*1 6«5 public time to dedicated service ing much commendation, no which he deserves for Iowa, Appellee, STATE of contingent fee basis lawyer retained on a prepare a written in- busy should be too PETERSON, Appellant. Michael Dean precisely detailing all terms of strument No. 56279. This employment common- contract. way into the Code rule has found its
sense Supreme Court Iowa. for Responsibility Law- of Professional June 26, 1974. yers : as feasible after 2-19 As soon “EC
lawyer employed, it is desirable has been agreement with his
that he reach clear charges of the fee
client as to the basis a course will not Such made.
prevent misunderstanding lаter but will relations between the good
also work for
lawyer usually It is and the ben- client. writing the under-
eficial reduce to fee, regarding the
standing parties
particularly contingent. it is A when many
lawyer per- should be mindful employ may
sons who him have desire to experience
had with fee little or no
charges lawyers, and for reason fully persons explain
he to such should particular fee ar- reasons for the
rangement proposes.” he Code, following
From per- the same
tinent : lawyer
“EC 2-23 A should be zealous
in his efforts to controversies avoid over attempt
fees with clients should any amicably
resolve differences on the
subject. He not sue a client should for prevent necessary fee unless fraud gross imposition by the client.” lawyer-appli
Because we hold the responsible employment
cants con nature, gen
tract’s uncertain which in turn impose
erated this litigation, we on them
the costs below and here. part, part,
Affirmed in reversed
remanded for decree conformance with
this decision. part, part,
Affirmed in reversed in
remanded.
Scalise, Seism, Gentry, Brick, Brick & Moines, Des appellant. for Turner, Atty. Gen., Raymond Richard C. Gen., Sullins, Darby W. Atty. Asst. Maria Coriden, Gen., Skinner, Sp. Atty. Asst. Ira Emerson, Gen., Atty. Emory Asst. H. County Atty., appellee.
HARRIS, Justice.
Defendant and tried for the was indicted appeals murder He his con- fiance. of man- viction of the offense included slaughter. because of the fail- reverse discovery ure to take to allow defendant depositions, of the admission of because obtained, samples illegally blood and be- exculpa- cause failed disclose tory importance In view of their evidence. upon assign- discuss other remand we shall ments. Marie was found dead Christensen Jean apartment
in her Lake at Storm about 1970). (Dela- In v. District Court Decedent 11:00 a. m. on 1971. October supra, spent we held our discov- engaged County), and had ware and defendant were rules, adopted ery were available evening together. There is preceding expressed they the be- quarreled no indication or were civil cases. We placed in revi- friendly The deceased lief 781.10 was our Code than terms. other pregnant purpose giving sion of “for the at the time of two months death; opportunity of- the father of defendant an to obtain and her defendant was fer evening night evidence in his own behalf when the child. On couple might witnesses not be otherwise availa- question the called on the minister 910-911, 114 marry They ble.” Iowa at who was to them. visited wedding plans about and seemed him couple, smiling an him be affectionate *4 interpretation challenges Defendant happy. upon and the reasons which it was based. specified in A review of each reason discloses defend- charge the indictment The perpetration rape challenge in ant’s that the inter- was murder the of a is valid and 690.2, pretation adopted in violation of The we in State v. District Code. Defend- § (Delaware County), supra, should ant’s conviction of the offense Court included was based on circumstantial His now be evidence. abandoned. testimony placed
own
him in decedent’s
First,
781.11,
*5
Johnson’s
might
judicial
well be said
reflect
rather
testimony establishes
was reluc-
defendant
than legislative
any
intent.
In
event §
sample.
tant
to submit such a
Before
expressly applies only
781.10
to criminal
doing so
inquired
defendant
of Johnson
defendants.
legality
procedure.
of the
Defend-
ant
say
went so far as to
he wanted to talk
Except as to the defendant himself the
lawyer
giving
his
before
it. Johnson
does
have an effective means of ob-
procedure
per-
assured defendant the
was
taining discovery over defense witnesses.
fectly legal,
lawyer
not,
or if
could
769.19,
Code,
The
of
directs
clerk
keep
any
out of
in
“
later trial.
