*1 Iowa, Appellee, STATE BARRETT, Appellant. Kirby
Bryan
No. 87-1325.
Supreme Iowa. Court
Aug. 16, 1989. 15, 1989. Sept. Denied
Rehearing
750 Gen., Miller, Ann E. Atty.
Thоmas J. Gen., Brenden, Atty. and James W. Asst. III, Prosecutor, Sp. appellee. Ramey, Nick As- Lylea Dodson Critelli of Critelli Moines, sociates, P.C., appellant. Des HARRIS, Justice. Barrett, v. 401 N.W.2d 1987),
(Iowa
defendant’s con-
we reversed
and remanded for
of two murders
victions
remand,
Following
defendant
a new trial.
again
retried and
convicted
both
brought
appeal
charges.
murder
He
in his second
assigning numerous errors
appeals, being equally
trial. The court
divided,
by opera-
convictions
affirmed his
affirm.
tion of law. We
are most bizarre. For the
The facts
having
part they
repeated,
will not be
most
opinion on the
detailed in our
first
been
women,
young
appeal. The bodies
two
Willits,
Cynthia
and Carol
were
Walker
apart along
rural
found several miles
County road. The circumstanc-
Muscatine
insists,
appear, as defendant
es made it
had committed suicide af-
that Ms. Willits
murdering
ter
Ms.
State’s
Walker.
theory
that defendant murdered Walk-
er to
life insurance benefits and
obtain
way
thereafter murdered Willits
such a
suggest
the murder-suicide
es-
poused by
defendant.
assignments challenge
I. A number of
discretionary
rulings. Owing
trial court
superior vantage point
a trial court’s
trial, certain trial court determinations are
placed initially
province.
within that cоurt’s
They
appeal
will not
disturbed on
unless
be
we determine the trial court’s discretion
only
was abused. Abuse exists
when the
grounds
discretion was exercised on
or for
clearly
reasons
untenable or to an extent
clearly
Pappas,
unreasonable. State v.
(Iowa 1983).
challenged discretionary ruling
II. One
testimony by
expert
allowed
witness for
Co.,
(3d
F.2d
DiMaio,
Rego
See
physician and
Lewis
Vincent
the State.
Cir.1985) (discussions
colleagues ad
medical
pathologist,
is the chief
forensic
regional crime
kind of
on which ex
missible as
material
and director
examiner
Antonio),
(San
laboratory
County
opinions);
perts
for Bexar
base their
United States v.
*3
concerning
extensively
1048,
(10th Cir.1981)
He testified
Posey,
Texas.
647 F.2d
1051
did
Carol
not
conclusion that
Willits
(chemist
testify regarding
his
to
re
allowed
murdered.
suicide but was
commit
analysis);
of other chemist’s
Ameri
view
Falzone,
Ins.
v.
644
can Universal
Co.
during
challenged testimony came
The
65,
(1st
(fire
Cir.1981)
F.2d
marshal al
testimony. He testi-
redirect
Dr. DiMaio’s
testify
opinion
on
to
lowed to
as
cause of
practice for forensic
it
fied was common
on
other
part
reports
fire based in
of
inves
coming
cases when
pathologists to discuss
tigators).
The witness
professional conclusions.
to
any of
he “found
then asked whether
was
in
a
tradition
the admis-
We have
liberal
you
given
per-
colleagues who have
your
opinion testimony.
of
v.
sion
See State
disregard
opinion
your
reason to
suasive
504,
(Iowa 1985).
