State v. Peterson

Decision Date26 June 1974
Docket NumberNo. 56279,56279
Citation219 N.W.2d 665
PartiesSTATE of Iowa, Appellee, v. Michael Dean PETERSON, Appellant.
CourtIowa Supreme Court

Scalise, Scism, Gentry, Brick & Brick, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Raymond W. Sullins, Asst. Atty. Gen., Darby Maria Coriden, Asst. Atty. Gen., Ira Skinner, Sp. Asst. Atty. Gen., and Emory H. Emerson, County Atty., for appellee.

Heard and considered en banc.

HARRIS, Justice.

Defendant was indicted and tried for the murder of his fiance. He appeals his conviction of the included offense of manslaughter. We reverse because of the failure to allow defendant to take discovery depositions, because of the admission of blood samples illegally obtained, and because the State failed to disclose exculpatory evidence. In view of their importance upon remand we shall discuss other assignments.

Jean Marie Christensen was found dead in her Storm Lake apartment at about 11:00 a.m. on October 17, 1971. Decedent and defendant were engaged and had spent the preceding evening together. There is no indication they quarreled or were on other than friendly terms. The deceased was two months pregnant at the time of her death; defendant was the father of the child. On the evening of the night in question the couple called on the minister who was to marry them. They visited with him about wedding plans and seemed to him to be an affectionate couple, smiling and happy.

The charge specified in the indictment was murder in the perpetration of a rape in violation of § 690.2, The Code. Defendant's conviction of the included offense was based on circumstantial evidence. His own testimony placed him in decedent's apartment from 11:30 p.m. to 1:30 a.m. He was seen at his place of employment at 1:45 a.m. There was testimony decedent had been strangled. The presence of male semen indicated sexual intercourse near the time of death. Other facts can be more appropriately recited as they relate to specific assignments.

I. Defendant first complains of the trial court's refusal to allow him to take oral discovery depositions. As authority for his application defendant cites § 781.10, The Code, which provides: 'A defendant in a criminal case, either after preliminary information, indictment, or information, may examine witnesses conditionally or on notice or commission, in the same manner and with like effect as in civil actions.' Defendant freely concedes our interpretation of this statute severely limits its application. State v. District Court (Delaware County), 253 Iowa 903, 114 N.W.2d 317; State v. McClain, 256 Iowa 175, 125 N.W.2d 764; State v. Gates, 260 Iowa 772, 150 N.W.2d 617; State v. Parker, 261 Iowa 88, 151 N.W.2d 505; State v. Rankin, 181 N.W.2d 169 (Iowa 1970). In State v. District Court (Delaware County), supra, we held our discovery rules, adopted in 1957, were available only in civil cases. We expressed the belief § 781.10 was placed in our Code revision of 1860 'for the purpose of giving the defendant an opportunity to obtain and offer evidence in his own behalf when the witnesses might not be otherwise available.' 253 Iowa at 910--911, 114 N.W.2d at 321.

Defendant challenges this interpretation and the reasons upon which it was based. A review of each reason discloses defendant's challenge is valid and that the interpretation we adopted in State v. District Court (Delaware County), supra, should now be abandoned.

First, defendant notes § 781.11, The Code, has, since 1860, otherwise specifically provided the right to perpetuate testimony. 1 The right to perpetuate testimony under § 781.11 arises when one becomes apprehensive of a possible prosecution. But the right does not terminate with the bringing of the action. 26A C.J.S. S. Depositions § 25, page 316. It is apparent our interpretation of § 781.10 renders it a useless restatement of the section that follows it.

Another rationale in State v. District Court (Delaware County), supra, is also challenged. We pointed out the information to be sought by way of discovery for a criminal defendant is otherwise available to him in our criminal procedures, particularly in the minutes of testimony attached to the indictment or county attorney's information. See § 772.3, The Code. This rationale is especially offensive to this defendant who separately assigns as error the allowance of testimony by an expert witness on matters beyond the scope indicated in the minutes. This assignment will be discussed in a later division. To prohibit discovery because of the minutes of testimony seems bitter irony to the defendant. We have consistently refused to reverse a conviction for allowing testimony beyond the minutes. Such consistent refusal dates from State v. Bowers, 17 Iowa 46 (1864).

