State v. Peterson

• Decision Date: 30 March 1995
• Docket Number: No. 93-1192,93-1192
• Citation: 532 N.W.2d 813
• Parties: STATE of Iowa, Plaintiff-Appellee, v. Richard Lynn PETERSON, Defendant-Appellant.
• Court: Iowa Court of Appeals

Page 813

532 N.W.2d 813

STATE of Iowa, Plaintiff-Appellee, v. Richard Lynn PETERSON, Defendant-Appellant.

No. 93-1192.

Court of Appeals of Iowa.

March 30, 1995.

Linda Del Gallo, State Appellate Defender, and Annette L. Hitchcock, Asst. State Appellate Defender, for appellant.

Bonnie J. Campbell, Atty. Gen., Thomas S. Tauber and Charles N. Thoman, Asst. Attys. Gen., and Kirk E. Goettsch, Co. Atty., for appellee.

Considered by HAYDEN, P.J., and SACKETT and HABHAB, JJ., but decided en banc.

HABHAB, Judge.

Defendant-appellant Richard Lynn Peterson was convicted of possession with intent to deliver in violation of Iowa Code section 204.401(1)(d) (1991) ¹ and possession of a taxable substance without an excise stamp in violation of Iowa Code section 421A.12 (1991). ² Peterson contends his rights to due process were violated by the State's intimidation of a defense witness, Tary McCarthy. We affirm.

Peterson was riding in a car owned and operated by McCarthy when the car was pulled over for a seat belt violation and subsequently searched. Three large bags of marijuana, as well as small quantities of other narcotics, were found in the car. Charges were filed against both McCarthy and Peterson. McCarthy entered into a plea bargain, pled guilty, and was sentenced. As a part of his plea bargain, McCarthy signed an affidavit prepared by the county attorney stating he and Peterson both knew marijuana was in the car and intended to sell it. McCarthy was to testify later that he was told part of the plea agreement was he would not have to testify for the State or against Peterson.

Peterson elected to be tried by the court. The State, anticipating Peterson would testify at his trial, brought McCarthy, from where he was incarcerated, as a potential rebuttal witness. The county attorney talked to McCarthy during the trial and McCarthy told the county attorney if he were called as a witness, he would give testimony inconsistent with his sworn affidavit.

The county attorney notified Peterson's attorney McCarthy might provide exculpatory evidence. Peterson's attorney interviewed McCarthy. Peterson's attorney was to tell the court after the interview that he expected McCarthy to testify Peterson did not know the marijuana was in the car and Peterson had no intent to deliver the marijuana.

Peterson called McCarthy as a witness. McCarthy said before he testified he wanted to consult with an attorney because he might be charged with perjury and he did not want to testify before he had that opportunity.

The court appointed an attorney to represent McCarthy and, after McCarthy consulted with the attorney, he was questioned on the witness stand about whether Peterson knew there was marijuana in his car and McCarthy declined to answer on grounds that it might incriminate him.

The court then asked the county attorney what the State would do if McCarthy testified as Peterson's attorney expected he would and the county attorney replied: "We have not promised to file perjury charges if he testifies. Our position is that if he testified today in material variance with Exhibit 101 [his statement] we would investigate filing perjury charges."

The court then decided to allow McCarthy to assert his Fifth Amendment privilege. Later in the trial, McCarthy was asked by Peterson's attorney if he had, when not under oath, made statements different than some of the statements in the affidavit. The county attorney said McCarthy, in answering the question, might subject himself to a charge of perjury and the court again allowed McCarthy to invoke the Fifth Amendment.

After several more questions directed to Peterson's knowledge of the drugs in the car, Peterson's attorney asked the court to grant McCarthy use immunity so he could testify truthfully in the trial or the trial court grant a mistrial because of prosecutorial misconduct. Peterson's attorney advanced the prosecutors improperly obtained the plea and affidavit from McCarthy and threatened to charge him with perjury if his testimony differed from his prior statement.

The trial court refused to grant McCarthy use immunity and overruled Peterson's motion for a mistrial. On appeal, Peterson renews his claims.

I. Scope of Review. Because Peterson raises constitutional issues, our review is de novo. We independently evaluate the totality of the circumstances as evidenced by the whole record. State v. Fox, 491 N.W.2d 527, 530 (Iowa 1992).

