State v. Galloway, 275 N.W.2d 736

State v. Galloway

275 N.W.2d 736

Iowa

1979

Check Treatment

*1 Iоwa, Appellee, STATE of GALLOWAY, Appellant. James Thomas

No. 60719.

Supreme Iowa. Court of

Feb. *2 a

viction for brutal murder which occurred January 3, 1964, Davenport. On defend appeal ant’s first we reversed and remand ed for new trial. State v. Galloway, 167 (Iowa 1969). again N.W.2d 89 Retrial re first-degree sulted in a murder conviction. appeal. We affirmed on defendant’s State Galloway, N.W.2d 725 petitioned Defendant thereafter in federal corpus. for a writ of habeas ap On peal proceeding defendant was Brewer, Galloway awarded a new trial. (8 1975), denied, 525 F.2d 369 Cir. cert. U.S. S.Ct. L.Ed.2d 744 trial In this defendant was tried brought and convicted a third time and has appeal. We find reversible error which clearly demands another reversal and a re mand for a fourth trial. evening of January

On the three Davenport. men entered a store in One at the front remained while other two proceeded to the rear. The man who re- pulled mained at' the front a revоlver from jacket his and said there was to be a rob- bery. proceeded The two who had Shannon, rear of Mr. the store confronted owner, grabbed right hand, his store exchanged During words. with him. this brief encounter a shot was fired and Mr. fell to the floor. He thereaft- Shannon died had er from the wound he suffered. Immediately after the shot fired all three would-be robbers hurried from the obtaining money. scene without years than more three after the shooting, Helen Adomat and Richard Shan- defendant, photograph non selected a thereby identifying person as the who him fired shot which killed Mr. Shannon. The photograph array was selected from an Buzzell, Davenport, and Robert L. Arthur by law presented enforcement officers. Bartels, City, appellant. Iowa for D. conflicting testimony There was as to the Turner, Gen., Thomas A. Atty. Richard C. manner the photographic in which “show- Evans, Atty. Gen., and Elizabeth Jr., Asst. ups” were conducted. Both witnеsses sub- Shaw, County Atty., appellee. for lineup in a sequently selected defendant Missouri. City,

conducted in Kansas assignment chal- I. Defendant’s first HARRIS, Justice. lenges trial court’s instruction felony-murder challenged in- rule. The time have considered This is the third we jury: struction informed the from con- appeal this defendant from defendant, under this In- murder. “Before the This has been our rule ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍many struction, guilty years. can be found crime Campbell, State v. 217 Iowa degree charged first of murder in the N.W. Information, must establish State more Our recent cases are in accord. beyond reasonable doubt by the evidence Veverka, State v. 271 N.W.2d following propositions: each and all of Rand, State *3 3, 1964, January or about in That on v. Millspaugh, State “[1] Iowa, (Iowa did un- County, 1977); the defendant

Scott State v. Shannon, Nowlin, lawfully Ha^ry (Iowa shoot Jr. Conner, State .2d N.W Shannon, Harry That Jr. died as a “[2] being by of the defendant. result shot Under this rule was error for That so Harry the defendant shot “[3] the trial court not to include language Shannon, attempting perpetrate Jr. while requested. aforethought Malice ais neces robbery.” of the crime sary 690.1, element for murder. § The objected paragraph 3 in the Defendant Code. And murder must be committed in instruction and asked that it be above implement order to felony-murder our rule. jury amended to inform the as follows: Of course it does not aid the State that “Paragraph That the defendant so shot legislature changed our felony-murder Shannon, Harry Jr. with malice afore- rule in recent 707.2(2), criminal code. attempting § thought perpetrate and while Code, The Supp., 1977. added.) robbery.” (Emphasis the crime of II. might retrial, Because it recur on requested we question language Without evidentiary shall consider an problem felony-mur- which have been added. Our assigns defendant as error. Defendant be- statutory. provided der rule is It is as a 690.2, Code, lieves the triаl court erred in not part admitting 1977: “All mur- § the results of a by study part scientific perpetrated poi- der which is means as a wait, son, basis for the lying hypo- in or other kind of witness’ answer to a or willful, deliberate, question. thetical premeditated killing, and the perpetration or which is committed in Defendant offered the of Dr. arson, attempt perpetrate any rape, or Elizabeth Loftus. Dr. Loftus testified that robbery, burglary, or mayhem, is murder in there was a possibility” “real of misidentifi- . . .” degree (Emphasis the first . cation a murderer who is identified by added.) examination photographs three years af- the in- Under the rule common law ter testifying the crime. Dr. Loftus given by struction trial court would explain attempted to opinion that her Am.Jur.2d, have been correct. See part in based on an experiment performed Homicide, 364-366; 40 pp. C.J.S. by § authority an she identified as Professor 21, pp. Homicide At common 868-869. Buckhout. objection Thе State’s to the ex- imputed killing law malice is when occurs planation was sustained. perpetration specified in the crime. proof defendant made an offer of in

