State v. Taylor

• Decision Date: 20 July 1983
• Docket Number: No. 67938,67938
• Citation: 336 N.W.2d 721
• Parties: STATE of Iowa, Appellee, v. James Michael TAYLOR, Appellant.
• Court: Iowa Supreme Court

Page 721

336 N.W.2d 721

STATE of Iowa, Appellee, v. James Michael TAYLOR, Appellant.

No. 67938.

Supreme Court of Iowa.

July 20, 1983.

Francis C. Hoyt, Jr., Appellate Defender, and Patrick R. Grady, Asst. Appellate Defender, Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., Teresa Baustian, Asst. Atty. Gen. and David H. Correll, Black Hawk County Atty., for appellee.

Considered by REYNOLDSON, C.J., and McGIVERIN, LARSON, SCHULTZ and WOLLE, JJ.

WOLLE, Justice.

Defendant James Michael Taylor appeals from his conviction by jury of two counts of murder in the first degree in violation of Iowa Code section 707.2 (1981). He contends that the trial court erred in several evidentiary rulings, in denying his motion for mistrial based on alleged misconduct by the prosecutor, and in denying his motion for new trial based on cumulative individual errors. We affirm the trial court.

The State charged defendant as the result of an incident in which two Waterloo police officers were shot and killed at about midnight on July 12, 1981. Defendant's motion for change of venue based on extensive publicity surrounding the case was granted, and trial was transferred to Pottawattamie County. Defendant filed a notice of diminished responsibility by virtue of alcohol and drug intoxication, identifying the names of five lay witnesses whom he expected to call.

During the trial, the court made several evidentiary rulings which defendant claims constituted prejudicial error. From the evidence which was admitted without objection, the jury could reasonably have found beyond a reasonable doubt that on the night of the incident two Waterloo policemen, Michael Hoing and Wayne Rice, stopped at a Waterloo residence in answer to a complaint about loud music. When the music was turned off and the officers left the residence area, two persons on the porch of the residence began yelling at and cursing the officers. The officers sought to arrest one of those persons, a struggle ensued, and one officer was knocked to the ground. Defendant, who had ingested both drugs and alcohol that evening, ran from the side yard to assist his friends, obtained officer Rice's gun and fired several shots, fatally wounding both officers. Further facts are presented to the extent pertinent to each separate issue raised by defendant.

I. Exclusion of Testimony of a Defense Witness. Defendant contends that the trial court erred in refusing to allow him to call as an expert witness at trial Dr. Stan Moore, an expert on the effects of drug and alcohol consumption. He contends that the trial court improperly applied the preclusion sanction contained in Iowa Rule of Criminal Procedure 10(10)(d) (1981), both because defendant had shown good cause for late filing of the name of the witness and because the defense of intoxication is covered by rule 10(10)(c), not rule 10(10)(b), and does not specifically require the listing of witnesses.

Iowa R.Crim.P. 10(10) [now rule 10(11) ] provided in pertinent part:

b. Insanity and diminished responsibility

(1) Defense of insanity and diminished responsibility. If a defendant intends to rely upon the defense of insanity or diminished responsibility at the time of the alleged crime, the defendant shall, within the time provided for the filing of pretrial motions, file written notice of such intention. The court may for good cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as may be appropriate.

(2) State's right to expert examination. Where defendant has given notice of the use of the defense of insanity or diminished responsibility and intends to call an expert witness or witnesses on that issue at trial the defendant shall, within the time provided for the filing of pretrial motions, file written notice of the name of each such witness. Upon such notice or as otherwise appropriate the court may upon application order the examination of the defendant by a state-named expert or experts whose names shall be disclosed to the defendant prior to examination.

c. Intoxication, entrapment, and self-defense. If defendant intends to rely upon the defense of intoxication by drugs or alcohol, entrapment, or self-defense, the defendant shall, within the time for filing pretrial motions, file written notice of such intention. The court may for good cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as may be appropriate.

d. Failure to comply. If either party fails to abide by the time periods heretofore described, such party may not offer evidence on the issue of alibi, insanity diminished responsibility, intoxication, entrapment, or self-defense without leave of court for good cause shown. In granting leave, the court may impose terms and conditions including a delay or continuance of trial. The right of a defendant to give evidence of alibi, insanity, diminished responsibility, intoxication, entrapment, or self-defense in his own testimony is not limited by this rule.

