Rehearing Denied May 16, 1975.
John B. Grier and John F. Valdey, Marshalltown, for appellant.
Richard C. Turner, Atty. Gen., Raymond W. Sullins and Thomas D. McGrane, Asst. Attys. Gen., and Ronald M. Kayser, Marshall County Atty., for appellee.
Lawrence F. Scalise, Des Moines, amicus curiae.
Heard before MOORE, C.J., and RAWLINGS, UHLENHOPP, REYNOLDSON and HARRIS, JJ.
This appeal involves several questions which arose in a prosecution on a murder charge.
We view the evidence in the light most favorable to the verdict of first-degree murder. State v. Blyth, 226 N.W.2d 250 (Iowa). The jury could find the facts to be as follows.
Defendant Dennis C. Lass, born in 1940, finished high school, successfully completed a tour of duty in the armed forces, worked at a various jobs, and enjoyed several hobbies. In 1964 he started courting Rochelle D. Mickelson, a trained nurse four years his junior, and they married in 1966. In 1968 he began a career as an insurance claims adjuster, based in Marshalltown, Iowa. While defendant as a witness at trial repeatedly stated that his wife was a good woman and he loved her, he also testified that she was a poor housekeeper and quarrelsome when corrected, and that she used abusive language on those occasions. He testified that he tended not to answer back. Aside from those incidents, defendant and his wife seemed to enjoy a fairly happy and normal married life. They had a 14-month-old child at the time of the wife's death and a nice home in Marshalltown.
Sometime prior to 1973, defendant developed a relationship with a married neighbor woman. They saw each other at various places and had sexual intercourse. The relationship was serious, but defendant and the woman agreed that nothing could come of it because they both had families. Defendant stated to a business associate that the woman had a child by defendant. Defendant testified the relationship 'went on this way for a couple of years and it just kept building and building.' Defendant saw the woman down to the time of Mrs. Lass's death and, indeed, thereafter.
On the morning of February 22, 1973, defendant did not eat breakfast, went to his office, but returned before noon. He did not eat lunch. That afternoon Mrs. Lass went out, leaving the child with a sitter, LaVonne Sievers. Defendant testified he worked in the garage at his taxidermy hobby. He also took his car to a service station for a tuneup and left it there. He returned with a borrowed car, which he parked in front of the house.
Later in the afternoon, defendant dismissed the baby sitter. He testified he intended to take his wife to dinner at Shady Oaks that evening--although Shady Oaks was closed during January and February and had been closed during those months for a number of years.
Mrs. Lass eventually returned with her car, leaving it out. Defendant put that car in the garage; he backed it in. He testified he did so to unload some shotgun shells from it and to put on new license plates.
That evening defendant and Mrs. Lass prepared to go to dinner. Another baby sitter arrived, Gerene Ann Sievers. Just before seven o'clock, defendant drank some homemade wine and Mrs. Lass drank v. small amount. They also ate shrimp cocktail. The stereo was playing. The baby sitter testified that defendant 'went in and turned it up and Rochelle said, 'Denny turn that down,' and he said, 'No, Gerene's used to loud music.' It was louder than I had ever heard it there before.'
Customarily, Mrs. Lass left the house through the front door. On this occasion she started for that door but defendant said, 'No. let's go out this way'--the side door to the garage. The baby sitter testified:
As soon as the door shut, I heard Rochelle start screaming. It was a real frightening scream and I wanted to hear what was happening, but I couldn't because the stereo was too loud. I went upstairs through the kitchen and went into the living room where the stereo was located. When I pulled the phono arm
off the stereo, I was able to hear better. The screaming continued until it just got more frightening and terrifying and then I heard a lot of noises--glass breaking and things being thrown and shuffling of feet. Mrs. Lass was yelling, 'No.' I did not hear Denny Lass's voice. The screaming lasted for about four or five minutes. Right at the end she was screaming and then it was muffled like somebody had their hand over her mouth and then there wasn't any screaming. . . .
When the screaming stopped, the back door that leads into the garage opened and Denny said, 'Gerene.' I said, 'Yes.' 'We'll be back in about an hour,' and I said, 'Denny, what happened out there?' and he said 'I scared Rochelle with a bird.' When we began talking, I started to walk back to the door that Denny had opened and then he closed it. I went back to the front door and I observed Denny driving out of the garage. The car was going out frontwards. The only person I saw in the car was Denny.
Subsequent examination of the garage revealed a pool of blood covered by a shirt, an antique flatiron, a brick with hair and blood on it, one of Mrs. Lass's shoes, and her eyeglasses.
Defendant drove around for awhile. He went to a rural river bridge in adjoining Tama County. We will later quote an officer's testimony about an investigation at the bridge. Defendant then drove to the rural home of Arlo Hindgardner. He asked Hindgardner to call the authorities. He was wet, appeared confused and 'shook up,' and cried at times. He smelled of alcohol, but a later blood test was negative.
