Opinion
No. 2-582 / 01-1555.
Filed December 11, 2002.
Appeal from the Iowa District Court for Washington County, RICHARD J. VOGEL, Judge.
Defendant appeals from conviction for OWI and from third offense penalty enhancement. REVERSED AND REMANDED.
Schweitzer and Timothy Wink of Schweitzer Wink, Columbus Junction, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney General, Barbara Edmondson, County Attorney, and Eric Goers, Assistant County Attorney, for appellee.
Considered by HARRIS, SNELL, and BROWN, Senior Judges.
Senior Judges assigned by order pursuant to Iowa Code section 602.9206 (2001).
Defendant Chris Allen Beliel was convicted by a jury of third offense, operating a motor vehicle while under the influence of alcohol (OWI) in violation of section 321.J of the Code of Iowa (2001). He appeals. We affirm in part, and reverse in part.
The trial was conducted in two phases due to the fact the prosecution alleged this was a third offense. During the charging phase defendant claims reversible error occurred when the prosecution elicited evidence of prior crimes committed by defendant. On the enhancement of penalty phase defendant asserts error by the prosecution's failure to notify the defense of witnesses to be called and exhibits to be introduced.
Regarding the first claimed error, defendant testified that he refused to take the breathalyzer test because he believed that having just drunk his second beer he would automatically fail the test. The prosecution on cross-examination elicited admissions that defendant had experience with the breathalyzer two times before, once in Iowa, once in Texas. This was done with extensive probing questions. Defendant accuses the State of wrongly using this evidence in a backhanded way to show defendant's guilt on the offense charged since he had familiarity with intoxilyzer machines. Defendant argues the State did this based on the pretexual claim that it was testing defendant's claim that recently drinking beer would invalidate the machine's test result.
Defendant claims this tactic violated Iowa Rules of Evidence 5.404(a) and (b) and our cases. Under these rules one crime cannot be proved by proof of another. Evidence of other crimes is not admissible to prove the character of a person in order to show that he acted in conformity therewith. See State v. Christensen, 414 N.W.2d 843, 844 (Iowa Ct.App. 1987).
The State counters with the reasons that defendant's testimony opened the door, no adequate objection was made and any error was harmless. We note that defendant's objection was worthless, being "I object to this line of questioning." An objection must be specific enough to alert the court so as to prevent potential error. See State v. LaCompte, 327 N.W.2d 221, 223 (Iowa 1982); State v. Bruno, 204 N.W.2d 879, 886-87 (Iowa 1973). While we doubt the trial court would misread the thrust of the evidence, evidence was nevertheless not preserved. See State v. Hepperle, 530 N.W.2d 235, 238 (Iowa 1995); State v. Hubbs, 268 N.W.2d 188, 189 (Iowa 1978). At the same time, we admonish prosecutors to cease this line of questioning which skirts error too closely. Additionally, if error occurred, it was harmless. Defendant smelled of alcohol and failed all six field tests given by the officer to determine condition after alcohol consumption. See State v. Forsyth, 547 N.W.2d 833, 839 (Iowa Ct.App. 1996).
The second trial phase involved the charge that this was defendant's third offense and pertained to sentencing. Defendant claims the State failed to give timely notice of the witnesses and evidence it intended to offer. We review this claimed error at law for abuse of discretion. See Iowa R.App.P. 6.4; State v. Florie, 411 N.W.2d 689, 697 (Iowa 1987).
Defendant cites Iowa Rules of Criminal Procedure 2.18(3) and 2.19(3) as having been violated. Those rules require the prosecuting attorney at least ten days before the commencement of the trial to present a list of witnesses and trial evidence to be used in support of the indictment or trial information. The State admits that if the notice requirements of the rule apply to the enhancement phase of the trial, the State's notice would have been untimely. The rules provide that if notice is not given, the court may order discovery, grant a continuance or order the exclusion of the testimony of any such witnesses.
On March 15, 2001, the court entered an order requiring the State to fully comply with the criminal discovery rules to provide discovery by the defendant. On May 30, 2001, the State filed a motion to amend the trial information alleging an OWI conviction in Texas and one in Washington County, Iowa. On May 30, 2001, the court granted the State's motion to amend the trial information to include a habitual offender claim. On June 1, 2002, the defendant filed a resistance to the motion to amend and requested a hearing. On June 4, 2001, the court set the matter for trial on July 31, 2001.
