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noting several reasons a cautionary instruction in a double murder case was not sufficient to remove the unfairly prejudicial effect of irrelevant evidence suggesting the defendant was a drug dealer
Summary of this case from State v. BynumOpinion
No. 5-432 / 04-0141
Filed January 19, 2006
Appeal from the Iowa District Court for Marion County, Peter A. Keller, Judge.
Howard Garrison appeals his convictions, following jury trial, for two counts of murder in the first degree. REVERSED AND REMANDED.
Alfredo Parrish of Parrish, Kruidenier, Moss, Dunn, Boles, Gribble, Cook, L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber and Douglas Hammerand, Assistant Attorneys General, and Terry E. Rachels, County Attorney, for appellee.
Heard by Sackett, C.J., and Mahan and Miller, JJ.
Howard Garrison appeals his convictions, following jury trial, for two counts of murder in the first degree. He contends the district court erred in (1) denying his motion to suppress evidence found at his residence; (2) determining the evidence was sufficient to support the jury's verdict; (3) allowing evidence of his prior delivery of drugs; (4) allowing certain expert testimony; (5) permitting pictures of a gun to go to the jury room; (6) failing to give his proposed jury instruction; and (7) denying him discovery of allegedly exculpatory evidence in violation of his right to due process of law. Finally, Garrison contends the cumulative effect of the court's constitutional and evidentiary errors denied him a fair trial. We reverse the judgment of the district court and remand for a new trial.
I. BACKGROUND FACTS AND PROCEEDINGS.
The record contains evidence of the following facts. John Caswell lived on a farm outside of Knoxville. Steven Emerson sometimes stayed in a camper on Caswell's farm. The camper contained a methamphetamine laboratory. Both Emerson and Caswell used methamphetamine and sold it people who visited the farm. The defendant, Garrison, frequently visited the farm and the camper, where he received and smoked methamphetamine.
Kim Bennett had known Caswell for a long time. He also knew Emerson through Caswell, and had known Garrison since grade school. Bennett and his wife, Migdalia, had used marijuana and methamphetamine with Emerson and Caswell several times over the past five years, and Bennett had bought methamphetamine from them on occasion. Bennett had on several occasions seen Garrison with a black .22 caliber Ruger semi-automatic pistol at the farm, and had seen him there with the gun on or around October 20, 2002, four days before the homicides involved in this case.
On October 24, 2002, at approximately 6:45 a.m. Bennett arrived at the Caswell farm to deer hunt. Garrison's blue Chevrolet Blazer was blocking the driveway. Bennett went to the farmhouse, found Garrison and Caswell talking, and asked Garrison to move his vehicle. Garrison and Caswell were not fighting or raising their voices. Bennett testified that Garrison seemed disoriented and had trouble finding his keys. Bennett asked Garrison if he was going to have to stand him on his head to find the keys. Garrison replied that he would "get his gun out here after [a] bit." Bennett thought Garrison was just joking. After Garrison found his keys he moved his Blazer. Bennett drove in, parked, and at approximately 7:10 a.m. left to walk to his tree stand.
Around 8:00 a.m. Arlie Norton and Micah Mayfield arrived at Caswell's farm to look for parts for Mayfield's car. They saw Garrison there at that time. Mayfield testified he noticed Garrison had trouble walking and slurred his speech as if he was intoxicated. They both stated that Garrison and Caswell seemed to be getting along and that Garrison was still there when they left around 9:00 a.m.
At approximately 10:30 a.m. on October 24, 2002, Emerson's cousin saw Emerson at the McDonald's drive-through in Knoxville. He saw Emerson get a "big bag of food" and drive away. The McDonald's is 3.7 miles from the Caswell farm and it takes about five minutes to drive that distance. On the same day at around 11:00 or 11:10 a.m. Migdalia Bennett saw Garrison driving down Fifth Street in Knoxville in a small, "reddish burgundy" car. Garrison owned a red Chevrolet Cavalier in addition to the Blazer he had at Caswell's earlier that day.
Also on October 24, 2002, Melissa Johnson, Garrison's daughter, called Garrison from the Sun Shack in Knoxville to ask him to pick up her daughter there. At trial she testified that Garrison arrived around 11:15 or 11:30 a.m., picked up her daughter, and left. However, when Johnson had spoken with police on October 24, 2002, she stated Garrison had picked her daughter up between 1:15 and 1:30 p.m. on that date.
At approximately 12:25 p.m. on the day in question Kenneth Duncan arrived at the farm and found Caswell's body lying in the lane near a gate. Caswell was dressed for outdoor work, including a heavy coat, work pants and work boots. Duncan testified he and his friend Tim Miller went to Caswell's house for lunch almost every day and would often use methamphetamine there over their lunch hour. Miller arrived and also observed Caswell. Miller eventually went to the home of John Emerson, Steve Emerson's brother, and told him he had seen Caswell lying on the ground not moving at the Caswell farm and he needed help. John Emerson got in his car and led Miller back out to the farm. Emerson called the law enforcement dispatcher at 12:45 p.m. while on the way to the farm. At the farm Duncan, Miller, and John Emerson noticed Steve Emerson's car and began to look for him. They found Steve Emerson inside the camper slumped in a seat behind a small table with a white powdery substance on it. Steve Emerson was also dressed for outdoor activity. Once the men found Steve Emerson, John Emerson called 911 for help a second time at 12:52 p.m.
Following the discovery of the bodies, Sheriff and County Medical Examiner Investigator Marvin Van Haaften began a preliminary investigation of the two bodies around 2:00 p.m. He first took the body temperatures of Emerson and Caswell, finding Caswell to have a body temperature of 82.5 degrees and Emerson to have a temperature of 88.5 degrees. He also examined the bodies for signs of rigor mortis, which generally appears within three to four hours of death. No rigor appeared on either body. He also looked for livor mortis which generally appears within two to four hours of death and becomes fixed in eight to twelve. Both Caswell and Emerson had some unfixed lividity in their faces. Based on this preliminary examination Van Haaften estimated the time of death for both men to be within fifteen minutes before or after 11:00 a.m.
Later investigation showed that Caswell died from a total of seven gunshot wounds. Five .22 caliber bullets were recovered from his body and clothing. Emerson died from a total of eight gunshot wounds. Seven .22 caliber bullets were recovered from his body and the seat on which is body was found. Eight spent .22 caliber cartridge casings were found in a loose grouping between the camper and Caswell's body, and a ninth was found further away. Ten spent .22 caliber cartridge casings were found inside the camper.
