galloway

• Citation: 275 N.W.2d 736
• Decision Date: 21 February 1979
• Docket Number: No. 60719,60719
• Parties: The STATE of Iowa, Appellee, v. James Thomas GALLOWAY, Appellant.
• Court: United States State Supreme Court of Iowa

Page 736

275 N.W.2d 736

The STATE of Iowa, Appellee, v. James Thomas GALLOWAY, Appellant.

No. 60719.

Supreme Court of Iowa.

Feb. 21, 1979.

Arthur L. Buzzell, Davenport, and Robert D. Bartels, Iowa City, for appellant.

Richard C. Turner, Atty. Gen., Thomas A. Evans, Jr., Asst. Atty. Gen., and Elizabeth O. Shaw, County Atty., for appellee.

Considered en banc.

HARRIS, Justice.

This is the third time we have considered an appeal from this defendant from a conviction for a brutal murder which occurred January 3, 1964, in Davenport. On defendant's first appeal we reversed and remanded for a new trial. State v. Galloway, 167 N.W.2d 89 (Iowa 1969). Retrial again resulted in a first-degree murder conviction. We affirmed on defendant's appeal. State v. Galloway, 187 N.W.2d 725 (Iowa 1971). Defendant thereafter petitioned in federal court for a writ of habeas corpus. On appeal in that proceeding defendant was awarded a new trial. Galloway v. Brewer, 525 F.2d 369 (8 Cir. 1975), cert. denied, 424 U.S. 974, 96 S.Ct. 1478, 47 L.Ed.2d 744 (1976). In this trial defendant was tried and convicted a third time and has brought this appeal. We find reversible error which clearly demands another reversal and a remand for a fourth trial.

On the evening of January 3, 1964, three men entered a store in Davenport. One remained at the front while the other two proceeded to the rear. The man who remained at the front pulled a revolver from his jacket and said there was to be a robbery. The two who had proceeded to the rear of the store confronted Mr. Shannon, the store owner, grabbed his right hand, and exchanged words with him. During this brief encounter a shot was fired and Mr. Shannon fell to the floor. He thereafter died from the wound he had suffered. Immediately after the shot was fired all three would-be robbers hurried from the scene without obtaining money.

In 1967, more than three years after the shooting, Helen Adomat and Richard Shannon selected a photograph of defendant, thereby identifying him as the person who fired the shot which killed Mr. Shannon. The photograph was selected from an array presented by law enforcement officers. There was conflicting testimony as to the manner in which the photographic "show-ups" were conducted. Both witnesses subsequently selected defendant in a lineup conducted in Kansas City, Missouri.

I. Defendant's first assignment challenges the trial court's instruction on the felony-murder rule. The challenged instruction informed the jury:

"Before the defendant, under this Instruction, can be found guilty of the crime of murder in the first degree as charged in the Information, the State must establish by the evidence beyond a reasonable doubt each and all of the following propositions:

"(1) That on or about January 3, 1964, in Scott County, Iowa, the defendant did unlawfully shoot Harry Shannon, Jr.

"(2) That Harry Shannon, Jr. died as a result of being shot by the defendant.

"(3) That the defendant so shot Harry Shannon, Jr. while attempting to perpetrate the crime of robbery."

Defendant objected to paragraph 3 in the above instruction and asked that it be amended to inform the jury as follows: "Paragraph 3. That the defendant so shot Harry Shannon, Jr. With malice aforethought and while attempting to perpetrate the crime of robbery." (Emphasis added.)

Without question the requested language should have been added. Our felony-murder rule is statutory. It is provided as a part of § 690.2, The Code, 1977: "All Murder which is perpetrated by means of poison, or lying in wait, or any other kind of willful, deliberate, and premeditated killing, Or which is committed in the perpetration or attempt to perpetrate any arson, rape, robbery, mayhem, or burglary, is murder in the first degree . . . ." (Emphasis added.)

Under the rule at common law the instruction given by the trial court would have been correct. See 40 Am.Jur.2d, Homicide, § 72, pp. 364-366; 40 C.J.S. Homicide § 21, pp. 868-869. At common law malice is imputed when a Killing occurs in the perpetration of the specified crime.

But the Iowa statute differs from the common law and differs from the statutes of many other states. As can be seen, our felony-murder rule is not directed to "killings" which occur in the perpetration of the felony. Rather our rule is directed to "murder" which may so occur. The effect of the Iowa statute is to make Murders which occur in connection with the perpetration of the named felonies First-degree murder. This has been our rule for many years. State v. Campbell, 217 Iowa 848, 853-854, 251 N.W. 717, 719 (1934).

