State v. Peterson

813 (Iowa 1985). We affirm on the issue is of indem- N.W.2d contends one Loomis this issue. they nity necessary negli- and it show is gence part of Paulson. do not on the We AFFIRMED. interpret indemnity as cover- the contract ing this situation. question whether the rose is accident Paulson did as an electrical the work deny does not

contractor. Loomis decedent’s painting

accident incident to the contract was Seasons,

Loomis had with Five not with their Iowa, Plaintiff-Appellee, STATE of electrical with Paulson. Decedent contract Five he fell. working for Seasons when v. against PETERSON, Loomis Lynn claim was based Richard they concerning Defendant-Appellant. not do the work did or did involvement Paulson had floor. The No. 93-1192. injury with the was the unauthorized use of Appeals Court of of Iowa. equipment. its 30, 1995. March indemnity right equitable is Co., River nature. Howell v. Prods. (Iowa 1986). N.W.2d find the We properly

Loomis Paulson was claim

dismissed.

PAULSON they contends have a

Paulson

against Five Seasons. establishing prerequisite

A duty.

claim for is a Shaw v. Soo Line relief (Iowa Co., 1990);

R.R. N.W.2d (Iowa Gillispie,

Bain v. duty

App.1984). legal Whether exists is Shaw, 463 at 53.

determination. See N.W.2d

There was no written or oral con

tract Paulson and Five between Seasons. because, duty

Paulson as the em claims permission;

ployers, lift used without

however, judgment has been no rendered find no to order Paulson. We basis gen costs of defense. The fees and are not

eral rule fees recoverable by statute or contract. See

unless authorized 496, 499-503, Nason, 249 Iowa

Tucker v. Attorney fees damages generally

are not recoverable provision or a in a

the absence of statute Schammel,

written Suss contract. narcotics, Charges found in the car.

er were filed both and Peter- plea bargain, into a son. entered pled guilty, part sentenced. As a signed plea bargain, McCarthy an affida- by county stating prepared attorney vit marijuana he and Peterson knew was in both McCarthy it. the car and intended to sell testify part was to later that he was told plea agreement he would to not have testify for the State Peterson. by Peterson to be tried court. elected State, anticipating Peterson testi- would fy brought McCarthy, at his incarcerated, as where he was county attorney witness. The talked rebuttal McCarthy McCarthy during the trial and county attorney he were called as witness, give testimony he inconsis- tent with his sworn affidavit. county attorney at- notified Peterson’s Defender, Gallo, Appellate Linda Del torney McCarthy might provide exculpatory Hitchcock, Appel- and Annette L. Asst. State attorney interviewed evidence. Peterson’s Defender, appellant. late attorney McCarthy. tell Peterson’s was to Atty. Gen., Campbell, Thomas S. Bonnie J. expected after the court the interview he Thoman, Attys. and N. Asst. Tauber Charles McCarthy testify Peterson did not know Goettsch, Gen., Atty., for and Kirk E. Co. marijuana in the car and Peterson appellee. marijuana. no intent had to deliver HAYDEN, P.J., and Considered McCarthy as a witness. Peterson called HABHAB, JJ., decided and SACKETT McCarthy said he testified he wanted banc. en attorney might with because he to consult an charged perjury with did not want HABHAB, Judge. opportunity. had that before he Lynn Defendant-appellant Peter- Richard appointed repre- an possession intent to was convicted of son and, McCarthy consult- after sent of Iowa section deliver violation Code attorney, questioned on he was ed with 204.401(l)(d) (1991)1 possession of a tax- about whether Peterson the witness stand stamp able substance without excise marijuana in his car knew there was 421A.12 Code section violation Iowa grounds to answer on declined (1991).2 to due rights contends his him. might that it incriminate by the intimi- process were violated State’s McCarthy. Tary of a dation defense county The court then asked affirm. We testi- the State would do what attorney expected he riding in a owned and fied as Peterson was car attorney replied: “We by McCarthy ear was would and operated when the charges if promised file belt violation and sub- have pulled over for a seat is that if he testi- bags position Our large Three of he testifies. sequently searched. Exhibit today in variance with quantities of oth- fied material marijuana, as small as well at 204.401(l)(d) is now codified Code section 421A.12 is now codi- Iowa Code 1. Iowa section (1993). 124.401(l)(d) 453B.12 Iowa Code section section fied at Iowa Code ver, L.Ed. 682 investigate fil- 333 U.S. 68 S.Ct. we would [his statement] (1948), ing perjury charges.” observed: person’s right notice of A to reasonable The court then decided to allow him, charge against opportunity and an privilege. Amendment to assert his Fifth right heard in his defense-a to his trial, McCarthy in the was asked Later system day in court-are in our basic had, attorney if when not un- include, rights jurisprudence; and these oath, than der made statements different minimum, to examine the witness in the affidavit. The some statements him, testimony, and to be to offer county attorney McCarthy, answering said represented counsel. might subject to a question, himself Oliver, 507-08, 68 S.Ct. at U.S. again charge and the court al- (footnote omitted). addition, In L.Ed. at 694 lowed to invoke the Fifth Amend- cases, there are an endless line of both state ment. federal, process that have held due re- and questions After more directed to several quires that the accused have the assistance of knowledge drugs in of the defense, counsel for his that he be confronted grant asked the court to him, with the witnesses and that he immunity McCarthy use so he could right speedy public a trial. have the to and truthfully in the trial or the trial court equally is as fundamental to our It prosecutorial a mistrial because of miscon- system jurisprudence of that an accused has duct. Peterson’s advanced the right compulsory process obtaining to for prosecutors improperly plea obtained the and her favor. his or As United affidavit from and threatened to Supreme Washington States Court stated charge him if his v. Texas: prior differed from his statement. right to offer the of wit- The trial court to refused nesses, attendance, compel and to their and overruled Peterson’s mo- necessary, plain right terms the to is appeal, tion for a mistrial. On Peterson re- defense, present right present to his news claims. version of the facts as as defendant’s well jury prosecution’s to the so it Scope I. Review. Because Peter of issues, an our decide where the truth lies. Just as son raises constitutional review is right pros- accused has the to confront the independently the to de novo. We evaluate purpose ecution’s witnesses for the of chal- tality as evidenced the circumstances Fox, lenging testimony, right their he has the the whole record. State v. (Iowa 1992). present his own witnesses to establish right defense. This fundamental ele- II. Pe Prosecutorial misconduct. process ment of due of law. process rights terson contends his due were Texas, 14, 19, Washington v. 388 U.S. prosecutorial violated due misconduct. 1920, 1923, S.Ct. 18 L.Ed.2d For there to be a denial of due due right present This a defense is misconduct, prosecutorial there must be a rooted in the Sixth Amendment to com- (1) showing prosecutorial that misconduct Fox, process. pulsory 491 N.W.2d at 530. (intimi kept testifying witness (2) dation); preju and the defendant was B. Fox, at 532. diced as result. Turning to the contention the defendant that was intimidated into not testi-