But the Iowa statute differs from which Dr. explained Loftus Professor assault, the common law and differs from the stat experiment. Buckhout’s An staged seen, many college campus, utes of other states. As can on a was witnessed felony-murder persons our rule not directed to who were unaware it would occur. “killings” the perpetration which occur in of Those saw staged witnesses assault for felony. our rule is directed approximately Rather 42 seconds. Seven weeks la- presented “murder” which so occur. The effect ter were six photographs is to make murders identify the Iowa statute were asked to the assailant. percent perpe Only which occur in connection with the of the witnesses could do first-degree proof tration the named felonies so. The offer of continued: ception to the rule “Q. study published some- and are Was admissi- of it have been Descriptions A. in where? ble evidence. yes.

published, “In other words there is a distinction publication kind of “Q. And is specific between facts relat- forming rely on psychologists ing to question the case in conducting themselves as generally opinion specific information, though even of a hear- gеt A. our information psychologists? character, say up which makes the total conversations ways; personal two from package expert’s information back- with other scientists at either that we have ground and which is reflected his private meetings, or from conventions expressed by having one special ability to published literature. evaluate sources of information and to “Q. you any experi- performed Have reliability measure their according to stan- fairly yourself sup- that would be ments profession of his special dards field of Yes, results? A. porting Dr. Buckhout’s training experience.” *4 have. Evidence, See also McCormick on chapter “Q. Well, your results do —Do Salter, 15§ State v. Dr. Buckhout’s experiments support those 427, 430 (Iowa 1968); Ver Steegh Flaugh, findings? They support the loss of A. 1011, 1019, Iowa longer after a reten- memory performance (1960); Wigmore Evidence, II on pp. § one, says and thаt they versus a shorter tion (Third Ed. Weinstein’s Evi they were not concerned with identifi- do— 703(01) 703(03); dence and Rules § § why and that’s I perpetrators, cation of 803(18), 705 and Federal Rules of Evidence. study my Dr. Buckhout’s con- on relied my on own studies in clusion rather than explanation A helpful of the role of trial specific instance. that court admitting discretion in evidence of pretrial investigations ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍studies and “Q. study of his would the context So expert witnesses can be found Standard to this directly been more welded have case Moore, Company Oil of California v. studies, of your is that —A. than context (9 F.2d Cir. Under That’s correct. foregoing it is apparent authorities that “Q. any psychologist you Do know who admissibility of such evidence rests within entirely on or her relies his own—his own the sound of the court. trial discretion to a of his experiments form basis say cannot that discretion was abused in psychologist? a A. Most us expertise as this case. on as a whole. rely the field is contrary Defendant’s to the with- claim nothing I have fur- “MR. BARTELS: out merit. ther.” have explanation could been