Our opinion in State v. District Court (Delaware County) finds further evidence of a legislative intent to limit the operation of our discovery rules (rule 140 et seq., Iowa Rules of Civil Procedure) in the fact that such discovery cannot be entirely reciprocal. A criminal defendant obviously cannot be deposed. Constitution, State of Iowa, Article I, § 10. One might challenge whether legislative intent is involved at all. Under § 684.19, The Code, the legislature is given a veto and right to amend our changes in procedural rules. Rule changes might well be said to reflect judicial rather than legislative intent. In any event § 781.10 expressly applies only to criminal defendants.

Except as to the defendant himself the State does have an effective means of obtaining discovery over defense witnesses. § 769.19, The Code, directs the clerk of district court to '* * * 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 * * *' for the purpose of examination by the State and, if he desires, cross-examination by the defendant.

Defendant rightly argues our subsequent decisions, previously cited, greatly temper the strict exclusion of criminal discovery announced in State v. District Court (Delaware County), supra. See also State v. Cowman, Iowa, 212 N.W.2d 420, 423. We detailed the conflicting arguments on the question of criminal discovery in another context in State v. Eads, 166 N.W.2d 766 (Iowa 1969). Much can still be said for refining criminal discovery rules; but such refinement, in view of the limitation of § 781.10, must await legislative action. We overrule State v. District Court (Delaware County) and now hold a defendant, by authority of § 781.10, The Code, may take discovery depositions of State's witnesses. The denial of defendant's application to take discovery was error.

II. Defendant was arrested November 5, 1971. He asked to consult a lawyer during the booking procedure on the same morning. He was not allowed to make a phone call or to contact a lawyer. He was given the Miranda warnings after the procedure was completed and indicated he did not want to talk with the arresting officers.

Terry Johnson, a special agent with the Iowa bureau of criminal investigation assigned to the case, then asked defendant for a sample of his blood. Johnson's own testimony establishes defendant was reluctant to submit such a sample. Before doing so defendant inquired of Johnson as to the legality of the procedure. Defendant went so far as to say he wanted to talk with his lawyer before giving it. Johnson assured defendant the procedure was perfectly legal, or if not, his lawyer could keep it out of evidence in any later trial. Only after this assurance did defendant submit the sample. No warrant for the search of defendant's person was sought or obtained.

The results of the sample were submitted for analysis to establish blood type. The evidence was unsuccessfully challenged by defendant in a pretrial motion in limine. The challenge was renewed to no avail when the evidence was offered and received at trial. The avowed purpose of this evidence was to show defendant's blood type, type A, matched the semen found within the decedent. Defendant's second assignment is addressed to this evidence. We believe and hold the case must be reversed by reason of its admission.

Defendant has no need to here rely on recently developed principles in the fields of constitutional or criminal law. Material facts are, as defendant insists, 'four- square' with those shown in State v. Height, 117 Iowa 650, 91 N.W. 935, which we decided in 1902. In Height the defendant was arrested for the rape of a woman infected with a venereal disease. The arresting officer and county attorney requested an examination of Height's genitals to determine if he too had a venereal disease. Similarly no search warrant was ever obtained. Height resisted such an examination but finally consented to it only after being assured by the arresting officer that the State had a right to require the examination. It was descovered Height had the same venereal disease as the prosecutrix and his subsequent conviction was reversed by us. We held the compulsion by the officers violated Article I, § 8, of the Iowa Constitution. We said:

'We have * * * in our state constitution an express guaranty against any proceeding under the guise of law such as that resorted to by the officers in this case for the purpose of securing criminating evidence from the person of the defendant. It is provided by article 1, § 8, that 'the right of the people to be secure in their persons, * * * against unreasonable seizures and searches, shall not be violated;' * * *.' 117 Iowa at 661, 91 N.W. at 938.

In the same opinion we pointed out:

'* * * The search was for the mere purpose of securing evidence by an invasion of the private person of the defendant, and we think there is no consideration whatever which will justify it. * * * (I)t is enough to say that the officers acted unlawfully in compelling defendant to submit to this examination, and all evidence with reference...

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