State v. Tharp

• Decision Date: 16 November 1965
• Docket Number: No. 51527,51527
• Citation: 138 N.W.2d 78,258 Iowa 224
• Parties: STATE of Iowa, Appellee, v. Monte THARP, Appellant.
• Court: Iowa Supreme Court

Page 78

138 N.W.2d 78

258 Iowa 224

STATE of Iowa, Appellee, v. Monte THARP, Appellant.

No. 51527.

Supreme Court of Iowa.

Nov. 16, 1965.

Frederick G. White and Joe Nutting, Waterloo, for appellant.

Lawrence Scalise, Atty. Gen., of Iowa, Don R. Bennett, Asst. Atty. Gen., and D. Quinn Martin, Black Hawk County Atty, Waterloo, for appellee.

LARSON, Justice.

On the afternoon of February 19, 1964, defendant Monte Tharp was visiting at the home of Lawrence Salter in Evansdale, Iowa. Salter operated a tavern located some 24 feet in front of his house and defendant's mother, Mary Barta, lived with and worked for him in the tavern.

There had been trouble between Salter and Mrs. Barta. Defendant knew Salter had recently beaten his mother, once so severely he broke her jaw on both sides. On this date her jaws were wired and she still suffered from infections induced by the injuries.

Defendant, a drummer in a combo band, had arranged to accompany a Mr. Klodner to an engagement at Cedar Rapids that evening, so while awaiting dinner he took a nap in the Salter house. While attending bar in the tavern, his mother and Salter again quarreled and Mary was pushed to the floor, her clothes torn, and her knee skinned. Emotionally upset, she came to the house crying, and awakened defendant, who tried to calm her and restore peace between Salter and Mary. Mary and Salter then returned to the tavern.

About 7 P. M. Klodner arrived to pick up defendant and Salter went to the house to get him. A fight developed, which terminated when Salter received a fatal stab wound in the chest. Police were called at defendant's request. When he told officers that he had stabbed Salter, he was arrested and taken to the police station for questioning. Salter was found in the areaway between the house and the tavern and was taken to the hospital. He was pronounced dead on arrival.

At the police station defendant gave the officers a statement, which was typewritten and signed by him. Later that evening he was arraigned before a judge of the Municipal Court of Waterloo, bound over to the district court, and taken to jail.

On February 27, 1964, a county attorney's true information was filed charging defendant with the murder of Lawrence Salter, with malice aforethought, contrary to and in violation of section 690.1 of the 1962 Code of Iowa. He entered a plea of not guilty and trial was commenced May 25, 1964. The jury returned a verdict of guilty of second degree murder on June 6, 1964. His motion for a new trial was overruled, and on June 19, 1964, he was sentenced to the Iowa State Penitentiary for a period of not to exceed fifteen years. He appeals, listing four alleged errors upon which he relies for reversal.

We shall relate to the facts that are material upon the assigned errors in more detail as we consider the various contentions advanced.

I. The defendant's first assigned error is based upon the court's refusal to allow defendant or his counsel to examine depositions taken, pursuant to section 769.18 of the Code, of Zane Ivan Hanlin, Dennis Klodner, and Dorothy Finger, later used as witness for the State. Section 769.18 provides: 'The clerk of the district court, on application of the county attorney, shall 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; provided that no subpoena shall issue unless an order authorizing same shall have been first made by the court or a judge thereof.' Prior to the anactments of the 61st General Assembly there were no statutory provisions for defendant participation in the taking of such testimony. See Senate File 430, Acts of the 61st General Assembly, effective July 8, 1965. Therein section 769.18 was amended to add: 'After preliminary information, indictment, or information the defendant shall be present and have the opportunity to cross-examine any witnesses whose appearance before the county attorney is required by this section.' The provisions of this amendment, of course, could not apply here.

Nevertheless, before and during the trial defendant requested copies of the testimony taken before the county attorney of the State's witnesses above mentioned and Lela Hanlin and Mary Barta, basing his request upon constitutional grounds. The court denied the request, but rightfully allowed the defendant to examine parts of the depositions of Mary Barta and Lela Hanlin prior to their cross-examinations. These witnesses all testified at the trial.