A. La- fying, we return to where Justice court, varato, speaking made ingredients for a unanimous There are a number basic firmly there is a fine process of that are now so this observation: “We concede due law reminding separate support line between a defense witness established that citations to committing necessary. consequences perju- longer As the about the the same are no Court, driving the witness Supreme ry in In and that witness from re Oli- United States (1972) (trial judge told L.Ed.2d 332-33 at 533. It is indeed “fine line” stand.” Id. inmate, and, carefully that if he lied intending to cite all defendant’s without law, stand, personally we see in this area “the will crafted decisions ap- your jury goes grand the extensive discussion cases and look to case Annotation, Against Admonition pearing you perjury.... It will indicted for will Perjury Prosecute Potential or Threats to against you penitentiary also be held in the Witnesses, Inducing to Tes- you’re parole.”); up when States United Refusal Defense Error, Prejudicial tify, (5th 88 A.L.R.4th 388 Henricksen, F.2d Cir. v. (1993) (1991) Supplement [hereinafter 1977) curiam) (per (prosecutor eodefend- told ]. Admonition ant that “would” be on all counts of tried indictment, plea agreement cases, it From our review of those is safe void, testified); “would” United giving conclude that the circumstances (3rd Morrison, States F.2d alleged are threats and intimidations rise to Cir.1976) (prosecutor defense witness obviously, Rather the treatment boundless. her “would” be used vary depending upon given to those cases drug prosecution, her in and that separate their individual circumstances. testified).3 charges “possible,” if she first, prosecu- determining, whether a by error ad- prejudicial tor has committed hand, prosecutor or On when the the other prospective monishing threatening or a de- judge prospective trial told a defense the has witness, it helpful distinguish fense prosecution face if he testi witness he could prosecutor in which the communicat- cases fied, majority a that no of courts have found directly admonition threat to the ed the or Annotation, misconduct occurred. Admoni 3-6) (§§ in from those which witness tion, 403-05, 425-27, 393-97, 88 at A.L.R.4th information prosecutor funneled are group 444-47. cases that This includes party, third as the through a such factually See to the case at bar. similar defendant, attorney, or for the the witness’ Gloria, 477, 484-85 United v. States (§§ 7-10). Among judge the for- the trial (5th denied, Cir.), 419 95 S.Ct. cert. U.S. cases, moreover, in mer those which (1974) (prosecutor did L.Ed.2d prose- prosecutor advised the witness that advising” pro improperly “merely act in not cution for or another offense was previously spective who had defense (§§ 3-4) possible distinguished can be incident pled guilty in connection with the prosecutor in those which the charac- defendant, charge facing the underlying the negative consequences of the terized prosecution if his testi possibility “of the (§§ 5-6). witness’ as certain prior mony materially differed from his Admonition, Annotation, 88 A.L.R.4th distinguished on plea”; the court Webb 394. threat ground the witness was that Webb v. prosecution.”); Reese ened with “certain prosecu a line a There are of cases where States, (D.C.App. A.2d United judge or trial has told defense tor 1983) (when judge wit trial advised defense prosecu face that witness would witness jury grand planning to recant ness who was charge if he or perjury or other tion for some defendant, fact testimony implicating and, for thereaf she testified the defendant against that his “could” be used ter, testify. witness In those refused perjury, penalty him and of the instances, majority of courts have found judge’s threat action did constitute action constituted misconduct that such wit merely that the defendant, insured justified intimidation which, prejudiced if it lia potential criminal 393-97, 405-16, 427-31, ness of his was aware Id. at 447- reversal. prosecu- bility; separate includes a the case group includes on This of cases those 48. Texas, ground on torial claim resolved v. misconduct Peterson relies: Webb Wein, 96-98, 351, 352-53, Mich. prejudice); People 34 lack 93 S.Ct. U.S. adequate protection say: warning be did "a The Morrison court (witness) unknowing rights self- Sally waiver of her rights by prior to Bell’s the court (1969) (held prosecuted if he did not it was not witness would be stop testifying, but rather that the witness criminal case for the reversible error prosecuted if he incriminated him could be judge the defendant that a trial to caution by testimony.”5 Id. self perjury; the court ex penalty attaches to plained required, are on C. so; truth and to do take the oath to tell the must now decide whether McCar We falsely may that constitute perju thy intimidated the threat of a by contempt proceedings punishable or oth ry charge. Like in we do not believe kept a wit erwise need not be secret from by an was “cowed into silence trial); prerequisite to a fair State v. ness as a Rather, McCarthy, prosecutor.” (1979) overzealous Koller, 253, 274 N.W.2d 651 87 Wis.2d very beginning, independent any from the (during prosecut trial the the course of the prosecuting comments the court and the ing attorney judge that a Mr. advised the attorney, expressed to invoke his intention Kretlow, who was later called as a witness his Fifth Amendment to remain silent. defense, may recharged for the with result, clarify to the record To we resort robbery. judge crime of The trial called following appeal which reveals the se prose recess and advised Kretlow what quence of events: cuting had informed him. The trial (1) McCarthy plea guilty judge anything entered a then advised Kretlow might say open possession intent to deliver. At the this case with bar, against him in a court of law in a time of the trial of the case at he was used serving fifteen-year subsequent charged sentence. con- trial he should be plea bargain, McCarthy nection with the robbery. Kretlow thereafter asserted his signed following affidavit: privilege Fifth Amendment and was excused I, Tary McCarthy, being duly The court held the witness was court. Iver first oath, by prose depose into threats of not coerced silence sworn on and state: cution.) “[Tjhere parte were