Halstead,
N.W.2d
opposed
homicide as
to
that this was a
tendency
adop-
The
in the
liberal
evident
of
Willits?”
the death
Carol
suicide
are,
of
rule of
703. We
tion
the
hearsay objection, the
the defendant’s
Over
however,
disapprove
inclined to
chal-
this
to state
court
witness
trial
allowed
lenged testimony.
no,
him
that,
colleagues had not caused
his
go
Rule of evidence 703 does not
change
opinion.
his
completely
far
our hold
so
as to
overrule
Judkins,
surrounding defendant’s actions in ob-
acquainted
prosecution
were
with the
taining insurance on the life of his es-
witnesses_
panel
All
ex-
members
tranged
approximately
years
wife
two
cept
something
earlier....
one knew
the case
about
lenges
challenges
Seven
were sustained.
questioned
the first sixteen
and ten of
assigned
are
and the denials
as
were denied
opinion.
an
already
formed
challenged juror
Each
indicated
error.
at 403.
Id.
but,
knowledge of the case
some outside
square with
here
not
The facts
do
court, expressed
uрon examination
panel
of this
Fifteen members
Robinson.
willingness
any
to set
ability
aside
Only
all
the case.
nothing at
had heard
knowledge pending the trial evidence.
prior
they
stated
could
prospective jurors
two
court’s further
Defendant contends the
knowledge of the case
not set aside their
inquiry
the rule in
v. Beck
violated
State
the basis of the
their
and reach
verdict
with,
228, 236-38,
242 Iowa
N.W.2d
were
trial. These two
facts heard at
(1951). In
the trial court’s
24-26
Beckwith
panel
No
cause.
struck for
persistent questioning
ju
resulted in
parties or witnesses.
any
knew
answers.
retreating
rors’
from their initial
closely
more
resemble
here
facts
completely
unlike the one in
The record
Gavin,
those in
inquiry
The court’s
here was
Beckwith.
1985),
a retrial
(Iowa
which also involved
compro
juror
persuading
not aimed
*5
for
Venue
the retrial
following reversal.
disqualification
mise a valid concern about
County.
changed
to Cedar
was
from Scott
judge
obviously
here was
for cause. The
pretrial publici
Notwithstanding extensive
learning
only
jurors’
on
the
state of
bent
the
court’s
abuse in
trial
ty we found no
mind.
change.
said:
grant a second
We
refusal to
analysis explained
Under the three-factor
ju-
complete
not
Impartiality
mean
does
248,
Williams,
267
v.
285 N.W.2d
State
The
issues and events.
ignorance
ror
of
1979),
(Iowa
find
we
no abuse.
exposed
juror
a
has been
mere fact that
concerning the case does
to information
do
find
the
Neither
we
abuse
juror
justify
conclusion
the
not
the
of
motion to
trial court’s denial
defendant’s
of deter-
prejudiced.
purpose
is
For the
charges
separate
two murder
for
sever the
ques-
mining juror prejudice, the relevant
proce
rule of criminal
trials under Iowa
exposed
juror
a
has been
Lam,
tion
not what
6(1).
is
N.W.2d
v.
391
dure
See State
to,
juror
the
holds such a
(Iowa 1986).
but whether
245, 249
of
opinion of the merits
the case
fixed
thе trial
Defendant
thinks
VII.
judge impartially
cannot
that he or she
granting
in not
court abused its discretion
the
guilt
the
or innocence of
defendant.
miscon
prosecutorial
because of
a mistrial
(citations omitted).
Id.
819
assignment
prevail on
defen
duct. To
the misconduct and
urges
court
dant must show both
Defendant
the
by
prejudiced
it. State v.
moving
that he was
in not
the case to Jackson
erred
1985).
216,
(Iowa
which,
Ruble,
218
produced
survey
County. He
a
discretionary ruling.
Id.
contends,
county in his
It is also
shows it to be the
of prejudice.
the least amount
district with
of which
Although some of the matters
not
the
system
does
accord
Our
however
commendable,
not
complains are
defendant
designating the
privilege
the
of
defendant
its discre-
say the court abused
we cannot
is to
county to which venue
be moved.
determining
prej-
not
tion in
defendant was
Woodbury
v.
