State v. White
| Decision Date | 22 January 1975 |
| Docket Number | No. 57342,57342 |
| Citation | 225 N.W.2d 104 |
| Parties | STATE of Iowa, Appellee, v. John WHITE, Appellant. |
| Court | Iowa Supreme Court |
Gerald T. Sullivan, Cedar Rapids, for appellant.
Richard C. Turner, Atty. Gen., and Jim P. Robbins, Asst. Atty. Gen., and Jared O. Bauch, County Atty., for appellee.
Heard by MOORE, C.J., and MASON, REES, UHLENHOPP and REYNOLDSON, JJ.
Defendant was charged by county attorney's information with the crime of larceny in violation of section 709.1, The Code, 1973. Following his plea of not guilty, he was tried to a jury and convicted. Defendant's motion for new trial was overruled, he was sentenced, and now appeals.
Defendant was charged specifically with the theft of a quantity of soybeans, which were allegedly taken from a storage bin on farm premises belonging to one Brandt. Brandt had employed defendant as a hired man and had provided him a farm home.
The trial was hotly contested. The issues presented for review have to do with claimed prosecutorial misconduct, and grow out of statements made by the county attorney during his final closing argument. In that argument the county attorney commented on the failure of defendant to call witnesses available to him, including his wife. Defendant now claims such statements violated defendant's right to due process.
The final arguments of counsel to the jury were reported and appear in full in the transcript of the trial proceedings. Defendant takes no issue with any part of the county attorney's opening argument to the jury, but directs his assertion of prosecutorial misconduct to statements of the county attorney in his closing argument.
In that argument, the county attorney criticized defendant for failing to produce Sammy Smothers, a nephew, and Raymond Pelts, a brother-in-law of defendant. He also asked the jury to conjecture upon the reason for the absence of defendant's wife and defendant's failure to produce her as a witness. There were three references in the State's final argument to the failure of defendant to call his wife as a witness and in all seven references to defendant's failure to produce one or more witnesses, including Smothers and Pelts.
I. Defendant first objected to the statements complained of here in his motion for mistrial made immediately following arguments to the jury and before the jury was instructed and retired to deliberate. The State contends the objections so lodged were belatedly made.
We have said that where the closing arguments are reported, certified and constitute a part of the record, objection to the remarks of counsel during final jury argument urged at the close of the argument and in a motion for mistrial made before submission to the jury, is timely. Andrews v. Struble, 178 N.W.2d 391, 401--402 (Iowa 1970). See also cases theer cited.
We therefore conclude the State's contention defendant's objection to the allegedly improper argument was not timely is not well taken.
II. The reference by the county attorney to the failure of defendant to produce his wife as a witness was improper argument and necessitates a reversal of this case.
This court dealt with the identical question in State v. Levy, 160 N.W.2d 460, 464 (Iowa 1968). At page 464 we said:
'Section 622.7, Code, 1966, provides in part:
'Husband or wife as witness. Neither the husband nor wife shall in any case be a witness against the other, except:
(exceptions not pertinent here).
'There is no reason to believe the attorney prosecuting the case at bar was not fully aware of this statute, and if he knew not of it when trial commenced, defense counsel and trial court promptly alerted him to its existence.
We are mindful that as distinguished from the factual situation present in State v. Levy, there were no 'constant...
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