* * *
district court to
issue subpoenas
Only
this
after
assurance did defendant
for such
county attorney
witnesses as the
sample.
submit the
No warrant
for the
may require, and in
subpoenas
such
shall
person
sought
search of defendant’s
or
was
appearance
direct the
of said witnesses be-
obtained.
fore
county attorney
specified
at a
time
”
* * *
place
purpose of
for the
sample
of
The results
werе submitted
and,
desires,
by
examination
the State
if he
analysis
type.
for
to establish blood
by
cross-examination
the defendant.
unsuccessfully
by
challenged
was
pretrial
defendant in a
in
motion
limine.
Defendant rightly argues
subsequent
our
challenge
was renewed to no avail
decisions, previously
greatly temper
cjted,
when
re-
the evidence was offered and
discovery
strict exclusion of criminal
purpose
ceived at
of
trial.
avowed
announced in
District
(Del
State v.
Court
this
to show defendant’s
evidence was
aware County), supra. Sеe also State v.
A,
type, type
blood
matched the semen
Cowman, Iowa,
420,
423. We
found within the decedent. Defendant’s
detailed the
arguments
conflicting
on the
assignment is
to this evi-
second
addressed
question of criminal discovery in another
dence. We
and hold the case must
believe
Eads,
context
State v.
Legal developments
many
in the
decades
argues,
The
III.
State
notwith
following
Height
our decision in
standing
rights
State v.
аn accused’s
under
the
disclose it was no aberration. Schmerber
Fourth Amendment of the United States
California,
v.
I,
384 U.S.
86
S.Ct.
Constitution and under Article
16
body
Constitution,
L.Ed.2d
holds
into
can be
intrusions
the Iowa
seizure
occasion,
a full
by
right
to make
vious
has made
reason of
statements incon
excused
ar-
person
present
incident to a
sistent
his
testimony.
search of a
lawful
A sec
Robinson,
rest,
United
ond alternative is to
citing
States
show
witness is
biased,
427.
by
38 L.Ed.2d
U.S.
94 S.Ct.
reason
influences
emotional
indi-
kinship
do
the “full search”
such
party
hostility
not believe
as
for one
or a
аnother,
typing.
in
included blood
pecuniary
that case
or
cated
motives of
inter
est,
argument
merit.
The
is without
legitimate
corrupt.
whether
A
or
third
alternative is to attack
the character
Alternatively
argues the
State
recognized
witness. The fourth
line of at
was harmless
of the blood test
admission
upon
credibility
tack
a witness’s
is to show
un
error for what
be described as an
must
observe,
capacity
in
defect
remem
that,
reason. The
since
argues
usual
State
ber
recount the matters testified about.
percent
populаtion
male
SO
fifth,
alternative,
surviving
and final
A,
type
the United
have blood
States
prove by
is to
other witnesses that material
probative.
sug
evidence is not
The State
by
facts
than1
testified to
are otherwise
gests that
is
proba
since the evidence
A
witness under attack.
sixth alterna
find
tive its admission was harmless. We
obsolete,
recognized,
tive once
but now
as
probative
no correlation
how
evi
between
religious
sailed the
belief
the witness.
might
how
dence
be and
harmless would
generally
Evidence,
See
McCormick on
suggestion
its errоneous admission. This
Ed., 33, page
Second
means
fifth
is also without merit.
evidence,
impeachment, by contradicting
Evidence,
is
in McCormick on
discussed
Finally
suggests
the evi
State
Ed.,
47, pages
Second
97-100.
dence was admissible on an anticipatory
having
Defendant denied
sexual
inter-
impeathment
theory.
argues
The State
night
ques-
course with decedent on the
habilitated and admissible
became
Relying
tion.
impeachment
on the fifth
impeach
ab initio to
the defendant
he
when
method,
argues
the State
this denial of
later testified as a witness at
triаl.
previously
sexual intercourse had been
re-
argues
defendant
answer
must
type
by
butted
evidence defendant’s blood
strategy
testifying
his own trial
fur
is the same
in the semen found
failing
request
ther
an instruction
within the
decedent.
be noted this
limiting
challenged
evidence to consid
argument
is diametrically opposite the one
impeachment purposes.