no ex communi August driving my On 1992 I was prosecutor Camaro, cations with the witness. The did Chevy Highway on 175 in Ida Smith, court, what the States v. County, United Riding Iowa. in the car with me (1973),4 U.S.App.D.C. 478 F.2d 976 was Richard L. Peterson. I have known proper said was the course —he advised the for some time. In the rear seat Peterson Camaro, judge judge jacket, of the situation and the informed my plaid of under a were Roller, rights.” large bags the witness of his three each of which contained addition, marijuana. bags the court stated Both Richard L. 665. four of attorney say presence I “the district did not the Peterson and knew of the however, Morrison, impeccable, impli- motives were the incrimination...." (3d Cir.1976). he calculated to trans- cation of what said was Twitty willing to one who form witness morning day of the second testify, On and fact would refuse to that in was the Smith, U.S.App.D.C. prosecutor thought United States v. result.... the witness If (1973), rights he F.2d 976 the Assistant United States At- should be advised his then should explain suggested torney approached Twitty have that the court them to defense witness and Twitty. pre- The matter would then have been independent legal him counsel advised to seek Twitty by any sented to the court without prosecuted carry- potentially and he could implications threats or of retaliation. ing dangerous weapon accessory and an as Smith, added). (emphasis 478 F.2d at 979 weapon after the fact because he had carried the shooting. back to Jarvis after the The Smith supreme distinguished 5. The Wisconsin court stating: the conviction court reversed decision, Third Circuit's in United States v. Morri- prosecutor's warning We think the was son, by emphasizing prose- in that case that the depriving plainly a threat that resulted in occasions, cutor, on at least three warned the Twitty’s testimony. govern- defendants through attorney that she was liable witness argues Twitty in its brief that had a ment drug charges, prosecuted that if to be she might he himself to be advised that incriminate testified the would be used as evidence her, subject prosecution if he elected to prosecuted and be and that she could be suggests testify, government and the that the The court noted under federal statutes. sending only protecting Twitty's rights prosecutor length prosecutor even went to the prosecutor's subpoena his with the her a to come to office when he warned him. Even if the today in material variance to sell it. testified marijuana, we intended inves- we would large [his statement] exhibit my was a trash Camaro Elsewhere charges.” The tigate filing perjury court marijuana containing packages of bag two McCarthy to to allow assert then decided newspapers and wrapped in privilege. his Fifth Amendment I L. Richard clothes. Both marijuana, presence of this know circumstances, we cannot con- these Under it. We were intended to sell and we also McCarthy’s silence was a result of clude that County deputy sheriff by an Ida stopped attorney. prosecuting McCar- threats arrested. and later any prosecuting thy, without mention (2) anticipated that Peterson The State place take attorney, aware of what could testify not know about the he did his testimony inconsistent with gave if he McCarthy’s car. The State marijuana appointed an previous The court affidavit. McCarthy po- as a brought from Oakdale represent him. In the discus- attorney to against Peterson. rebuttal witness attorney, tential McCarthy it was sions had with McCarthy attorney county talked to plead Fifth Amend- decided he should county attorney if subject ment.6 He did so. give he would called as a he were only being after he exercised his came into affi- with his sworn inconsistent right, only after Fifth Amendment and then credit, attorney’s he To the davit. county attorney was asked attorney immediately notified Peterson’s do if testi- what the State would provide evidence ex- McCarthy might attorney expected he fied as Peterson’s culpatory to Peterson. inquiry as The court made this would. (3) had interviewed whether After Peterson’s an aid determine privileges. him a witness. McCarthy, any he called Fifth Amendment testified, said, before he level of intimi- not rise to the This does because consult with wanted to intimidation, we do not find dation. Since we perjury and he charged with might not a violation of due there was conclude he had that did not want process.7 opportunity. D. (4) attorney to appointed an The court Thereafter, McCarthy. he was represent shown that the defendant has Even when stand about on the witness questioned then a de- improperly intimidated prosecutor marijua- knew there was whether Peterson supreme court has de- our fense McCarthy declined to car and na in his the defendant unless clined to relief incriminate grounds might it prejudice. answer he suffered also establishes Assuming arguen- him. N.W.2d at 532. 491 intimidated, county the next (5) McCarthy court asked was It was then the do that answering is wheth- do if needs attorney question that then what the State prejudiced. In this the defendant was as Peterson’s er testified Harris, speaking for a unani- respect, Justice and the expected he would Anderson, 448 N.W.2d v. to file mous court State promised replied, “We have (Iowa 1989), stated: if 32 position is that charges. perjury Our Roller, wanted him to as Simmons intimidating Johnson testified her. purpose apparent going lawyer to be a was not Simmons' and 274 N.W.2d at 664. perjury. party to witness was advised in which a 6. In an instance Simmons, (D.C. 1250 States v. United Amendment, one by plead Fifth counsel 1983). court stated: is Although intimidation we have held own law- of Simmons' Thus on case, urge prosecuting strongly lacking we deprived of Johnson as yer, was not his client any discus- attorneys become involved by govern- not to any threats because of witness possi- concerning (1) either the sion with because prosecutor for two reasons: ment's charges. perjury Whether bility probability of or on the ad- Amendment took the Fifth Johnson left (2) guilty is better can be a witness Simmons' because vice of his counsel attorney. opinion from that witness' with an lawyer it would constitute had decided 820 1992, 24, shop, July pawn not war kota dated Peter- prosecutor’s