All of the bullets found in Caswell and Emerson's bodies could have been fired from a .22 caliber Ruger pistol or from a number of other similar weapons. The bullets were too badly damaged to determine what particular type of weapon they were fired from or if they were fired from the same weapon. All but one of the nineteen cartridge casings had been fired in the same weapon. All eighteen of these casings were made by Remington and all could have been fired in a .22 caliber Ruger pistol or a number of other similar firearms. It was also determined that none of those eighteen casings had been fired in a .22 caliber Ruger pistol found completely disassembled in Caswell's house.
The ninth casing, that was found further away from Caswell's body, had been fired in a .22 caliber rifle found in Caswell's house.
At 3:18 p.m. on the day of the murders Garrison called the Caswell farm and left the following message on the answering machine:
Yeah John, you're right. It was President Bush that took us into war with Saudi. I thought it was Clinton, so, once again, you won the argument. And, I'll (inaudible) come out after Howie gets off work, when I bring him back to town. So, we'll talk to you later. Bye.
Lori Johnson, Steven Emerson's former wife, and Madonna Clark called Garrison at home around 3:20 or 3:30 p.m. to find out if he had heard that Emerson and Caswell were dead. When they told him they had heard so, Garrison stated he did not believe them, said they were lying, and said he had had just been at the Caswell farm that morning, had left at noon, and they were both still alive when he left. Garrison told Clark and Johnson he thought he was going to be sick.
On October 24, 2002, Department of Criminal Investigation (DCI) Agent Michael Berrier made an application for a search warrant for Garrison's Blazer, his person, and 506 Patty Drive, Knoxville. The application did not specifically state that 506 Patty Drive was Garrison's place of residence. The warrant was issued and officers conducted the search on October 25. No .22 caliber weapons were found during the search. On October 27 police searched Garrison's red Chevrolet Cavalier. They found a partial box of Remington .22 caliber ammunition in the trunk.
On October 29 another application for search warrant was made for 506 Patty Drive. The first eleven paragraphs in the attachment to the October 29 application were nearly identical to the October 24 application. In addition, the attachment referred to the prior search of 506 Patty Drive and Garrison's vehicles and noted that the Remington ammunition found in the trunk of Garrison's Chevy Cavalier was the same type used in the Emerson and Caswell homicides. The warrant was issued and the search was conducted on October 29 and 30. During this search a shell casing was seen in the recess of the vents (the louver) on Garrison's Cavalier. Another warrant was obtained and the .22 caliber shell casing was seized. In addition, officers seized a plastic case lined with foam which bore the impression of a handgun, but contained no firearm, from the trunk of the Cavalier. The impression in the foam was made by a .22 caliber Ruger pistol or another very similar firearm.
Also on October 29 police took custody of several firearms which were in the possession of Steven Garrison, Howard Garrison's brother. The firearms did not include any pistols. A search of Garrison's mother's house was also conducted on that date. Police found a suitcase containing several of Garrison's personal items. In the suitcase was a list of firearms which included an entry for a "Ruger pistol" and what appeared to be a serial number next to it. No Ruger pistol was found in the suitcase or anywhere else in Garrison's mother's home.
Garrison was arrested on November 8, 2002, and placed in the Marion County jail. Brian Martin had been in the Marion County jail since October 1, 2002, for manufacturing methamphetamine. Martin testified for the State at Garrison's trial, pursuant to a plea agreement reducing his charges. He testified that he learned about Garrison's arrest from the news. Martin testified that while he was in the visitation room of the jail with Garrison he asked Garrison why he killed Emerson and Caswell. He testified Garrison told him Caswell and Emerson had "ripped him off on a drug deal." Garrison had told them of a "new way" to make methamphetamine and had given them the ingredients to do so. When he returned the next day to the camper Emerson told him the new method had not worked. Garrison saw a "big pile of dope laying there on the mirror." Garrison thought Emerson was lying to him and they were going to keep the methamphetamine for themselves so he "got mad and unloaded the gun on him." Then he realized Caswell had probably heard the shots so he reloaded the weapon, went outside, stood beside the camper, and when Caswell approached he "unloaded on him" too.
On November 8, 2002, the State charged Caswell with two counts of murder in the first degree. On February 28, 2003, Garrison filed a motion to suppress, contending any evidence or information received as a result of the execution of the October 24, 29, and 30 search warrants must be suppressed. A hearing was held on the motion to suppress and the district court denied the motion. Garrison later filed a motion to exclude the testimony and reports of Sheriff Marvin Van Haaften. The court denied that motion as well.
Jury trial commenced on November 18, 2003, and on November 26, 2003, the jury found Garrison guilty as charged. Garrison filed a motion for new trial on December 9, 2003. The State filed a resistance and a hearing was held on the motion. The court denied the motion for new trial and sentenced Garrison to two terms of life imprisonment to be served consecutively.
Garrison appeals his convictions, contending the district court erred in (1) denying his motion to suppress evidence found at his residence; (2) determining the evidence was sufficient to support the jury's verdict; (3) allowing evidence of his prior delivery of drugs; (4) allowing certain expert testimony; (5) permitting pictures of a gun to go to the jury room; (6) failing to give his proposed jury instruction; and (7) denying him discovery of allegedly exculpatory evidence in violation of his right to due process of law. Finally, Garrison contends the cumulative effect of the court's constitutional and evidentiary errors denied him a fair trial. We address these issues separately.
II. MERITS.
A. Search Warrants.
Garrison filed a motion to suppress the evidence seized at 506 Patty Drive, Knoxville, pursuant to an October 24, 2002, search warrant, claiming it was not based on probable cause. More specifically, he claimed that in the October 24 search warrant application the State failed to show a sufficient nexus between the alleged criminal activity and the place to be searched. He argued that any evidence which resulted from the search conducted pursuant to that warrant should be suppressed. He further claimed that the application for the October 29 warrant relied on evidence or information received as a result of the October 24 search, and the October 30 warrant relied on the October 29 search, so any evidence discovered as a result of these subsequent searches should also be suppressed as "fruit of the poisonous tree."
The district court denied the motion, concluding the application for the October 24 search warrant contained sufficient information for the court to determine probable cause existed to search the residence at 506 Patty Drive. Accordingly, the court held Garrison's challenge to the subsequent warrants was also without merit. However, it also determined the State did not use any evidence or information obtained during the execution of the October 24 warrant in its applications for the other warrants Garrison was challenging.
A challenge to a search on constitutional grounds is reviewed de novo. State v. Gogg, 561 N.W.2d 360, 363 (Iowa 1997). We make an independent evaluation of the totality of the circumstances as shown by the entire record. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). We give deference to the district court's fact findings due to its opportunity to assess the credibility of the witnesses, but we are not bound by those findings. Id. at n. 2.
