State v. Henderson, 60337

• Decision Date: 28 June 1978
• Docket Number: No. 60337,60337
• Citation: 268 N.W.2d 173
• Parties: STATE of Iowa, Appellee, v. James HENDERSON, Appellant.
• Court: Iowa Supreme Court

Page 173

268 N.W.2d 173

STATE of Iowa, Appellee, v. James HENDERSON, Appellant.

No. 60337.

Supreme Court of Iowa.

June 28, 1978

Allen, Babich & Bennett, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., J. Susan Carney, Asst. Atty. Gen. and David H. Correll, Black Hawk County Atty., for appellee.

Considered by MOORE, C. J., and MASON ^*, REES, UHLENHOPP and REYNOLDSON, JJ.

UHLENHOPP, Justice.

This appeal involves a number of problems which arose in a prosecution on a murder charge.

The deceased, Robert Streeter, and one Dennis Mikkelson spent the late afternoon and the evening of September 4, 1976, visiting bars and drinking. At about 2:00 o'clock the next morning they drove toward a restaurant on University Avenue in Cedar Falls, Iowa.

During the same period of time, defendant James Henderson together with Alfred Hurt and Merci Henderson were drinking at various places, and at about 2:00 a. m. drove on University Avenue toward a place to eat.

The two vehicles came alongside each other at a stop light and the occupants of the respective vehicles exchanged opprobrious epithets. The vehicles went on and soon decedent's vehicle turned into an access road and stopped. The other car followed and stopped nearby.

Decedent and Mikkelson alighted from their vehicle and two individuals got out of the other vehicle, one of whom was defendant. The jury could find that defendant then pulled a gun, shot once, and killed decedent. The parties at the subsequent homicide trial had a spirited contest as to whether defendant shot at decedent or whether the gun discharged and the bullet ricocheted off some object and then struck decedent.

The county attorney filed an information charging defendant with murder. The pretrial preparation and the trial presentation were unusually thorough on both sides. The jury found defendant guilty of first-degree murder, and the trial court sentenced him accordingly. He appealed.

In this court defendant advances several propositions which we consider in chronological order.

I. Demand for Preliminary Examination and Release. A preliminary information was filed against defendant, and on September 16, 1976, a warrant issued for defendant's arrest. Defendant was accordingly arrested. The next day the county attorney presented his information charging defendant with murder, a district judge approved it, and the county attorney filed it. On September 22, 1976, defendant filed a demand for preliminary examination and release from custody, which the trial court subsequently denied. Defendant unsuccessfully sought an original writ of certiorari in this court.

Much pretrial discovery and activity thereafter occurred in the case, followed by the trial itself and ultimately the jury verdict. Defendant now contends that the verdict and judgment thereon should now be set aside and a new trial granted because of the pretrial order denying the demand.

The United States Supreme Court decided these issues adversely to defendant's contention in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54. We applied the Court's views in State v. Lass, 228 N.W.2d 758 (Iowa). See also State v. Fitz, 265 N.W.2d 896 (Iowa), and State v. Grady, 231 N.W.2d 869 (Iowa).

In substance, two functions are involved. One is charging a defendant and the other is incarcerating him. A preliminary examination is not necessary in order to charge a defendant; our county attorney information system satisfies Gerstein, and the information procedure also renders a preliminary examination unnecessary. State v. Collins, 260 Iowa 1366, 152 N.W.2d 612.

Under Gerstein a judicial determination is necessary, however, for pretrial detention of a defendant. We need not decide today whether the required approval of a county attorney's information by a district judge is sufficient to satisfy Gerstein. See Code 1975, § 769.8. Another rule intervenes. The Court stated in Gerstein and we held in Grady that failure to have a judicial pretrial detention determination does not void a subsequent conviction on the merits. Gerstein v. Pugh, supra, 420 U.S. 103, 119, 95 S.Ct. 854, 865, 43 L.Ed.2d 54, 68 ("Nor do we retreat from the established rule that illegal arrest or detention does not void a subsequent conviction."). Defendant's course, if he believed the denial of his demand was wrong as to detention, was to obtain a writ of habeas corpus, and if that proved unsuccessful in the district court, to have that habeas corpus decision reviewed by us as of right rather than to assert subsequently that the conviction after full trial should be set aside.

Defendant asks us to overrule Lass and Grady, but after reexamination of those decisions in the light of Gerstein, we adhere to them. We do not find merit in defendant's first proposition.