It is appellant's contention that the court's refusal to allow prior examination of these depositions deprived him of the opportunity of ascertaining all available evidence as to his guilt or punishment. He argues that without such information he could not adequately cross-examine the State's witnesses and could not ascertain whether the State was suppressing evidence favorable to him. He likens the county attorney's examination to the grand jury investigation (section 769.12) and points to section 771.24 requiring certain disclosures by the clerk and members of the grand jury of the testimony given by witnesses before the grand jury when required by the court, as authority for defendant's claim to that produced before the county attorney.

It is true the court could require a member or clerk of the grand jury 'to disclose the testimony of a witness examined before the grand jury for the purpose of ascertaining whether it is consistent with that given by him before the court,' as may be necessary in the administration of justice.

However, until the amendment enacted in 1965 became the law, we have found no statutory authority by which an accused may obtain the work product of the county attorney's office. True, defendant has the right to be furnished with the names of the parties who will testify for the State and, by the minutes attached to the indictment or information, be informed as to the substance of their testimony. Section 769.4 of the Code. We understand no such request was made herein and that no minutes or bill of particulars was furnished, although available to defendant on motion. Thus, appellant's contention that he was illegally refused an examination of the testimony taken by the county attorney has no merit.

We fully considered such a contention in State v. District Court, 253 Iowa 903, 911, 114 N.W.2d 317, 322, saying such a discovery proceeding 'is unnecessary for the protection of the accused, (and would be) unfortunate and undesirable.' We pointed out that for many years a defendant in a criminal case has had all the protection that can be legitimately needed or afforded by discovery. He is furnished a copy of the indictment; the names of the prosecution's witnesses must be furnished him, and if this is not done, they may not testify against him. He has the right under our constitution to be confronted by the witnesses against him. Furthermore, the minutes of the testimony before the grand jury, or the substance of the proposed testimony of each witness, if the cause is prosecuted by true information, must be furnished him. We then agreed with the Supreme Court of Vermont when it said: 'There is no policy in the law which would seem to require opening the door to this sort of thing. Indiscriminate and unrestricted discovery in all cases would not lead to justice, but justice perverted.' Hackel v. Williams, 122 Vt. 168, 167 A.2d 364, 366.

Appellant cites and relies principally upon Brady v. state of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, as authority for the proposition that due process is denied him unless he be furnished copies of this testimony. The Brady case does not so hold. It considered only the effect of an actual suppression of evidence favorable to defendant. As we understand the Brady case, it appeared the State had suppressed evidence that would effect the punishment to be administered the accused, and under such a showing the court held there would be a denial of the due process clause of the Fourteenth Amendment, but that neither that clause nor the equal protection clause of that amendment was violated by restricting a new trial to the question of punishment. As further bearing on this matter, see Palermo v. United States, 360 U.S. 343, 349, 79 S.Ct. 1217, 3 L.Ed.2d 1287; State v. Kelly, 249 Iowa 1219, 1221, 91 N.W.2d 562.

There is no claim here that the State suppressed any evidence favorable to appeallant. The claim is that he was not able to determine whether it was suppressed or not, and to deny him the right to determine that question before trial violated the law and his constitutional right. What defendant really asked was a right of discovery.

Under this record there is not even an indication anything favorable to defendant was suppressed by the State, and we find no error in the refusal to furnish defendant copies of the testimony taken before the county attorney.

II. In his second assignment appellant contends the court erred in admitting into evidence statements taken from defendant by the arresting and interrogating police officers after his arrest and while he was in custody. It is contended that after the officers learned of Salter's death they should have again advised defendant of his right to remain silent and to an opportunity to consult with counsel.

At the time of defendant's arrest at approximately 7:30 P.M. Salter was alive and on the trip to the police station neither the defendant nor the officers knew otherwise. At the station, after being advised of his rights, defendant gave the officers a statement, which was typed up, and it became an exhibit in the trial. Before it was finished and before it was signed by defendant, the officers were advised of Salter's death but did not tell defendant thereof until later that evening.

It is ture the law requires, when one is arrested without warrant, that he shall without...