"The test for probable cause is whether a reasonably prudent person would believe that a crime has been committed on the premises to be searched or evidence of a crime is being concealed there." State v. Green, 540 N.W.2d 649, 655 (Iowa 1995).
This nexus between criminal activity, the items to be seized and the place to be searched can be found by considering the type of crime, the nature of the items involved, the extent of the defendant's opportunity for concealment, and the normal inferences as to where the defendant would be likely to conceal the items.
Gogg, 561 N.W.2d at 365 (internal quotations omitted).
The facts and information presented to establish this finding need not rise to the level of absolute certainty, rather, it must supply sufficient facts to constitute a fair probability that contraband or evidence will be found on the person or in the place to be searched.
State v. Thomas, 540 N.W.2d 658, 662-63 (Iowa 1995). We do not make an independent determination of probable cause; rather, we merely decide whether the issuing judge had a substantial basis for concluding probable cause existed. Gogg, 561 N.W.2d at 363.
In determining whether a substantial basis existed for a finding of probable cause, we are "limited to consideration of only that information, reduced to writing, which was actually presented to the [judge] at the time the application for the warrant was made."
Id. ( quoting State v. Godbersen, 493 N.W.2d 852, 855 (Iowa 1992)). In determining whether a search warrant application demonstrates the existence of probable cause, Iowa follows the "totality of the circumstances" test established in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). State v. Randle, 555 N.W.2d 666, 670 (Iowa 1996). In Gates the United States Supreme Court wrote:
The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
Gates, 462 U.S. at 238, 103 S. Ct. at 2332, 76 L. Ed. 2d at 548. Under the "totality of the circumstances" approach, probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. Id. at 243 n. 13, 103 S. Ct. at 2335 n. 13, 76 L. Ed. 2d at 552 n. 13. Because there is a preference for warrants, we resolve doubtful cases in favor of their validity. State v. Beckett, 532 N.W.2d 751, 753 (Iowa 1995).
The October 24 warrant application stated that the property or persons to he searched were:
— Blue 1972 Chevy Blazer registered to Howard P. Garrison DOB 8-15-57 with license plate number 784KCR.
— Person of Howard P. Garrison D.O.B. 8-15-57.
— 506 Patty Drive in Knoxville, Marion County Iowa described as Green single story house with white shutters and walkout on east side and any outbuilding.
The affiant's attachment stated, in part, that officers found spent shell casings and a live ejected shell from a .22 caliber gun where Caswell and Emerson were found "deceased with apparent gunshot wounds." It further recited information that Garrison had been seen with a .22 caliber semi-automatic handgun two weeks earlier and again five days earlier, he told someone he thought he did not get his "fair share" of some methamphetamine Emerson had made, he had argued with Emerson and threatened him with a gun only two days before the crime, he was at the crime scene on the morning of the crimes, and that morning while at Caswell's he had stated he "would go out and get his gun." Thus the application contained sufficient information to provide probable cause to suspect Garrison of involvement in the murders of Caswell and Emerson.
The application also established a connection between Garrison and the Blazer because it stated that a blue Blazer with license plate 784KCR was registered to Garrison, and Garrison was seen at the scene of the crime "working on his Blazer." The application also stated that Officer Hucks conducted surveillance at 506 Patty Drive on October 24, the day the crime was committed, and saw a Blazer with the same license plate at that address from approximately 7:30 p.m. to 10:45 p.m. The connection between Garrison and the Blazer was sufficient to establish a nexus between Garrison and the residence at 506 Patty Drive.
Garrison argues there is not a sufficient nexus because the warrant application did not state the fact that 506 Patty Drive was Garrison's residence. However, the application provided a reasonable basis for believing that Garrison had spent three hours or more there shortly after the homicides, he had driven there in his own vehicle in which he could have transported or hidden evidence such as the pistol, ammunition, clothing, or drugs, and could have moved some of those items to 506 Patty Drive. A court would thus have a reasonable basis to believe there was a reasonable probability evidence connecting Garrison to the homicides would be located at 506 Patty Drive.
It is also true the warrant application does not expressly support the district court's finding that a witness saw Garrison working on his Blazer at Caswell's residence "on the day of the murders." The application only states that Micah Mayfield was interviewed on the day of the murders, he told the affiant he had been at Caswell's farm to purchase car parts, and had observed Garrison working on his Blazer at Caswell's as late at 9:15 a.m. However, given the rest of the information provided in the warrant application and attachments the issuing court could have drawn the reasonable, common-sense inference that this observation was made on the day of the murders and not on some other random day when the exact time and place would not be important to the investigation and issuance of the warrant.
Furthermore, admission of evidence obtained in violation of the fourth amendment does not require reversal if the State establishes beyond a reasonable doubt that the error was harmless. State v. McConnelee, 690 N.W.2d 27, 33 (Iowa 2004).
There are two steps in the harmless error analysis. We first consider all of the evidence the jury actually considered, and then we weigh the probative force of that evidence against the erroneously admitted evidence. The inquiry is not whether in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.
Id. (quoting State v. Canas, 597 N.W.2d 488, 494 (Iowa 1999)).
Here the only evidence gained pursuant to the October 24 warrant that was used at trial was the fact police did not find a .22 caliber Ruger pistol or any other .22 caliber weapons during that search. The probative value of this information, in comparison with the other evidence the State presented at trial, was negligible. Thus, even if we were to determine it was error for the court to deny the motion to suppress and admit at trial the evidence obtained pursuant to the October 24 warrant, any such error was harmless beyond a reasonable doubt.
In reaching this conclusion we note it does not appear the State relied on any evidence obtained during the execution of the October 24 warrant in its October 29 and 30 applications. However, even if these two subsequent warrant applications could be seen as relying on evidence or information obtained from the October 24 search, we have determined the information in the October 24 warrant application established a sufficient nexus between the criminal activity and the residence at 506 Patty Drive and thus was properly issued. Thus, any reliance on evidence or information obtained as a result of this search could not have been "fruit of the poisonous tree."
The only "information" from the first search that was used in the subsequent applications was that nothing was found in the first search.
B. Sufficiency of the Evidence.
Garrison next claims the evidence was not sufficient to prove beyond a reasonable doubt he murdered Caswell and Emerson.
