State v. Gambell, 60411

• Decision Date: 22 February 1978
• Docket Number: No. 60411,60411
• Parties: STATE of Iowa, Appellee, v. David GAMBELL, Appellant.
• Court: Iowa Supreme Court

Page 792

262 N.W.2d 792

STATE of Iowa, Appellee, v. David GAMBELL, Appellant.

No. 60411.

Supreme Court of Iowa.

Feb. 22, 1978.

Terry E. Branstad, Lake Mills, for appellant.

Richard C. Turner, Atty. Gen., Thomas A. Evans, Jr., Asst. Atty. Gen., for appellee.

Considered by MOORE, C. J., and MASON, RAWLINGS, REES and UHLENHOPP, JJ.

REES, Justice.

Defendant was charged by true information with the crime of assault with intent to commit murder in violation of § 690.6, The Code, 1975. He was tried to a jury, convicted, sentenced and now appeals. We reverse and remand for a new trial.

On October 5, 1976 the defendant David Gambell with two acquaintances, John Monson and Harold Thorson, engaged in a drinking bout during the course of which they consumed a considerable amount of alcoholic beverages. The defendant and his companions were traveling in an automobile owned by Thorson when the vehicle was involved in a high speed chase on a public highway southeast of Forest City in Hancock county. The pursuing vehicle was operated by officer Todd Hohenstein, a state trooper, who testified a passenger in the front seat of the vehicle fired a shotgun at the trooper's car. He further testified that he saw a muzzle flash and heard pellets hit the windshield of the patrol car. After the court sustained a motion for change of venue the cause was transferred from Hancock county to Floyd county for trial.

On a showing of defendant's indigency, Terry E. Branstad was appointed to defend him, and on November 15, 1976 defendant's counsel filed an application with the trial court for permission to take depositions of certain police officers and other witnesses. On the same date, following the hearing, an order was entered permitting the taking of depositions by tape recorder. Subsequently, defendant's counsel requested the court to clarify its order with respect to the taking of depositions, following which the court adhered to its prior ruling that the depositions were to be taken by tape recording and ordered no transcript of the same would be provided unless the defendant arranged for them at his own expense.

On December 13 hearing was held on defendant's motion in limine to exclude evidence concerning certain alleged criminal acts which had occurred in Winnebago county in the early evening of October 5, 1977, prior to the incident out of which the criminal information in this case grew.

At trial defendant requested an instruction on intoxication as a defense, which was not given by the court as requested.

The defendant states the following issues for review:

(1) That trial court erred in refusing to permit the defendant, an indigent, to take depositions of State witnesses by stenographic means and in refusing to allow the tape recordings which were taken to be transcribed except at the expense of the defendant.

(2) Trial court erred in refusing to give an instruction relating to the voluntary intoxication issue, which explicitly stated that the State had the burden of proving beyond a reasonable doubt the specific intent necessary in order to convict a defendant.

(3) Trial court abused its discretion in its failure to grant defense counsel's motion for a mistrial after a witness had volunteered testimony which the defendant contends violated the court's ruling on a motion in limine that defendant had committed other crimes in another county on the same day and which testimony the defendant contends was inflammatory and highly prejudicial.

I. Defendant claims the trial court erred in not permitting defendant to take depositions of State witnesses by stenographic means. Conversely, the State contends the trial court was correct in allowing depositions to be taken by tape recordings, and that the defendant did not preserve error in this regard. The record discloses the trial court in an oral ruling directed defendant's counsel to take the depositions of the State witnesses by tape recording, and denied defense counsel's application for a transcript of the tapes at State expense.

Section 781.10, The Code, allows a defendant to take discovery depositions of State's witnesses and provides:

"A defendant in a criminal case, either after preliminary information, indictment, or information, may examine witnesses conditionally or on notice or commission, in the same manner and with like effect as in civil actions."

Rule 140(b)(4), Rules of Civil Procedure, provides:

"The court may upon motion order that the testimony at a deposition be recorded by other than stenographic means, in which event the order shall designate the manner of recording, preserving, and filing the deposition, and may include other provisions to assure that the recorded testimony will be accurate and trustworthy. If the order is made, a party may nevertheless arrange to have a stenographic transcription made at his own expense."

The order of the trial court for the taking of depositions of State's witnesses by means other than stenographic was at the court's own instance with only the reluctant agreement of counsel and not upon motion as required by rule 140(b)(4), R.C.P., which the court should have adhered to under § 781.10, The Code. There was nothing in the court's order indicating that it was providing for the manner of recording, preserving or filing the depositions, leaving the accuracy of the recording and its trustworthiness open to question. Such failure by the trial court to provide for the perpetuation of the deposition testimony handicapped defendant's counsel and precluded effective assistance of counsel to the defendant as is required under § I, amendment 14 of the United States Constitution and §§ IX and X, Article I of the Iowa Constitution. See State v. Williams, 207 N.W.2d 98, 104 (Iowa 1973). We conclude trial court committed reversible error in not having followed the statutory direction and in not complying with the rule above referred to.

The State contends defendant did not preserve error since no offer of proof was made and objection to the court's ruling was not renewed in his motion for a new trial. The trial court's order which provided no means for preserving a recording made an offer of proof futile and the objection made by counsel at the time the order was made was, in our judgment, adequate to preserve error without the necessity of raising it again in a motion for new trial. We conclude the trial court's failure to afford defendant facilities for preserving the deposition testimony of the State's witnesses was prejudicial to the defendant and precluded his counsel from effectively representing him.

II. The defendant next contends the trial court erred in refusing to give defendant's proposed instruction on intoxication, and in giving an intoxication instruction to the jury which did not specifically inform the jury as to who had the burden of proof with the possible result that the jury may have been given the impression the burden rested on defendant to prove his voluntary intoxication defense.

The State suggests the instruction did not mislead the jury since the instructions, taken as a whole, placed the burden of proving the specific intent necessary to commit assault with intent to commit murder on the State. In this regard, the State points specifically to instruction 2 which apprised the jury the burden is on the State to prove all of the elements of the charge, instruction 5 which advised the jury that intent is a necessary element of the charge of assault with intent to commit murder, and also instructions 6 and 7 which advised the jury that intent is a necessary element of the lesser included offenses. Instructions 8, 9 and 10 again mention intent as a necessary element of the charge lodged against the defendant by information. Further, instruction 13 states that intent, if it is an element of the charge, must be proven beyond a reasonable doubt, and instruction 17 states that intent is a necessary element of the charge.

We recently addressed the problem of the burden of proof in relation to the intoxication...