At Hindgardner's home, defendant told a story that two large men in his garage hit his wife in the head with a pipe and drove off with defendant and his wife, and that defendant escaped by jumping into the river. Defendant also told a story that someone chased him in a car and stopped him near the bridge, and that he got out and fell through the ice trying to cross the river. Defendant had scratches on his head, neck, and arm. He had blood on his shirt. He said his wife was in the car.
Hindgardner and others examined the car. The windshield was broken and there was much blood on the inside including the ceiling. Mrs. Lass's body was on the right front seat and floor. She was dead. Her face was mutilated beyond recognition. She had a compound fracture between the eyes where the skull was caved in, a fracture of the upper jaw, loose teeth, four fractures of the left side of the skull, a small hole through the top of the skull, and a hole in the back of the neck.
Officers closed off the area of the river bridge and investigated it. They found the imprints of four tire marks where a car had stopped. Just back of one set of imprints they saw drops of blood. From there they saw blood drops down the road and an occasional heel print. One of the officers testified:
I had no difficulty in following this trail. It led to the Iowa River bridge. We found blood drops on the Iowa River bridge. We observed drops of blood on the deck of the bridge itself. The surface of the bridge is concrete. The blood was located clear across the bridge and on the bridge railing. We followed the trail of blood on the bridge. It went on to the south end of the bridge and appeared to pause there. There were several drops there, which would indicate somebody had stopped on the bridge. Also, over the railing and on the steel girders it appeared that the girders were all clean and then there was dirt and stuff that appeared to have rubbed off from someone's shoe or something. We couldn't pick up the blood trail any further in this location.
You could see down the river, where somebody had crawled out onto the river bank. We subsequently found tracks on the other side of the bridge and they came from the river. I followed these
tracks down into the river. They came out of the river and up on the bank into the kind of light timber area. They turned more or less back west and came up to the southwest end of the bridge and up the steep incline onto the gravel road. The tracks came out approximately 100 feet down from the bridge. We could see blood in the snow near these tracks. There was brush but nothing real heavy. We were able to distinguish the blood trail from the one that had come to the bridge from the opposite direction. The other blood trail led back towards to where we thought the vehicle had been parked.
At trial, defendant testified he remembered that he entered the garage with his wife and that she swore and uttered an obscenity toward him. He testified that from then on he remembered little, although he did remember holding a flatiron, something about having a robe, speaking to the baby sitter, driving, being at the bridge, and going to Hindgardner's house. He testified that he assumed he killed his wife and also that his story about the two large men beating his wife was untrue.
The next day, February 23, 1973, a police officer charged defendant in Marshalltown Municipal Court with murder. Defendant appeared before that court, which fixed bail.
A preliminary examination was set and continued, but on March 16, 1973, the county attorney filed his information in district court charging defendant with murder and the preliminary examination was not held. The minutes of testimony attached to the county attorney's information set out the claimed facts and circumstances in considerable detail.
On March 21, the district court reduced defendant's bail, and defendant posted bond and obtained release from custody. Also on that date, defendant pleaded not guilty. Later he gave notice of the defense of insanity. See Code 1973, § 777.18.
Thereafter the parties made various motions and filed other papers in the case, and the district court held hearings and made rulings.
Trial commenced on September 25, 1973. In his opening statement, defense counsel told the jury, among other things:
And then you're going to hear evidence about the defendant as well as about Rochelle Lass, things that aren't pleasant to disclose, things that you should know, however, things such as a relationship by the defendant with other women during this marriage. And, these are all things that you must know that cannot be hidden from you because the defense in this matter is the truth.
Both sides vigorously tried the case throughout the lengthy trial. On the issue of sanity, two psychiatrists testified. Their opinions conflicted. In addition, lay witnesses testified as to defendant's conduct bearing on sanity. On October 16, 1973, the jury found defendant guilty of first-degree murder.
After ruling on post-verdict motions, the trial court passed sentence. Defendant appealed.
In this court, defendant presents 14 contentions. We consider them seriatim.
I. Failure to Hold Preliminary Examination. Defendant's first contention involves questions of whether, on a county attorney's information without a preliminary examination, an accused may lawfully (1) Be restrained pending trial and (2) Be convicted upon trial. This case does not actually present the first question, however, as defendant is not being restrained pending trial; he has been convicted. The United States Supreme Court made this point clear in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54. This case presents the second question: the validity of a conviction on a prosecutor's information without a preliminary examination. In Gerstein the Court also made clear that such a conviction is valid.
