State v. Wells

437 N.W.2d 575, 1989 Iowa Sup. LEXIS 66, 1989 WL 24784
CourtSupreme Court of Iowa
DecidedMarch 22, 1989
Docket86-1802
StatusPublished
Cited by10 cases

This text of 437 N.W.2d 575 (State v. Wells) 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. Wells, 437 N.W.2d 575, 1989 Iowa Sup. LEXIS 66, 1989 WL 24784 (iowa 1989).

Opinions

SNELL, Justice.

On October 14, 1986, defendant, Royal Nathaniel Wells, was found guilty by a jury of three counts of attempted murder, in violation of Iowa Code section 707.11 (1985). He was subsequently sentenced to serve three consecutive terms of incarceration, each of which was not to exceed twenty-five years. Wells raised three issues on appeal: (1) whether the trial court erred by permitting identification testimony by a victim when the identification was allegedly based upon his dreams about the incident; (2) whether Wells was denied his constitutional right of confrontation by the State’s use of deposition testimony; and (3) whether the trial court abused its discretion by overruling Wells’ motion for mistrial based upon jury misconduct. We transferred the case to the court of appeals, which reversed Wells’ conviction on the basis of the first issue and remanded for a new trial. The court of appeals did not address the latter two assignments of error. We then granted the State’s application for further review. We vacate the decision of the court of appeals and affirm Wells’ conviction.

On the evening of April 29, 1986, Alfred Gatewood, Wells’ brother, was detained by two employees and a customer of a 7-Elev-[577]*577en store in Des Moines. Gatewood and two companions had attempted to walk out of the store with cartons of beer for which they had not paid. Although his companions successfully exited the store, Gate-wood did not. While Tom McClure, one of the employees, telephoned the police, a man with a baseball bat approached the store from the car wash next door. He demanded that Gatewood be released. Todd Ha-bick, the customer detaining Gatewood, complied with this demand when it appeared McClure and Steve Garity, the other employee, did not want any more trouble. Gatewood and the other man then walked across the parking lot to the car wash.

When the police arrived a few minutes later, the decision was made to patrol the immediate area with Habick, instead of McClure or Garity, because McClure did not want the store left under-staffed.

In the meantime, Gatewood ran into Wells, who was giving Lisa Harper and Renee Fletcher a ride to visit a prostitute to whom Fletcher wished to sell some clothes. After Gatewood told Wells about the trouble at the 7-Eleven, they decided to return to the store.

Wells parked his car at the car wash next door. Fletcher testified she saw Wells retrieve a handgun from near the driver’s seat, cock it, and place it in the waistband of his pants. Harper also observed the gun in the car but she did not see Wells pick it up. Gatewood and Wells then went into the 7-Eleven; Fletcher stood by the car, watching them through the chain link fence separating the store and the car wash. It is not clear whether Harper also walked toward the store or stopped to talk to an acquaintance at the car wash.

Just after Gatewood entered the store, a fight began between him and Chris Christensen, a customer. Gatewood may also have been briefly fighting with McClure and Garity. In any event, McClure was pushed toward the back of the store by Wells and they began scuffling. This was observed by Leo Day, another customer. Day then observed Wells pull the gun out and shoot McClure in the chest. Wells then advanced toward the front of the store where Day and Garity were standing; Day was clutching two bottles of pop to potentially use as weapons and Garity was telephoning the police. Wells fired a number of shots at Garity, two of which hit him in the leg. One of these shots, or perhaps a third shot, hit one of Day’s bottles of pop, causing it to explode. Day sustained fragmentation cuts from the flying glass.

Wells then went outside, where Gate-wood was fighting with Christensen. He was observed by Fletcher, who had seen the fighting inside the store and had heard the shots fired. Wells pulled Gatewood away from Christensen and shot Christensen in the chest and abdomen.

Wells and Gatewood then returned to the car. They drove with Fletcher and Harper to where Fletcher lived. Fletcher testified that Wells appeared shocked and hysterical, and was saying he could not believe he had shot those people. Wells, Gatewood, and Harper all denied Wells made that statement.

Shortly thereafter, Wells fled Des Moines. He was apprehended approximately two weeks later in Omaha, Nebraska, and these proceedings followed.

I. Garity Identification. At trial, Steve Garity was allowed, over Wells’ objection, to identify Wells as the man who shot him. At a pretrial deposition, Garity was unable to identify Wells as his assailant. However, at trial Garity testified that in the interim between the deposition and trial he had relived the shootings in his dreams five or six times. He stated he was now able to identify Wells because “when you see this guy in your dreams time and time again, you learn what he looks like.” Wells objected to Garity’s identification on the ground that it was not “based upon the facts and events of the occurrences.” The trial court overruled this objection after Garity stated that his dreams factually accorded with his memory of the incident.

Iowa Rule of Evidence 602 provides:

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to [578]*578prove personal knowledge may, but need not, consist of the testimony of the witness himself.

The burden of laying a foundation that demonstrates the witness has personal knowledge of the matter is upon the party offering the testimony. McCormick, Evidence § 10 (2d ed. 1972). Cf. State v. Myers, 382 N.W.2d 91, 93 (Iowa 1986) (burden is on proponent to establish admissibility of expert testimony).

We have previously outlined a three-part test for determining whether a witness is to be excluded because of a lack of testimonial qualification:

First, it must be determined whether the witness has observed the incident about which he proposes to testify and has received some impressions which he seeks to relate in court; second, whether the witness has a recollection of those impressions resulting from his observation which fairly corresponds with or reproduces the original knowledge or observation; and third, whether he is able to communicate this recollection to the tribunal. In the absence of any one of these elements the witness’s testimony cannot be believed.

State v. Harvey, 242 N.W.2d 330, 335 (Iowa 1976).

In this case, we are persuaded Garity’s identification of Wells violated the second prong of this test. Although Garity stated his dreams accorded with his memory of the incident, it is apparent his original observations did not include more than general impressions regarding the assailant’s height, weight, muscular build, and clothing. Garity’s more specific impression that Wells was the assailant was not the product of a more detailed recollection, but was instead the product of Garity’s dreams, which were likely influenced by his view of Wells at the deposition. Under these circumstances, we conclude the trial court abused its discretion by admitting Garity’s testimony identifying Wells. See State v. Groscost, 355 N.W.2d 32, 39 (Iowa 1984); State v. Whitfield,

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State v. Wells
437 N.W.2d 575 (Supreme Court of Iowa, 1989)

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Bluebook (online)
437 N.W.2d 575, 1989 Iowa Sup. LEXIS 66, 1989 WL 24784, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wells-iowa-1989.