State v. Moses

• Decision Date: 16 June 1982
• Docket Number: No. 65195,65195
• Citation: 320 N.W.2d 581
• Parties: STATE of Iowa, Appellee, v. Michael Earl MOSES, Appellant.
• Court: Iowa Supreme Court

Page 581

320 N.W.2d 581

STATE of Iowa, Appellee, v. Michael Earl MOSES, Appellant.

No. 65195.

Supreme Court of Iowa.

June 16, 1982.

Rehearing Denied July 15, 1982.

Richard A. Knock and Joseph Moothart, of Mershon, Snow & Knock, Cedar Falls, for appellant.

Thomas J. Miller, Atty. Gen., Julie F. Pottorff, Asst. Atty. Gen., and David H. Correll, County Atty., for appellee.

Considered by LeGRAND, P. J., and HARRIS, ALLBEE, LARSON and SCHULTZ, JJ.

LeGRAND, Justice.

This is a consolidated appeal from two convictions for first degree murder and concurrent sentences to life imprisonment. We affirm the trial court.

Defendant was charged with murdering Deborah Lane on March 30, 1979. He was also accused of murdering Patricia Kniss on April 20, 1979. Defendant entered a plea of not guilty to each charge and gave notice of his intention to rely on the defenses of insanity and diminished responsibility. He waived his right to trial by jury, and the cases were consolidated for trial to the court. Defendant was found guilty of both crimes, was sentenced under section 902.1, The Code 1979, to serve a term of life in the penitentiary for each, and this appeal followed.

Defendant charges the trial court erred in numerous rulings, which present the following issues for determination:

I. Error in requiring defendant to furnish the State a list of his witnesses;

II. Error in denying defendant's motion for bifurcated trial on the issues of insanity and diminished responsibility;

III. Error in permitting hypothetical questions without proper foundation;

IV. Error in rulings on psychiatric testimony;

V. Error in receiving as exhibits, and permitting testimony concerning, physical evidence without establishing chain of custody; and

VI. Error in denying defendant's motions for judgments of acquittal on ground of insufficiency of evidence.

I. Requiring Defendant to Provide Names of Witnesses

Defendant served notice of his intention to rely on the defenses of insanity and diminished responsibility. See Iowa R.Crim.P. 10(10)(b)(1). Pursuant to Iowa R.Crim.P. 10(10)(b)(2), defendant listed the expert witnesses he intended to call on these issues. The trial court ordered defendant to also identify all lay witnesses he intended to call. Defendant argues he was obliged under Iowa R.Crim.P. 10(10)(b)(2) to disclose only the names of experts who were to testify on sanity and diminished responsibility.

Defendant is correct as to the requirements of Iowa R.Crim.P. 10(10)(b)(2). This, however, does not settle the dispute at hand because the order directing defendant to identify the lay witnesses who were to testify on the issue of insanity was based on Iowa R.Crim.P. 12(3), which provides in pertinent part:

At or before the time of the taking of a deposition by a defendant under subsection 1 or 2 of this rule, the defendant shall list all witnesses expected to be called for the defense. There shall be a continuing duty throughout trial to disclose additional defense witnesses, and such witnesses shall be subject to being deposed by the State.

The order made specific mention that it was being entered pursuant to a stipulation between the county attorney and defense counsel "relative to proceedings under Rule 12, Iowa Rules of Criminal Procedure, [for] the deposing of witnesses on the issue of insanity as raised ... on behalf of Michael Earl Moses."

Under these circumstances the trial court was clearly right in ordering defendant to disclose the names of the lay witnesses who were to testify on the insanity issue.

Defendant also complains because a supplemental order denied defendant the right to call any person as a witness whose name had not been disclosed. Defendant says the trial court had no authority to impose this sanction. We need not reach this issue in view of our finding that the trial court had authority to order disclosure and the defendant complied with the order.

II. Bifurcated Trial

Defendant alleges error because the trial court denied his motion for bifurcated trial by which he sought to try the issues of sanity and diminished responsibility separately. Defendant relies strongly on State v. Collins, 236 N.W.2d 376, 383 (Iowa 1975) (Rawlings, J., concurring opinion) and Collins v. Auger, 577 F.2d 1107, 1109-10 (8th Cir. 1978), as authority.