A misconduct will “so receipt scrap processor trial conduct was rant a new unless the son’s from Web- deprive Iowa, 15, 1992, of a prejudicial as to the defendant City, July ster dated an bears the v. (1957), fair trial.” State v. ^[541] 543, 1986). [965], Iowa Bishop, 387 549 78 S.Ct. 530, 536, It is not the cert. (Iowa burden of denied, 1973); N.W.2d 86 N.W.2d party claiming prejudice [558], establishing prosecutor’s Lyons, 210 N.W.2d 554, 2 L.Ed.2d 1158 ^[355] v. Harless, 210, it. State U.S. miscon (Iowa 249 908 were scattered that he they Atlas road admission al, father’s To refute Peterson’s other assertion that it was were on their did not telephone later that this map established throughout the car. know that contained way along number. to his mother’s funer- with by Peterson’s These were Peterson’s statement items false. own way stipulation by This admission came of a a new entities a defendant to duct which trial, any resulting prejudice purposes. for trial rather of facts moth- being fair prevents the trial from dead. er was not Webb, v. one. State attempt to disassociate himself 1976). (Iowa Trial with courts are vested before the mari- authority prejudice broad determine juana discovered, supports strongly was actually v. results from misconduct. State marijuana inference Peterson knew (Iowa 1985). Ruble, 372 N.W.2d Cox, there. See State 500 N.W.2d Appellate courts a trial will overturn (Iowa 1993) (admissions implied by only ruling upon finding an abuse court’s subsequent the conduct defendant of discretion. Id. An abuse of discretion crime, fabrication, including such when con- appears when it “exercised on guilt. duct indicates consciousness of A clearly grounds or for untenable reasons story explain false a defendant clearly an extent unreasonable.” Id. or to deny a material him is fact itself unable an abuse of We are to find guilt.) Finally, McCarthy’s indication give we consideration to discretion. When own statement established knew preju the whole we are unable find marijuana was in car and intended dice. statement, Coupled McCarthy’s sell it. very The evidence Peterson is even if he had as Peterson’s testified counsel strong. As shown exhibit prior expected, his recantation of his sworn oth- Peterson and had known each upon statement would been “looked have years er for several and had been associated State, suspicion.” with the utmost Jones v. other in enter- with each various commercial 1991). (Iowa during six their prises months before appre- the two arrest. When of them case, strength it Given of the State’s hended, easy to six Peterson had access unlikely McCarthy’s highly the lack of testi- marijuana in packages of were hidden judge’s mony influenced the trial verdict. places in the car. various heading conclude under that even if We this first, arresting occurred, the misconduct had the court At Peterson denied to the acted McCarthy. he knew He stated its Peterson was not officer that well within discretion. picked in up had him earlier prejudiced. that day they heading moth- for his in Lake er’s funeral View. Immunity. III. also the district court failed to however, claims arresting At Peterson’s requested immunity. McCarthy the Use im searching testified after officer compels munity an order court that is of the found two of self-incriminating licenses, give to a witness game fishing one dat- Arkansas 13, 1991, prohibits the use while at the same time and the other dated ed December addition, subsequent prosecution in found February 1992. such Fox, Da- witness. receipt Fargo, from a North properly ny court is essential to effective defense.” Id. We find district immunity. supreme court accepted Our Iowa A number of federal denied circuits have immunity yet use is theory “prose- has not decided whether the second referred to as the constitutionally required. It has con- Id. theory.” cutorial misconduct Id. It holds a however, firmed, that the court on its district power government court has order the authority statutory has no own motion (or grant statutory immunity to a witness immunity. authority grant use Id. “If such acquittal) judgment gov face where the exist, it must from the district does come ernment’s deliberate intent to distort general power.” inherent Id. court’s fact-finding process prosecutorial results misconduct. Id. Commenting, in im- on whether use munity constitutionally required, is our su-