On July 27, 2001, the State filed a sentencing enhancement witness list naming for the first time as witnesses Jamie Booth, Ray Atkins, Stan Stoops and Steve Phife. On August 1, 2001, the trial commenced. On August 1, 2001, supplemental information was filed for trial purposes deleting any reference to the OWI third offense and naming as witnesses only Chad Ellis, Julie Johnson and Sophie Garcia. On August 2, 2001, the State filed a new witness list for the enhancement phase naming Julie Johnson, Jamie Booth, Deputy Ray Atkins, Stan Stoops or Steve Phife.
At the trial, prior to the testimony of Jamie Booth, Ray Atkins, Stan Stoops and Steve Phife, the defendant stated that he had had an opportunity to depose Officer Chad Ellis, Julie Johnson and Sophie Garcia. However, defendant moved the court to disallow the testimony of any other named witnesses and documents not timely supplied to him. The court overruled defendant's motion stating, "It is my understanding that this is a sentence enhancement stage of the proceeding, and it is not required first of all that the State disclose other documents or witnesses." Prior to the testimony of each witness, defendant stated the objection that the witness' name and the substance of the testimony had not been disclosed in a timely manner. Each objection was overruled by the court stating, "This is not part of a criminal proceeding." Later, defendant renewed these objections by motion for mistrial which was overruled.
The State responded that the discovery rules only apply to trials and asserts that the enhancement penalty phase is not a trial. Additionally, the State says there was no surprise involved, hence no prejudice, because defendant knew that third offense OWI was being charged two months prior. Finally, the State says there is no prejudice because the witnesses can be cross-examined.
There is a paucity of authority on this issue. But the State's position and the court's order fly in the face of our modern concept of the purpose of discovery, i.e. to prevent surprise and facilitate the exposure of truth. The argument that the opportunity for cross-examination obviates the need for a witness list and discovery opportunity can be made as a reason for disallowing all discovery, returning us to the days of trial by wile and guesswork. Our rules have long since disavowed this notion of what constitutes fair play and fair trial. And the argument that knowledge that a third offense is charged equals knowing the witnesses and the content of their testimony fails of its own weight. Merely stating it discloses its lack of credibility.
In State v. Damme, 522 N.W.2d 321, 326 (Iowa Ct.App. 1994), the State failed to give notice within the ten-day period. The trial judge gave the defendant an opportunity to depose the witness over a weekend. Defendant did not depose the witness and the witness testified. No prejudice was shown; the case was affirmed.
In State v. Barney, 378 N.W.2d 915, 919 (Iowa 1985), the State amended the petition to charge habitual offender status after the jury's verdict but prior to sentencing. The supreme court disapproved of this dilatory filing by the State but found no prejudice because the defendant did not claim prejudice and no wholly new or different offense was charged. Cf., State v. Williams, 328 N.W.2d 504, 506 (Iowa 1983) (conviction reversed where State sought to amend asserting a different charge). "The very purpose of a trial information — sufficiently apprising defendant of what he must be prepared to meet — was vitiated." Id. at 506.
In the case at bar, due to the trial court's ruling denying the right to depose witnesses, no motion for a continuance was made. Defendant was clearly prejudiced however, by having to face the charge of penalty enhancement without knowing what four State witnesses would testify about and what exhibits would be offered.
The case is reversed for retrial of the penalty enhancement phase of the trial. The conviction for OWI is affirmed.
We have considered other errors claimed by defendant and find they are moot in light of our decision.
REVERSED AND REMANDED.
BROWN, S.J., concurs; HARRIS, S.J., concurs specially.
I agree with the majority's affirmance of Beliel's conviction of OWI, but write separately to disassociate myself from the admonition to the prosecutor. Of course the prosecutor should not "skirt error too closely," but the record here should not trigger the advice. Beliel had cheek enough to pretend he feared a second beer would cause him to fail the breathalyzer test. At this point the prosecutor had the clear right, and it seems to me the responsibility, to put the lie to this testimony by pointing out Beliel's rich experience in these matters.
With a certain reluctance, I also concur in the partial reversal. I have grave doubt that Beliel was in any way prejudiced by the State's failure to serve the formal notice. For the reasons explained by the majority though, I think compliance in this case was required.