The offered III. presents Defendant three other as- Evidence, on 14:21 received. In Jones signments they of error. We believe relate (1972) explained: it is to likely matters not to recur retrial. To unduly discuss each of them would extend general qualifi- standpoint “From the opinion. this become experts it is obvious- cations the course relying on experts by For the of the bench benefit and all training experience, of their bar, however, point out we should that at ‘expertise’ is in the so-called which reflected assignment least one other also have would when comes of the witness. But A necessitated reversal. new trial should knowledge spe- of the acquiring of factual by have been ordered reason of failure the witness subject cific which prosecutor (predecessor in office to generally closed to testify the door has been above) county attorney named except dis sources of information close exculpatory come within some ex- evidence. the extent REYNOLDSON, defendant moved for disclo- Before trial (concur- Chief Justice ring exculpatory specially). sure of all evidence. In the specifically sought any defendant motion I agree Because do not with holding Adomat, Helen who had statements decision, division II majority’s concur picture. defendant’s The motion identified only in result. was denied. The majority holds trial court has discre- During defendant moved trial for disclo- to permit tion Professor Loftus to detail the any sure of the names and addresses of incidents a and results of factually unrelat- police officers who had interviewed or experiment ed by another, conducted photographs shown Helen Adomat. then squarely base her on the oth- of this motion the court submission trial er’s (“[Tjhat’s why conclusions I relied on inquired prosecutor police whether Dr. study Buckhout’s for my conclusion report rather on my files contained that Helen Adomat than own studies in that specific instance.”). (or witnesses) process The majority opens other “in the of look- identified, unnecessary expensive pictures, approv- door in ing any time ten- ing testimony of type. this otherwise, Its tatively holding photograph allows admission of hearsay evidence which Dunlap person other than Paul or James does not any fall within previously recog- Galloway Thomas in connection with exception. nized Finally, the majority ef- part particular crime . . . .” fectively overrules prior decisions of this prosecutor denied existence of any such noting without this for benefit of thereupon information. The trial court de- *5 bench and bar. the motion. nied I. question The first which ought to be trial, police After material and files not addressed is whether of Professor Lof- motion, were, on previously pro- disclosed tus’ testimony should be admitted vided to defense counsel. Included in this over the objection State’s standing that the reports showing were material that Helen accuracy eyewitness identification is not identified, with de- varying Adomat had proper subject of expert testimony. On grees cеrtainty, other individuals and point sharp there is a contrast between stated resembled the murderer. Be- concepts theoretical of academicians January tween and March of Mrs. 1964 concerned with development of the law and out picked “looking very Adomat had one the pragmatic jurists rulings of responsible to the that Mr. similar man shot Shannon.” litigation management. picked “strongly She out another as resem- essence, Distilled to its Prоfessor Loftus’ that bling man shot Mr. Shannon testimony longer was “the that period of report . .” The indicated Ado- Mrs. time an incident and a [between witness’ just “there something mat believed was * * * recollection of the incident] about this man that made her think was he less accurate and complete less is a witness’ the one that Mr. shot Shannon.” As to recollection.” photograph “closely she he another said re- sembled” the murderer. urge commentators еxperts like Professor Loftus be permitted should circumstances, Under the whether not testify in order to demonstrate the deliberate, produce failure to a new unreliability of the memory of identifica- trial should have been ordered. State v. See, g., Sobel, tion witnesses. e. N. Eye- Peterson, 665, (Iowa 1974). 674 219 N.W.2d Witness (1979 Identification 86.01 Supp.); REVERSED AND REMANDED. Note, Did Your Eyes Deceive Expert You? Psychological Testimony the Unreliabili- concur, except

All Justices REYNOLD- ty Eyewitness Identificаtion, 29 Stan.L. SON, J., LeGRAND, REES, C. UH- (1977); Note, Expert Rev. 969 Testimony on LENHOPP, ALLBEE, and Eyewitness McGIVERIN Perception, 82 Dick.L.Rev. 465 LARSON, JJ., specially. who concur

