State v. Hall

Citation235 N.W.2d 702
Decision Date12 November 1975
Docket NumberNo. 57467,57467
PartiesSTATE of Iowa, Appellee, v. James Wendell HALL, Appellant.
CourtUnited States State Supreme Court of Iowa

William M. Tucker and Bruce L. Walker, Iowa City, for appellant.

Richard C. Turner, Atty. Gen., Gary A. Ahrens, Nancy J. Shimanek, and John Grant Mullen, Asst. Attys. Gen., and Carl Goetz, Johnson County Atty., for appellee.

Heard en banc.

LeGRAND, Justice.

Defendant was charged under § 690.1, The Code, 1973, with the unlawful killing of Sarah Ann Ottens. A jury found him guilty of second degree murder. Subsequently defendant was sentenced under § 690.3, The Code, 1973, to serve a term of 50 years in the penitentiary, a judmgent from which he now appeals. We affirm on condition and remand the case for further inquiry according to the instructions in Division IX hereof.

Although we save a detailed discussion of the facts for presentation later as we consider the issues raised, we give now a brief outline of the circumstances under which this crime was committed.

Defendant and Sarah Ann Ottens, each 19 years old, were students at the University of Iowa. During the University's spring vacation in 1973, the campus population was depleted, but defendant and Miss Ottens were among those who stayed on during the scholastic break. There is no evidence they knew each other.

On March 13, 1973, Miss Ottens' dead body was found in Room 429 of Rienow Hall, a university dormitory. An autopsy disclosed she had died of asphyxiation by strangulation. Apparently the murderer had held a broom handle against her throat, a maneuver which medical testimony established could cause death within one minute. Her body was nude from the waist down, and she had been brutally beaten and assaulted. However, there is no evidence of sexual attack.

Defendant lived in Slater Hall, a dormitory across the street from Rienow Hall. There is evidence from which the jury could have found he was in the victim's room in Rienow Hall at or near the time the murder occurred. We refer to this testimony in greater detail later.

Defendant has set out more than 40 claimed errors, raising the following issues, which we will consider in the order listed:

I. Irregularities and errors in the grand jury proceedings;

II. Refusal to order production of evidence;

III. Error in overruling defendant's motion for directed verdict;

IV. Error in ruling on defendant's motion to suppress and motion in limine;

V. Errors in evidentiary rulings;

VI. Errors in the instructions, both as to those given and as to those refused;

VII. Prosecutorial misconduct; and

VIII. Jury misconduct.

I. Grand Jury Proceedings

One of the most serious complaints--and certainly the one most vigorously argued--centers around the grand jury proceedings. Defendant raised these matters in several ways. First, he filed a motion to set aside the indictment before entering a plea, as required by § 776.1, The Code. This was overruled.

After a motion for bill of particulars had been partially sustained and additional particulars had been furnished, defendant filed another motion to see aside the indictment as he is then permitted to do by § 773.7, The Code. This motion, too, was overruled.

He later made alleged grand jury irregularities a ground for relief in his motion for new trial filed after his conviction.

Defendant's argument is more than a complaint about proceedings in this case. It constitutes an impassioned assault on the grand jury system generally. He says it is archaic, oppressive and simply a tool to be manipulated as the prosecutor sees fit. Such criticisms of the grand jury are not new, although recently they have been increasing in both frequency and severity. See The Grand Jury--Prosecutorial Abuse of the Indictment Process, 65 J. of Crim. Law and Criminology, 157--169 (1974); Johnson v. Superior Court, 15 Cal.3d 248, 124 Cal.Rptr. 32, 539 P.2d 792 (1975), concurring opinion.

Be that as it may, it appears the alternative facing defendant, if we could by some hidden judicial power abolish the grand jury, would be even worse. The only other way in which one charged with a crime may be brought to trial is on county attorney's information. See § 769.1, The Code. If, as defendant argues, the county attorney may impose his will upon the grand jury, the filing of an information to start prosecution is even more subject to that criticism, being completely within his discretion, except for the provisions of § 769.2, The Code. It is perhaps unnecessary to point out this argument must be directed to the legislature, not to us.