preme made court these observations: EFFECTIVE DEFENSE THEORY A number of have addressed the courts The defendant cites us to the case Gov- immunity of whether is constitu- issue use Smith, Virgin ernment Islands tionally required exculpatory for essential (3rd Cir.1980), F.2d 964 which holds that: testimony.... potential it is found that a defense When majority of these courts refuse witness can offer which is clear-

recognize immunity such constitutional- ly exculpatory and essential to the defense (Citation omitted.) ly required. General- government has no case and when ly, policy given are for this several reasons strong withholding interest in immuni- use First, immunity in granting use refusal. ty, grant judicial immuni- the court should witnesses, judicial to defense branch ty to the witness order to vindicate encroaching policy assessments risks right constitutional to a fair defendant’s traditionally by made the executive branch. trial. Thevis, States v. See United Islands, Virgin 615 F.2d at 974. (5th Cir.1982). theory,

Second, power to immunity signifi- Under this the inherent defense use immunity rests with the court itself. ability prose- cantly impairs the State’s grounded due power in a defendant’s immunized and increases cute trials, exculpatory to have evidence proof. burden of In such the State’s jury. to the id. at 969-974. presented See must the additional the State overcome case, Angiulo theory According to the this requirement is “untaint- its evidence rejected by virtually every court testimony. Id. has been ed” the immunized Angiulo, that has considered issue. Last, for abuse eode- at 1191. F.2d fendants, friends, coconspirators, em- immunity cases is ployees defense use opposition frequent given rationale noted, Id. substantial. As one pose separation it theory is that would to this immunity to defense wit- granting in- problems for to assume power courts un- opportunities “could nesses create immunity authority grant judicial herent justice dermining the administration that the Id. “The rationale is themselves. among inviting cooperative perjury law vi- legis- grant witness is of power to Turkish, 623 United States v. olators.” origin granted to the executive lative and was (2nd Cir.1980). 769, 775 F.2d Angiulo emphasizes that Id. also branch.” Fox, 491 N.W.2d at 533. power in judiciary to exercise “[f]or legislative grant vio- grant of of a can be to a the absence Defendants entitled power principles.” Id. prospective separation under of immunity for witnesses late addition, accep- that an emerging it has been observed theories. United States one of two (1st a particular theory would force Cir. of this Angiulo, 897 F.2d tance par- 1990). a need for accepts judge first to balance defendant’s minority A small prosecutor’s defense theo ticular witnesses theory, labeled “effective immunity for the failing to inherent for seek ry.” “It holds court has the reason Id. judicial ill for exercise suited immunize whose testimo witness —an power to sought prosecutorial misconduct. v. Turk making. See United States decision (2d immunity8 pros- from Cir.1980), ish, cert. absolute F.2d immunity grant denied, perjury. To such ecution for 101 S.Ct. 449 U.S. (1981). effect, argues, consti- as the State would L.Ed.2d 800 compel court. To a license to lie to the tute force arguments have considerable These grant under the prosecutor to was not since we hold McCarthy in place threat of dismissal need not decide whether intimidated we a crime with absolute position to commit applied theory should be defense effective prosecuto- reject impunity. We defendant’s Iowa law. under theory and find no error rial misconduct immunity to failure to offer the State’s MISCONDUCT PROSECUTORIAL McCarthy. THEORY nearly a uni Although there has been court had even if the district But rejection McCarthy, the effective defense theo refusing versal immunize erred in process due ry, prejudiced have held that the for the “courts has not been defendant prosecutor to a constrain the previous clause does forth in the division reasons set grant deciding certain extent whether tried to a opinion. This matter was immunity.” Angiulo, or not to him the witnesses and judge who had before prosecutor just It is clear that reasonable testimony. F.2d at 1191. There is no their intentionally attempts the fact find to distort have been probability that the verdict would process then there is a due ing process, immunized had been different violation, prosecu testimony contradicting and a court order given and had judg immunity or else face a tor to prior sworn statement. acquittal. States v. ment of See United AFFIRMED. Cir.1988). (7th