II. Prosecutorial misconduct. Peterson contends his due process rights were violated due to prosecutorial misconduct. For there to be a denial of due process due to prosecutorial misconduct, there must be a showing that (1) the prosecutorial misconduct kept the witness from testifying (intimidation); and (2) the defendant was prejudiced as a result. Fox, 491 N.W.2d at 532.

A.

There are a number of basic ingredients of due process of law that are now so firmly established that separate citations to support the same are no longer necessary. As the United States Supreme Court, in In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948), observed:

A person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense-a right to his day in court-are basic in our system of jurisprudence; and these rights include, as a minimum, a right to examine the witness against him, to offer testimony, and to be represented by counsel.

Oliver, 333 U.S. at 273, 68 S.Ct. at 507-08, 92 L.Ed. at 694 (footnote omitted). In addition, there are an endless line of cases, both state and federal, that have held due process requires that the accused have the assistance of counsel for his defense, that he be confronted with the witnesses against him, and that he have the right to a speedy and public trial.

It is equally as fundamental to our system of jurisprudence that an accused has the right to compulsory process for obtaining witnesses in his or her favor. As the United States Supreme Court stated in Washington v. Texas:

The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.

Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019, 1023 (1966). This right to present a defense is rooted in the Sixth Amendment right to compulsory process. Fox, 491 N.W.2d at 530.

B.

Turning to the contention of the defendant that McCarthy was intimidated into not testifying, we return to Fox, where Justice Lavarato, speaking for a unanimous court, made this observation: "We concede there is a fine line between reminding a defense witness about the consequences of committing perjury and driving that witness from the witness stand." Id. at 533. It is indeed a "fine line" and, without intending to cite all the carefully crafted decisions in this area of the law, we look to the extensive discussion of cases appearing in Annotation, Admonition Against Perjury or Threats to Prosecute Potential Defense Witnesses, Inducing Refusal to Testify, as Prejudicial Error, 88 A.L.R.4th 388 (1991) and Supplement (1993) [hereinafter Admonition ].

From our review of those cases, it is safe to conclude that the circumstances giving rise to alleged threats and intimidations are boundless. Rather obviously, the treatment given to those cases vary depending upon their separate and individual circumstances.

In determining, first, whether a prosecutor has committed prejudicial error by admonishing or threatening a prospective defense witness, it is helpful to distinguish cases in which the prosecutor communicated the admonition or threat directly to the witness (§§ 3-6) from those in which the prosecutor funneled the information through a third party, such as the attorney for the defendant, the witness' attorney, or the trial judge (§§ 7-10). Among the former cases, moreover, those in which the prosecutor advised the witness that prosecution for perjury or another offense was possible (§§ 3-4) can be distinguished from those in which the prosecutor characterized the negative consequences of the witness' testimony as certain (§§ 5-6).

Annotation, Admonition, 88 A.L.R.4th at 394.

There are a line of cases where a prosecutor or trial judge has told a potential defense witness that the witness would face prosecution for perjury or some other charge if he or she testified for the defendant and, thereafter, the witness refused to testify. In those instances, a majority of courts have found that such action constituted misconduct which, if it prejudiced the defendant, justified reversal. Id. at 393-97, 405-16, 427-31, 447-48. This group of cases includes those on which Peterson relies: Webb v. Texas, 409 U.S. 95, 96-98, 93 S.Ct. 351, 352-53, 34 L.Ed.2d 330, 332-33 (1972) (trial judge told defendant's witness, an inmate, that if he lied on the stand, "the court will personally see that your case goes to the grand jury and you will be indicted for perjury.... It will also be held against you in the penitentiary when you're up for parole."); United States v. Henricksen, 564 F.2d 197, 198 (5th Cir.1977) (per curiam) (prosecutor told codefendant that he "would" be tried on all counts of the indictment, and his plea agreement "would" be void, if he testified); United States v. Morrison, 535 F.2d 223, 225-26 (3rd Cir.1976) (prosecutor told defense witness that her testimony "would" be used against her in drug prosecution, and that perjury charges were "possible," if she testified). ³

On the other hand, when the prosecutor or the trial judge has told a prospective defense witness he could...