State v. Webb

• Decision Date: 26 August 1981
• Docket Number: No. 65028,65028
• Parties: STATE of Iowa, Appellee, v. Terrance P. WEBB, Appellant.
• Court: Iowa Supreme Court

Page 404

309 N.W.2d 404

STATE of Iowa, Appellee, v. Terrance P. WEBB, Appellant.

No. 65028.

Supreme Court of Iowa.

Aug. 26, 1981.

Rehearing Denied Sept. 17, 1981.

Wilford M. Forker, Sioux City, for appellant.

Thomas J. Miller, Atty. Gen., Thomas N. Martin, Asst. Atty. Gen., Patrick C. McCormick, Woodbury County Atty., and David L. Gill and Charles N. Thoman, Asst. County Attys., for appellee.

Considered by REYNOLDSON, C. J., and UHLENHOPP, ALLBEE, McGIVERIN, and SCHULTZ, JJ.

SCHULTZ, Justice.

At approximately 11:40 a. m. on February 12, 1979, eighty-year-old Mildred White was found on the floor of the basement garage of her apartment in Sioux City. She stated that she had been assaulted by an armed assailant and that certain items of jewelry had been stolen. Mrs. White was taken by ambulance to St. Joseph's Hospital, where she died on February 26, 1979. Charges were subsequently filed against defendant, Terrance P. Webb.

Defendant was convicted by jury verdict of involuntary manslaughter, first-degree robbery, first-degree theft, and assault while participating in a felony in violation of, respectively, sections 707.5(1), 711.2, 714.2(1), and 708.3, The Code. Defendant appeals his convictions, contending the trial court erred in: (1) allowing expanded media coverage of his trial; (2) not instructing the jury that it had to find flight beyond a reasonable doubt; (3) refusing to compel disclosure of a confidential informant; (4) allowing inadmissible rebuttal testimony; (5) refusing to allow him to depose three police officers; (6) overruling his motion in limine to preclude cross-examination concerning a previous criminal conviction; (7) allowing expert medical testimony concerning cause of death to be based upon a reasonable medical certainty; (8) refusing to conduct separate voir dire of prospective jurors and refusing to sequester the jury; and (9) concluding that sufficient evidence existed to corroborate his confession.

The factual backdrop of the case is not material to this appeal. The relevant facts will therefore be discussed with defendant's assignments of error, to which we now turn.

I. Expanded media coverage. Defendant alleges that the trial court erred in overruling his pretrial motion to exclude photographic and electronic news coverage from within the courtroom during his trial. Defendant contends that such trial coverage violated his constitutional rights, principally under the fourteenth amendment to the United States Constitution and article I, section 9 of the Iowa Constitution.

On January 1, 1980, Canon 3 A(7) of the Iowa Code of Judicial Conduct was suspended and Revised Canon 3 A(7) substituted therefor to allow expanded media coverage ¹ of judicial proceedings on an experimental basis. ² Revised Canon 3 A(7) provides:

Subject at all times to the authority of the presiding judge to control the conduct of proceedings before the court to ensure decorum and prevent distractions and to ensure the fair administration of justice in the pending cause, electronic media and still photography coverage of public judicial proceedings in the trial and appellate courts of this state shall be allowed in accordance with rules of procedure and technology promulgated by the Supreme Court of Iowa.

Rule 2(b)-(c) states:

(b) A judge shall permit expanded media coverage of a proceeding, unless he or she concludes, on objection and showing of good cause that, under the circumstances of the particular proceeding such coverage would materially interfere with the rights of the parties to a fair trial.

(c) Such media coverage of a witness may be refused by the judge upon objection and showing of good cause by the witness.

In his brief defendant relies on Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), as establishing a per se rule that expanded media coverage of criminal prosecutions constitutes an inherent denial of due process. In Chandler v. Florida, --- U.S. ----, ----, 101 S.Ct. 802, 813-14, 66 L.Ed.2d 740, 757 (1981), however, the United States Supreme Court held that "(a)bsent a showing of prejudice of constitutional dimensions," the "Constitution does not prohibit a state from experimenting with the program authorized by Canon 3A(7)." The Court stated:

The risk of juror prejudice is present in any publication of a trial, but the appropriate safeguard against such prejudice is the defendant's right to demonstrate that the media's coverage of the case be it printed or broadcast compromised the ability of the particular jury that heard the case to adjudicate fairly.

Id. at ----, 101 S.Ct. at 810, 66 L.Ed.2d at 752.

