State v. Cornell

• Decision Date: 17 May 1978
• Docket Number: No. 60630,60630
• Citation: 266 N.W.2d 15
• Parties: STATE of Iowa, Appellee, v. Robert CORNELL, Appellant.
• Court: Iowa Supreme Court

Page 15

266 N.W.2d 15

STATE of Iowa, Appellee, v. Robert CORNELL, Appellant.

No. 60630.

Supreme Court of Iowa.

May 17, 1978.

Scalise, Scism, Gentry, Brick & Brick, and Keith E. Uhl, Des Moines, and Brown & Ramsey, Osceola, for appellant.

Richard C. Turner, Atty. Gen., Lona Hansen, Asst. Atty. Gen., and Richard J. Murphy, County Atty., for appellee.

Considered en banc.

REES, Justice.

Defendant Robert Allen Cornell was charged by county attorney's information on September 14, 1976 with the crime of murder in violation of §§ 690.1 and 690.2, The Code, 1975. Upon the entry of his plea of not guilty, he was tried to a jury, convicted, sentenced and now appeals. We affirm.

The charge in this case arose from the alleged murder of one Kenneth Crow by defendant during a motor trip from Texas to Des Moines. A half-brother of defendant, Glenn Albert Oliver, aged 14, had accompanied the two men on the trip, and was the key witness for the State. Prior to the commencement of the trial, the State filed a motion in limine to exclude all evidence respecting Oliver's residence in a juvenile home or facility, on the basis that such fact was immaterial to any issue in the case, and would be an attempt to improperly impeach the witness Oliver. The court sustained the motion conditionally, reciting in its order, "unless for some reason not now apparent to the court it should appear that the residence of the witness, Glenn Albert Oliver, in a juvenile home or facility might be material to some investigation of the incident in question".

Oliver testified as a witness for the State that the defendant Cornell, Kenneth Crow and he were traveling from Texas to Des Moines on August 30, 1976 in a jeep, the property of defendant. They were pulling a trailer loaded with defendant's personal effects, and Crow and the defendant engaged in some argument about the trailer. Oliver testified Cornell told him he was going to have to get rid of Crow.

Oliver further testified the defendant decided to stop along the highway for the stated purpose of butchering a cow, and that Crow and the defendant got out of the jeep and walked into a wooded area along Interstate Highway # 35. Oliver testified he heard a shot and the defendant returned to the jeep by himself. These circumstances were reported to the police by Oliver some days later, which led to the eventual discovery of Crow's body in the woods.

Defendant's counsel attempted to impeach Oliver's testimony by showing prior inconsistent statements he had made to Officer Robert Pontious, and an investigator defendant's counsel had retained, one John Dolan. The testimony which the defendant's counsel sought to elicit from Pontious and Dolan involved statements allegedly made to them by Oliver, concerning how much Crow and the defendant had been drinking, when their arguments took place, who removed the gun from the jeep, when Oliver slept on the trip, the purchase of drugs in Texas, the clothing which defendant was wearing, and whose idea it was to shoot and butcher the cow. On re-direct examination of Pontious, an agent for the Bureau of Criminal Investigation, Pontious was asked by the prosecutor if he recalled when Oliver said it was Crow's idea to shoot the cow and what was said about where this statement was made. This line of testimony was objected to by defendant's counsel as calling for hearsay and for an answer made by a witness who was not under oath in violation of defendant's Sixth Amendment right to be confronted by witnesses against him. The court overruled defendant's objection and permitted Pontious to answer. Pontious' answer was that Oliver told him the statements were made in Texas. A motion to strike the answer was overruled by the court.

The witness John Dolan, a private investigator hired by defendant's counsel, testified as to his interview with Oliver concerning certain statements Oliver had made which were both consistent and inconsistent with Oliver's direct testimony.

The jury was instructed and retired to deliberate on its verdict at 1:00 o'clock, p. m. on December 14, 1976, at the close of all the evidence and after defendant's motion for a directed verdict had been overruled. After the jury had been in actual deliberation for fifteen hours, at 3:45 p. m. on December 16, 1976, and had not reached a verdict, the defendant requested the court to declare a mistrial on the basis that the jury was unable to reach a verdict. The State countered by resisting the motion for a mistrial and requesting that the court give to the jury the Allen charge, or verdict-urging instruction.

