Klaes v. Scholl
| Decision Date | 16 October 1985 |
| Docket Number | No. 84-121,84-121 |
| Citation | 375 N.W.2d 671 |
| Parties | James P. KLAES, Appellee, v. Harvey D. SCHOLL, Appellant. Harvey D. SCHOLL, Appellant, v. CITY OF CLINTON, Iowa; James P. Klaes; David Speakman; and Thomas Hansen, Appellees. |
| Court | Iowa Supreme Court |
Harold J. DeLange II of Wehr & DeLange, Davenport, for appellant.
Timothy J. Walker of Whitfield, Musgrave, Selvy, Kelly & Eddy, Des Moines, for appellees City of Clinton, Klaes, Speakman, and Hansen.
James D. Bruhn of Shaff, Farwell & Senneff, Clinton, for appellee Klaes.
Considered by REYNOLDSON, C.J., and UHLENHOPP, McCORMICK, McGIVERIN, and SCHULTZ, JJ.
This further review of a decision of the Court of Appeals presents the issue of whether the trial court erred in overruling objections by Harvey D. Scholl to questions of him regarding instances of prior assaultive conduct by him including arrests and guilty pleas. The case involves the circumstances surrounding the arrest of Scholl in the early morning of December 19, 1981.
James P. Klaes filed a civil action against Scholl on March 10, 1982, alleging that on December 19 preceding he was on duty as a police officer of the City of Clinton, Iowa. He further alleged that during the commission of his lawful arrest of Scholl for operating a motor vehicle while under the influence of alcohol (OWI), Scholl became violent, physically resisted arrest, and committed a "brutal" assault and battery upon Klaes by biting his right thumb and forefinger. Scholl denied these allegations.
On June 3, 1982, Scholl filed a civil action against the City of Clinton, Klaes, David Speaksman, and Thomas Hansen (whom we will refer to as defendants) alleging that on December 19 preceding, during the course of his arrest, the individual defendants (officers of the Clinton police department) committed an assault and battery on him by striking him and throwing him against a car, for which he claimed damages. Defendants denied these allegations.
The two cases, as well as a related case by the City were consolidated. The city's case was later dismissed.
The testimony at trial was in conflict as to who was the aggressor in the altercation. The jury returned a verdict for Klaes against Scholl in the amount of $6000 actual and $10,000 exemplary damages, and rejected Scholl's claim. Scholl appealed.
On appeal Scholl argues that the trial court erred in allowing cross-examination of him concerning prior unrelated instances of assaultive conduct by him including arrests and guilty pleas. Scholl's attorney unsuccessfully made repeated objections at the time on various grounds including irrelevancy, incompetency, immateriality, prejudice, and exceeding the scope of direct examination. Defendants cited rules 404 and 405 of the Iowa Rules of Evidence. Upon examination of the record we find that Scholl preserved the error he now asserts. The record of the cross-examination in question follows (objections and rulings omitted):
Q. [Mr. Bruhn, Klaes' attorney] Harvey, have you ever assaulted anybody before?
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A. Only after they assaulted me.
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Q. Mr. Scholl, isn't it a fact that on July 21, 1981, you were arrested in Rotterdam, New York, and charged with Assault in the Third Degree?
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A. I don't know as to the degree; but, yes.
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Q. And isn't it a fact that you pled guilty to the charge on July 23, 1981, two days later?
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A. I didn't have a lawyer or nothing.
Q. Did you plead guilty?
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A. Threw my mercy on the Court.
Q. And the assault on July 21, 1981, isn't that a fact that that involved a police officer?
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A. No.
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Q. What did that involve, Mr. Scholl?
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A. It involved a dock worker coming at me and going to strike me. I ducked and hit him.
Q. And you--and you were charged with assault as a result of that? A. Right.
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Q. Were you, in fact, arrested on August 29, 1977, in Fort Wayne, Indiana? A. No.
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Q. You were not arrested? A. Not in Fort Wayne, Indiana, that I remember.
Q. Anywhere in Indiana? A. Could be.
Q. Do you recall being arrested and charged in connection with an assault involving a police officer or the police officer's vehicle?
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A. You'd have to give more details because it's been a long time.
Q. Have you ever within the last ten years been charged in Indiana--in connection with any incident involving an assault and a police officer or a police officer's vehicle?
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A. I do not remember.
Q. If I were to hand you a copy of a Federal Bureau of Investigation arrest record, would that refresh your recollection [tendering a document to the witness]? A. No, not--not--the situation.
Q. What do you mean not that situation? A. I don't remember the squad car or whatever they're talking about.
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* * * Q. So you're not denying that it might be true, but you're telling us that you don't recall? A. Right.
Q. Fine.
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Q. Perhaps this would refresh your recollection. Let me hand you a copy of a criminal transcript from the State of Indiana.
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Q. Does that refresh your recollection? A. No. You have to--more information than that.
Q. Maybe you could give me some information. You don't recall ever being arrested and charged in the State of Indiana within the past ten years? A. I've had all kinds of speeding tickets and that.
Q. Anything other than speeding tickets? A. Just with the truck.
Q. Okay. Let's move on. Do you recall being arrested on December 30, 1973, in Milesburg, Pennsylvania, and charged with aggravated assault, resisting arrest?
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A. In reference to what?
Q. Do you recall being charged--arrested and charged in Milesburg, Pennsylvania, on December 30, 1973, charged with aggravated assault, resisting arrest, to which you pled guilty to a simple assault charge and paid a fine? A. I guess.
Q. Thank you. Do you recall being arrested on February 9, 1975, in Erie, Pennsylvania, charged with aggravated assault? A. I don't remember the date. I guess.
The Court of Appeals upheld the rulings admitting the evidence. Referring to Iowa Rule of Evidence 404(a)(2)(B) that court stated, "The Iowa rule in civil cases is straight forward and provides that evidence of Scholl's prior assaultive conduct is clearly admissible." On Scholl's application, we granted further review.
The parties agree that the evidence of Scholl's prior assaultive conduct was elicited as proof of his character. In Scholl's action against defendants, Scholl was the alleged victim. Defendants assert that this evidence is admissible for a variety of reasons. They first argue that it is admissible under rule 404(a)(2)(B) of the Iowa Rules of Evidence:
(a) Character evidence generally. Evidence of a person's character or trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
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(2) Character of victim.
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(B) In civil cases. Evidence of character for violence of the victim of assaultive conduct offered on the issue of self defense by a party accused of the assaultive conduct, or evidence of peaceable character to rebut the same;
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(Emphasis added.) Subpart (a)(2)(B) is not found in the Federal Rules of Evidence. The Iowa Advisory Committee comment states that the same standard used in criminal cases applies in the civil situation.
I. In his case against defendants, Scholl was the alleged victim of assaultive conduct, but defendants claimed that Scholl was the aggressor. In that scenario evidence of Scholl's character for violence would be admissible under rule 404(a)(2)(B). See State v. Jacoby, 260 N.W.2d 828 (Iowa 1977); Carrick v. McFadden, 216 Kan. 683, 533 P.2d 1249 (1975); Annot., 91 A.L.R.3d 718 § 16, at 747 (1979). The rule, however, does not state that evidence of specific instances of prior assaultive conduct is admissible. Subpart (a)(2)(B) is merely an exception to the general rule that evidence of a person's character is inadmissible to prove action in conformity therewith. It does not speak to the admissibility of specific instances of conduct.
Paragraph (b) of rule 404, however, does address this point:
(b) Other crimes, wrongs or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for...
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