Alternatively, a defendant might show that broadcast coverage of his particular case had an adverse impact on the trial participants sufficient to constitute a denial of due process....

To demonstrate prejudice in a specific case a defendant must show something more than juror awareness that the trial is such as to attract the attention of broadcasters.

Id. at ----, 101 S.Ct. at 813, 66 L.Ed.2d at 756. To establish prejudice a defendant can request a posttrial evidentiary hearing "to show adverse impact or injury." Id. at ----, 101 S.Ct. at 811, 66 L.Ed.2d at 753.

We believe the Chandler prejudice standard is also the appropriate test for resolving challenges to expanded media coverage premised on the Iowa Constitution. Accordingly, we adopt that standard. In the present case defendant has not shown prejudice. There is no indication in the record that defendant requested an evidentiary hearing or that any of the jurors or trial participants were adversely affected by the expanded media coverage of defendant's trial. We therefore hold that the trial court did not err in overruling defendant's motion to preclude expanded media coverage of his trial.

II. Flight instruction. Instruction 16 instructed the jury on flight:

If you find that the offenses charged in the Trial Information were committed and that the defendant thereafter fled from the community where he resided for the purpose of avoiding or regarding (sic) prosecution, then such flight is a circumstance you may consider in determining the guilt or innocence of the defendant. The credit and weight, if any, to be given such circumstance is for the jury to determine from a consideration of all the evidence in the case.

Defendant contends that failure of the trial court to instruct that the jury must find beyond a reasonable doubt that defendant fled to avoid or retard prosecution constituted error. Defendant relies on State v. Barr, 259 N.W.2d 841, 842 (Iowa 1977), in which the trial court instructed the jury on flight in relevant part: "(I)f you ... find beyond a reasonable doubt that the defendant fled from the scene for the purpose of avoiding and retarding the prosecution...." The inclusion of the reasonable doubt standard was not in issue, however.

Defendant's argument was rejected in State v. Savage, 288 N.W.2d 502, 507 (Iowa 1980):

Since flight is not an element of this offense, there is no constitutional requirement that it be found by proof beyond a reasonable doubt. The only requirement is that when it considers all the evidence, including the fact of flight, the jury must be convinced of all the elements of the crime beyond a reasonable doubt.

Flight is not an essential element of any of the offenses defendant was charged with or convicted of. Furthermore, the jury was thoroughly instructed that the State had the burden to prove all of the essential elements of the offenses charged beyond a reasonable doubt.

Defendant also contends that there was no evidentiary foundation justifying submission of the flight instruction to the jury. We disagree. The record shows that the robbery occurred on February 12, 1979. Defendant traveled to Cedar Rapids on February 15 and returned to Sioux City on February 17. Mrs. White died on February 26. Defendant knew of the death and told two witnesses that he would be leaving town for awhile. Thereafter, defendant went to Cedar Rapids and Omaha and Jackson, Nebraska. After making arrangements with his attorney, he returned to Sioux City on March 5.

When evidence creates a question concerning a defendant's reason for leaving town shortly after the commission of a crime, it is proper for the trial court to submit an instruction on flight. State v. Horstman, 222 N.W.2d 427, 431 (Iowa 1974). In this case defendant left Sioux City shortly after two significant events the robbery and the death of the victim. These departures constitute a sufficient evidentiary foundation for submission of the flight instruction. "It was for the jury to say, under all the circumstances, whether he departed because of his consciousness of guilt." State v. Bige, 195 Iowa 1342, 1348, 193 N.W. 17, 20 (1923), partially overruled on other grounds, State v. Johnson, 217 N.W.2d 609, 612 (Iowa 1975).

III. Refusal to compel disclosure of the identity of a confidential informant. Defendant contends that the trial court erred in overruling his motion to disclose the identity of a State's confidential informant and his motion requesting an in camera hearing for the purpose of having the informant answer written interrogatories propounded by defendant, thereby violating his rights of confrontation and to due process under the sixth and fourteenth amendments to the United States Constitution and article I, sections 9 and 10 of the Iowa Constitution. Defendant's contention is without merit.

In State v. Lamar, 210 N.W.2d 600, 602 (Iowa 1973), this court stated that generally the State is privileged to withhold the identity of a person who furnishes information relating to violations of the law.

This privilege is premised upon public interest in maintaining the flow of information essential to law enforcement.

To be weighed against that interest, however, is an accused's right of access to facts necessary for the preparation and presentation of his defense, and to a fair trial.

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