Court
Harnack
District
by them.
udiced
(Iowa 1970)
356,
County,
N.W.2d
there,
VIII. Defendant contends
change
(“A
defendant on motion
support
to
his
insufficient evidence
was
right
select a
does not have
venue
all evi
conviction.
course we review
Of
trial.”).
particular county for his
light
in the
dence
most favorable
The
court did
its discre-
trial
not abuse
and,
verdict, give
of the
verdict
because
for a second
denying
tion in
the motion
all
inferences
State benefit of
reasonable
change of venue.
A verdict is
which arise from evidence.
on
if there is substantial evi
challenged
binding
nine
us
VI. Defendant
support
it. Substantial
jurors for
Two chal- dence
prospective
cause.
that the
complains
defendant
ra- Maio. The
convince a
which could
means evidence
State,
testimony,
challenged
is
fact that
defendant
tional trier of
expert
array
his
witness-
to counter
v.
able
beyond reasonable doubt. State
guilty
jury
producing them
335,
(Iowa
without
es before
N.W.2d
related in our any jury swayed place first chance This is perplexing case. this is a most remote. The by the seems most statement necessarily question comes so because pro- close that the witness’s unnamed fact inno the defendant is an down to whether colleagues he worked where fessional and suicide or bystander of a murder cent surprising. him not The agreed with way a clever murderer who devised is a impressed likely be more jury would appear to a murder and make his crime be by inde- had claimed endorsement witness suicide. experts. pendent defendant, however, argued facts supporting go only to ju was a second trial. Two This the suffi- They do not detract from case. unanimously agreed on defen ries have Although it case. ciency of the State’s signifi guilt. That fact is of some dant’s so, jury not bound done could have evaluating possibility preju cance theory. There was accept defendant’s Burris, 1156, dice. v. 198 Iowa See State from a rational ample evidence which also (1924); 198 N.W. *6 all the elements of defen- jury could find (1861). Cross, 66, 12 Iowa guilt for both murders. dant’s superbly represented at Defendant was fair, appeal. on He received a these and trial and
IX. We have reviewed absolutely perfect, trial. He is not arguments and contentions not all defendant’s and, exception mentioned in entitled to a third one. with the one II, them without merit. It division find AFFIRMED. for to determine whether the remains us ques admission of the one answer SCHULTZ, except All concur Justices protract in the second tion one witness LAVORATO, JJ., and who CARTER requires complicated ed and trial a rever dissent. sal. LAVORATO, (dissenting). Justice The rule is that: IX. I dissent to division ...the admission of hearsay evidence out, majority points As the over a proper objection presumed is to be prejudicial error hearsay unless of over a the the admission evidence contrary is affirmatively preju- proper objection presumed established. to be The contrary is established contrary when the dicial error unless the is affirm- record shows that the challenged contrary impact atively did not established. The is es- on the jury’s finding guilt. of tablished when the record shows that the challenged impact the evidence did not on Nims, 608, (Iowa State v. finding guilt. jury’s of 1984) (citations omitted). record, majority my view of the the argues expert’s the answer— Defendant turns this rule on its head. Far from af- that his conclusion was endorsed other firmatively establishing that Dr. DiMaio’s colleagues damaging of unnamed —was hearsay response impact did not on the points key out the to his case. He that jury’s finding guilt, I think the record factual issue was whether Carol Willits opposite. establishes the was murdered or committed suicide. This proper analysis prejudice A subject expert’s was the central of the tes- of the issue timony. expert necessarily requires produced Defendant three an examination of facts, dispute explanation Dr. Di- of the theories of witnesses to compared found similаr to sand to and determination of coupled with a sides both support, body an found at the scene where theory the facts best Walker’s which the experts in importance Sand Willits’ shoes was evaluation was discovered. setting in testimony, their and