Our scope of review and many of the standards of review that apply in sufficiency-of-the-evidence challenges are set forth in State v. Webb, 648 N.W.2d 72, 75-76 (Iowa 2002), and need not be repeated here. The following additional standards are applicable as well. Inherent in our standard of review of jury verdicts in criminal cases is the recognition that the jury was free to reject certain evidence, and credit other evidence. State v. Anderson, 517 N.W.2d 208, 211 (Iowa 1994). A jury is free to believe or disbelieve any testimony as it chooses and to give as much weight to the evidence as, in its judgment, such evidence should receive. State v. Liggins, 557 N.W.2d 263, 269 (Iowa 1996); State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993). The very function of the jury is to sort out the evidence and place credibility where it belongs. Thornton, 498 N.W.2d at 673. The credibility of witnesses, in particular, is for the jury. Id. Direct and circumstantial evidence are equally probative. State v. Speicher, 625 N.W.2d 738, 741 (Iowa 2001).
As set forth above, Caswell and Emerson were killed with a .22 caliber weapon and Remington brand ammunition. Several people testified at trial they had either seen Garrison with a .22 caliber pistol, heard him talk about it, or both. Although some witnesses were unsure as to precisely what type of pistol it was, others testified specifically that it was a .22 caliber Ruger pistol. Kim Bennett testified Garrison carried a gun all the time and that he had seen him at the Caswell farm with the .22 caliber Ruger pistol. In addition, a few days before the murders Russell Pettyjohn was with Garrison and saw him with a .22 caliber pistol, which he thought might be a Ruger. Garrison told Pettyjohn he was mad about something and that he was "going to go off and shoot some son-of-a-bitch one of these days."
On the day of the crimes Garrison was seen at the Caswell farm by several people until at least 9:00 a.m. At one point he seemed disoriented, had trouble walking, and slurred his words. On that morning he told Bennett he would "get his gun out here after [a] bit." Although Bennett testified he thought Garrison was joking, a reasonable juror could infer from this that Garrison had a gun with him at the farm on the day in question.
All of the cartridge casings found at the crime scene, with the exception of one, had been fired in the same weapon. An additional casing also fired in the same weapon was found in the louver area of Garrison's red Cavalier. All of these casings could have been fired from a .22 caliber Ruger pistol. Based on this evidence reasonable jurors could conclude the murder weapon was fired close to Garrison's Cavalier and the ejected cartridge flew onto the car. They could further believe that the most rational explanation, based on all of the other evidence and circumstances surrounding the case, was that Garrison was the owner of the murder weapon. Although police never found the .22 caliber Ruger pistol Garrison had been seen with by many people on several occasions, including only a few days before the murders, reasonable jurors could believe Garrison concealed or disposed of it after the murders.
From the evidence in the record a reasonable juror could also find Emerson and Caswell were killed around 11:00 a.m. Although it was very hot in the camper where Emerson was found he still had a jacket and cap on, indicating he may have just come in from outside when he was shot. Furthermore, his stomach contained only about one-third of a cup of fluid and a few partially digested kernels of corn. This indicated Emerson had not had time to eat anything from the bag of McDonald's food his cousin saw him buying around 10:30 a.m. in Knoxville. It was about a five-minute drive from the McDonald's to the Caswell farm. Based on the temperatures of the bodies, absence of rigor mortis, and the presence of unfixed livor mortis Sheriff Van Haaften estimated the time of death was within fifteen minutes before or after 11:00 a.m.
In addition, Brian Martin testified that Garrison told him in the visitation room of the jail that he had killed Emerson and Caswell because they had "ripped him off" in a drug deal. Garrison argues Martin's testimony was so unreliable the jury should not have been allowed to rely on it. However, many parts of Martin's testimony are consistent with other evidence. First, Martin testified that Garrison told him he killed Emerson and Caswell because they were withholding methamphetamine they had made with ingredients supplied by Garrison. Police found a methamphetamine laboratory in the camper where Emerson's body was found. Second, Martin testified Garrison told him there was a "big pile of dope [methamphetamine] laying there on the mirror" in the camper. Police found a mirror in the camper close to Emerson's body with a powdery white substance on it which appeared to methamphetamine. Third, Martin testified Garrison told him he "unloaded" his gun on Emerson, reloaded, and "unloaded" on Caswell. A .22 caliber Ruger such as the one Garrison had holds ten cartridges. Ten cartridge casings were found in the camper and eight were found outside near Caswell's body. Fourth, Martin testified Garrison told him that when he went to see if Caswell was dead he saw one of the bullets "on the bib of his overalls." Police found a bullet fragment on the back of Caswell's jacket. Thus, based on all of the other evidence at trial the jurors could reasonably have believed Martin's testimony regarding Garrison's admissions to him.
Finally, Martin testified that Garrison told him about the murders in the jail's visiting room. There is a monitoring camera in the room. Although it does not record audio or video Martin appears to have believed it recorded everything that occurred in the visiting room, including conversations. Prior to trial someone asked Martin what happened in the visiting room and he "told them they ought to just watch the tape" and it would show "exactly what I told you earlier." Assuming Martin in fact believed his conversation with Garrison was recorded on tape it appears unlikely he would lie under oath, possibly jeopardizing his plea bargain and incurring a charge for perjury, because the tape would refute any false testimony about such a conversation. Therefore, reasonable jurors could view Martin's belief about the tape, although mistaken, as strong circumstantial evidence of the reliability of his testimony.
Based on all of the evidence in the record before us we conclude reasonable jurors could have concluded, beyond a reasonable doubt, that Garrison murdered Caswell and Emerson. The evidence was sufficient to support the jury's guilty verdicts.
C. Other Bad Acts Evidence.
Garrison next claims the court abused its discretion in admitting certain testimony of Brian Martin concerning OxyContin and in overruling his motions for mistrial and new trial on the ground such evidence should not have been admitted. We generally review evidentiary rulings for abuse of discretion. State v. Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001). Our standard of review in analyzing challenges to the admission of evidence of other crimes, wrongs, or acts is for abuse of discretion. State v. Castaneda, 621 N.W.2d 435, 440 (Iowa 2001). We will reverse only when we find a clear abuse of discretion. Id. The trial court has considerable discretion to declare a mistrial and will not be reversed absent an abuse of discretion. State v. Brown, 397 N.W.2d 689, 699 (Iowa 1986). The standard of review for an award or a denial of a motion for new trial is also for abuse of discretion. State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998).
Shortly before trial Garrison filed a motion in limine, followed by a supplement to the motion. The supplement challenged the admissibility of among other things any evidence that Garrison used prescription or non-prescription OxyContin, or shared it with others or sold it to others. He argued any such evidence would be irrelevant evidence of prior bad acts and highly prejudicial to him. At a hearing on the motion the State argued Martin would testify he had been getting OxyContin from Garrison and trading methamphetamine to him. The State argued this evidence was relevant to show a prior relationship between Garrison and Martin and thus show why Garrison would confide in Martin and confess the murders to him. During a hearing held the day before trial the court overruled this portion of Garrison's supplement to his motion in limine. The State acknowledges that the court's ruling was treated by the court and parties as a final ruling on admissibility and error is thus preserved.