Hooks, F.2d C.J., DONIELSON, and HABHAB and intentional distortion It is said CADY, JJ., concur. First, ways. govern in two can occur po discourage testimony from a ment could HAYDEN, JJ., dissent. SACKETT and through intimidation tential defense witness HUITINK, J., part. takes no threatening example by or harassment —for perjury or other prosecution for them with SACKETT, (dissenting). Judge Angiulo, at 1192. Where offenses. I dissent. defense witness such tactics cause Lynn Peter- Defendant-appellant Richard and withhold the Fifth Amendment invoke possession with intent to son was convicted would have been which otherwise defendant, in violation of Iowa Code section may order deliver a court available to (1991)1 204.401(l)(d) of a tax- possession grant immunity to the de prosecutor stamp in without an excise judgment of able substance face a fense witness or else 421A.12 “Second, Iowa Code section government violation acquittal. Id. (1991).2 rights to due fact-finding Peterson contends his intentionally distort could by the intimi- process violated State’s withholding immunity by deliberately McCarthy. Tary dation of defense prospective defense witnesses from certain remand for a new trial. I would reverse and keeping exculpatory evi purpose of for the jury.” Id. from the dence riding in a car owned Peterson was by McCarthy when the car was operated failed to found the defendant has We have belt violation and sub- type pulled over for a seat showing either adequate make 204.401(l)(d) now codi- "im- 1. Iowa Code section supreme stated that such 8. Our court has (1993). 124.401(l)(d) munity' all—should be considered section available at fied at Iowa Code —if prosecution in circumstances in which prevented improperly a defense witness has 421A.12 is now codified Iowa Code section exculpatoiy giving evidence.” essential section 453B.12 Iowa Code at 533-34. to, sequently large bags having Three I am sequently here will searched. marijuana, quantities bring perjury charges. well as small of oth- as narcotics, found hidden in the car er were in and the trunk. behind the dashboard understanding, my The Court: It is Mr. McCarthy Charges against filed both McCarthy, that from the discussions that McCarthy plea entered and into Peterson. you’ve had Mr. that it with Jones well guilty, to and was bargain, pled sentenced. questions occur that the the answers —or bargain, McCarthy plea As a his part of you give relating questions to to that county signed prepared the an affidavit subject today may here be matter different attorney stating he and Peterson knew both than contained in that what’s affidavit? marijuana in the car and intended to sell was McCarthy: That’s correct. testify McCarthy it. later he was was to attorney appointed repre- The court an part plea agreement told he would of the was and, McCarthy McCarthy sent after consult- testify against not for the State or have to attorney, questioned ed with the he was on Peterson. the witness whether stand about Peterson tried elected to be the court. Peterson car, marijuana knew there in his and was State, anticipating The Peterson would testi- McCarthy grounds on declined to answer trial, McCarthy, fy brought might that it him. incriminate incarcerated,

where was as a he county attorney The court the then asked county attorney rebuttal talked witness. McCarthy the if what State would do testi- McCarthy during McCarthy and attorney expected fied Peterson’s he county attorney he were called as would, attorney replied: county and the “We give testimony he would inconsis- promised perjury charges have not to file McCarthy tent his sworn affidavit. tes- with if he position he testifies. is that testi- Our he tified this conversation knew if he after today in fied material variance with Exhibit bring perjury the State would testified investigate [his we would fil- statement] charges him. ing perjury charges.” attorney county notified Peterson’s at- McCarthy allow The court then decided to torney McCarthy might provide exculpatory privilege. to assert Amendment his Fifth attorney evidence. Peterson’s interviewed trial, McCarthy Later was asked interview, McCarthy. After Peterson’s had, attorney if when Peterson’s he not un- attorney expected to tell the court he oath, der statements different than made testify McCarthy to Peterson did not know of the in the affidavit. The some statements marijuana in the ear and Peterson county McCarthy, answering attorney said marijuana. had no to deliver the intent subject question, might himself again charge perjury, the court al- called as a witness. Fifth lowed to invoke the Amend- testified McCarthy said before he he wanted ment. attorney might because he consult with that, based conver- testified charged and he did not want attorney sations had with testify opportunity. he had that general, he understood would following exchange Then occurred be- subject prosecution for if he and the court: tween Peterson contrary gave testimony to the affidavit. you give some Did statement Court: questions directed to After several more oath be- about these circumstances under drugs knowledge fore? the court asked Yes, did, he could so McCarthy: I in a I was sense. truthfully trial court trial or the given agreement less a plea or —more prosecutorial a mistrial miscon- plea that I would have to because agreement attorney advanced the duct. Peterson’s plead give witness evidence for —or plea prosecutors improperly obtained con- state Richard Peterson and 824 may to him her —in or of from and threatened not intimidate or out

