State v. Hancock

• Decision Date: 14 January 1969
• Docket Number: No. 53218,53218
• Citation: 164 N.W.2d 330
• Court: Iowa Supreme Court
• Parties: STATE of Iowa, Appellee, v. Margaret Jane HANCOCK, Appellant.

Page 330

164 N.W.2d 330

STATE of Iowa, Appellee, v. Margaret Jane HANCOCK, Appellant.

No. 53218.

Supreme Court of Iowa.

Jan. 14, 1969.

P. F. Elgin, Indianola, for appellant.

Richard C. Turner, Atty. Gen., James C. Sell, Asst. Atty. Gen., and Darrell Goodhue, County Atty., for appellee.

MOORE, Justice.

On April 5, 1968 a county attorney's information was filed in Warren County District Court charging defendant, Margaret Jane Hancock, with the crime of forgery in violation of section 718.1, Code, 1966. On May 14, the first day of trial and after the jury had been sworn, the trial court permitted amendments to the information to a charge of uttering a forged instrument in violation of Code section 718.2. The jury returned a verdict of guilty of uttering a forged instrument and defendant has appealed from the judgment and sentence thereon. We reverse.

Attached to the information were the minutes, in summary form, of testimony of four witnesses. Gale Vinson, cashier for the Hy-Vee Food Store at Indianola, was to testify that on January 30, 1968 he cashed a check for defendant drawn on the Peoples Trust and Savings Bank in the sum of $140 being the instrument referred to in the information. Banker T. J. Nicholls was to testify the purported makers of the check were unknown and had no account at the bank. Sheriff Mathews was to testify defendant denied any knowledge of the check and that she voluntarily gave him a sample of her handwriting which he turned over to Duane L. Barton, Questioned Document Examiner of the Iowa Bureau of Criminal Investigation. Barton was to testify that in his opinion the author of the handwriting sample and of the check involved was the same person. Later the county attorney gave notice Robert Voss would testify he gave defendant, at her request, a polygraph or lie detector test and that it showed an intent to deceive as to relevant questions concerning the writing and negotiation of the check involved. He was to testify after the test defendant admitted writing and cashing the check involved.

Defendant was an indigent and her present attorney has at all time represented her by court appointment.

On April 18 defendant filed an application which referred to the pending forgery charge, her denial of any knowledge of the check, Barton's adverse opinion as to her handwriting and therein requested the trial court to authorize payment of funds by Warren County to obtain an independent analysis of her handwriting for comparison purposes and also for allowance of witness fees for a handwriting expert. The record discloses only the court's order of April 23 denying the application. Apparently no hearing was had on defendant's application.

I. The first issue presented on this appeal is whether the trial court erred in denying this indigent defendant's pre-trial request for such funds. Later at the trial Barton conceded handwriting experts' opinions are sometimes at variance.

As each of defendant's requests must be considered in the light of different statutes we first consider her request for an independent analysis of her handwriting and that appearing on the check involved.

Code section 775.5, as enacted in 1965 by chapter 449 of the Sixty-first General Assembly, as material here, provides: 'An attorney appointed by the court to defend any person charged with a crime in this state shall be entitled to a reasonable compensation to be decided in a each case by the court, including such sum or sums as the court may determine are necessary for investigation in the interests of justice. * * *.'

This section lodges limited discretionary power in the trial court to disburse reasonable compensation to an attorney defending an indigent for the purpose of conducting an investigation in the interests of justice.

In Schmidt v. Uhlenhopp, 258 Iowa 771, 775, 140 N.W.2d 118, 121, and Weaver v. Herrick, 258 Iowa 796, 803, 140 N.W.2d 178, 182, we say section 775.5 contemplates an attorney should not be expected to defend an accused gratuitiously. To which we now add it also recognizes a court appointed attorney should not be required to incur personal expenses in preparing and conducting a meaningful and conscientious defense for the accused.

The statute clearly protects against frivolous, unwarranted claims by restricting payment to those investigations which in the court's judgment are necessary in the interests of justice.