The manner in which an indictment may be set aside is regulated by statute. § 776.1 provides as follows:

'The motion to set aside the indictment can be made, before a plea is entered by the defendant, on one or more of the following grounds, and must be sustained:

'1. When it is not endorsed 'a true bill' and the endorsement signed by the foreman of the grand jury as prescribed by this code.

'2. When the names of all witnesses examined before the grand jury are not endorsed thereon.

'3. When the minutes of the evidence of the witnesses examined before the grand jury are not returned therewith.

'4. When it has not been presented and marked 'filed' as prescribed by this code.

'5. When any person other than the grand jurors was present before the grand jury when the question was taken upon the finding of the indictment.

'6. When any person other than the grand jurors was present before the grand jury during the investigation of the charge, except as required or permitted by law.

'7. That the grand jury were not selected, drawn, summoned, impaneled, or sworn as prescribed by law, except as hereinafter provided.'

Except on constitutional grounds (which we discuss later), the statutory grounds for setting aside an indictment are exclusive and only those which are listed may be the basis for such action. State v. Olson, 249 Iowa 536, 554, 86 N.W.2d 214, 221 (1958); State v. Lamb, 239 Iowa 176, 179--180, 30 N.W.2d 734, 736 (1948); State v. Boucher, 237 Iowa 772, 777--778, 23 N.W.2d 851, 854 (1946).

Defendant's motion, made before entering his plea, was limited to two grounds as follows:

'1. That the minutes of testimony attached to the indictment do not contain particulars constituting the offense charged in the indictment;

'2. That the minutes of testimony attached to the indictment do not show that the defendant committed the offense charged in the indictment.'

Since neither of these is among the statutory grounds for setting aside an indictment, this motion was properly overruled.

Our statutory law also provides a defendant may ask for a bill of particulars if the manner in which he is charged is insufficient to 'enable him to prepare his defense, or to give him such information as he is entitled to under the constitution of this state.' § 773.6, The Code.

If such a bill of particulars is ordered by the court, defendant may thereafter move again to set aside the indictment under the provisions of § 773.7, which we here set out in full:

'If it appears from the bill of particulars furnished under section 773.6 that the particulars stated do not constitute the offense charged in the indictment, or that the defendant did not commit that offense, or that a prosecution for that offense is barred by the statute of limitations, the court may and on motion of defendant shall set aside the indictment unless the county attorney shall furnish another bill of particulars which so states the particulars as to show that the particulars constitute the offense charged in the indictment and that the offense was committed by the defendant and that it is not barred by the statute of limitations.'

A bill of particulars was furnished in this case, and defendant availed himself of § 773.7 in a second effort to have the indictment set aside. This time his motion included 10 numbered paragraphs, argumentative in form, challenging the sufficiency of the evidence upon which the indictment was based, alleging that much of the evidence introduced before the grand jury would be inadmissible at trial, and urging that the indictment be set aside.

Only this one paragraph of the motion comes within the purview of § 773.7:

'The admissible testimony and even all of the testimony as shown by the indictment and bill of particulars failed to show that the defendant committed the offense charged.'

The trial court ruled, rightly, that the indictment should not be dismissed, and defendant's motion was accordingly overruled.

It is interesting to note that defendant at this point had not yet raised the constitutional issues of equal protection and due process which he now so strenuously urges upon us. They were first introduced into this case in defendant's motion for new trial filed after conviction and before sentencing, where he set out these new complaints concerning the grand jury proceedings:

(1) Failure of the State to comply with the provisions of § 771.13, The Code, relating to the filing of exhibits used in connection with the grand jury proceedings;

(2) Failure of the State to attach to the indictment the names and minutes of testimony of all witnesses who testified before the grand jury;

(3) Introduction of evidence before the grand jury on matters wholly unrelated to the charge which they were then investigating and which were so prejudicial as to violate defendant's rights of equal protection and due process under the Federal Constitution and the Constitution of the State of Iowa;

(4) An allegation that the alleged minutes attached to the indictment were not the minutes as required by law, which clearly called for production of a full court reporter's transcript of testimony; and

(5) That the grand jury indictment was based upon inadmissible evidence which was prejudicial to defendant and violated defendant's constitutional rights of equal protection and due process.

The argument that specific statutes...

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