State v. Mayhew

183 N.W.2d 723, 1971 Iowa Sup. LEXIS 727

• Court: Supreme Court of Iowa
• Decided: February 9, 1971
• Docket: 54200
• Status: Published

Opinions

LeGRAND, Justice.

This case was here once before and was remanded for hearing to determine if a police report was inconsistent with Officer Braatz’ testimony on direct examination concerning the defendant’s intoxication at the time the crime was allegedly committed. State v. Mayhew, 170 N.W.2d 608.

Mayhew had been convicted of second degree murder. His appeal was based in part on the refusal of the trial court to permit defendant’s counsel to examine a copy of a police report for possible impeachment of the officer who made it.

At page 614 of 170 N.W.2d we instructed the trial court as follows:

“The copy of the [police] report is to be submitted to the trial court for an in camera determination, in the presence of the prosecutor and defense counsel, as to whether it or any part thereof is germane to the direct examination of the witness [Braatz], * * * Any question which may then arise as to the admissibility of the report or any part thereof so found to be germane to Officer Braatz’ direct examination for purposes of impeachment is to be determined by the trial court in accordance with applicable rules of evidence.

“If the court finds the report contains one or more statements inconsistent with material testimony of Braatz on direct examination which is admissible for impeachment purposes a new trial is to be ordered.” (Emphasis supplied.)

We specifically provided in our previous opinion that the trial court’s determination concerning the inconsistency of the police report with the officer’s testimony at trial was to be determined at the end of his direct testimony. If the report was to serve any purpose at all, it must be available to defense counsel prior to his cross-examination. His decision concerning the use of the report for impeachment purposes must necessarily be made no later than at the end of direct examination. Even that is pretty late in the game for making effective use of an inconsistent report.

The trial court specifically found the report was inconsistent with Officer Braatz’ direct testimony but nevertheless held no new trial was necessary because, when considering all of the testimony of Officer Braatz, cross as well as direct, defendant had the benefit of the same evidence which would have been available to him if the report had been given him prior to cross-examining Officer Braatz.

We quote from the trial court’s order:

“At this point in the trial [at the end of Braatz’ direct examination] the out of court statement of the witness [in the report] that the defendant had had ‘quite a bit to drink’ would certainly be to some extent inconsistent with such testimony and admissible for impeachment purposes. * * *

“However, to detemine the issue, it is the opinion of the trial court that we must consider all the testimony of Officer Braatz, not merely his testimony on direct examination.

* * * * * *

“This court finds that the report * * * does not contain statements inconsistent with material testimony of Officer Braatz at the trial and that it is not properly admissible for impeachment purposes.” (Emphasis supplied.)

We cannot agree. What use defense counsel could have made of the report is a matter for his determination, not the trial court’s. Perhaps by cross-examination without the report defense counsel was successful in having the officer qualify some of his direct testimony. But that is not the same as being able to confront a witness with a contradictory written report made in the discharge of his official duties shortly after the events in question. The impact of such a cross-examination might well be greater than the oral qualification made by a witness under random questions posed by the cross-examiner.

Our previous opinion in this case laid down the rules under which the remand was to be conducted. Both the State and defense were entitled to have these rules adhered to. It is well settled that on remand a trial court can do nothing except follow the mandate of the appellate court. Here the trial court made a specific finding of inconsistency between the report in question and the officer’s direct testimony. At that point there was nothing for the trial court to do but order the new trial we had provided for in such an event. The trial court, however, considered all of the officer’s testimony in reaching a decision. This is precisely what the remand order sought to avoid.

In Kuhlmann v. Persinger, 261 Iowa 461, 468, 154 N.W.2d 860, 864, we said, “It is well settled in Iowa that when the Supreme Court remands for a special purpose, the district court, upon remand, is limited to do the special thing authorized by this court in its opinion, and nothing else. It has no power or jurisdiction to do anything except to proceed in accordance with the mandate.” We held to the same effect in Arnold v. Arnold, 258 Iowa 850, 854, 140 N.W.2d 874, 876; Iowa-Illinois Gas & Electric Company v. Gaffney, 256 Iowa 1029, 1040-1041, 129 N.W.2d 832, 838-839; and Glenn v. Chambers, 244 Iowa 750, 754, 56 N.W.2d 892, 894. See also 5B C.J.S. Appeal and Error § 1966, p. 577, and 5 Am.Jur.2d Appeal and Error, sections 991 and 992, pages 417-420.

In view of the specific terms of the remand and in view of the finding of the trial court that there was inconsistency between the written report and the direct testimony of Officer Braatz, a new trial should have been granted. This is what we directed in our original opinion, and this is what the defendant was entitled to.

We therefore reverse the trial court and order that defendant have a new trial.

Reversed and remanded.

LARSON, MASON, RAWLINGS, and BECKER, JJ., concur. UHLENHOPP, J., dissents, joined by MOORE, C. J., and REES, J. STUART, J., dissents.