741 401; Lawson, However, produced 445, not a 37 Colo.App. has at research 551 P.2d 209; ex 832; decision which such single appellate Dyas, 376 A.2d Middleton, its was held admissible or testimony Mass.App. at -, pert 378 N.E.2d at 450. - to be an abuse of discretion. exclusion held An but underlying unarticulated factor contrary legion. are See Unit Cases to be the constitutional protections relat- Smith, 1361, (9th F.2d 1363 v. 563 ed States ing to the use of out-of-court identifica- denied, 1021, 1977), 434 98 cert. U.S. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Cir. Wade, tions. United v. 388 218, States U.S. (1978); 747, 769 United 54 L.Ed.2d S.Ct. 1926, 18 (1967); 87 S.Ct. L.Ed.2d 1149 Gil- Brown, 1048, F.2d 1053-54 v. 540 States California, 263, bert v. 388 U.S. 87 S.Ct. denied, 1100, 1976), (10th cert. 429 U.S. Cir. 1951, (1967); 18 L.Ed.2d 1178 Stovall v. 1122, (1977); 51 L.Ed.2d 549 United 97 S.Ct. Denno, 293, 1967, 388 U.S. 87 S.Ct. 18 Brown, 146, (9th 501 F.2d 150-51 v. States goal L.Ed.2d 1199 of the safe- 422 1974), grounds, Cir. rev’d on other U.S. guards erected the Wade-Gilbert-Stovall 2160, 225, (1975); 141 95 45 L.Ed.2d S.Ct. trilogy was exclusion of unreliable identifi- Amaral, 1148, 488 F.2d v. United States probative cation. The value an identifi- (9th 1973); United v. Cir. States 1152-53 cation which survives constitutional chal- Fosher, (D.Mass.1978); Unit F.Supp. 449 76 lenges should be by exрert not diminished 629, Collins, F.Supp. 635-37 ed v. 395 States eyewitness all identifications mem., (3d 523 F.2d 1051 (M.D.Pa.), aff’d Properly, believe, are unreliable. Valencia, 136, 1976); v. 118 Ariz. Cir. State testing courts reason that further of relia- 335, 138, (Ct.App.1977); 337 Cri 575 P.2d bility by vigorous specific State, 407, 409-10, glow v. Ark. cross-examination of the eyewitness. 400, (1931); People 401-02 S.W.2d 602, 608-09, Brooks, Cal.App.3d 124 Cal. Expert opinion testimony is ad denied, 492, (1975), Rptr. cert. 424 U.S. jury missible if it aid the will on some 1469, L.Ed.2d 738 96 S.Ct. factual issue Haumersen case. Guzman, People Cal.App.3d Co., Ford Motоr 257 N.W.2d (1975); People v. Cal.Rptr. 71-72 Smith, Ganrud v. 6-7, 112 Johnson, Cal.App.3d Cal.Rptr. McCormick, Opin M. Lawson, 37 (1974); People v. Iowa, 19 Drake L.Rev. Evidence ion *6 206, 442, 444-45, Colo.App. 551 P.2d 208-09 court on hold trial I would 257 States, 827, (1976); Dyas v. United 376 A.2d sustaining an justified in be retrial would denied, 973, 98 (D.C.), cert. 434 U.S. 831-32 opinion is Loftus’ that Professor objection 529, (1977); 54 L.Ed.2d 464 Jones v. S.Ct. testimony. expert of subject proper a not 763-66, State, 208 232 Ga. S.E.2d experi- jurors daily analysis, the final Commonwealth, (1974); Pankey v. 852-54 their own memories. fragility of the ence (Ky.1972); 522 Common 485 S.W.2d with time and recollection fades They know Jones, 497, 501-02, 287 v. 362 Mass. wealth significance of relative by the affected is (1972); Commonwealth N.E.2d 602-03 experi- Probably have - most the incident. -, 378 N. Mass.App. Middleton, v. own or their occasions on several enced State, - Nev., v. (1978); Porter E.2d 450 busi- in social or misidentification another’s (1978); People -, 278-79 P.2d 576 sci- of the Explanation relationships. ness 1023, 1024, 397 N.Y.S. Suleski, 58 A.D.2d which mechanisms entifically identified Valentine, People v. 2d 281-82 of aca- decay be memory bring аbout 832-33, N.Y.S.2d 385 53 A.D.2d to the is little aid interest, of but demic particular reliability judging in jury predominant rationale excluding The for them. identification before eyewitness testimony emerges such which from these many in Pragmatically, much subject is opinion cases civil, neces- litigation, criminal of types beyond knowledge is offered not past recall of on witnesses’ sarily turns experience juror. Amaral, of a See would be which cost and time The 1152-53; events. Fosher, 77; F.Supp. F.2d аt at experts of battles in collateral 409-10, expended Criglow, 183 Ark. at at S.W.2d the memory quotes The dynamics majority from 2 concerning Jones on heavily in weighs trial probably (1972), Evidence process 14.21 which is a careful § excluding such decisions appellate attempt to draw the distinction. See also J. Weinstein, proof: Maguire, J. J. & Chadboum J. Mansfield, allowing ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in Cases on go the courts & Materials Evidence How far should testimony, (6th such as that scientific ed. McCormick Evi so-called operators, hypnotists, dence, 36; “truth polygraph supra, Wigmore at on Evidence administrants, purveyors drug” as well (3d 665b ed. These words demon theories, psychological to sub- strate upon that evidence other studies jury? the common sense stitute for which Professor Loftus relied affects the cases, all Surely the answer “not in requirement, qualifica first foundation ordinary or cases.” The even in the usual expert tions. An unavoidably learns judge judgmеnt of trial good through hearsay gaining the expertise particular case contains such whether the required qualify to as an expert and relies “expert as to make the unusual factors hearsay on that expressing opinion. an jury to testimony” help determination hearsay The use of such does not render whether the case is one where the inadmissible, opinion but that does not testimony threatens to take effect of such mean thе itself is Nei admissible. jury’s control in function must over nor ther Jones the other cited go treatises of a clear abuse discretion. the absence that far. Guzman, People at Cal.App.3d The majority apparently