affidavit testimony perjury Ivy, him if his charge with court. 300 N.W.2d at 314. prior differed from his statement. argued McCarthy not The State was intim- The trial court refused to only told idated because he was some immunity and Peterson’s mo- overruled may follow, they charges that fol- not would appeal, tion a mistrial. On Peterson re- argument majority adopted The this low. claims. news his contrary holding Ivy of which is to the when county was the a witness pro- Peterson contends was denied due might charged a criminal with offense issue; raises cess. Peterson a constitutional tell the the court he didn’t truth and said of therefore, I review de novo. State v. See conversation, certainly was “this witness (Iowa 1991). 573, Stanford, 474 N.W.2d 575 prosecution threatened criminal if he prosecutorial Peterson first mis contends tell the at didn’t ‘truth’.” Id. 313-14. ques him process. conduct denied due The look, too, Fox, I to 491 N.W.2d 530 and prosecutor the tion is whether violated Peter 532, the the where court found attor- right right present son’s to a defense. ney’s statement to the witness’s witnesses, testimony to the and to offer way witness testified a inconsistent with is, terms, compel plain their attendance belief the State’s about the events surround- defense, right present right the to a the to shooting, ing a the would the State view present the version of facts as defendant’s testimony promptly as and would prosecution’s jury well the so it judg- move to revoke deferred the witness’s Washington where the truth v. decide lies. Texas, 14, 19, probation, improper 1920, 1923, 18 ment and to be tactics. 388 U.S. 87 S.Ct. (court Henricksen, (1967). 1019, also F.2d at 198 An See 564 L.Ed.2d 1023 accused has government found substantial right prosecution’s to confront the wit interference purpose the defense challenging for the their with witness’s free unham- nesses testimony right pered testify he or choice to violated due she has the present testimony his or her own to establish where witness whose would tend government part plea a Id. in to exonerate the as a defense. Substantial defendant bargain agreed testify terference with a witness’s free and had not to and the defense testify, unhampered government plea choice to due said if he did violates Henricksen, Morrison, void); process. bargain would be United v. 564 535 F.2d States (5th (court 197, 198 Cir.1977); prosecutor’s repeated v. at 230-31 F.2d United States found Cir.1973). (6th Thomas, 334, warnings a prospective 488 F.2d defense 335 witness possibility about the of a federal Supreme clearly supports The Iowa Court charge falsely if she after testified she had to a fair trial and has held defendant’s give agreed testimony favorable it proper not a witness. intimidate pro- defendant violated the defendant’s due (Iowa 527, State v. 491 N.W.2d rights). cess 1992). prejudiced3 if the And defendant is intimidation, prosecutor as a result of the then the de- deprived process. make fendant is his or her due it clear was told (Iowa 310, Ivy, prosecutor v. he was under threat of Hall, 1981); prosecution if he also State criminal testified and his see 1975). (Iowa prosecutor may contrary was I A to his affidavit. court, prosecutor impeach a he or she interfered with witness find McCar- showing overwhelming required Rely- federal courts have claim there evidence. Webb, suggested prejudice. It is that the United ing the 3rd Circuit in United States v. showing require Supreme Morrison, (3rd Court Cir.1976), States did not said they prejudice when a Texas Court of reversed "[Wjhere prevented has de- Government Texas, Appeals 409 U.S. decision Webbv. freely testifying witness fendant's from 351, 354, S.Ct. 34 L.Ed.2d jury, jury it cannot be that the have held Webb, reversed where Court believed error prevented testifying witness was defense harmless.” addressing dissenting justices freely without thy’s unhampered testify challenge Petersons is the choice to second trial free and, so, pro- doing in violated Peterson’s due given McCarthy court should the have re- rights. cess immunity quested immunity. is an Use or- compels of the der court that witness to However, Peterson is entitled to a testimony give self-incriminating while at the prejudiced by he was new he must show prohibiting same time the use of such testi- testimony. the the State v. Erv absence of (Iowa 1984); mony subsequent prosecution in a ing, the 346 N.W.2d Ivy, determining Fox, Fox, at In 314. In witness. at 533. N.W.2d prejudice prosecu has resulted from whether request Iowa that the court discussed a had tactics, intimidating trial af tor’s courts are immunity been made use and said for the forded at broad discretion. majority recognize of courts refuse to use issue, examining I 532. In make two immunity constitutionally required; the is, inquiries. first had it not been for The immunity significantly defense’s use of use intimidation, McCarthy the would have testi impairs ability prosecute the im- State’s fied, and, second, if the had been munized is a witnesses and there admitted, changed it have the result of could for abuse. The court See id. at 533. went trial? Peterson’s on, however, find it did not need to decide in record The the from both statements because, immunity the issue is avail- Peterson, attorneys the for the and for State all, it able at should be considered in by McCarthy made the as well as remarks prosecution the circumstances in which has conclusion, judge, only support one can prevented improperly a defense witness from testify, being, McCarthy’s intention to it was evidence, giving exculpatory id. essential at affidavit, that contrary Peterson had 533-34, and not