and found Walker’s shoes. similar to sand response was solicited. hearsay p.m. which 1 a.m. Walker died between p.m. 10:30 and a.m. Willits’ died between notes, in- the facts are majority theAs the deaths of They involve deed bizarre. following theory: State advanced Cynthia Walker young women: two Barrett murdered Walker to obtain Willits. Carol life; her policy of an insurance benefits way as body he then murdered Willits such a February Walker’s On killed appear on a in Muscatine. She to make it that Willits had found road shot times. Nec- three Walker and then committed suicide. had been essarily, it was crucial the State body away, miles Willits’ Several death disprove that Willits’ was a suicide. engine run- in her vehicle with found Hence, a good share of State’s evidence single gunshot had wound ning. She of its part focused on this case. temple. The was inflicted right wound her lap gun same gun found in her by a jury —the theory, As to the insurance kill had used to Walker. Willits been Bar- following could have found the facts. forty-eight hours gun purchased hаd relationship rett involved been earlier. to her In the prior with Walker death. part promised could investigating latter of 1978 she Murder-homicide was theory same condition initial ride with him to California. As a authorities’ —the A “Dear used trial. Jane” out an trip, the defense the two were to take to Willits was found from Barrett Al- policy letter insurance on Walker’s life. to a valentine from her addition vehicle take though did not Walker Barrett to Barrett. Walker pur- trip, the insurance was nevertheless $50,- policy chased. The insurance told he had Barrett the authorities pro- indemnity 000 and clause had double months, for sеveral both women known *7 recovery died a viding for double Walker romantically he had been involved with sole Barrett the nonnatural death. was women, had that he had sexual and both in ef- beneficiary policy, of the which was gave the with Willits. He follow- relation at death. fect the time Walker’s leading up to the ing account of the events February the On deaths of two women. jour- theory a Critical to the State’s was night home. spent he the with Walker his 1977, is the nal Barrett which written came to the home and a.m. Willits About subject majority’s IV of the of division An caught couple argument the in bed. notes, majority jour- in the opinion. theAs during this time made then ensued. Willits plan kill his then related a to nal Barrett hap- of what of suicide. Because threats recover life insurance wife so that he could 16, February on Barrett wrote the pened plan Although the never proceeds. was severing their relation- “Dear Jane” letter out, jour- the carried the State introduced ship. pattern of Sim- nal to behavior. establish that on mother testified Febru- Walker’s could put, theory was that if he ply Cynthia phone call received ary then, do it plan it he could now. Willits, arrangements to who made from rele- attempted to discount the Barrett up Cynthia the two of them could pick so by showing that vancy journal of the meet a City to Iowa to mutual travel lost policy after his had purchased the wife type ciga- of the Cigarette butts friend. job she job. her she lost her Because found in the Cynthia smoked were rettes insurance, had also her life which lost addition, In tray of Willits’ vehicle. ash employment benefit. from Willits’ vehicle hairs were recovered testimony from Willits’ The offered of both women. Sand State to the hairs similar he had Barrett’s claim that of Willits’ vehicle was friends to rebut bumper found on the was, relationship and had a romantic with her would tie the knot either the center her. that he had had sexual relations with right of the head or more to the because it tending produced The some evidence using right is easier hand to tie the story Barrett’s about confron- rebut knot. February on 16 and some evidence tation Photographs body of Willits’ she showed jury possibly from could have which wearing gloves cotton work that were gun purchased had been found that hands, obviously big too for her the third request. Barrett’s significant In opinion, factor. DiMaio’s one produced no The State direct evidence tie a gloves could not knot with these on. at the scene of that Barrett wаs either Photographs also showed that Willits’ did, however, produce death. It two wit- gun gun top hand was down with the nesses who had seen two cars on the road opinion, it. In DiMaio’s the recoil of the died at where Walker about a.m. and gun gun would have twisted the hand to morning question. 