eration for
previously
made
State when
Faught,
peals held: We find no waiver of the defendant’s “ * * * that defendant had Proof proper objection by the defendant’s fact of semen type ‘A’ blood that the found testimony. The of the later admission body the decedent was derived and on blood test error. constitutes reversible no type ‘A’ blood from a man against
probative value in the case defend- IV. Defendant also claims the proportion large ant in view of the admitting trial into court erred evidence population having blood of this general large personal he a number of letters had and, therefore, type should have been they urges written to the decedent. He * * admitted. irrelevant, pro of no were too remote and in their bative find error value. We no appropriate do we think it to ab- Neither admission. improper solve admission on the claim be considered in con- could harmful letters doubtless were testimony. Ir- nectiоn with later defense awkwardly range They from the defense. rele- relevant evidence sometimes becomes they But passionate crudely obscene. explanation vant in rebuttal feelings toward did reveal defendant’s by adversary. offered an it seems But relationship nature of decedent, the their “ * * * settled it is that well essential of detail and a considerable amount party actually raised the adverse shall have was a their Their relevance activities. Evidence, particular on issue.” Jones matter within discretiоn largely Ed., 201, pages Fourth 358. See Graham, trial court. State Evidence, 267, pages Am.Jur.2d, also 29 not believe them (Iowa 1973). doWe question 316-317. A similar somewhat They all this were too case. remote prohibiting impeach- arises under the rule year preceding written about within of party’s ment own witness: year there During death. that decedent’s de relationship between an intimate point object is to define the “The then fendant and decedent. may properly said of time at which it be person that the has become the witness been he had tеstified V. Defendant ** party *. would seem death night of her with decedent on proper ques- test found in be p. m. to apartment 11:30 and in from her tion testi- given whether he has admissible seen thereafter 1:30 He was soon a. m. then, may potentially a mony. Until he be- of death Fixing the elsewhere. time having (as persons are relevant witness all trial. De- important in the crucially came knowledge), actually a but is not witness. preparation in his trial fendant’s counsel contribution, way he has Until made a wit- noted doctors listed two assertion, general of testimonial was Dr. nesses the indictment. One evidence, mass of has contribution Brecher, practi- M.D., general Paul W. *8 accepted by party been and the sanctioned after tioner, body soon examined the who evidence, by the Court as of the the part a challenges Defendant discovered. person give an only and to prospectively competency is not ‘de the of Dr. Brecher * * of death. expert as to the time opinion facto’ a (Emphasis witness. was Dr. medical witness other State Evidence, original) the Wigmore on VI M.D., patholo- Karl a forensic Wegner, H. Ed., 1893, Third page 563. Weg- challenge to Dr. gist. Defendant’s in the testimony be considered ner’s will evidence not reoffered de- after following fendant later division. testified. the When
673 field of for the forensic reason no training in Brecher had no Dr. opinion question phrased matter the how is training pathology only his medicine and formulated, opinion or it remains an years prior which 40 college course was a medical liberty reject. the trier facts is of publications on to no He had read trial. Therefore cases had al- clear of abuse and subject of time of death the would admission of such evidence be experience determining time of found most no prejudicial. (Citations).” Brecher only examination Dr. death. The fin- the of the decedent was to move made The foregoing principles appropri slightly hand and move gers right ate citations were summarized in Ganrud rigor De- leg the to determine mortis. left Smith, v. 206 311 (Iowa 1973). N.W.2d vigorously cross-examined Dr. fendant should be further a noted doctor not is in lack of in an to show a Breсher effort competent testify expert as an merely as tem- knowledge of certain factors such is because he not specialist a in a branch perature physical activity the onset on profession. of his Wallin, See State v. 195 rigor of mortis. (Iowa N.W.2d 1972); 95 State ex rel. Backus, Schmidt v. 147 N. opinion Principles controlling 9; Am.Jur.2d, Expert Opinion W.2d 31 & testimony are well settled. It will be al Evidence, 631; page 23 Crim C.J.S. subject lowed if its matter is of nature 875c, inal page Law 449. On the other jury discharge that it aid in the of will the hand a of lack experience еducational in a upon their responsibilities and is based particular branch of medicine may be con special experience some or training, knowl sidered affecting weight the an of ex edge Expert testimony of the witness. is pert’s testimony. Murrane, v.Wolf 199 not admissible unless witness shown (Iowa N.W.2d 1972); 90 West Broder qualified. to be facts must be Sufficient Rope ick Company, & Bascom express shown opinion to enable him to an (Iowa 