At trial Martin testified he had bought OxyContin from people who had said they had acquired it from Garrison, but he did not personally know Garrison prior to meeting him in jail. He testified he had no personal knowledge as to whether the OxyContin actually came from Garrison. After hearing this testimony Garrison filed a motion for mistrial arguing Martin's OxyContin testimony was irrelevant and highly prejudicial and a mistrial was the only way to cure the significant prejudice to him. In the alternative, Garrison asked the court to issue a limiting instruction telling the jury it should give no weight to Martin's testimony regarding obtaining OxyContin from Garrison.
The court denied Garrison's motion for mistrial but upon submission of the case to the jury gave the jury a limiting instruction. Following the jury's guilty verdicts Garrison moved for a new trial repeating, in relevant part, his previous arguments regarding Martin's testimony concerning OxyContin. The State resisted, a hearing was held, and the court denied the motion for new trial.
In determining whether the challenged evidence is admissible we, like the trial court, must employ a two-step analysis. State v. Brown, 569 N.W.2d 113, 116 (Iowa 1997). We first decide whether the evidence is relevant for a purpose other than to show that the defendant acted in conformity with a propensity to commit the wrongful act. Id. There is a presupposition that relevant evidence is admissible. Iowa R. Evid. 5.402; State v. Anderson, 565 N.W.2d 340, 342 (Iowa 1997). If the evidence is relevant for a legitimate purpose, we move to the second step, to decide whether its probative value is substantially outweighed by the danger of unfair prejudice to the defendant. Brown, 569 N.W.2d at 116; see also Iowa R. Evid. 5.403.
Based on the information available to the court at the time of the hearing on the motion in limine and supplement thereto, it appeared Martin's testimony would be relevant to establish a prior relationship between him and Garrison. It was not evident until after Martin testified that his testimony was not relevant for such a purpose. Without deciding whether the trial court abused its discretion in overruling Garrison's initial challenge to Martin's testimony in his supplement to his motion in limine, we must determine whether it did so in denying Garrison's motion for mistrial on similar grounds after Martin's testimony had made it clear he had no relationship with Garrison prior to meeting him in jail.
The trial court implicitly found the State had at least negligently misrepresented Martin's testimony prior to trial, because it did give the jury a limiting instruction regarding his testimony. However, we need not decide in this appeal whether the misrepresentation constituted more than mere negligence.
The State concedes, and we agree, it failed to establish the relevance of Martin's OxyContin testimony at trial. Martin's testimony in fact refuted any idea of any personal or direct relationship between him and Garrison prior to when they met in jail. We find that because the evidence was not relevant it therefore was not admissible. Because we find the evidence was not admissible we need not reach the second step of the analysis, whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. State v. Sullivan, 679 N.W.2d 19, 29 (Iowa 2004). We conclude the trial court did abuse its discretion in denying Garrison's motion for mistrial once the nature and extent of Martin's testimony concerning OxyContin and his lack of a prior relationship with Garrison was known by the court and it had become apparent Martin's OxyContin testimony was not relevant to show a prior relationship with Garrison, or for any other purpose.
The State argues, however, that even if the court erred in allowing Martin's challenged testimony reversal is not required. It argues that where, as here, the court commits a nonconstitutional error in the admission of evidence reversal is not required unless it sufficiently appears the rights of the complaining party have been injuriously affected by the error or the party has suffered a miscarriage of justice. See id. We will presume prejudice when such an error appears and must reverse unless the record affirmatively establishes otherwise. Id. at 30. For the following reasons, we conclude the record here does not affirmatively establish a lack of prejudice to Garrison from the admission of Martin's OxyContin testimony and thus reversal is required.
The State argues Martin's OxyContin testimony was merely cumulative because somewhat similar evidence had already been admitted without objection, and thus Martin's testimony was not prejudicial to Garrison. More specifically, the State relies in large part on the testimony of Madonna Clark. She testified she had used OxyContin with Garrison. Clark testified she had her own prescription for OxyContin, if she ran out she would ask Garrison for some, and if Garrison ran out he would ask her for some. Lori Johnson thereafter testified that prior to her 2002 divorce from Steven Emerson she became aware he was involved in making methamphetamine, she had used methamphetamine when with Garrison, and Garrison had used OxyContin. The State also points to the fact the record is full of evidence of Garrison's methamphetamine use.
Prior to the testimony of Clark and Johnson the trial court had, however, already determined in its ruling on Garrison's supplement to his motion in limine that evidence regarding Garrison's use and sharing of OxyContin would be admitted. Under such circumstances there was no reason for defense counsel to object to Clark's and Johnson's testimony concerning OxyContin.
Furthermore, the allegedly "cumulative" evidence from Clark and others, regarding both OxyContin and methamphetamine, only showed that Garrison had used these drugs, had perhaps provided some ingredients for methamphetamine on one occasion, and had exchanged OxyContin with Clark at times. There was no other evidence, other than Martin's testimony, that Garrison may have been involved in drug dealing.
In addition, Martin was the only person who testified Garrison admitted any complicity or guilt in the murders of Caswell and Emerson. Accordingly, we conclude Martin's OxyContin testimony was not merely cumulative to other drug evidence that was in the record without objection. Martin in fact gave different and additional testimony that was much more prejudicial to Garrison then Clark's, Johnson's, or any of the other drug related testimony. Martin's testimony was the only evidence before the jury that Garrison might have been dealing drugs and had admitted to the homicides. The combination of these items of evidence was highly prejudicial to Garrison and injuriously affected his rights. See State v. Liggins, 524 N.W.2d 181, 188-89 (Iowa 1994) (finding in first-degree murder case that the trial court abused its discretion in admitting evidence of the defendant's cocaine delivery and distribution because such evidence was not "an inseparable part of the whole deed" and was inherently prejudicial because it "appealed to the jury's instinct to punish drug dealers").
We need not and do not decide whether Clark's testimony that Garrison used and shared OxyContin or Johnson's testimony that Garrison used OxyContin would be relevant and admissible absent Martin's OxyContin-related testimony, a decision best made by the trial court in the context of any retrial.
Finally, the State argues the trial court's instruction admonishing the jury as to the limited purpose for which they could use Martin's testimony was sufficient to remove any possible prejudice to Garrison from Martin's testimony. The instruction provided,
Evidence has been offered that a witness obtained OxyContin from an individual who obtained OxyContin from the Defendant. This evidence was only offered for the purpose of establishing a prior relationship between the Defendant and the witness and for no other purpose. You can only use this evidence to find that it was more likely than not that the Defendant would confide in that witness because of the prior relationship.
