State v. Horn

• Decision Date: 29 August 1979
• Docket Number: No. 62231,62231
• Citation: 282 N.W.2d 717
• Parties: STATE of Iowa, Appellee, v. Donald Keith HORN, Appellant.
• Court: Iowa Supreme Court

Page 717

282 N.W.2d 717

STATE of Iowa, Appellee, v. Donald Keith HORN, Appellant.

No. 62231.

Supreme Court of Iowa.

Aug. 29, 1979.

Rehearing Denied Denied Oct. 11, 1979.

David A. Hirsch, of Edward W. Dailey Law Office, P.C., Burlington, for appellant.

Thomas J. Miller, Atty. Gen., Ann Fitzgibbons and Richard L. Cleland, Asst. Attys. Gen., and Steven S. Hoth, County Atty., for appellee.

Considered by REYNOLDSON, C. J., and LeGRAND, REES, McCORMICK, and McGIVERIN, JJ.

McGIVERIN, Justice.

After jury trial, defendant Donald Keith Horn appeals his conviction of first degree murder in violation of sections 690.1-.2, The Code 1977. Defendant urges numerous assignments of error. We find merit in two of defendant's contentions and therefore reverse and remand.

On December 12, 1977, the body of Jerri Connelly was found in a sewer pit located in Burlington. He had been shot through the heart with a "good sized" copper jacketed bullet. In addition, the back part of his skull was fractured and the front left portion of his head was injured, resulting in exposure of brain matter. Five of the victim's ribs were fractured in the back.

Tim Conard was arrested at 11:30 p. m. on December 14, 1977, for the murder of Connelly. Defendant Horn was arrested on December 15 at 2:15 a. m., also for the murder of Connelly. Ernest Strickland was also arrested on charges relating to the murder.

On December 14 the residence of Ernest Strickland, which was also the residence of Tim Conard, was searched by police. The search produced a gun, among other items. In the early morning hours of December 15 police executed a search warrant at defendant's home.

Prior to defendant's trial, Conard pleaded guilty to an open charge of murder for killing Connelly. Conard was held in the county jail awaiting his degree of guilt hearing, which was to take place after defendant's trial for murder.

From the testimony at trial, the jury could have found the following facts. On December 7 Conard left the Strickland residence to visit Donald Horn. During the visit defendant offered to pay Conard three ounces of marijuana and a gun if he would kill Jerri Connelly for him. Conard accepted and Horn gave him the gun and one-half ounce of marijuana at that time. Conard returned to the Strickland residence and after a short time left to find Jerri Connelly. The victim was eventually found at his residence. Conard and Connelly then walked to a nearby sewer pit. While in the sewer pit, Conard pulled the gun on Connelly and shot him through the heart. Conard then left the sewer pit and returned to the Strickland residence. After a short time, Conard left the Strickland residence and went to defendant's home and informed Horn that he had killed Connelly. Horn then gave Conard the remaining two and one-half ounces of marijuana to complete the payment. Conard returned to Strickland's residence and turned the gun over to Ernest Strickland.

Defendant raises seventeen issues which we discuss in divisions one through thirteen. Our fourteenth division relates to printing costs.

I. Should defendant have received copies of the Conard and Strickland statements? Prior to trial, Horn moved for production of copies of all existing statements of Ernest Strickland and Timothy Conard in the possession and control of the State. After hearing, the court denied defendant's motion.

Later, after deposition of Strickland at which he refused to answer certain questions, claiming his fifth amendment privilege, defendant again requested the statement of Strickland taken by the Burlington Police Department. Strickland made one statement under oath on December 14, 1977. The statement was in question and answer form. It was taken down and transcribed by a person who was a certified shorthand reporter and notary public. The statement was certified by the reporter as being accurate and as given under oath. The statement was not signed by Strickland. The court again denied defendant's request.

At trial the State called Strickland as a witness. Defendant began his cross-examination of Strickland and, between his morning and afternoon testimony, the court examined Strickland's statement in its entirety. In the presence of both counsel, the court stated that it found nothing in the statement that was either inconsistent with Strickland's testimony or exculpatory as to defendant. Defense counsel made no objection to this procedure, nor did he request a copy of Strickland's statement at any time during cross-examination or thereafter.