We believe these cases are distinguishable. In the instant case, the State's experts did not testify to any incriminating statements or admissions made by the defendant. They evaluated defendant's mental condition without relying on such statements, if in fact any were made. Even under Collins v. Auger and the special concurrence in Collins, 236 N.W.2d at 383, defendant was not entitled to a bifurcated trial under present circumstances.

III. Objections to Hypothetical Questions

The State used hypothetical questions to obtain expert opinion testimony. On this appeal, defendant objects to three of the questions propounded by the State on the ground that there were no facts in the record to support the questions asked.

The use of hypothetical questions is an accepted method for securing expert opinion testimony. State v. Boner, 203 N.W.2d 198, 200 (Iowa 1972). The hypothesis upon which the expert witness is asked to rely must be established by the facts in the record or by facts later introduced into the record. The facts, however, need not be shown by direct testimony but may arise as a fair inference from either direct or circumstantial evidence. State v. Conner, 241 N.W.2d 447, 460 (Iowa 1976).

The trial court has considerable discretion in deciding whether a basis exists for submitting hypothetical questions for jury determination. Dougherty v. Boyken, 261 Iowa 602, 607, 155 N.W.2d 488, 491 (1968); State v. Hodge, 252 Iowa 449, 459-60, 105 N.W.2d 613, 619 (1960), appeal dismissed, 368 U.S. 402, 82 S.Ct. 437, 7 L.Ed.2d 394 (1961). We do not reverse except for abuse of discretion. Conner, 241 N.W.2d at 460.

In the present case defendant first objects to a hypothetical question submitted to Dr. Loeffelholz which was designed to elicit his opinion on defendant's mental condition at the time of the Deborah Lane murder. The State wanted the doctor to assume that the murderer had placed an unknown object in the toilet bowl in the bathroom in the victim's home. Defendant argues there is no evidence to support this assumption. Defendant's argument misstates the premise upon which it relies by insisting there was no evidence that anyone had placed a bloody object in the toilet bowl. Although there was considerable discussion in chambers concerning the use of the word "bloody" in framing the question, the inquiry as actually posed to the witness made reference only to an "unknown object." At no time did the State designate the object as a bloody one.

This alone would warrant rejection of defendant's objection. In addition we find there was evidence to support the question as submitted. The matter was of minimal importance to the opinion asked and would not justify a reversal in any event. We find no merit in this objection.

The second hypothetical question to which objection was made asked the expert witness to assume certain facts from the manner in which defendant's brother had described his appearance and demeanor on an occasion immediately following the murder of Patricia Kniss. Defendant objected on the ground the evidence showed that the room in which these observations were made was so dark it was impossible to describe either the appearance or conduct of defendant at that time.

The dispute centers around this testimony. Craig Moses, defendant's brother, was watching a professional basketball game when the defendant arrived home late on the night of April 20, 1979. There was no lighting in the room except that provided by the television set. Defendant came in, inquired about the score, watched the game for a few minutes and went upstairs. He expressed some opinion about the game and was pleased Los Angeles was winning. He did not appear to be excited or upset. The witness testified that he was unable to describe defendant's clothing or to observe his facial expression because there was insufficient light. The hypothetical question was careful to include only those matters about which Craig Moses testified. It eliminated any description of clothing or facial appearance because the witness said he could not observe these.

The trial court did not abuse its discretion in permitting the hypothetical question to be submitted on this state of the record. The witness stated what he could and could not see and observe. It was arguable as to exactly what the witness could observe in view of the limited lighting. These were matters going to the weight of the evidence, rather than to its admissibility. We cannot say that the question as framed was not supported by any evidence in the record, and we find no merit in the objection made.

The third hypothetical question to which objection was lodged was directed to Dr. Michael Taylor in connection with the Deborah Lane murder. The evidence showed that at approximately 6:30 A.M. on that day the defendant drove another brother, Jeffrey, to work. The hypothetical asked Dr. Taylor to assume Jeffrey noted nothing unusual about defendant's actions or statements at that time. Defendant objected that this was not borne out by the record because Jeffrey had stated the defendant appeared "high" and angry.

Jeffrey was not entirely consistent in his testimony. At one time he said the defendant appeared tired. At another he said defendant was "high" and angry from the night before and at still another he stated he noticed nothing unusual about defendant. The State had the right to ask the hypothetical question based on its own theory consistent with the supporting evidence in the record. Defendant was free to attack this version on cross-examination and to argue that the opinion expressed was not consistent with the record facts. Speed v....