1972). more conjecture. which is than His mere expertise in a certain area is not sufficient. Although question propound He qualified specif must be answer the ed Dr. on Brecher the time of death was question ic propounded. receipt extremely complex shown be we believe opinion evidence, lay expert, ais matter falls challenge somewhat short of ren which largely lies in the sound discretion dering his answer inadmissible. Under of trial courts. An abuse of that discre objections authorities cited we believe the tion be prejudice must shown to go only weight testimony. to the We complaining party before we interfere. find no abuse of discretion the trial The discretion is not unlimited must receiving court in testimony. Brecher’s Dr. legal one based on sound reason. judicial The trial court’s discretion terminates appears
where it as a There matter of law the VI. is no to the challenge competence qualified witness upon Wegner. is not or the facts Dr. Defendant opinion sought which testimony is based suffi are not exclude his for the ciently Wegner’s stated. are to a reason the minutes of Dr. testi committed lib mony, eral grand jury rule opinion admission of testi attachеd to the indict ment, mony. Bengford Corpora testify In he did indicate would Carlem tion, asks (Iowa time death. Defendant we 1968), long we said: overrule a line cases hold testify beyond witness cannot opinion
“The admission of evidence rests matters mentioned in the minutes of his largely in sound discretion of the court testimony grand jury attached ato indict *9 leeway considerable is in county allowed this ment attorney’s or information. 674 17, that on October Defendant showed in v. Bow to do so State refused
haveWe only girl who was the 1971 decedent v. (1864); 46 State ers, Iowa supra, 17 in- who was 153; at the 196, worked Cone-E-Corner 37 N.W. Rainsbarger, 74 Iowa indi- His evidence at trial jured or hurt. Harlan, 458, Iowa 67 N.W. 98 v. State 1135, possible it she had been killed cated was 216 381; Harding, 204 Iowa v. State that date. around 2:30 or 3:00 a. m. on Thom, 642; 236 Iowa State v. N.W. Miller, 96; 259 Iowa v. State 17 N.W.2d moved for a bill Prior to trial defendant 394; Lynch, v. State any particulars requested in which he v. (Iowa 1972); and State 197 186 N.W.2d exculpatory known to the State. evidence 1972). Cunha, (Iowa 106 N.W.2d 193 request A in his mor similar was contained in al no error again. There was decline resisted on tion in limine. The State testimony. lowing Wеgner’s Dr. The de- it had such evidence.' grounds no request was therefore denied. fendant’s assignment is final Defendant’s VII. of his motion overruling addressed to the based in The motion was for a new trial. may suppress The State deliberately
part the claim State materially requested statements which are exculpatory Defend- evidence. suppressed exculpatory. Brady Maryland, v. 373 U.S. sta- Briggs, filling Lowell ant established 215; 83 S.Ct. 10 L.Ed.2d State Lake, and resident of Storm tion attendant Aossey, (Iowa 1972). 731 N.W.2d investigat- to the officers gave a statement county attorney charged The with the given statement was ing case. The this important responsibility seeing evidence days following decedent’s death. few deny suppressed is not so a fair trial. Briggs given was not Mr. information McClain, State v. 125 N.W. defendant, his family counsel. Houston, 2d 764. In State “ until after conclu- It was to them * * * unknown (Iowa 1973) we warned: According to Mr. sion of the trial. sup Prosecutors are also cautioned that he was advised the officers Briggs, he pression exculpatory material is reversi neigh- working filling station in the at the ble error. (Citations).” apartment on Octo- borhood of decedent’s Grieme, reported Bruce He ber Briggs’ argues tes State Mr. date, appeared m. on that at about 3 :00 a. timony exculpatory was not because the Briggs that he had and said to Mr. there in produced rebutting Briggs “just a tussle a broad.” had nature an alibi for Mr. Grieme. reported said “he to the officer Grieme argues testimony of Mr. State also trying get a little off of her.” was hearsay. miss Briggs was Both defenses thq point. cases the defense Briggs reported said the wo- Under our also Grieme exculpatory was entitled to the at the man to whom he referred worked investigate use it order to it and to both attempt and that had Cone-E-Corner preparation trial trial itself. reported apartment. occurred her He is no answer that does not be very His pale was nervous. Grieme true or believes lieve the evidence hurriedly gotten as if clothes looked he had object The fail could to it when offered. His belt was twisted. His into them. ure to to the de furnish information unbuttoned, shirt was even his cuffs. He grounds which de fendant constituted said, reported “How fur should Griemе sustaining mo manded the of defendant’s go girl quoted man with a like that?” He tion for of that a new trial. The denial adding, hope hell “I sure as I Grieme motion reversible error. reported hurt her never too much.” He very upset. Grieme Reversed and remanded. *10 concur, except All UHLEN- Justices REES, MOORE,
HOPP, J., J., J., C. Iowa, Appellee, STATE specially. who concur v PROUTY, Appellant.