At a later point during the trial, the State called Conard as a witness. At the end of the direct examination, defendant requested actual copies of each statement that Conard had given to the police. In the presence of both counsel, the court held an in-camera inspection of the two statements. One was a very short report by Detective Smith, which related to his interview of Conard on December 12, 1977. According to the report, Conard denied any knowledge as to how Jerri Connelly's life was taken. The report was Detective Smith's summary of the statements made by Conard. Counsel for defendant was so advised. The second statement was in question and answer form, recorded by a stenographer in shorthand and signed by Conard. The statement was concluded at 2:10 a. m. and signed at 3:49 a. m. on December 15, 1977. The court, having examined this statement in-camera, informed counsel for both parties in chambers that there were two inconsistencies between the statement and Conard's direct testimony. The court then read the questions and answers from the statement that it believed to be inconsistent. Defendant was not given a copy of any part of Detective Smith's report or Conard's statement.

On appeal, defendant argues that it was error to deny him a copy of both Strickland's and Conard's statements, and that it was not sufficient for the court to merely search the statements for inconsistencies and exculpatory evidence and read what it found to be inconsistencies in the statements.

In State v. White, 260 Iowa 1000, 1006-1007, 151 N.W.2d 552, 555 (1967), we approved the procedures of the Jencks Act, 18 U.S.C. § 3500, as it relates to making tapes of police radio calls available to defendant for appropriate use. In numerous cases since that time we have approved the Jencks procedure. E. g., State v. Cuevas, 282 N.W.2d 74, 82 (Iowa 1979) (grand jury testimony of witness); State v. Gartin, 271 N.W.2d 902, 911 (Iowa 1978) (grand jury testimony of witness); State v. Hall, 235 N.W.2d 702, 713-15 (Iowa 1975) (copies of physical evidence and grand jury testimony of witness); State v. Deanda, 218 N.W.2d 649, 651-52 (Iowa 1974) (copies of police reports of testifying officer); State v. Cunha, 193 N.W.2d 106, 111 (Iowa 1971) (statements of trial witnesses); State v. Mayhew, 170 N.W.2d 608, 613-14 (Iowa 1969) (copies of police reports of testifying officer); State v. Eads, 166 N.W.2d 766, 771-75 (Iowa 1969) (physical evidence, scientific reports setting forth information obtained from that evidence, statements made to police by trial witnesses and copies of police investigatory reports).

In order for statements to be subject to the Jencks Act procedures, which we have approved, it is necessary that they be written statements made by the witness and signed, or otherwise adopted or approved by the witness, or that they be a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement. The distinction between a statement made by a witness and one that is an imprecise summary of what another understood the witness to say has been made on the federal level as well as in Iowa. See Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959); State v. Houston, 209 N.W.2d 42, 46 (Iowa 1973); State v. Schlater, 170 N.W.2d 601, 607 (Iowa 1969).

We quoted the following language from Palermo v. United States, 360 U.S. 343, 350-53, 79 S.Ct. 1217, 1223-25, 3 L.Ed.2d 1287, 1294-96 (1959), with approval in State v. Schlater, 170 N.W.2d 601, 607 (Iowa 1969):

"One of the most important motive forces behind the enactment of this legislation was the fear that an expansive reading of Jencks would compel the undiscriminating production of agent's summaries or interviews regardless of their character or completeness * * * (I)t was felt to be grossly unfair to allow the defense to use statements to impeach a witness which could not fairly be said to be the witness' own rather than the product of the investigator's selections, interpretations, and interpolations * * * .

* * * It is clear that Congress was concerned that only those statements which could properly be called the witness' own words should be made available to the defense for purposes of impeachment. It was important that the statement could fairly be deemed to reflect fully and without distortion what had been said to the government agent. * * * It is clear from the continuous congressional emphasis on 'substantially verbatim recital,' and 'continuous, narrative statements made by the witness recorded verbatim, or nearly so * * *,' see Appendix B, post 79 S.Ct. page 1228, that the legislation was designed to eliminate the danger of distortion and misrepresentation inherent in a report which merely selects portions, albeit accurately, from a lengthy oral recital. * * * Since we feel the statutory standard has guiding definiteness, it would be idle to attempt a minute enumeration of particular situations to which it is to be applied. * * * Final decision as to production must rest, as it does so very often in procedural and evidentiary matters, within the good sense and experience of the district judge guided by the standards we have outlined, and subject to the appropriately limited review of appellate courts."

It is clear that the...