Limiting or cautionary instructions are sufficient to avoid the prejudicial impact of evidence in most situations, and are deemed insufficient only in extreme cases. State v. Belieu, 288 N.W.2d 895, 901 (Iowa 1980). For several reasons we conclude the limiting instruction given by the court in this case was not sufficient to remove the unfairly prejudicial effect of the challenged evidence.
First, Martin's OxyContin-related testimony did not further the purpose for which the State had argued it was admissible and, as the State properly acknowledges, the State did not establish that the testimony was relevant to any issue in the case. Although Martin may have had reason to believe Garrison was a source of OxyContin, nothing in the record indicates that Garrison had any reason to believe that any OxyContin he supplied, if in fact he did so, went to Martin, who he apparently did not know or know of. Second, and somewhat relatedly, because neither Martin's testimony nor any other evidence in the record provides substantial evidence of a prior relationship between Martin and Garrison the limiting instruction did nothing more than limit the jury's use of the challenged evidence to making certain findings the record will not support. The instruction thus did not serve the intended purpose of a limiting instruction. Third, although there was substantial circumstantial evidence of Garrison's guilt, the evidence was neither overwhelming nor extremely strong. Fourth, Martin's testimony regarding Garrison's admissions was thus very important to the State's case. Finally, the challenged evidence was highly prejudicial. See Liggins, 524 N.W.2d at 188 ("The admission of evidence of [drug] delivery and distribution is inherently prejudicial.").
We do note, but need not rely on, the fact that Martin's OxyContin-related testimony appears to be rank hearsay.
The record does not affirmatively establish a lack of prejudice to Garrison from the admission of Martin's irrelevant and highly prejudicial OxyContin-related testimony. We conclude it sufficiently appears that Garrison's rights have been injuriously affected by the trial court's denial of his motion for mistrial and conclude reversal is required on this issue. We find it unnecessary to address the issue of whether the trial court abused its discretion by denying Garrison's motion for a new trial.
Although we are reversing and remanding this case for further proceedings, we will consider remaining issues presented on appeal because they may occur in any retrial. See, e.g., McElroy v. State, 637 N.W.2d 488, 500 (Iowa 2001); Greenwood v. Mitchell, 621 N.W.2d 200, 207 (Iowa 2001).
D. Expert Testimony.
Garrison filed a motion to exclude the testimony of Sheriff Marvin Van Haaften. As set forth above, Van Haaften had acted as the medical examiner investigator in this case. Garrison argued Van Haaften was "not qualified as a medical examiner investigator, was purporting to be the medical examiner and was acting without the authority of the medical examiner, and had no authority to sign ME-1 form as the medical examiner." The State filed a resistance. The court concluded that subject to the laying of a proper foundation, the matters raised in Garrison's motion to exclude went to the weight of the evidence and credibility of the expert witness, not to the admissibility of the evidence. For that reason, and for the reasons set forth in the State's resistance, the court denied the motion to exclude.
On appeal Garrison argues the trial court abused its discretion when it permitted Van Haaften to testify as an expert regarding the "time and manner" of Emerson's and Caswell's deaths.
Issues involving the admission of expert testimony are generally within the trial court's discretion. State v. Rains, 574 N.W.2d 904, 916 (Iowa 1998). The trial court is afforded wide latitude in its ruling on the admissibility of expert testimony, and will be reversed only if the court abused its discretion and the defendant was prejudiced. State v. Belken, 633 N.W.2d 786, 799 (Iowa 2001).
Our supreme court has set forth the test for the admission of expert testimony:
[T]he evidence, of course, must be relevant. Iowa R. Evid. [5.]402. Second, it must be evidence in the form of "scientific, technical or other specialized knowledge [that] will assist the trier of fact to understand the evidence or to determine a fact in issue." Iowa R. Evid. [5.]702. Third, the witness must be "qualified as an expert by knowledge, skill, experience, training, or education." Id. In addition, any potential for an exaggerated effect of the proffered evidence should be considered.
Leaf v. Goodyear Tire Rubber Co., 590 N.W.2d 525, 533 (Iowa 1999) (third alteration in original). Rule 5.702 provides as follows:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
"[W]e are committed to a liberal view on the admissibility of expert testimony, and we have been quite deferential to the district court in the exercise of its discretion in that area." Mensink v. Am. Grain, 564 N.W.2d 376, 380 (Iowa 1997).
At trial Garrison initially objected to the admission of Van Haaften's written reports but later withdrew his objection and the reports were admitted. Thus, he has waived any claim challenging the admission of the written reports. A defendant "cannot both object and consent to evidence if he expects to preserve error for appeal." State v. Terry, 569 N.W.2d 367, 369 (Iowa 1997) (quoting State v. Schmidt, 312 N.W.2d 517, 518 (Iowa 1980)). These written reports contained the same information Garrison challenges regarding Van Haaften's testimony, including time of death, cause of death, body temperatures, and the extent of livor mortis and rigor mortis. An erroneous evidentiary ruling does not require reversal unless the error is prejudicial. Iowa R. Evid. 5.103( a); State v. Boley, 456 N.W.2d 674, 678 (Iowa 1990); State v. McCollom, 260 Iowa 977, 983, 151 N.W.2d 519, 522 (1967) ("It is elementary that admission of evidence is not prejudicial error where substantially the same evidence is in the record without objection."). Because substantially the same evidence came into the record without objection, Van Haaften's challenged testimony is merely cumulative and thus error, if any, in its admission did not prejudice Garrison at trial.
We have carefully considered the remaining arguments Garrison raises on appeal concerning the issue of Sheriff Van Haaften's testimony. We find they either also involve merely cumulative evidence or have not been preserved because they were not passed upon by the trial court.
E. Photographs to the Jury Room.
It was established at trial that the bullets and cartridge casings found at the murder scene were .22 caliber and could have been fired from a Ruger pistol or a very similar weapon. Several witnesses testified they either saw Garrison with a .22 caliber Ruger pistol or one that was very similar to it, heard him talk about one, or both. Police did not find a .22 caliber Ruger pistol in Garrison's house, any of his family members' houses that were searched, or in his vehicles. However, they did find a plastic case lined with foam which bore the impression of a .22 caliber Ruger pistol or similar handgun in the trunk of Garrison's Cavalier.