Dallas Leander UHLENHOPP, spe- (concurring Justice No. 55399. cially).
Supreme Court of Iowa. the result in all of the I concur in June 26, 1974. I, except opinion division from court’s which I dissent.
I the modern line with believe
trend, subject pretrial discov- whole
ery in cases thoroughly criminal should be Iowa, changes
studied in and such should by ap-
then be rule as installed statute or
pear advisable. method is well decisional suited embarking upon use in a new criminal
discovery system. discovery Criminal
considerably civil discov- different from
ery; problems different are involved.
Nakell, Discovery Criminal for the De- Develop-
fense and the Prosecution —The
ing Considerations, Constitutional SO N.C. by
L.Rev. 437. would therefore stand I present
our discovery decisions on criminal
pending action the next General Assem-
bly proposed its revision Iowa crimi- procedure. time,
nal At the same I would
suggest Assembly advisability
a new pro- court authorizing statute this
pose procedure rules of criminal as we can propose procedure.
now rules of civil statute,
Code 684.18. With such
we appoint could an advisory committee of
members of bar especially who are law,
knowledgeable in help criminal us
bring and keep system pro- our criminal up
cedure including discovery. to date —
This seems me approach a wiser than method, especially ad hoc decisional respect discovery criminal when we
do not have a set of standing rules which
were designed for criminal cases. J.,
MOORE, REES, J., join C.
special concurrence.
notes
defendant
The
§
apartment
p.
from 11:30 m. to 1:30 a. m.
has,
Code,
specifical-
since
otherwise
employment
He was
place
seen at his
of
ly provided
right
perpetuate
the
to
testimony
1:45 a. m. There was
decedent
testimony.1
right
perpetuate
The
testi-
strangled.
presence
had been
The
of male
mony under
781.11 arises when one be-
§
semen indicated sexual
intercourse near
apprehensive
prosecu-
possible
comes
of a
the time of
Other
death.
facts can be
right
tion. But
the
terminate
does
appropriately
they
more
recited as
relate to
bringing
the
of the action. 26A C.J.
specific assignments.
Depositions
page
appar-
S.
It is
316.
§
interpretation
ent our
of
781.10 renders
§
I. Defendant
complains
first
of
it a useless restatement of the
that
section
the trial court’s refusal
him
allow
follows it.
discovery depositions.
take oral
As au
thority
application
for his
defendant cites
Another
§
rationale in
District
State v.
781.10,
Code,
provides:
which
“A de
(Delaware County), supra,
Court
is also
case,
fendant
in a criminal
either after
challenged.
pointed
the
out
informa-
preliminary information,
indictment, or in
sought by
tion to be
way
discovery
formation, may examine witnesses condi
a criminal defendant
is otherwise available
tionally
commission,
or on
notice
in the
procedures, particu-
to him in our criminal
same manner and with like effect
in
larly
testimony
in
minutes
attached
civil
freely
actions.” Defendant
concedes
county attorney’s
indictment or
in-
interpretation
our
severely
of this
772.3,
statute
formation. See
The Code. This
§
application.
limits its
State v. District
rationale is especially offensive to this de-
(Delaware
Court
County),
Iowa
253
separately
fendant
assigns
who
as error
114
317;
McClain,
N.W.2d
State v.
256
testimony by
allowance of
expert
an
764;
Gates,
Iowa
125 N.W.2d
State v.
beyond
witness on matters
scope
indi-
617;
260 Iowa
150
cated in the
assignment
minutes. This
will
Parker,
505;
261 Iowa
be discussed in a
pro-
later division. To
Rankin,
State v.
(Iowa