State v. Baccam

476 N.W.2d 884, 1991 Iowa App. LEXIS 341, 1991 WL 225328
CourtCourt of Appeals of Iowa
DecidedAugust 27, 1991
DocketNo. 90-817
StatusPublished
Cited by10 cases

This text of 476 N.W.2d 884 (State v. Baccam) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Baccam, 476 N.W.2d 884, 1991 Iowa App. LEXIS 341, 1991 WL 225328 (iowactapp 1991).

Opinion

HABHAB, Justice.

Phet Baccam was accused of robbing and killing a convenience store clerk. He was charged with first-degree murder and first-degree robbery. An initial trial on these two charges resulted in a mistrial because the jury was unable to reach a unanimous verdict. Following a second trial, a jury found Baccam guilty of first-degree mur[885]*885der and first-degree robbery. Baccam has appealed from the resulting convictions.

Baccam contends he should have been granted a mistrial or a new trial after a police witness volunteered certain testimony referring to Baccam’s postarrest silence. He contends this testimony was an improper comment on his exercise of his fifth-amendment right to remain silent and to avoid self-incrimination.

Baccam next contends the district court abused its discretion, following the initial mistrial ruling, by denying his request for a study at State expense of the jurors in the initial trial. After this request was denied, Baccam’s attorney performed such a study at his own expense. Baccam contends the study gave his attorney potentially-valuable information about how to conduct the second trial. He asserts the study was important to assist counsel in the second trial. He argues it should have been provided at State expense due to his indi-gency.

Additionally, Baccam contends he was denied a fair trial because the State violated its duty under Brady v. Maryland to disclose exculpatory evidence in a timely fashion. The alleged exculpatory evidence concerned alterations of a time sheet from Baccam’s place of employment for April 3, 1989, sixteen days before the crime. The significance of April 3 is a State witness claimed to have seen Baccam at about noon on that date at the store which was later robbed. Since the store was in Benton County, it would have been difficult for Baccam to have been there at noon on April 3 if he had worked all day at his Des Moines workplace. An initial time sheet showed that Baccam had worked eight hours on April 3, but an altered time sheet showed that he had worked only three hours. Baccam apparently argues the fact an alteration occurred was exculpatory because it would have permitted him to call into question the three-hour time sheet. The State responds, among other things, that it did disclose the alteration to Baccam as soon as it knew.

Baccam also contends the district court erred by excluding his proposed impeachment evidence concerning drug use by two State witnesses. The two witnesses were Scott Schminkey, a friend of Baccam, and Scott’s sister Rebecca. Scott Schminkey testified Baccam admitted the crime to him shortly after it occurred. Rebecca Schmin-key testified that Scott repeated Baccam’s admission to her. Baccam sought to impeach the testimony of both Schminkeys by suggesting that their memory and comprehension were impaired by drug usage. The court allowed Baccam to inquire only about drug use during a one-week period around the date of the crime. Baccam argues he should have been allowed to inquire about drug use covering a period of at least a year.

Finally, Baccam contends he was denied his right to confront and cross-examine a State witness, and thus was denied a fair trial, when the witness exercised his fifth-amendment right to avoid self-incrimination. The witness was a friend of Baccam who was present at the Schminkey home on the date Baccam allegedly admitted the crimes. The witness exercised his fifth-amendment right with respect to drug use and prior perjury about drug use.

I.

When a constitutional issue is presented, the evidence relevant to that issue is reviewed de novo. State v. Elmore, 201 N.W.2d 443, 445 (Iowa 1972). When constitutional safeguards are involved, the court is obliged to make its own evaluation of the totality of the circumstances under which rulings on those rights were made. State v. Thomas, 205 N.W.2d 717, 721 (Iowa 1973).

II.

The primary issue is whether the trial court erred in failing to grant a mistrial after a police officer commented, on the stand, about the defendant’s silence following his arrest and Miranda warning. The defendant relies primarily on the United States Supreme Court case of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). In Doyle, the defendants were arrested, given their Miranda [886]*886warnings, and chose to make no postarrest statement with regard to their involvement in the crime. On cross-examination, the prosecutor repeatedly questioned the defendants why, if they were innocent, did they not offer an explanation at the time of arrest. The court overruled objections to this line of questioning and additionally allowed the prosecutor to argue the defendant’s postarrest silence to the jury. Id., 426 U.S. at 613-15, 96 S.Ct. at 2243, 49 L.Ed.2d at 95-96. Upon review, the United States Supreme Court determined the Miranda decision “compelled rejection” of the contention that such questioning and argument are proper means of impeachment. Id., 426 U.S. at 617, 96 S.Ct. at 2244, 49 L.Ed.2d at 97. The Doyle decision clearly states it does not comport with due process when a prosecutor calls attention to a defendant’s exercise of his constitutional rights. Id.

However, following the Doyle case, the Supreme Court issued another opinion which explained and distinguished Doyle. Greer v. Miller, 483 U.S. 756, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987). The prosecutor in the Greer case cross-examined the defendant as follows:

Q. Mr. Miller, How old are you? A. 23.
Q. Why didn’t you tell this story to anybody when you got arrested?

Greer v. Miller, 483 U.S. at 759, 107 S.Ct. at 3105, 97 L.Ed.2d at 626.

The Supreme Court pointed out that for a constitutional violation to occur under Doyle, the defendant must initially receive the “implicit assurance” of the Miranda warning. It found that Miller had received such a warning and thus the Doyle prerequisite had been met. Greer v. Miller, 483 U.S. at 763, 107 S.Ct. at 3108, 97 L.Ed.2d at 628. Initially, the Court reviewed cases where Doyle had been applied and noted that in each of these cases the trial court had permitted specific inquiry or argument respecting the defendant’s post-Miranda silence. Greer v. Miller, id. (citations omitted). The Court then recognized the trial court in Greer had not permitted the type of inquiry which Doyle forbids. Id. The court in the Greer case sustained the objection to the postarrest silence immediately and no further questions or arguments occurred with respect to the defendant’s post-arrest silence. Additionally, the court instructed the jury to disregard any questions to which an objection was sustained. Id. The situation that occurred in the Greer case is very much like the immediate case.

The defendant argues State v. Porter, 283 N.W.2d 351 (Iowa 1979), is controlling. We disagree and find these circumstances to be more analogous to State v. Canada,

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Bluebook (online)
476 N.W.2d 884, 1991 Iowa App. LEXIS 341, 1991 WL 225328, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-baccam-iowactapp-1991.