12:30a.m. of the One right. Typically, experience, in his Grenada, the car was a Ford model Willits gun is found on the seat next to suicide rectangular drove. The other car had victims or clutched their hands. headlights, similar to the Buick automobile position The gun of the barrel at a belonging parents. to Barrett’s straight angle temple to the and the testimony experts, Absent straight path through of the bullet very case was close. Given the State’s significant head were also In DiMaio. however, proof, jury I think burden of opinion his it physically would be difficult pressed say would be hard impossible if not to shoot oneself in this evidence, juncture, at this better tended to experience, In people manner. his shoot support theory the State’s for conviction of by canting angling themselves or gun. evaluation, light of this murder. it be- testimony photographs comes clear that the of the ex- paper also showed a perts extremely bag crucial. intact, under Willits’ arm. It was still opened, expanded. According Di- produced expert, The State Dr. Di- Maio, gun had the fallen it would have Maio, negate the defense’s bag. crushed the DiMaio, murder-suicide. Dr. the Chief Medical Examiner and Director of the Re- The defense vigorously counsel cross-ex- gional Laboratory Crime County, Bexor amined DiMaio with the intention of dis- Texas, experience had had considerable crediting securing conces- He had employed suicides. been as a brought sions. Counsel out the fact that *8 pathologist since forensic 1969. The State DiMaio had reached his conclusion on the had рhotographs asked DiMaioto review of very day the authorities first contacted scene, autopsy reports, and the him. police investigative reports, and to deter- addition, In counsel was able to secure mine whether Willits’ death was a homicide some concessions that were helpful rather or a suicide. His was that her to the defense. example, For it was con- death was a homicide. ceded that the number two cause of death signifi- DiMaiolisted six factors he found among young people suicide; that most reaching in cant his conclusion. The first suicide victims shoot in themselves fаctor involved the blindfold found around right temple; twenty that in to twenty-five eyes. experience, Willits’ his he had percent cases, suicide notes are left seen no suicide which a blindfold was scene; notes, near the that the as in this thought possible used. He it would be but case, brief, are generally page less; or rare. that such usually notes are written within suicide; The second factor related to the hours of the location that there was no of the knot in sign the blindfold. The struggle knot was of a at the scene in the case; the left side of the According present head. that the blindfold here does DiMaio, right-handed person, suicide; as Willits not rule out and that the forensic everything. peo- nice to It’s have other the defense were employed by experts no, competent. you ple say, who don’t know what and were DiMaio known you and you’re talking argue about with of the six Turning his some attention think, you it makes and one of because DiMaio, by significant listed as factors is, again, dangers of a one-man office also secured some concessions counsel you get complex, why that’s this God and DiMaio admitted that example, For here. people you you you like to have to tell easy someone who is blind- be it would you’re talking don’t know what about forward, head, cock the and lean folded to argue you. and no there was DiMaio admitted shoot. Q. got organiza- that in possibility. your this You’ve to refute physical evidence although he had not tion? admitted that He also a blindfold had been seen suicides which Oh, definitely, yes. A.
used, occasionally happened. it can and has Q. complex, You don’t allow the God Willits, sitting He further conceded say No, believe me. it—A. automobile, have lowered her left her could Q. Doctor, you almost have in fact car hitting to avoid window elbow always guess always in a or—I worked position. knot in Had that tied the you’ve oth- situation where worked with have been on the the knot would happened pathologists, you’ve er debated forensic left side of head. your cases? A. I’ve al- discussed DiMaio, in to defense counsel's response worked, sir, ways yes, in offices with in a deposition admitted that questioning, multiple medical examiners. trial, said that the fact prior to he had fact, Q. col- you, Have had other purchased gun alone less than Willits leagues respect in yours you whom suggest- her death forty-eight hours before pathology discuss the field of forensic angle He that thе suicide. also admitted ed particular you? you this case with Have consistent with suicide. of the bullet was Yes, sir. gone this with others? A. over gun that a held Finally, he admitted Q. get you sort of comments do What against by a suicide victim head would from them? a wound identical to one held at the cause