State of Iowa vs. Clarence Simpson

IN THE SUPREME COURT OF IOWA
No. 275 / 97-2200
Filed December 23, 1998
STATE OF IOWA,
Appellee,
vs.
CLARENCE SIMPSON,
Appellant.
Appeal from the Iowa District Court for Black Hawk County, Joseph Moothart, District Associate Judge.
Defendant appeals from conviction and sentence for possession of a controlled substance (cocaine),
contending that the district court violated his constitutional rights when it refused to grant use immunity to
his proffered witness. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Robert P. Ranschau, Assistant State Appellate Defender,
for appellant.
Thomas J. Miller, Attorney General, Robert P. Ewald, Assistant Attorney General, Thomas J. Ferguson,
County Attorney, and Brad Walz, Assistant County Attorney, for appellee.
Considered by McGiverin, C.J., and Carter, Lavorato, Snell, and Cady, JJ.
LAVORATO, Justice.
The jury convicted Clarence Simpson of possession of a controlled substance (cocaine). He appeals,
contending that the district court violated his constitutional rights when it refused to grant use immunity to
his proffered witness. We disagree and affirm.
Waterloo Police Officer Robert Hewitt stopped a vehicle driven by Clarence Simpson for having expired
license plates. Jamie Keller occupied the front passenger seat and Rodney Caeser occupied the rear
passenger seat.
Simpson consented to a search, at which point Hewitt had both passengers exit the vehicle and stand to
the rear of it. Hewitt allowed Simpson to remain in the vehicle because Simpson was disabled.
At this point, Officer Randall Chapman arrived on the scene as backup. Hewitt began searching
Simpson’s vehicle and found one crack pipe located underneath the floor mat in the front passenger seat.
Hewitt then went to the rear of the vehicle to question Keller about the pipe. As Hewitt was talking to
Keller, Chapman saw what appeared to be a crack pipe come flying out of the opened passenger front
door and land in the grass. Chapman told Hewitt what he had just seen. Hewitt turned and saw a silver
pipe lying in the grass next to the curb by the opened passenger door. Hewitt seized the pipe and

-- 1 of 5 --

thereafter arrested Simpson. After searching both passengers and finding nothing on them, the police let
them leave.
Both pipes had burnt residue of crack cocaine. The police later searched Simpson’s vehicle and found
eight to ten twist ends of baggies, scattered on the front and rear floors and on the seats. They also found
several push rods. The twist ends and push rods are associated with the use of crack cocaine.
The State charged Simpson with possession of a controlled substance in violation of Iowa Code section
124.401(5) (1997). During opening statements, the defense counsel told the jury that Caeser would testify
that he was the one who had thrown the crack pipe out of Simpson’s vehicle.
Simpson called Caeser to testify. After talking to an attorney appointed for him, Caeser exercised his right
against self-incrimination and refused to testify. Simpson then asked the court to grant Caeser use
immunity. The State resisted, stating that it was neither going to grant use immunity nor would it ask the
court to do so. The court denied Simpson’s counsel’s request.
The defense counsel then stated for the record that Caeser would testify that he threw the crack pipe out
of Simpson’s vehicle before he was asked to get out. Simpson later denied any knowledge of the pipes
and of the other incriminating evidence found in his vehicle. He also denied throwing one of the pipes out
of his vehicle.
The sole issue on appeal is whether the district court violated Simpson’s Sixth and Fourteenth
Amendment rights when it denied his request for a grant of use immunity to Caeser. Because Simpson
raises constitutional issues, our review is de novo. State v. Fox, 491 N.W.2d 527, 530 (Iowa 1992). In our
review, we independently evaluate the totality of the circumstances as evidenced by the whole record. Id.
I. Applicable Law.
A. The right to present a defense. The Sixth Amendment to the Federal Constitution provides in
relevant part that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have compulsory
process for obtaining witnesses in his favor.” U.S. Const. amend. VI. The right to present a defense stems
from this Sixth Amendment right to compulsory process. Washington v. Texas, 388 U.S. 14, 18-19, 87 S.
Ct. 1920, 1922-23, 18 L. Ed. 2d 1019, 1023 (1967); Fox, 491 N.W.2d at 530-31.
The right to present a defense is essential to a fair trial. For that reason, it is an incorporated right in the
Due Process Clause of the Fourteenth Amendment:
The right to offer the testimony of witnesses, and to compel their attendance, if
necessary, is in plain terms the right to present a defense, the right to present the
defendant’s version of the facts as well as the prosecution’s to the jury so it may decide
where the truth lies. Just as an accused has the right to confront the prosecution’s
witnesses for the purpose of challenging their testimony, he has the right to present his
own witnesses to establish a defense. This right is a fundamental element of due process
of law.
Washington, 388 U.S. at 19, 87 S. Ct. at 1923, 18 L. Ed. 2d at 1023; Fox, 491 N.W.2d at 531.
Because the right to present a defense is incorporated in the Due Process Clause, the right is binding on
the states. Washington, 388 U.S. at 19, 87 S. Ct. at 1923, 18 L. Ed. 2d at 1023; accord Fox, 491 N.W.2d
at 531; see U.S. Const. amend. XIV (“[N]or shall any State deprive any person of life, liberty, or property,
without due process of law.”). Since Washington, the Supreme Court has ignored mentioning the Sixth
Amendment genesis of the right to present a defense and has simply relied on the Due Process Clause
alone when deciding issues in this area. See, e.g., Webb v. Texas, 409 U.S. 95, 98, 93 S. Ct. 351, 353-