II. Wife as a "Witness". The jury could find that on July 10, 1976, when one Peggy Jo Lee (Lee) was living with defendant, she bought a .32 calibre S & W long revolver from Winder Sport Shop, together with ammunition for it; that the bullet which killed decedent came from such a gun; and that an empty box for such a gun was found at the place where defendant lived at 215 Center Street, Waterloo, Iowa. On September 8, 1976, Lee married defendant.

Prior to trial defendant made a motion in limine. He asked (a) that Dale R. Winder, the manager of Winder Sport Shop, not be allowed to testify about the purchase of the revolver by Lee or about her signature on Winder's federal firearms transaction record; that Delight Te Paske not be allowed to testify as to Lee's handwriting on court services reports in 1973; and that Duane Barton, a handwriting analyst, not be allowed to testify that handwriting examplars of Lee and of Peggy Jo Lee Henderson are the same as the handwriting on Winder's federal firearms transaction record. The basis of defendant's motion was that this testimony would violate § 622.7 of the Code which provides, "Neither the husband nor wife shall in any case be a witness against the other . . . ." After hearing on the motion, the trial court overruled it. Defendant preserved the claimed error in later proceedings and argues before us that the trial court was wrong.

We do not have difficulty with the first two parts of defendant's motion, relating to the testimony of Winder and Te Paske. True, those witnesses would testify about conduct of Lee in buying the gun, signing the firearms transaction record, and writing the court services reports. But Lee was not a "witness" with respect to those things. Evidence of conduct by a spouse is not inadmissible where it is proved by means other than the testimony of that spouse. United States v. Mackiewicz, 401 F.2d 219 (2 Cir.), cert. den. 393 U.S. 923, 89 S.Ct. 253, 21 L.Ed.2d 258; Hilliard v. United States, 121 F.2d 992 (4 Cir.), cert. den. 314 U.S. 627, 62 S.Ct. 111, 86 L.Ed. 503; United States v. Winfree, 170 F.Supp. 659 (E.D.Pa.); see also VIII Wigmore, Evidence, § 2232 at 229-230 (McNaughten Rev.).

The third part of the motion is harder. That conduct of Lee involves additional facts.

The prosecutor desired to have Lee sign her name so that the expert Barton could compare the signature with the signature in Winder's firearms record. He also desired to photograph Lee so that he could show the picture to Winder for identification purposes. He therefore proceeded under § 769.19 of the Code of 1975, which provides:

The clerk of the district court, on application of the county attorney, shall issue subpoenas for such witnesses as the county attorney may require, and in such subpoenas shall direct the appearance of said witnesses before the county attorney at a specified time and place; provided that no subpoena shall issue unless an order authorizing same shall have been first made by the court or a judge thereof. After preliminary information, indictment, or information the defendant shall be present and have the opportunity to cross-examine any witnesses whose appearance before the county attorney is required by this section.

At the time the prosecutor so proceeded, Lee was defendant's wife.

Defendant objected the procedure would violate previously-quoted § 622.7:

Neither the husband nor wife shall in any case be a witness against the other, except (in four situations not involved here).

The parties each presented one principal authority on the question, and the trial court adopted the State's view.

The State's authority is In re Susan Rovner, Witness, 377 F.Supp. 954 (E.D.Pa.), aff'd w/o op. 500 F.2d 1400 (3 Cir.), cert. den. 419 U.S. 1106, 95 S.Ct. 776, 42 L.Ed.2d 802. This case is indeed close. A grand jury subpoenaed the defendant's wife to obtain a handwriting specimen. The court upheld the subpoena, stating at page 955, "The marital privilege being asserted is the privilege against one spouse becoming an adverse witness against the other, Hawkins v. United States, 358 U.S. 74, 75, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958), not, as Mrs. Rovner claims, against one spouse being used as the source of evidence against the other."

Defendant's authority is Taylor v. State, 220 Ark. 953, 251 S.W.2d 588. That case holds the opposite. There the defendant's wife was subpoenaed to appear before the sheriff and prosecutor to give a handwriting specimen.

The commentators do not look with favor upon the exclusion of the testimony of a spouse. VIII Wigmore, Evidence, § 2228 at 221 (McNaughten Rev.) ("This privilege has no longer adequate reason for retention." also characterizing the rule of exclusion as "the merest anachronism in legal theory and indefensible obstruction to truth in practice"); McCormick, Evidence, § 66 at 145 (2nd Ed.). Nevertheless, the rule is statutory with us, and while we need not extend the statute by construction we must apply it in accordance with its terms.

Section 622.7 applies to grand jury proceedings. State v. Smith, 215 Iowa 374, 245 N.W. 309; Molyneux v. Wilcockson, 157 Iowa 39, 137 N.W. 1016. While § 769.19, under...