Gerstein was a class action brought by prisoners awaiting trial, challenging Florida procedure which permitted authorities to hold and try an accused on a prosecutor's information without a probable cause hearing before a judicial officer. During pendency of the class action the prisoners were convicted on the informations, but the United States Supreme Court nevertheless held that the action was not moot as to unnamed members of the class. The Court unanimously held that a probable cause determination is a condition to any significant pretrial restraint on liberty but that an accused is not entitled to judicial oversight of the decision to prosecute nor is he entitled to have a conviction voided for lack of a probable cause determination. The Court stated:
In holding that the prosecutor's assessment of probable cause is not sufficient alone to justify restraint on liberty pending trial, we do not imply that the accused is entitled to judicial oversight or review of the decision to prosecute. Instead, we adhere to the Court's prior holding that a judicial hearing is not prerequisite to prosecution by information. Beck v. Washington, 369 U.S. 541, 545, 82 S.Ct. 955, 957, 8 L.Ed.2d 98 (1962); Lem Woon v. Oregon, 229 U.S. 586, 33 S.Ct. 783, 57 L.Ed. 1340 (1913). Nor do we retreat from the established rule that illegal arrest or detention does not void a subsequent conviction. Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952); Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886). Thus, as the Court of Appeals noted below, although a suspect who is presently detained may challenge the probable cause for that confinement, a conviction will not be vacated on the ground that the defendant was detained pending trial without a determination of probable cause. 483 F.2d 778, at 786--787. Compare Scarbrough v. Dutton, 393 F.2d 6 (CA 5 1968), with Brown v. Fauntleroy, 143 U.S.App.D.C. 116, 442 F.2d 838 (1971), and Cooley v. Stone, 134 U.S.App.D.C. 317, 414 F.2d 1213 (1969). 420 U.S. 118, 95 S.Ct. 865, 43 L.Ed.2d 68.
See also Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232; Blue v. United States, 119 U.S.App.D.C. 315, 342 F.2d 894; Carroll v. Turner, 262 F.Supp. 486 (E.D.N.C.); State v. Franklin, 163 N.W.2d 437 (Iowa); Engstrom v. Naauao, 51 Haw. 318, 459 P.2d 376; Weddle v. State, 4 Md.App. 85, 241 A.2d 414.
We do not find merit in defendant's first contention.
II. Witnesses Before County Attorney. Sections 769.19, 769.20, and 769.21 of the Code provide that the clerk of court shall issue subpoenas directing the appearance of witnesses before the county attorney, who may administer oaths. Section 771.17 provides that indictments may be found only upon testimony of witnesses examined before the grand jury, documentary evidence, or minutes of witnesses' evidence given before the committing magistrate. Section 769.13 provides that all provisions of law which apply to prosecutions on indictments apply to county attorney informations 'as nearly as may be'. Defendant argues that under these statutes, county attorney informations must be founded upon testimony of witnesses examined under oath.
Chapter 769 itself, which authorizes county attorney informations, does not purport to require that such an information be founded on evidence of witnesses given before the county attorney. Section 769.7 requires verification of the information by that official and § 769.8 requires approval of the information by a judge before it may be filed--steps not required with an indictment. Indeed, §§ 769.19, 769.20, and 769.21, on which defendant relies, did not come into existence until 1924, several years after the 1911 enactment of § 769.1 (authorizing informations) and § 769.13 (making indictment provisions applicable to informations). 34 G.A. ch. 188, §§ 1, 9; 40 Ex. G.A.H.F. 134, §§ 6, 7, 8.
Close examination of other statutes reveals the statute on informations does not contemplate that witnesses must testify before the county attorney. Thus § 772.3 provides that when an indictment is found, the names of all witnesses 'on whose evidence it is found' must be endorsed upon it, whereas § 769.4 provides that when the county attorney files his information, he shall endorse upon it the names of the witnesses 'whose evidence he expects to introduce. . . .' Again, § 776.1(3) provides that the court shall on motion set an indictment aside when 'the minutes of the evidence of the witnesses examined before the grand jury' are not returned therewith, whereas corresponding § 769.17(2) provides for setting aside an information when 'the minutes of evidence' are not filed therewith.
We hold that the law does not require county attorney informations to be founded on testimony of witnesses examined under oath.
III. Bill of Particulars. Among the various pretrial papers which defendant filed was an unusual bill of particulars requesting numerous items of what for the most part must be called evidence, such as a 'complete list of all items, material, documents, fingerprints, samples and scrapings taken from the residence . . . specifically stating the location of said item, material, etc. within the house when first discovered. . . . A list of all clothes, jewelry and other items found or in the possession of the State of Iowa or law enforcement agencies which are claimed belonged to or were in the possession of Rochelle D. Lass on February 22, 1973, and as to each such item, describe where and when it was discovered, by whom, the date and time taken into the custody of Plaintiff or law enforcement officers and by whom. . . . Whether it is claimed there was any motive for the alleged murder of Rochelle D. Lass and if so, set out in detail the nature of said motive . . .. All statements, allegedly made by Defendant to law enforcement officers or third persons known to the Plaintiff, concerning the crime charged in the information. . . . All statements, whether transcribed or not, given to investigative officers by Gerene Ann Sievers . . .', and numerous other items. In paragraph 2, however, the bill requested the State to state the means by which the alleged murder was accomplished.
Initially we thought defendant misnamed the bill of particulars and had in mind a motion to produce. Upon examination of the transcript and file, however, we found that defendant also filed a motion to produce and a motion for exculpatory evidence. In the motion to produce, defendant requested production of a number of items and in ...