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State v. Gartin

Supreme Court of Iowa

November 22, 1978

STATE of Iowa, Appellee,
v.
Donald E. GARTIN, Appellant.

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Thomas M. Walter, of Barnes, Schlegel & Walter, Ottumwa, for appellant.

Richard C. Turner, Atty. Gen., Richard L. Richards, Asst. Atty. Gen., and Gary Wiegel, County Atty., for appellee.

Considered en banc.

HARRIS, Justice.

Defendant, an attorney, was tried and convicted of perjury in violation of § 721.1, The Code, 1975. The charge arose from testimony defendant gave to a grand jury which was investigating a fatal explosion and a car theft ring in Mt. Pleasant, Iowa. There are 23 assignments of error. We affirm the trial court.

We take the evidence in the light most favorable to the verdict. The fatal explosion

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occurred in the early morning hours of September 7, 1975, behind a Mt. Pleasant bank. Walter Wellington was killed in the blast, apparently while bending over to pick up sticks of dynamite.

On September 6, Walter's brother Silas assisted in preparing a dynamite bomb. Silas then drove Walter to the bank where the bomb was placed behind the building. It is not entirely clear why an explosion was planned. Thereafter the two proceeded to a restaurant to meet their wives, in an effort to establish an alibi. But the bomb failed to explode. So Silas drove Walter back to the bank to investigate. Walter was thrown into the air and killed as the bomb exploded. Silas went back to the restaurant and then to defendant's house. He told defendant what had happened.

Over the course of the next few days defendant and Silas fabricated a story for the grand jury. Defendant subsequently testified to the grand jury that he had no knowledge of the explosion or a car theft ring. Silas pled guilty to conspiracy in connection with the explosion and was one of the State's principal trial witnesses.

On September 10, the grand jury was convened to investigate the explosion and a suspected theft ring. Apparently it was believed the explosion and theft ring might be related. Defendant was one of several witnesses called to testify. He testified he had no knowledge of the circumstances of Walter's death. He said Silas had not mentioned it to him when he came to his home during the early hours of September 7. Defendant told the grand jury Silas mentioned that Walter was concerned over being paid for some car parts he had sold. Defendant testified he first learned of the explosion and the possibility Walter may have been killed when Silas' wife called him to say Silas had been arrested and taken to the police station.

Defendant also told the grand jury about further discussions he had with Silas in the days between the explosion and his grand jury appearance. But he stated he never discussed fabricating a story with Silas. Defendant testified at his trial he had no knowledge of any auto theft ring when he gave his grand jury testimony.

To some extent a number of defendant's assignments overlap so that not all will be separately discussed.

I. Claims relating to the grand jury which indicted defendant.

In the first of three parts to defendant's challenge to the grand jury which indicted him, he contends his constitutional rights were violated because lawyers were by statute excluded from service on the grand jury which indicted him.

Our Code provisions for grand jury selection and service are intertwined with similar provisions for petit jury service. §§ 609.1, 609.2, The Code. Section 607.2 in part provides exemptions for practicing attorneys from jury duty. Defendant attempted to defend against the charge, in part on a claim that any information he received about the bank explosion was derived from attorney-client communications. He believes attorneys represent a significant and important segment of the public community which should be represented on grand juries.

We have recently rejected similar complaints relating to other statutory exemptions. Although our recent cases related to petit jury duty, the rationale remains the same. In State v. Brewer, 247 N.W.2d 205, 210 (Iowa 1977) we considered a constitutional challenge to the exemption from jury duty of persons over 65:

"The controlling interest is a defendant's right to a fair and impartial jury and not to any particular jury. (Authorities.) The State has a rational basis for its special exclusion of persons over 65. Defendant has not shown the excluded class has any special perspective not attainable from the balance of the community. His claim the jury panel was not representative of a cross section of the community is without merit." See also State v. Williams, 264 N.W.2d 779, 781-782 (Iowa 1978).

We similarly reject defendant's contention lawyers must be included on a grand

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jury. We find no basis for assuming their absence from the panel infringed upon any of defendant's constitutional rights.