find such the court did drugs in knowledge no the car. situation to in Fox. Peterson advances exist just as clear The record is the reason the this is case where use should was because of the did exculpatory testimony be available because being possible charges threat of otherwise will be excluded because the attorney. brought against him the for prosecution threat will State’s find, county attorney’s I intimi- but for the again assert the Fifth force dation, given McCarthy would have testimo- privilege. Amendment Government of position. ny Peterson’s favorable to (3rd Smith, Virgin 615 F.2d 964 Islands v. My inquiry is whether the evidence second Cir.1980), judicial immunity the court said is provided have could have would pre- triggered the fact the defendant changed trial. the result Peterson’s presenting exculpatory evidence vented from McCarthy’s Peterson did not know rather or her case than which is crucial to his drugs in the car corroborates Pe- by prosecutorial or intentional misconduct The large of the facts. stash terson’s version process. See id. distortion of the trial it would not have been hidden so power justification employing such a for State, to convict Peter- Peterson’s view. process to have arises from the due son, beyond a reasonable doubt had to show clearly presented to exculpatory evidence knowingly possessed controlled Peterson strong jury, at least is no coun- when there specific Peterson had intent substance and justifies tervailing systemic its interest which substance. McCar- to deliver the controlled The basic constitu- exclusion. Id. at 970. thy’s clearly went to the heart of has the tional doctrine that the defendant case, knowledge in the issues is inherent right to an effective defense McCarthy’s testimony refuted and intent. guarantee trial and due of a fair evidence, being, strongest State’s long of law which is a well established presence the vehicle where at bar is recognized right. The case one find, I had substance was found. testimony will clearly exculpatory which testified, result of the trial could have assertion of excluded because of a witness’s motion for mistri- been different. Peterson’s Therefore, privilege. Fifth Amendment al have been sustained. should earlier, given would have testified justification compelling exists drugs were in the car. did not know immunity. testimony by impeached the could have five-step test Virgin set forth Islands prior the fact finder statement immuni- that must be met before truth, determining charged First, immunity must be ty may secured. opportunity have had the to decide second, court; the de- sought in the district issue; the witness was truthful on the time testify; be available to fense witness must guilt crucial to Peterson’s or inno- an issue third, excul- proffered must be disappointed I am the State and cence. fourth, must be essen- patory; majority the fact finder should not here feel fifth, tial; strong there must not be prosecutor’s posi- have that evidence. countervail governmental interests which guilty, the innocent. tion is to convict the not immunity. id. at 972. See way. gets in the the desire to win Sometimes five-step meets that test. This case the truth. Maneuvers A trial is a search for proper and a evidence was identified having way fact finders that stand was made. The application for its admission not condoned. all the evidence should named, court was and the trial witness was keep we allow intimidation to relevant When give. testimony he would fully aware of what finder, a fact we tarnish our evidence from when in the court room on the stand He was justice finding system reaching right. pled Fifth Amendment truth. exculpatory to Peterson’s case. evidence was countervailing no inter- The State showed majority hinged I has its deci- realize ests. finding McCarthy intimi- sion on the was not county attorney. Such a find- dated is, question An arises and additional totally contrary happened ing to what authority whether the court has the McCarthy, talking to here. After immunity request from the State. without attorney suggested perju- he would consider not strong arguments made for There are testify. ry McCarthy Not did did request immunity for allowing a defendant to worry filing of a have to about generally In re his or her witness. See perjury charge, which would be of concern Cir.1973). (4th 1215, 1222 Kilgo, 484 F.2d citizen, ordinary proba- faced the but he under which due There are circumstances charge might bility that the fact a request use demand the State have a direct filed or would be filed would immunity See for a defendant’s witness. the term of his current incarcera- effect on Morrison, I reverse 535 F.2d at 229. would tion. hold, in a new trial. I would and remand for Peterson calls as a wit- the event mind, question my there is no Fifth Amend- invokes his ness testify. McCarthy was intimidated not testify, judgment right not to ment I and remand for a new would reverse acquittal' shall be entered unless trial. testimony. requests for his See id. HAYDEN, J., joins this dissent. importance significant and some-

Also of majority the effect here is how missed finders, this have on fact

decisions such as

jurors, judges who we ask criminal guilt or innocence with the

trials to decide here,

resulting impact, as and substantial (Peter- between an individual’s

the difference

son’s) judge, incarceration. The freedom and verdict, rendering should have driver of the

heard who,

McCarthy, despite a written statement

Case Details

Case Name: State v. Peterson

Court Name: Court of Appeals of Iowa

Date Published: Mar 30, 1995

Citation: 532 N.W.2d 813

Docket Number: 93-1192

Court Abbreviation: Iowa Ct. App.