In ruling on defendant's motion for a new trial the court said: 'The Court believes it had discretion and in this particular case had the duty to deny defendant's application for an expert witness to examine the handwriting specimens and the questioned document for the defendant.'

This ruling was based essentially on the court's finding the success of the State's case had not been entirely dependent on the results of its handwriting analysis and also the feeling defendant should have at least alleged the unreliability of the State's handwriting expert.

Initially we note it would be extremely difficult, if not impossible in most cases, for a party unschooled in the subject of handwriting expertise to effectively challenge the reliability of an expert without the aid of his own expert.

Additionally we are convinced the refusal to provide funds for an independent analysis of defendant's handwriting was not in the best interests of justice, particularly in view of the fact the State had given notice it intended to call an expert who would testify as to the similarity of defendant's exemplar with the writing which appeared on the check.

At the time defendant's application was filed she stood accused of forgery and the issue of authorship was crucial. Notwithstanding the information was later amended to charge uttering a forged instrument the issue was yet all important. The State's expert opined defendant had authored the check even though she denied any knowledge of the matter on the witness stand.

An independent analysis of defendant's handwriting conducted by an expert of her own choosing could well have resulted in a conclusion diametrically opposed to that reached by Barton. In denying her request the court effectively prevented defendant from even the possibility of obtaining evidence which may have been highly relevant and material to a meaningful defense. Such an opportunity could not have been denied a defendant of means. Defendant's indigency should not be permitted to stand as a barrier to such vital evidence.

Accordingly, we hold under the facts of this case section 755.5 fairly contemplates payment for the purpose of obtaining an independent analysis of defendant's handwriting. The trial court committed reversible error in denying defendant's application.

Before considering defendant's next assignment of error we note we are not unaware the denial of defendant's request for a handwriting analysis has overtones sounding in due process and equal protection of the laws. Defendant has chosen not to argue either of these theories and for the present we prefer to base our opinion on section 775.5. However for discussions along these lines see People v. Watson, 36 Ill.2d 228, 221 N.E.2d 645, which is a case closely similar to the case at bar and note also, 32 Mo.L.Rev. 543, 1967. But see State v. Superior Court In and For County of Pima, 2 Ariz.App. 458, 409 P.2d 742.

II. Defendant's pre-trial request for allowance of witness fees for a handwriting expert whom she would wish to call at trial was premature and properly denied. Defendant had not determined she would call an expert at trial. Before the independent handwriting analysis she could not have known the results would aid her defense. However, under proper circumstances defendant would be permitted to call such an expert under the authority of Code section 781.2.

III. Defendant asserts the trial court erred in overruling her motion to suppress the evidence of Robert Voss regarding a claimed oral confession made by defendant while he was administering a polygraph examination in his capacity as an agent of the Iowa Bureau of Criminal Investigation. She argues the statements and conduct of Voss coupled with the absence of counsel effectively denied her freedom of choice and constituted fundamental unfairness in violation of her constitutional rights. We cannot agree.

The record reveals defendant's decision to take the test was prompted by her desire to convince the authorities of her innocence.

On May 8 defendant, her attorney and the county attorney entered into a written stipulation providing in part, 'the results of the lie detector or polygraph test will be admissible to evidence by either party to this action' and that 'the parties hereto waive any objections, privileges, or other rights of exclusion that they might have as to the results of the aforesaid test.' They also stipulated they were aware the results of polygraph examinations were ordinarily inadmissible in the absence of stipulation and that defendant had consulted her attorney before agreeing to take the examination.

The examination was administered in a sound proof room at the State Office Building in Des Moines. Defendant and Voss were the only persons present. Voss briefly explained how the machine operated and pre-read the questions he would ask during the actual test. He also read her the Miranda warnings from a form sheet and asked if she would sign a waiver of her constitutional rights. She signed the waiver. Voss testified all his questions were formulated for the purpose of determing whether defendant had written or cashed the check involved. Actual testing time consumed twenty-two minutes.

Following the first series of questions Voss told defendant he believed her answers denying knowledge of the check were false. He then left the room for about ten minutes telling her to 'think it over' in his absence. The evidence conflicts as to what occurred when Voss returned to the room.

Voss stated defendant professed concern for...