me. Excuse DEFENSE COUNSEL: spot perpetrator. same hearsay, your Honor. That calls for brought out Defense counsel the fact Q. things you Are these sorts had her roommate that that Willits told Doc- rely upon your practice, medical something terribly wrong, do she were to them, yes. I listen to tor? A. and use she would commit suicide a blind- Q. are thеy are sorts —these And her DiMaio he fold around head. conceded individuals individuals—other this could not remember whether credibility give credence and you whom he first piece of information when rendered or opinions make and defend you when opinion to the authorities. Yes, argue sir. your opinions? A. prosecutor Against background, way Q. you have received What attempt began his redirect with to reha- types persons? those comment from questions DiMaio. After several bilitate *9 COUNSEL: That calls DEFENSE answers, attempted the examiner to and Honor, respect to this hearsay, your with opinion objection- DiMaio’s with the bolster matter; objected to for that reason. hearsay: able exception It’s an PROSECUTOR: Q. you you I think mentioned me type it’s the of comment the reason that office, in your three or fellows have four in his that has indicated that the Doctor You like pathologists. other to have upon. field relied argue your somebody to cases be able mat- It doesn’t DEFENSE COUNSEL: with, you? Right, you’re by A. don’t me, hearsay exception ter to is that’s you yourself, develop after a while and for that reason. objected complex. only don’t talk to God You you you yourself, begin to believe know scientist, an- One wаs a forensic Ra- suicide. response, Mr. Your THE COURT: doctor, third a medical and the other a the record.
mey, for The thrust of their pathologist. forensic My response was sim- PROSECUTOR: discrediting the testimony directed at was Honor, hearsay that, it’s yes, your ply They also relied on DiMaio. six factors an hearsay that has type of but it’s physical items of evi- the various discussed It hearsay rules. exception under views, dence, which, consist- in their were exception contained within has the also death opinions that Willits’ ent with their of the Iowa rules rule of suicide. the result of rules of evi- the federal dence. result of death wаs the Whether Willits’ Honor, large mea- depended Your suicide or murder COUNSEL: DEFENSE experts. testimony of these May I make further on the sure as a matter — examination of prosecutor’s redirect The record? attempt up shore DiMaio was obvious Please. THE COURT: testimony. cross-examination Skillful call- It’s also COUNSEL: DEFENSE prose- damage. Perhaps the done its opinions express ing witness for this testimony cutor, anticipating damaging relied that were not persons of other waiting in experts who were from defense that he made judgment make the upon to up attempting to even wings, 1979. day November of 29th soliciting hearsay Doing testi- odds. so as well. to for that reason objected It’s experts mony concerning opinions of other it probative as any have value It doesn’t had, think, The evil in I its intended effect. this matter. relates to course, lay in the procedure, such a objection’s The over- THE COURT: challenge these inability to defendant’s ruled. my In through cross-examination. opinions Doctor, about Q. I’m not worried view, opinions a crit- unchallenged such You opinion in November of 1979. your in favor tip the scales ical issue served to discuss this case have continued obviously in a case that was of the State time, you not? colleagues that have since close. Yes, A. sir. for a new I reverse and remand would discussing Q. this case with And trial. colleagues in the areas of your fellow medicine, pathology, forensic forensic JJ., CARTER, joins SCHULTZ to them the facts you have detailed this dissent. in front of this you’ve discussed here Yes, jury? A. sir. fact,
Q. you I also have on believe them the so-
occasion discussed with note, the note
called suicide Yes, A. sir.
found on the dash? Q. respect, you have And in that ON PROFESSIONAL COMMITTEE any your colleagues who have found THE AND CONDUCT OF ETHICS disregard reason to given you persuasive ASSOCIATION, BAR STATE IOWA as your opinion that this is a homicide Complainant, in the death of Carol opposed to a suicide Willits? Excuse me. DEFENSE COUNSEL: CLAUSS, Jr., Respondent. Robert objected to for the reasons al-
That’s 270. No. hearsay That calls for ready articulated. Supreme *10 Court Iowa. this witness. part Objection Sept. THE overruled. 1989. COURT: No, sir. A. experts
The defendant’s three also testi- experiences
fied to their considerable