State v. Hancock

164 N.W.2d 330, 1969 Iowa Sup. LEXIS 741
CourtSupreme Court of Iowa
DecidedJanuary 14, 1969
Docket53218
StatusPublished
Cited by27 cases

This text of 164 N.W.2d 330 (State v. Hancock) is published on Counsel Stack Legal Research, covering Supreme Court 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. Hancock, 164 N.W.2d 330, 1969 Iowa Sup. LEXIS 741 (iowa 1969).

Opinions

MOORE, Justice.

On April 5, 1968 a county attorney’s information was filed in Warren County District Court charging defendant, Margaret Jane Hancock, with the crime of forgery in violation of section 718.1, Code, 1966. On May 14, the first day of trial and after the jury had been sworn, the trial court permitted amendments to the information to a charge of uttering a forged instrument in violation of Code section 718.2. The jury returned a verdict of guilty of uttering a forged instrument and defendant has appealed from the judgment and sentence thereon. We reverse.

Attached to the information were ■ the minutes, in summary form, of testimony of four witnesses. Gale Vinson, cashier for [332]*332the Hy-Vee Food Store at Indianola, was to testify that on January 30, 1968 he cashed a check .for defendant drawn on the Peoples Trust and Saving's Bank in the sum of $140 being the instrument referred to in the information. Banker T. J. Nicholls was to testify the purported makers of the check were unknown and had no account at the bank. Sheriff Mathews was to testify defendant denied any knowledge of the check and that she voluntarily gave him a sample of her handwriting which he turned over to Duane L. Barton, Questioned Document Examiner of the Iowa Bureau of Criminal Investigation. Barton was to testify that in his opinion the author of the handwriting sample and of the check involved was the same person. Later the county attorney gave notice Robert Voss would testify he gave defendant, at her request, a polygraph or lie detector test and that it showed an intent to deceive as to relevant questions concerning the writing and negotiation of the check involved. He was to testify after the test defendant admitted writing and cashing the check involved.

Defendant was an indigent and her present attorney has at all times represented her by court appointment.

On April 18 defendant filed an application which referred to the pending forgery charge, her denial of any knowledge of the check, Barton’s adverse opinion as to her handwriting and therein requested the trial court to authorize payment of funds by Warren County to obtain an independent analysis of her handwriting for comparison purposes and also for allowance of witness fees for a handwriting expert. The record discloses only the court’s order of April 23 denying the application. Apparently no hearing was had on defendant’s application.

I. The first issue presented on this appeal is whether the trial court erred in denying this indigent defendant’s pretrial request for such funds. Later at the trial Barton conceded handwriting experts’ opinions are sometimes at variance.

As each of defendant’s requests must be considered in the light of different statutes we first consider her request for an independent analysis of her handwriting and that appearing on the check involved.

Code section 775.5, as enacted in 1965 by chapter 449 of the Sixty-first General Assembly, as material here, provides: “An attorney appointed by the court to defend any person charged with a crime in this state shall be entitled to a reasonable compensation to be decided in each case by the court, including such sum or sums as the court may determine are necessary for investigation in the interests of justice. * * * »

This section lodges limited discretionary power in the trial court to disburse reasonable compensation to an attorney defending an indigent for the purpose of conducting an investigation in the interests of justice.

In Schmidt v. Uhlenhopp, 258 Iowa 771, 775, 140 N.W.2d 118, 121, and Weaver v. Herrick, 258 Iowa 796, 803, 140 N.W.2d 178, 182, we say section 775.5 contemplates an attorney should not be expected to defend an accused gratuitiously. To which we now add it also recognizes a court appointed attorney should not be required to incur personal expenses in preparing and conducting a meaningful and conscientious defense for the accused.

The statute clearly protects against frivolous, unwarranted claims by restricting payment to those investigations which in the court’s judgment are necessary in the interests of justice.

In ruling on defendant’s motion for a new trial the court said: “The Court believes it had discretion and in this particular case had the duty to deny defendant’s application for an expert witness to examine the handwriting specimens and the questioned document for the defendant.”

This ruling was based essentially on the court’s finding the success of the State’s [333]*333case had not been entirely dependent on the results of its handwriting analysis and also the feeling defendant should have at least alleged the unreliability of the State’s handwriting expert.

Initially we note it would be extremely difficult, if not impossible in most cases, for a party unschooled in the subject of handwriting expertise to effectively challenge the reliability of an expert without the aid of his own expert.

Additionally we are convinced the refusal to provide funds for an independent analysis of defendant’s handwriting was not in the best interests of justice, particularly in view of the fact the State had given notice it intended to call an expert who would testify as to the similarity of defendant’s exemplar with the writing which appeared on the check.

At the time defendant’s application was filed she stood accused of forgery and the issue of authorship was crucial. Notwithstanding the information was later amended to charge uttering a forged instrument the issue was yet all important. The State’s expert opined defendant had authored the check even though she denied any knowledge of the matter on the witness stand.

An independent analysis of defendant’s handwriting conducted by an expert of her own choosing could well have resulted in a conclusion diametrically opposed to that reached by Barton. In denying her request the court effectively prevented defendant from even the possibility of obtaining evidence which may have been highly relevant and material to a meaningful defense. Such an opportunity could not have been denied-a defendant of means. Defendant’s indi-gency should not be permitted to stand as a barrier to such vital evidence.

Accordingly, we hold under the facts of this case section 775.5 fairly contemplates payment for the purpose.of obtaining an independent analysis of defendant’s handwriting. The trial court committed reversible error in denying defendant’s application.

Before considering defendant’s next assignment of error we note we are not unaware the denial of defendant’s request for a handwriting analysis has overtones sounding in due process and equal protection of the laws. Defendant has chosen not to argue either of these theories and for the present we prefer to base our opinion on section 775.5. However for discussions along these lines see People v. Watson, 36 Ill.2d 228, 221 N.E.2d 645, which is a case closely similar to the case at bar and note also, 32 Mo.L.Rev. 543, 1967. But see State v. Superior Court In and For County of Pima, 2 Ariz.App. 458, 409 P.2d 742.

II.

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Bluebook (online)
164 N.W.2d 330, 1969 Iowa Sup. LEXIS 741, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hancock-iowa-1969.