The following morning, at 9:00 o'clock, a. m., December 17, 1976, the court advised counsel it intended to question the jury as to its numerical standing and then give to the jury the Allen charge or verdict-urging instruction which appears in the record of this case as instruction No. 28. Defendant's counsel objected to the court's making the inquiry as to the numerical division of the jury and also to the giving of the Allen charge on the ground that either course of conduct on the part of the court would coerce the jury into reaching a decision and deny defendant's right to a fair trial and due process under the Fourteenth Amendment. Both objections were overruled.

At 9:30 o'clock, a. m., on December 17, 1976, the jurors were called into the courtroom and were asked by the court to disclose the jury's numerical standing, but not to mention which of the three offenses (first degree murder, second degree murder, manslaughter) the jurors were considering, or how many jurors favored conviction or acquittal. The foreman of the jury responded that the numerical division of the jury stood at seven-five, and the court then asked how long the jury had stood at that numerical division. The foreman responded the seven-five standing had prevailed since the preceding morning. Thereupon, the court read instruction No. 28 to the jury, said instruction being as follows:

"Ladies and gentlemen of the jury:

"The Court gives you the following additional instruction:

"You have now been deliberating upon this case for a considerable period of time, and the Court deems it proper to advise you further in regard to the desirability of agreement if possible.

"The case has been exhaustively and carefully tried by both sides, and has been submitted to you for decision and verdict, if possible, not for disagreement. It is the law that a unanimous verdict is required, and while this verdict must be the conclusion of each juror and not a mere acquiescence of the jurors in order to reach an agreement, it is still necessary for all of the jurors to examine the issues and questions submitted to them with candor and fairness and with a proper regard for, and deference to, the opinion of each other. A proper regard for the judgment of others will greatly aid us in forming our own judgment.

"This case must be decided by some jury selected in the same manner this jury was selected, and there is no reason to think a jury better qualified would ever be chosen. Each juror should listen to the arguments of other jurors with a disposition to be convinced by them; and if the members of the jury differ in their views of the evidence, such difference of opinion should cause them all to scrutinize the evidence more closely and to reexamine the grounds of their opinion. Your duty is to decide the issues of fact which have been submitted to you, if you can conscientiously do so. In conferring you should lay aside all mere pride of opinion and should bear in mind that the jury room is no place for espousing and maintaining in a spirit of controversy, either side of a cause. The aim ever to be kept in view is the truth as it appears from the evidence, examined in the light of the instructions of the Court.

"You will again retire to your jury room and examine your differences in a spirit of fairness and candor and try to arrive at a verdict."

Deliberations were resumed by the jury at 9:40 a. m., and about three hours later the defendant renewed his motion for mistrial since the jury had still not reached a verdict. The motion was overruled and renewed at 2:38 p. m., and again overruled. At 3:20 p. m., on December 17, 1976, the jury returned a verdict of guilty of murder in the first degree.

Defendant's motion for a new trial was overruled and defendant was sentenced to life imprisonment at the State Penitentiary. He appeals, stating the following issues for review:

(1) Trial court erred by inquiring into the numerical division of the jury after the jury had been deliberating on its verdict for a considerable period of time.

(2) The trial court erred when, after inquiring into the numerical division of the jury, it gave the jury the so-called Allen charge or verdict-urging instruction.

(3) Trial court erred in permitting the prosecution to question witnesses concerning statements made to them by the witness Glenn Oliver, which were consistent with his testimony over the hearsay objections lodged thereto by defendant's counsel.

(4) Trial court abused its discretion by unduly restricting the cross-examination of the witness, Glenn Oliver, denying the defendant's rights under the confrontation clause of the Sixth Amendment.

I. In his first issue stated for review, defendant asserts it was error for the trial court to inquire into the numerical division of the jury, as such inquiry violated his constitutional right to due process and a fair trial. In the alternative, he suggests that even if there is no constitutional prohibition against such inquiry, reversal is still required because of the coercive effect upon the jury and the inherent potential of prejudice which such an inquiry creates.

The State contends we should review the totality of the circumstances and find there was no coercive effect on the jury since approximately five hours passed from the time the inquiry was made by the court until the jury returned its verdict.

...