attempts pro- at Cal.Rptr. 72. independent an admitting vide basis for public have generally This court and the hearsay by citing only cases which relate with the ex- gravely been concerned ever requirement, the second foundatiоn a factu- and time involved in liti- panding expense al basis. gation. approve slow expert’s opinion inject must be group of based rule which would another on sufficient facts the record. experts his- Ganrud into area expensive forensic Smith, 314; torically jury’s as the domain. M. reserved McCormick supra, requirement at 256. The of factual majority permits further II. jury foundation properly enables by failing introduction evidence expert’s testimony, evaluate the since “the distinguish separate components of two opinion is no stronger than the facts which opinion tes- requirement the foundation for Jones, support supra, it.” timony experts: qualifications of the basis expert, opinion. and factual Foundational facts must already matter, preliminary no one can appear in the expert’s As record be from the dispute relating Professor Loftus’ knowledge firsthand or observations. Al *7 Hеr hearsay. other studies is substance of Rausch, 492, 495 (Iowa brecht v. 193 N.W.2d testimony contained assertions of fact of Jones, 634; 2 supra at McCormick on fered for the truth of the matters asserted. Evidence, supra at It follows inadmissi Jones, 761, v. 271 767 See State N.W.2d hearsay ble cannot provide adequate an fac essence, (Iowa 1978). In Professor Loftus Ruby Easton, tual v. foundation. 207 bolstering opinion by positing was her 10, (Iowa 1973); N.W.2d 20 Wolf Mur v. studies, and oth opinions the conclusions rаne, 90, 199 N.W.2d 96 2 ers. Jones, supra, at 639-44. And because the factual, foundation must opinion may be an My dispute majority with the is over the basis, extent, not have as its any to the justify of factual basis cases to admis- use another, opinion of even if hearsay. sion of this The studies testified such is Jones, the background qualifi- properly the and in record. 2 may supra, to enhance at 634; McCormick, 268; pro- M. expert supra, cations of the but cannot McCor Evidence, supra, mick on opinion. vide a factual basis for the at 32-33. parties, presumptive the are special or evidence of of statute the absence In held circumstances, general notoriety been or interest generally it has facts there stated,” independent third report interprets of an this court this the in statute by or made experiment only a test party permit “facts of notoriety to the testimony to contents him, or by sources, to intеrest” be shown such not hearsay thereof, inadmissible constituted opinions. and Ing esoteric research See report did not the author where Brannon, 988, wersen v. & 180 Iowa Carr subject not to cross-ex- was testify and 1000-03, 217, (1917). 164 N.W. 221-23 amination. expert An medical witness cannot 1008, (1968). Annot., 19 A.L.R.3d specific be with to respect cross-examined to recognized exception an has This court in opinions conclusions contained medi is in hearsay rule the contained where treatises he or cal unless she has first re the generated in course reports routine authority to support ferred such relating to con directly tests scientific Obermann, 237 opinion, Madsen v. Iowa Steegh v. In Ver troversy the court. before 461, 468, 350, 22 N.W.2d Wilcox 1011, 103 N.W.2d 718 Flaugh, 251 Iowa Crumpton, v. 219 Iowa laboratory of veterinarian (1960), results (1935). 706-07 Nor counsel N.W. course of busi tests, regular in the made read from a work and then ask his medical and shown ness, by verified custodian her own exрert expert or witness if upon veteri regularly by relied type of a agrees Eq with the statement. Morton v. narians, 251 Iowa properly admitted. were Co., 846, 857, Life uitable Ins. Iowa 1015-19, 103 N.W.2d at 720-23. In State expert N.W. witness Salter, (Iowa 429-30 opinion upon his or her must formulate supervised who labora 1968), pathologist knowledge training experience, and can per vaginal specimen was testing of a tory simply of a study, not relate contents over about the test results testify mitted Co., book article. Evans Iowa S. Util. objections. af hearsay We and foundation 205 Iowa N.W. step one further in State went firmed. We ruling expert ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍may inject witness Davis, testimony factually unrelat- similar those into his 1978). The facts were expert experiments, opinions the ex conclusions and the Davis ed except Salter others, expressed his amining supervising rather than as a or her physician basis of such test majority effectively held evidence overrulеs opinion, pathologist. results, though hearsay, was itself ad Iowa even these decisions. expert’s opinion. a basis for the

missible as nothing in I the case before us find Steegh cites Ver majority Salter change persuade which should us distinguishing type between the without of our decisions in this manner. course cases and those involved again sustain would hold trial here. sought to introduce hearsay defendant objections concerning proper extending precedent for Iowa There no substance of other studies. those to fac- exception created in cases per- statements tually unrelated REES, UHLENHOPP, LeGRAND, ALL- nothing to do with facet having sons LARSON, BEE, JJ., join McGIVERIN case at bar. special in this concurrence. per- Instead, would not older Iowa cases *8 Loftus to bolster mit Professor of other studies. relating substance Code, 622.23, pro

Although works, sci books

vides “[historical charts, maps or art, published ence by persons indifferent between

when made