At trial the State introduced photographs showing the impression in the foam of the plastic case together with a .22 caliber Ruger pistol, pointing out the similarities between such a gun and the impressions in the foam. Garrison did not object to the photographs. However, he argued they could be published to the jury during closing arguments but should not be submitted to the jury because there was "no evidence" a .22 caliber Ruger pistol was used in the murders and the photographs were "overly suggestive" that the plastic case had contained such a pistol. The district court ruled the photographs could go to the jury, noting they were admitted without objection. On appeal Garrison argues the court abused its discretion in allowing these photographs to go to the jury.
"`[S]ubmission of exhibits to the jury is a matter resting in [the] trial court's discretion.'" Brooks v. Holtz, 661 N.W.2d 526, 532 (Iowa 2003) (alterations in original) (quoting Heth v. Iowa City, 206 N.W.2d 299, 303 (Iowa 1973)). We will not upset a trial court's discretionary decision unless the court exercises its discretion on grounds clearly untenable or to an extent clearly unreasonable. State v. Greene, 592 N.W.2d 24, 27 (Iowa 1999). "A ground or reason is untenable when it is not supported by substantial evidence or when it is based on an erroneous application of the law." Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000).
Iowa Rule of Criminal Procedure 2.19(5)( e) provides, in relevant part,
Upon retiring for deliberations the jury may take with it all papers and exhibits which have been received in evidence, and the court's instructions; provided, however, the jury shall not take with it depositions, nor shall it take original public records and private documents as ought not, in the opinion of the court, to be taken from the person possessing them.
Here the photographs in question illustrated the basis for the State's expert's opinion that due to the similarities between a .22 caliber Ruger pistol and the impression in the foam in the case it was likely the impression had been made by a Ruger pistol very similar in manufacture to a .22 caliber Ruger pistol. The jurors were entitled to study the photographs to determine for themselves whether this testimony was valid and how much weight to give to it. The DCI criminalist who took the photographs and made the comparisons between a .22 caliber Ruger pistol and the impression made clear in his testimony that the pistol in the photographs came from his reference collection in the DCI laboratory and it was not used in the shootings in this case. Several other officers testified that the weapon used to kill Caswell and Emerson had not been found.
We conclude the court did not abuse its discretion in allowing the photographs of the pistol and foam impression to go to the jury room.
F. Proposed Jury Instruction.
At the close of the evidence Garrison proposed that "8th Circuit Model Criminal Jury Instruction 4.04" be given regarding Martin's plea bargain. The proposed instruction provided:
You have heard evidence that Brian Martin has made a plea agreement with the State of Iowa that he will receive probation for reasons including his testimony against the Defendant. His testimony was received in evidence and may be considered by you. You may give his testimony such weight as you think it deserves. Whether or not his testimony may have been influenced by the plea agreement is for you to determine.
The witness's plea agreement cannot be considered by you as any evidence of this defendant's guilt. The witness's guilty plea can be considered by you only for the purpose of determining how much, if at all, to rely upon the witness's testimony.
The court denied the request, concluding its proposed instructions, which included one based on the standard Iowa instruction on credibility of witnesses, adequately covered this area. The instruction given noted that the jurors, in deciding what testimony to believe, could consider a witness's "interest in the trial, his or her motive, candor, bias, and prejudice." See Iowa Crim. Jury Instruction 100.7.
Garrison argues the court erred in denying his proposed jury instruction because the jury should have been specifically instructed of the benefits Martin received for his testimony.
We review the trial court's refusal to give a requested instruction for correction of errors at law. State v. Martinez, 679 N.W.2d 620, 623 (Iowa 2004). "As long as a requested instruction correctly states the law, has application to the case, and is not stated elsewhere in the instructions, the court must give the requested instruction." State v. Kellogg, 542 N.W.2d 514, 516 (Iowa 1996). Our supreme court has repeatedly held that "[t]he proper practice is [for the trial court] to give a general [credibility] instruction . . . applicable to all witnesses alike." State v. Bishop, 387 N.W.2d 554, 561 (Iowa 1986) (alterations and omissions in original) (quoting State v. Harrington, 284 N.W.2d 244, 250 (Iowa 1979), and State v. Milliken, 204 N.W.2d 594, 596-97 (Iowa 1973)).
We conclude the substance of Garrison's requested instruction was adequately covered by the instructions given. We further conclude the trial court did not err by giving the general credibility instruction from the Iowa criminal jury instructions rather than giving Garrison's proposed credibility instruction, which singled out and was applicable only to one specific witness.
G. Discovery of Allegedly Exculpatory Evidence.
Prior to trial the prosecutor advised Garrison's counsel that DCI Agent Michael Berrier had been suspended from the DCI. Agent Berrier was the affiant in some of the search warrant applications in this case, interviewed some of the witnesses, and helped conduct the search of Garrison's Cavalier on October 27 during which the box of .22 caliber Remington ammunition was found in the trunk. Garrison requested the production of all documents concerning Berrier's suspension in order to determine if the documents contained exculpatory evidence. The district court reviewed the documents in camera to determine if they contained any exculpatory evidence. After reviewing the documents the court entered an order on May 29, 2003, "[finding] that the State is not required to make these materials available in discovery." Later, as part of a July 17, 2003 ruling on several matters the court noted it had "filed under seal the confidential document submitted for in-camera inspection," further stating: "The court found no relevant evidence to defendant's defense and denied access to defendant by previous order."
Garrison claims on appeal that the court abused its discretion in denying his discovery request for allegedly exculpatory evidence in violation of his right to due process of law.
In his brief Garrison asserts the prosecutor advised defense counsel that Agent Berrier had been suspended "based on a potential Giglio issue" and "because of a potential Giglio issue." See Giglio v. United States, 405 U.S. 150, 153-55, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104, 108-09 (1972) (holding the prosecutor's failure to disclose material evidence, there evidence relevant to the credibility of the principal witness against the defendant, violated the defendant's right to due process and required a new trial). Nothing else in the record supports the assertion that in informing defense counsel of Berrier's suspension the prosecutor attributed the suspension to a "potential Giglio issue." Further, nothing in the record, including the documents produced by the State and reviewed in camera by the district court and this court, provides any evidence that Agent Berrier's suspension was for a failure to disclose material evidence in this case or any other case. The documents in question in fact show that Berrier's suspension had nothing to do with any failure to disclose material evidence in any case.
A defendant's due process rights are violated when the prosecution fails to produce upon request evidence favorable to the accused where the evidence is material either to guilt or punishment, including evidence that may be used to impeach a witness's credibility. State v. Romeo, 542 N.W.2d 543, 551 (Iowa 1996). We generally review a trial court's discovery rulings for an abuse of discretion. State v. Froning, 328 N.W.2d 333, 335 (Iowa 1982). However, because a constitutional right is involved we review the issue de novo to determine whether the trial court abused its discretion. See State v. Veal, 564 N.W.2d 797, 809 (Iowa 1997), overruled in part on other grounds by State v. Hallum, 585 N.W.2d 249, 253 (Iowa 1998) (holding that review of denial of a motion for mistrial grounded in claimed violation of constitutional rights is de novo to determine whether the trial court abused its discretion).