Within the time provided for filing motions, defendant had filed a Notice of Diminished Responsibility by Virtue of Alcohol and Drug Intoxication, listing the names of five lay witnesses but not listing the name of Dr. Moore or any other expert witness. The notice stated that it was given "under Rule 10.10(b)(1)." Trial commenced on October 13, 1981 with the jury sworn on October 14 and the presentation of evidence commencing on October 15. On October 20, 1981, defendant moved for permission to have Dr. Moore examine defendant, stating for the first time that Moore would be an expert witness on the effects of drugs and alcohol. The State vigorously resisted, contending that the notice was late and constituted unfair surprise. In response, defense counsel conceded that he recognized his ongoing responsibility to inform the State of any other witnesses he intended to call, but he offered several excuses for giving late notice. He said he had had difficulty locating a witness in the Council Bluffs area, his first choice for an expert "had fallen through", and he expected that any trial delay would be minor even if the State were granted a continuance to depose Dr. Moore.

The trial court initially stated that Dr. Moore would be allowed to examine the defendant, with the State allowed to interview or depose him and with the decision as to whether to allow the expert's testimony dependent upon the nature of the testimony. The court cautioned that it was "doubtful" that the witness would be allowed to testify. Later in the day, the court denied the request for examination. The trial court first elaborated upon the considerable length of time that had passed since the Notice of Diminished Responsibility was filed. The court noted that the first notice of expert witness was not given until one week after trial commenced and concluded that the defendant's request was "just too late under rule 10".

A. Notice under rule 10(10)(b). Defendant contends that he had shown good cause for giving late notice of the intention to call an expert witness on the defense of diminished responsibility. Both rule 10(10)(b)(1) concerning late filing of the notice and rule 10(10)(d) provide that the court may "for good cause shown" relax the requirements of notice or permit testimony notwithstanding late notice. In that regard, the rules are similar to Iowa R.Crim.P. 10(10)(a) requiring notice of evidence of an alibi defense. What this court said in State v. Christensen, 323 N.W.2d 219 (Iowa 1982) with respect to "good cause" in the case of a belated notice of an alibi witness applies equally here. What constitutes good cause is a discretionary decision of the trial court; the defendant has the burden to show that the trial court abused its discretion. 323 N.W.2d at 223-24. Rules requiring advance notice of such defenses as alibi and diminished responsibility are justified by the need to balance the interest of the defendant in a full and fair trial against the interest in protecting the State from unfair surprise and delays. See Williams v. Florida, 399 U.S. 78, 81-82, 90 S.Ct. 1893, 1896, 26 L.Ed.2d 446, 450 (1970); United States v. Barron, 575 F.2d 752, 757 (9th Cir.1978).

Our independent analysis of the good cause standard in rule 10(10)(b)(1) satisfies us that the defendant did not establish good cause for an exception to the rule of exclusion provided by rule 10(10)(d). Late notice prejudiced the State, because once trial had proceeded for a week, the State would not have normal opportunity to investigate the veracity and basis for the expert witness's testimony. Had the defendant's request for a continuance been granted there would have been an unfair delay in the trial between presentation of most of the State's evidence and the defendant's evidence as to diminished responsibility. Moreover, defendant did not satisfactorily show that the expert witness could not have been identified and a basis for his testimony established well before trial began. Over six weeks before trial began, the court had ordered that venue be transferred to Pottawattamie County, with trial scheduled to commence on October 13.

B. Notice under rule 10(10)(c). Defendant also contends that the trial court incorrectly denied the motion to allow testimony of Dr. Moore by applying rule 10(10)(b) rather than rule 10(10)(c). Defendant argues that because the latter rule does not compel pretrial disclosure of expert witnesses, but only notice that the defense of intoxication by drugs or alcohol is relied upon, the trial court had no authority to exclude the expert witness once notice had been given. Defendant argues that in the absence of a specific exclusionary sanction, general provisions of rule 12(3) apply. The usual sanction for late disclosure of witnesses would then be the granting of a continuance subject to the State's right to depose such...