-- 2 of 5 --

54, 34 L. Ed. 2d 330, 333 (1972) (per curiam) (holding that judge’s threatening remarks, directed only at
the single witness of the defense, effectively drove that witness off the stand, and thus deprived the
petitioner of due process of law under the Fourteenth Amendment).
B. Use immunity for exculpatory testimony. Use immunity
refers to an order of court that compels a witness to give self-incriminating testimony
while at the same time prohibiting the use of such testimony in a subsequent prosecution
of the witness. Use immunity protects a witness only against the actual use of the
compelled testimony and evidence derived directly or indirectly from such testimony. In
contrast, transactional immunity protects the witness against all later prosecutions related
to matters about which the witness testifies.
Fox, 491 N.W.2d at 533.
We have recognized that the district court has no statutory authority to grant use immunity. Id. Thus, if the
district court has authority to grant use immunity, such authority must arise from the court’s inherent
powers. Id. The county attorney, on the other hand, has discretion to seek court authority granting
immunity to a witness. See Iowa R. Crim. P. 19(3); Fox, 491 N.W.2d at 533. We have interpreted rule
19(3) as providing both use and transactional immunity. Allen v. Iowa Dist. Ct., 582 N.W.2d 506, 509-10
(Iowa 1998) (per curiam).
There is some authority that the Sixth Amendment right to present a defense requires that the court grant
use immunity to defense witnesses who refuse to testify on the basis of their Fifth Amendment right not to
incriminate themselves. See United States v. Angiulo, 897 F.2d 1169, 1190 (1st Cir. 1990); see also
Note, The Sixth Amendment Right to Have Use Immunity Granted to Defense Witnesses, 91 Harv. L.
Rev. 1266 (1978). Angiulo mentions two emerging theories requiring such immunity: the effective
defense theory and the prosecutorial misconduct theory.
1. The effective defense theory. This theory, accepted in only a small minority of cases, “holds that a
court has the inherent power to immunize witnesses whose testimony is essential to an effective
defense.” Angiulo, 897 F.2d at 1190. The Third Circuit has embraced this theory. See Government of the
Virgin Islands v. Smith, 615 F.2d 964, 964 (3rd Cir. 1980). Smith recognized that use “immunity may be
required for a defense witness if realistic meaning is to be given to a defendant’s due process rights to
have exculpatory evidence presented to the jury.” Id. at 970.
Giving due regard “to the unique and affirmative nature of the immunity remedy and fundamental
considerations of separation of powers,” Smith insisted that “grants of [use] immunity to defense
witnesses must be bounded by special safeguards and must be made subject to special conditions.” Id. at
972. Those special safeguards and conditions included the following: “ the defense witness must be
available to testify; the proffered testimony must be clearly exculpatory; the testimony must be essential;
and there must be no strong governmental interests which countervail against a grant of immunity.” Id.
Smith emphasized that
the defendant must make a convincing showing sufficient to satisfy the court that the
testimony which will be forthcoming is both clearly exculpatory and essential to the
defendant’s case. Immunity will be denied if the proffered testimony is found to be
ambiguous, not clearly exculpatory, cumulative or if it is found to relate only to the
credibility of the government’s witnesses.
Id.

