State v. Salter

• Decision Date: 12 November 1968
• Docket Number: No. 53139,53139
• Citation: 162 N.W.2d 427
• Parties: STATE of Iowa, Appellee, v. David SALTER, Appellant.
• Court: Iowa Supreme Court

Page 427

162 N.W.2d 427

STATE of Iowa, Appellee, v. David SALTER, Appellant.

No. 53139.

Supreme Court of Iowa.

Nov. 12, 1968.

Life, Davis & Life, Oskaloosa, for appellant.

Richard C. Turner, Atty. Gen., and William A. Claerhout, Asst. Atty. Gen., for appellee.

LeGRAND, Justice.

This is the aftermath of a long day and night of vodka drinking, glue sniffing and other related activities during which both the prosecuting witness and defendant admit they had sexual intercourse. Defendant insists it was, to say the least, with her consent. She contends it was accomplished by force. The jury accepted her version and convicted defendant of the crime of rape in violation of section 698.1, Code of Iowa, 1966. He was sentenced to a term of ten years in the penitentiary and appeals from that judgment. We affirm the trial court.

Defendant asserts the following four errors upon which he relies here:

(1) Error in admitting the testimony of Dr. Meservey, a pathologist, concerning the results of certain tests made shortly after the alleged offense;

(2) Error in permitting the prosecuting witness to testify contrary to the original minutes of her testimony before the grand jury;

(3) Error in overruling his demurrer and his motion in arrest of judgment, both based on the insufficiency of the indictment; and

(4) Error in permitting certain police officers to testify beyond the scope of the bill of particulars filed by the State.

I. The first assignment of error concerns the testimony of Dr. Meservey, a pathologist. Dr. Sidney A. Smith had first testified he performed a pelvic and vaginal examination upon the prosecuting witness at 11:00 or 11:30 the night of the offense and had obtained from the vaginal vault a thick, tenacious material which was then placed in a test tube and delivered, along with other items, to Deputy Sheriff Dick Cline. This is the substance upon which the disputed tests were made.

The record shows the tests were made at Dr. Meservey's pathology laboratory in Des Moines; that the actual testing was by one of seven trained and registered medical technologists employed by him; that the tests were conducted under his supervision and control but that he did not participate in them personally; that the preliminary reports of the tests were submitted to him, examined by him, and after discussion with the technologist, a final report was prepared and signed.

Proper objections were interposed to the doctor's testimony as being hearsay and as being without proper foundation. The hearsay objection is bottomed on the fact that the witness did not himself take part in the testing and bases his opinion on the result of someone else's observations. The objection as to foundation asserts a failure to identify the person who made the test and the date upon which it was made or to describe the procedure followed.

Defendant relies almost entirely upon our recent decisions in Lessenhop v. Norton, Iowa, 153 N.W.2d 107, and State v. Charlson, Iowa, 154 N.W.2d 829. We do not believe those cases control here; nor do we find any conflict between them and our conclusion here.

State v. Charlson involved a criminal prosecution for operating a motor vehicle while intoxicated and applied a specific statute to that situation. Section 321B.4, Code of Iowa. We are not concerned with that statute here. Lessenhop v. Norton involved the withdrawal of blood from the body of a deceased motor vehicle accident victim under factual circumstances entirely dissimilar from those which exist here. Furthermore as we will mention later, the Lessenhop decision actually is authority for the admission of the doctor's testimony under the circumstances existing here.

The only matters which defendant argues to us concerning the foundation are the three objections heretofore set out--failure to name the technologist, to state the date of the test, or to describe the procedure used. We know of no requirement that the specific date upon which a test was run be given in the absence of a request therefor. The doctor's testimony shows that the substance tested was received in his office the day after the commission of the crime. He was not asked when the test was made. Unless the date is of material importance to the results of the test we find no error here. There is no such claim in this case. Defendant also objects the procedure followed in making the analysis was not described. We disagree. We find sufficient description of the procedure set out in Dr. Meservey's testimony to meet any reasonable requirement of proper foundation. Defendant also objects the person who made the test was not identified. There are two possible answers to this objection. First, the technologist was described as a person in the doctor's employ. In response to a specific question he stated he knew the name of such person. Defendant dropped that line of questioning and did not ask any further identification. Under these circumstances we do not think that the name of the technologist would have added anything to his identity as a person properly qualified and as one in the employ of the witness in his laboratory. The second answer is that the admissibility of the opinion does not necessarily depend upon the identity of the one who made the test. This requirement may be satisfied if the person under whose supervision it was made and who is responsible for its results is identified and is available for cross-examination. In the case now before us that was Dr. Meservey. This was the holding in Lessenhop v. Norton, supra, at page 112 of 153 N.W.2d where we said, '* * * that the identity of the person or persons (under) whose supervision the tests were conducted be established.' The evidence here is undisputed that the tests were made under the supervision and control of Dr. Meservey.

As to the hearsay portion of the objection to the doctor's testimony, we believe the law to be well established that an expert need not personally conduct all tests nor be personally familiar with all procedures before being qualified to testify concerning the results. In Ver Steegh v. Flaugh, 251 Iowa 1011, 1017, 1019, 103 N.W.2d 718, 722, we held an expert could testify to the results of certain tests run by other persons without producing the individuals employed in the laboratory who had actually made the tests. There, as here, the witness challenged was the person under whose supervision the tests had been made. We held his testimony to be properly admissible. We there quoted with approval from Chicago Cosmetic Company v. City of Chicago, 374 Ill. 384, 392, 29 N.E.2d 495, 499, where the Illinois court said, 'The appellant insists that the head of the testing laboratory should not have been allowed to testify to this fact (that certain substances used in the manufacture of cosmetics are not only inflammable but some are explosive). * * * This witness testified fully as to his qualifications and experience, and it was proper for him to state the result of the analyses made at the laboratory, by him, Or under his supervision.' (Emphasis added.)

A similar result was reached in Birdsell v. U.S., C.A. 5 Cir., 346 F.2d 775, 779, where it was held a doctor could testify using records which had been compiled by hospital authorities and other doctors without calling every person who made a recorded observation. The court said, 'With the increased division of labor in modern medicine, the physician making a diagnosis must necessarily rely on many observations and tests performed by others and recorded by them; records sufficient for diagnosis in the hospital ought to be enough for opinion testimony in the courtroom.' See also State v. Sweat, 78 N.Mex. 512, 433 P.2d 229, 231. There is no merit in the hearsay objection to Dr. Meservey's testimony.

We might dispose of this question on another and easier ground also. The entire effect of the doctor's opinion was simply to state the complainant had had sexual intercourse sometime in the 12-hour period before Dr. Smith's examination, a fact which both principals admitted. Their only quarrel was as to the time and circumstances. Defendant says it was in the afternoon and was with consent; prosecuting witness says it was at night and by force. The doctor's testimony corroborates either version and disputes the testimony of neither. Even if the testimony should not have been admitted, it would nevertheless be non-prejudicial since it merely...