Defendant claims he was held to answer prior to the time his grand jury was impaneled. He argues he therefore should have received notice at the time the grand jury was selected so that he could challenge its members. Challenges to grand jurors are provided for in § 770.3, The Code. The section makes no provision for notice.

Defendant's claim that notice is constitutionally required is without merit. He was not held to answer under our definition of the term. State v. Morningstar, 207 N.W.2d 772, 774-775 (Iowa 1972).

The final portion of defendant's challenge to the grand jury concerns three of the grand jurors he specifically challenged after he was indicted. Defendant believes three grand jurors had formed or expressed an opinion as to his guilt which prevented them from rendering a true verdict. The three testified at a hearing upon defendant's challenge. On the basis of their testimony we agree with the trial court's determination that there was no prejudice. None had formed the necessary unqualified opinion. See State v. Howard, 10 Iowa 101, 102 (1859).

II. Defendant filed a motion to set aside his indictment, pursuant to § 773.7, The Code, 1975, asserting four grounds.

Defendant first contends the grand jury before which he testified was not in fact a tribunal authorized by law because it was acting beyond the scope granted it under § 771.1, The Code, 1975. Section 771.1 provides: "The grand jury shall inquire into all indictable offenses which may be tried within the county, and present them to the court by indictment."

The contention has no merit. In State v. Deets, 195 N.W.2d 118, 121 (Iowa 1972) we stated: "At the threshold we are satisfied a grand jury, though generally characterized as an inquisitorial and accusatorial body, clearly qualifies as a tribunal created by law. (Authorities.)" The matters being investigated by the grand jury fell clearly within the scope of their authority under § 771.1.

The second facet of defendant's motion to set aside the indictment was based on an untenable claim of the attorney-client privilege. Defendant argues that any knowledge he acquired was obtained from Silas and Maxine Wellington through the attorney-client privilege. He believes it follows that when he testified he had no knowledge concerning the matters under investigation the claim was true because any knowledge gained through the attorney-client privilege could be excluded.

We also reject this argument. It was a deception and a lie to tell the grand jury he had no knowledge and to withhold from them any claim of privilege. If he sought to claim the privilege in the absence of his client he should have pointed out that he was doing so. State v. Bean, 239 N.W.2d 556, 560 (Iowa 1976).

Third, defendant claims he himself was being investigated by the grand jury, and was suspected of some illegal activity. Hence, he had no duty to give any answers and anything he said could not be used against him. This contention is contrary to the facts. The grand jury was not investigating defendant but rather (1) a homicide or suicide and (2) whether there was a car theft ring.

The final contention in defendant's motion to set aside the indictment was that all language attributed to him in the bill of particulars was couched only in the terms of opinion or belief. This, he claims, was insufficient for a charge of perjury. The contention proceeds from a faulty legal premise. In State v. Deets, supra, 195 N.W.2d at 122, we described the essential elements of perjury as:

". . . (1) a false statement of fact, Opinion or belief knowingly made regarding any material matter, (2) under a lawfully authorized oath or affirmation, (3) in any proceeding before any court of justice or officer thereof, or before any tribunal or officer created by law, or in any proceeding

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in regard to any matter or thing in or respecting which an oath or affirmation is required or authorized by law. (Authorities.)" (Emphasis added.) A false statement of opinion or belief is sufficient to support a charge of perjury.

III. Defendant also challenges the indictment against him on the ground it was filed on March 2, 1976, but was certified as having been presented the following day. The indictment was later amended to show the right day. Defendant contends, however, that because of the filing discrepancy it should have been set aside without leave to amend. We reject the contention for the same reasons we gave in rejecting a similar claim in State v. Wessling, 260 Iowa 1244, 1259, 150 N.W.2d 301, 310 (1967).

IV. Defendant claims the indictment did not comply with the permissible forms for filing short form indictments as provided in § 773.35, The Code. That section provides in material part:

"The following forms may be used in the cases in which ...


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