-- 3 of 5 --

If the defendant convinces the court that the testimony is both clearly exculpatory and essential, “the
focus then shifts to consideration of the state’s countervailing interests, if any,” which dictate against the
grant of use immunity. Id. at 972-73. The burden to show these strong countervailing interests is on the
State. Id. at 973.
Those interests include the fact that the State may have a legitimate interest in prosecuting the very
witness whom the defendant seeks to immunize and in the manner of prosecution. Id. at 973. If the
State’s interest in prosecuting the witness can be accommodated even with the grant of use immunity,
then there are no strong governmental interests which countervail against a grant of use immunity. Id.
Smith described several ways this could occur:
[T]he government may have already assembled all the evidence necessary to prosecute
the witness independent of the witness’ testimony. Or the government may be able to
“sterilize” the testimony of the immunized witness and so isolate it from any future
testimony of the witness that it would not trench upon any of the witness’ constitutional
rights if he were subsequently to be prosecuted. Finally, the government may seek a
postponement of the defendant’s trial so that it may complete its investigation of the
defense witness who is the subject of an immunity application.
Id. at 973 (citation omitted).
In Fox, we touched on the issue of granting use immunity for essential exculpatory testimony, but decided
we did not have to reach the issue. Fox, 491 N.W.2d at 533. We gave the following policy reasons
frequently cited for rejecting the theory:
First, in granting use immunity to defense witnesses, the judicial branch risks
encroaching on policy assessments traditionally made by the executive branch.
Second, defense use immunity significantly impairs the State’s ability to prosecute
immunized witnesses and increases the State’s burden of proof. In such trials, the State
must overcome the additional requirement that its evidence is “untainted” by the
immunized testimony.
Last, the potential for abuse by codefendants, coconspirators, friends, and employees in
defense use immunity is substantial. As one court noted, granting use immunity to
defense witnesses “could create opportunities for undermining the administration of
justice by inviting cooperative perjury among law violators.”
Fox, 491 N.W.2d at 533 (citations omitted).
2. Prosecutorial misconduct theory. In contrast to the almost universal rejection of the effective
defense theory, courts have held that the Due Process Clause does put some constraints on the State in
its decision to grant or deny use immunity. Prosecutors violate a defendant’s due process rights when
they intentionally try to distort the fact-finding process. In these circumstances, a court may “order the
prosecutor to grant [use] immunity or face a judgment of acquittal.” Angiulo, 897 F.2d at 1191-92.
A prosecutor can intentionally distort the fact-finding process in two ways. First, prosecutors could
intimidate or harass potential defense witnesses to discourage them from testifying. Such intimidation or
harassment could come in the form of threats of prosecution for perjury. Id. If the threats cause the
witness to invoke the Fifth Amendment and withhold testimony that would otherwise be available to the
defendant, the court may order the prosecutor to grant the witness use immunity or face a judgment of
acquittal. Id.

-- 4 of 5 --

In Fox, we recognized this brand of prosecutorial misconduct. Fox, 491 N.W.2d at 532. We pointed out,
however, that our prior holdings required an additional showing of prejudice to establish a due process
violation. Id. And in determining whether prejudice has resulted from a prosecutor’s intimidating tactics,
we accorded trial courts broad discretion. Id.
The second way a prosecutor can intentionally distort the fact-finding process is by deliberately
withholding use immunity from prospective defense witnesses to keep exculpatory evidence from the jury.
Angiulo, 897 F.2d at 1192.
II. Analysis.
Simpson concedes the State did not intimidate or harass Caeser. Although Simpson contends the State’s
withholding of use immunity effectively prevented Caeser from presenting potentially exculpatory
evidence, he stops short of saying the prosecutor did so for the express purpose of keeping exculpatory
evidence from the jury. On our de novo review, we find no record evidence of such an intention. We
therefore conclude Simpson has not established a due process violation under the prosecutorial
misconduct theory.
Simpson makes clear that he is actually relying on the effective defense theory to prove his alleged due
process violation. Even were we to adopt this theory, we conclude Simpson has failed to make a
threshold showing that the proffered testimony was clearly exculpatory. Smith, 615 F.2d at 972. At most
and taken at face value, the proffered testimony merely implicates Caeser but does not exculpate
Simpson of the crime for which he was charged. The common meaning of exculpate is to free one from a
charge of guilt or fault. Webster’s Encyclopedic Unabridged Dictionary of the English Language 676
(Deluxe ed. 1994).
The police found two pipes with crack cocaine burnt residue: one found under the floor mat in the
passenger compartment of the vehicle and one thrown from Simpson’s vehicle. Additionally, the police
found “a couple of” push rods in the vehicle and eight to ten twist ends of baggies, scattered about in the
vehicle. Testimony revealed that push rods are pieces of thin material that can be used to clean out a
crack pipe and are usually found in the vicinity of crack pipes. Testimony also revealed that “baggies” are
used to contain crack cocaine and twist ends are used to close the baggies.
The pipe found under the floor mat, the push rods, and the twist ends were more than enough to convict
Simpson of possession of a controlled substance. So we cannot say that Caeser’s proffered testimony
was clearly exculpatory. See United States v. Hardrich, 707 F.2d 992, 994 (8th Cir. 1983) (holding that
where proffered testimony of two witnesses merely established incriminating evidence of a third party, but
did not exonerate the defendant, district court did not err in refusing to grant use immunity to those
witnesses who refused to testify without a grant of such immunity).
Moreover, we conclude no reasonable person would believe Caeser’s proffered testimony. Rather than
being “clearly exculpatory,” such testimony borders on “cooperative perjury among law violators,” a policy
reason frequently cited for rejecting the effective defense theory.
III. Conclusion.
Because Simpson did not make a threshold showing that Caeser’s proffered testimony rose to the level of
clearly exculpatory evidence, we conclude the district court did not violate Simpson’s due process rights
when it refused to grant Caeser use immunity.
AFFIRMED.

-- 5 of 5 --