Garrison's claim of error appears to consist of two parts. He asserts the district court erred by not ordering the State to "produce directly to Defendant" the documents related to Agent Berrier's suspension. He also appears to assert that even if the court did not order the documents produced it should have, at a minimum, permitted his counsel to review the documents in camera.
Because of the range of interests protected by our error preservation rules, on appeal we will consider whether error was preserved even if the opposing party does not raise the issue on appeal. Top of Iowa Co-op v. Sime Farms, Inc., 608 N.W.2d 454, 470 (Iowa 2000). We proceed to do so as to Garrison's apparent assertion the trial court should have permitted his counsel to review the documents in camera.
In his April 10, 2003 supplement to his motion to produce, Garrison demanded that the State produce directly to the defendant documents and information related to Berrier's suspension. Garrison's motion did not request, additionally or in the alternative, that his counsel be permitted to review such documents and information in camera. As shown a May 16, 2003 order, the court held a hearing on that date on Garrison's supplement to his motion to produce, a non-evidentiary hearing held by telephone conference at defense counsel's request. In relevant part the order further discloses:
The parties agree that the Court should review the requested documents, in camera, to determine if they contain exculpatory evidence that needs to be produced to the defendant. State shall provide the material to the Court for review, at which time the Court will enter an order on that issue.
The court thereafter reviewed the materials involved in the investigation of Agent Berrier's conduct and resulting suspension and entered the May 29, 2003 and July 17, 2003 orders previously mentioned.
Issues must ordinarily be presented to and passed upon by the trial court before they may be raised and adjudicated on appeal. Jain v. State, 617 N.W.2d 293, 298 (Iowa 2000); State v. Ashburn, 534 N.W.2d 106, 109 (Iowa 1995). We do not review issues, even of a constitutional nature, not presented to the trial court and first raised on appeal. State v. Farni, 325 N.W.2d 107, 109 (Iowa 1982). Garrison demanded direct production of the documents in question. The record contains nothing indicating a request that his counsel be permitted to review them in camera. Nor does it contain anything indicating the trial court addressed or passed upon such an issue. We conclude Garrison has not preserved error on this issue and decline to address its merits or lack of merits.
As noted above, Garrison also asserts the district court erred by not ordering the State "to produce directly to Defendant" the documents related to Agent Berrier's suspension. The State responds in part that the information sought is personal information in a confidential personnel record and thus exempt from disclosure under Iowa Code section 22.7(11) (2001).
Iowa Code section 22.1(3) in part defines "public records" to include "all records, documents . . . or other information . . . of or belonging to this state." The documents generated through the investigation of Agent Berrier's conduct and his resulting suspension constitute "public records." Section 22.2 provides in part: "Every person shall have the right to examine and copy a public record." However, section 22.7 provides in part that certain records shall be kept confidential unless otherwise ordered by a court. Included in such records is "[p]ersonal information in confidential personnel records of public bodies." The documents generated through the investigation of Agent Berrier's conduct and his resulting suspension constitute such "[p]ersonal information in confidential personnel records." See, e.g., Clymer v. City of Cedar Rapids, 601 N.W.2d 42, 48 (Iowa 1999) (holding that sick leave records of public employees were subject to disclosure "[s]o long as the information disclosed does not reveal . . . professional evaluations" . . .) (emphasis added); DeLaMater v. Marion Civil Serv. Comm'n, 554 N.W.2d 875, 879 (Iowa 1996) (noting that prior Iowa cases provided limited assistance because in the case before the court the materials sought were "not evaluations of job performance, which are confidential under Iowa law") (emphasis added); Des Moines Indep. Cmty. Sch. Dist. v. Des Moines Register Tribune Co., 487 N.W.2d 666, 670 (Iowa 1992) (stating, concerning documents generated by a committee appointed to investigate allegations made by a school principal and also documents generated by another committee appointed to investigate complaints about the principal, that section 22.7(11) "renders these essentially in-house, job performance documents, exempt from disclosure. These documents fell within the category of personal information in personnel records.") (emphasis added). The State of Iowa, its Department of Public Safety, and its Division of Criminal Investigation are clearly "public bodies."
The documents generated through the investigation of Agent Berrier's conduct and his resulting suspension consist of a synopsis, the allegations of misconduct, correspondence, investigative reports and interviews, performance evaluations, photographs, and a notice of disciplinary action, all as contained in an investigation file. We conclude these "essentially in-house, job performance documents" are prima facie exempt from disclosure as personal information in confidential personnel records. See Des Moines Indep. Cmty. Sch. Dist., 487 N.W.2d at 670. The fact the documents were deposited in an investigation file does not detract from their qualification as such. Id.
Our foregoing conclusion does not end the inquiry, however. Such records "shall be kept confidential, unless otherwise ordered by the court." Iowa Code § 22.7 (emphasis added). We are left to determine, on our de novo review, whether the district court abused its discretion in denying disclosure.
The documents in question show that on or about March 28, 2003, some eight months before trial in this case, Agent Berrier was suspended for twenty working days. The suspension was in part for conduct which had occurred in approximately the last week of July and first week of August 2002, between two and one-half and three months before the homicides in this case. The suspension was also in part for somewhat similar conduct which had taken place several years earlier and had ended some four to five years before the homicides in this case, conduct which had come to light during investigation of the July-August 2002 conduct. None of the conduct for which Agent Berrier was suspended involved any aspect of this case.
Agent Berrier's involvement in this case was limited to interviewing certain persons, some of whom did testify at trial, and serving as the affiant on the applications for three of the several search warrants that were issued during the investigation. Nothing in the record even suggests that the applications or supporting affidavits contain any false or misleading information. Further, Agent Berrier was not called as a witness for either the State or Garrison at trial.
To summarize what we consider to be the significant points, (1) the conduct for which Agent Berrier was disciplined occurred long before any of the events involved in this case; (2) the conduct had nothing to do with this case; (3) Agent Berrier's involvement in this case was limited; and (4) Agent Berrier was not a witness at trial. Upon our de novo review we conclude the district court did not abuse its discretion in determining the documents in question do not contain exculpatory information that should be disclosed to Garrison despite the prima facie confidentiality of the documents under Iowa Code section 22.7(11). We therefore affirm the district court on this issue.
III. CONCLUSION.
We reverse Garrison's convictions and remand for a new trial.