Our more recent cases are in accord. State v. Veverka, 271 N.W.2d 744, 747 (Iowa 1978); State v. Rand, 268 N.W.2d 642, 647 (Iowa 1979); State v. Millspaugh, 257 N.W.2d 513, 519 (Iowa 1977); State v. Nowlin, 244 N.W.2d 596, 604 (Iowa 1976); State v. Conner, 241 N.W.2d 447, 463 (Iowa 1976).

Under this rule it was error for the trial court not to include the language requested. Malice aforethought is a necessary element for murder. § 690.1, The Code. And murder must be committed in order to implement our felony-murder rule.

Of course it does not aid the State that the legislature changed our felony-murder rule in the recent criminal code. § 707.2(2), The Code, Supp., 1977.

II. Because it might recur on retrial, we shall consider an evidentiary problem which defendant assigns as error. Defendant believes the trial court erred in not admitting the results of a scientific study as a part of the basis for the witness' answer to a hypothetical question.

Defendant offered the testimony of Dr. Elizabeth Loftus. Dr. Loftus testified that there was a "real possibility" of misidentification of a murderer who is identified by examination of photographs three years after the crime. In testifying Dr. Loftus attempted to explain that her opinion was based in part on an experiment performed by an authority she identified as Professor Buckhout. The State's objection to the explanation was sustained.

The defendant made an offer of proof in which Dr. Loftus explained Professor Buckhout's experiment. An assault, staged on a college campus, was witnessed by 141 persons who were unaware it would occur. Those witnesses saw the staged assault for approximately 42 seconds. Seven weeks later they were presented six photographs and were asked to identify the assailant. Only 40 percent of the witnesses could do so. The offer of proof continued:

"Q. Was this study published somewhere? A. Descriptions of it have been published, yes.

"Q. And is that the kind of publication that psychologists rely on in forming an opinion generally conducting themselves as psychologists? A. We get our information in two ways; from personal conversations that we have with other scientists at either conventions or private meetings, or from the published literature.

"Q. Have you performed any experiments yourself that would be fairly supporting Dr. Buckhout's results? A. Yes, I have.

"Q. Well, do your Do the results of those experiments support Dr. Buckhout's findings? A. They support the loss of memory performance after a longer retention versus a shorter one, and that says they do they were not concerned with identification of perpetrators, and that's why I relied on Dr. Buckhout's study for my conclusion rather than on my own studies in that specific instance.

"Q. So the context of his study would have been more directly welded to this case than the context of your studies, is that A. That's correct.

"Q. Do you know any psychologist who relies entirely on his own his or her own experiments to form a basis of his or her expertise as a psychologist? A. Most of us rely on the field as a whole.

"MR. BARTELS: I have nothing further."

The offered explanation could have been received. In 2 Jones on Evidence, § 14:21 (1972) it is explained:

"From the standpoint of general qualifications it is obvious that experts become experts by relying on hearsay in the course of their training and experience, all of which is reflected in the so-called 'expertise' of the witness. But when it comes to the acquiring of factual knowledge of the specific subject as to which the witness is to testify the door has been generally closed to hearsay sources of information except to the extent that they come within some exception to the hearsay rule and are admissible in evidence.

"In other words there is a distinction between hearsay as to specific facts relating to the case in question and general or specific information, even though of a hearsay character, which makes up the total package of the expert's information background and which is reflected in his opinion as expressed by one having special ability to evaluate sources of information and to measure their reliability according to standards of his profession or field of special training and experience."

See also McCormick on Evidence, chapter 3, § 15 (1972); State v. Salter, 162 N.W.2d 427, 430 (Iowa 1968); Ver Steegh v. Flaugh, 251 Iowa 1011, 1019, 103 N.W.2d 718, 723 (1960); II Wigmore on Evidence, § 686, pp. 812-813 (Third Ed. 1940); Weinstein's Evidence § 703(01) and § 703(03); Rules 703, 705 and 803(18), Federal Rules of Evidence.

A helpful explanation of the role of trial court discretion in admitting evidence of the pretrial studies and investigations of expert witnesses can be found in Standard Oil Company of California v. Moore, 251 F.2d 188, 222 (9 Cir. 1957). Under the foregoing authorities it is apparent that admissibility of such evidence rests within the sound discretion of the trial court. We cannot say that discretion was abused in this case.

Defendant's claim to the contrary is without merit.

III. Defendant presents three other assignments of error. We believe they relate to matters not likely to recur on retrial. To discuss each of them would unduly extend this opinion.

For the benefit of the bench and bar, however, we should point out that at least one other...