State v. Galloway

• Decision Date: 08 April 1969
• Docket Number: No. 53227,53227
• Citation: 167 N.W.2d 89
• Parties: STATE of Iowa, Appellee, v. James Thomas GALLOWAY, Appellant.
• Court: Iowa Supreme Court

Page 89

167 N.W.2d 89

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

No. 53227.

Supreme Court of Iowa.

April 8, 1969.

Rehearing Denied June 10, 1969.

James B. McGrath and McCracken & Carlin, by John J. Carlin, Davenport, for appellant.

Richard C. Turner, Atty. Gen., James C. Sell, Asst. Atty. Gen., and Edward N. Wehr, County Atty., for appellee.

SNELL, Justice.

Defendant-appellant has appealed from his conviction, judgment and sentence for first degree murder. Because of recent developments in our law not foreseeable at the time of trial, the case must be reversed.

On January 3, 1964 while at work in his store in Davenport Harry Shannon, Jr. was shot and killed by an armed robber.

On June 27, 1967 defendant herein was charged with the murder. Amended and substituted information was filed August 8, 1967. He had been arrested in Missouri and after proceedings there had been returned to Iowa. Defendant was tried before judge and jury. Trial began October 17 and on October 30, 1967 the jury returned a verdict of guilty of murder in the first degree.

From the index to the record before us it appears that the State and defense called many witnesses. Probably because not germane to the issues on appeal very little of the testimony in behalf of the State is set out in the record. The sufficiency of the evidence to support the verdict is not challenged. It need not be reviewed here.

Defendant challenged his identification as a participant in the crime. He served notice of alibi and offered testimony by himself and other witnesses that he was in Lexington, Missouri at the time and consequently could not have committed the offense.

I. Pursuant to statute (sections 772.3 and 780.10), defendant was furnished the names of all witnesses the State expected to call at the trial together with minutes of their testimony.

In response to a request and order for a bill of particulars (section 773.6) the State also produced (1) photographs of the defendant in possession of the police upon which identification by witnesses was initially made; (2) sketches or drawings of the alleged assailant; (3) consent to lie detector test; (4) results of lie detector test; (5) photograph of witness Bobby Ferguson, and (6) the drawings of the defendant upon which identification was made.

The court also said that if during the trial any reference was made to certain other statements the court would order them produced if germane.

In Division II, infra, we will consider the open court production of the matters referred to.

It is well settled that a motion for a bill of particulars is addressed to the sound discretion of the trial court and its ruling will not be reversed unless sound discretion is abused. State v. Shephard, 255 Iowa 1218, 1230, 124 N.W.2d 712. See also State v. Schreck, 258 Iowa 218, 223, 137 N.W.2d 914.

Defendant points to nothing that would indicate that he has been denied any relevant information. His attack is general and not specific. In his brief and argument he says:

'This portion of the brief and argument can be considered as an attack upon the discovery techniques available to a defendant in a criminal action in this state.'

We have on several recent occasions reviewed the right to discovery in criminal cases.

In State v. District Court etc., 253 Iowa 903, 114 N.W.2d 317, we held that the rules of civil procedure are not available in criminal cases. We said:

'For many years a defendant in a criminal case has had all the protection that can be legitimately needed or afforded by discovery. He is furnished a copy of the indictment the names of the prosecution's witnesses must be furnished him; if this is not done they may not testify against him. He has the right under our Constitution to be confronted by the witnesses against him. The minutes of the testimony before the grand jury, or the substance of the proposed testimony of each witness if the cause is prosecuted by true information, must be furnished him.' (loc. cit. 911, 114 N.W.2d loc. cit. 322)

We also commented on section 781.10 giving a defendant the right to take depositions to obtain and offer evidence in his own behalf when the witnesses might not be otherwise available. We held the statute not applicable to discovery.

In State v. McClain, 256 Iowa 175, 181, 125 N.W.2d 764, 767, 4 A.L.R.3d 134, we mentioned some of the provisions protecting an accused and said: 'In Iowa a defendant in a criminal case is protected far beyond the scope of discovery depositions without resort thereto.' See State v. Gates, Iowa, 150 N.W.2d 617, 621.

In State v. White, Iowa, 151 N.W.2d 552, we again reviewed the safeguards surrounding a defendant. The case involved a claim of entrapment by police through the aid of an informer. At time of trial the claimed informant could not be found. Because of the claim that the police radio tapes might show evidence of entrapment we remanded for examination by the court in camera. We did not open the door to discovery procedure. We said: '* * * a defendant is not entitled to unrestricted examination of police records.' (loc. cit. 557 of 151 N.W.2d)

We find no abuse of the trial court's discretion or reversible error in the exercise thereof.

II. The defendant claims error in requiring certain statements to be given to defendant in the presence of the jury.

Mrs. Adomat, a witness for the State, identified defendant as the only person except her husband and herself near the decedent at the time of the shooting. In cross-examination defendant's counsel asked about statements and descriptions given to the police. We quote from the addendum to the record.

'MR. CARLIN: Your Honor, at this time the Defendant, Mr. Galloway, would move the Court to require the police to produce the statement and the description given at that time, so that the Defendant can adequately prepare--

'THE COURT: Do you have the statement? Where is your statement? (Mr. Wehr produces document in open court)

'MR. CARLIN: Your Honor, may I have a short recess to go ahead and review it?

'THE COURT: Well, we'll wait here. You go ahead and review it.'

Defendant's counsel apparently found nothing helpful in the statement or anything that might require time for study. He questioned the witness about other statements. Counsel for the State made a professional statement that there was nothing else. The request for a recess was not renewed. After some discussion between counsel and the witness the State offered the statement in evidence. Defendant objected. The statement was not received.

Defendant claims abuse of discretion and reversible error under the Jencks Act, 18 U.S.C.A. section 3500.

Defendant's counsel has now seen the statement. On retrial it is not likely that the situation will recur. However, because of recent Federal Court pronouncements we comment thereon.

We considered the Jencks Act in State v. White, supra, and indicated approval of comparable procedure in that case.

Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, was decided June 3, 1957. It was a prosecution for filing a false non-communist affidavit. Undercover-agents testified for the government. Cross-examination brought out the existence of regular reports made during their undercover activity and association with the defendant. The issue involved the right of the defendant to inspect such reports as might be relevant to the subject matter of their testimony.

One Justice took no part. Two Justices joined in an opinion concurring in the result. One Justice in a dissenting opinion pointed out the need for action by the congress.

The congress acted promptly and enacted the statute referred to. This statute provides:

' § 3500. Demands for production of statements and reports of witnesses

'(a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) to an agent of the Government shall be the subject of subpena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.

'(b) After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.

'(c) If the United States claims that any statement ordered to be produced under this section contains matter which does not relate to the subject matter of the testimony of the witness, the court shall order the United States to deliver such statement for the inspection of the court in camera. * * * Whenever any statement is delivered to a defendant pursuant to this section, the court in its discretion, upon application of said defendant, may recess proceedings in the trial for such time as it may determine to be reasonably required for the examination of such statement by said defendant and his preparation for its use in the trial. * * *'

It has been held that this section does not afford defendant license to rummage through prosecution files before trial, but was intended to protect files from unwarranted disclosure and to only make available at trial those materials which might lead to impeachment. Caldwell v. United States, 8 Cir., 338 F.2d 385, certiorari denied 380 U.S. 984, 85 S.Ct. 1354, 14 L.Ed.2d 277; United States v. Johnson, 4 Cir., 337 F.2d 180, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681; Saunders v. United States, 114 U.S.App.D.C. 345, 316 F.2d 346.

The procedural method in determining what is related to the issue is left to ...