State v. Broten

• Decision Date: 05 May 1970
• Docket Number: No. 53921,53921
• Citation: 176 N.W.2d 827
• Parties: STATE of Iowa, Appellee, v. Walter Alfred BROTEN, Jr., Appellant.
• Court: Iowa Supreme Court

Page 827

176 N.W.2d 827

STATE of Iowa, Appellee, v. Walter Alfred BROTEN, Jr., Appellant.

No. 53921.

Supreme Court of Iowa.

May 5, 1970.

James C. Dunbar and Walter W. Rothschild, Waterloo, for appellant.

Richard C. Turner, Atty. Gen., William W. Garretson, Asst. Atty. Gen., and Robert L. Rausch, Asst. County Atty., for appellee.

LARSON, Justice.

On October 16, 1968, an information was filed in the District Court of Iowa in and for Black Hawk County charging the defendant, Walter Alfred Broten, Jr., with manslaughter in the death of Ray Harris. Pursuant to defendant's plea of not guilty, trial was had to a jury, culminating on January 16, 1969, with a verdict of guilty. It is from this conviction that defendant appeals.

There is little dispute concerning the circumstances which resulted in the death of Harris. The record discloses that in the early morning hours of September 20, 1968, defendant, age 35, together with his wife and her cousin, entered the Grill Cafe in Waterloo, Iowa, at about 3 A.M., and sat in a booth near one occupied by the decedent, Ray Harris, who had arrived sometime earlier. Harris appeared to be under the influence of alcohol and, after giving his order, was observed to lay a pile of money by his plate. He attempted but failed to get the attention of Mrs. Broten and, before leaving the cafe for his room directly across the street at the Holiday Inn, wrote a note on a napkin which stated: 'Room 415, Holiday Inn, $200.00.' After Harris departed, the waitress brought the note to Mrs. Broten, who showed it to her cousin and husband. Defendant became upset and, contrary to his wife's wishes, followed Harris across the street where the two men, standing about two feet apart, entered into a discussion of the matter. There was testimony that defendant was admonishing decedent and, when Harris attempted to push him, defendant hit Harris with a left hook on the right side of his face, knocking him down. His head hit the sidewalk and, when observed a few seconds later, he was unconscious.

Two off-duty policemen were seated by the window of the Holiday Inn Coffee Shop and one of them saw the encounter. . he stated that he did not see Harris do any pushing but did observe the defendant throw a cross to the left which knocked the older man to the sidewalk. The other off-duty officer called for the police and an ambulance. Defendant was placed under arrest and the injured man was taken to Schoitz Hospital in Waterloo. The attending physician determined that Harris, who appeared to be in his late forties or fifties, had a skull fracture. The condition of Harris worsened during the course of the day and early on September 21, 1968, he was transferred to the University Hospital in Iowa City where he subsequently died.

Defendant assigns as error (1) the allowance of certain cross-examination as to defendant's record as an amateur boxer and (2) the failure of the trial court to initially instruct the jury as to the law of self-defense as requested by defendant.

I. It is well settled that the manner in which, and the extent to which, cross-examination of a defendant may be pursued is largely a matter of the trial court's discretion, and its ruling will be disturbed only upon a clear showing that such discretion has been abused. State v. Kelley, Iowa, 161 N.W.2d 123, 125; State v. Van Voltenburg, 260 Iowa 200, 208, 147 N.W.2d 869, 874; State v. Myers, 257 Iowa 857, 861, 135 N.W.2d 73, 76; State v. Drosos, 253 Iowa 1152, 1162, 114 N.W.2d 526, 531.

Defendant had testified on direct examination that he hailed Harris, crossed the street, and engaged him in conversation concerning the note left in the cafe, that although they were but two or three feet apart Harris pushed him, and that he then hit Harris one blow, knocked him down on the sidewalk, and walked away. The subject matter of the testimony was as to who started the argument, defendant's motive in hailing Harris, and as to why defendant struck Harris, as well as his physical superiority over deceased. When he offered himself as a witness, he of course subjected himself to the same rules of impeachment and credibility as other witnesses.

The boxing background of the witness reasonably relates to his testimony as to the occasion for the blow he admittedly struck. The cross-examination purported to re-examine his testimony as to the occasion for the blow. Defendant had stated his purpose in approaching Harris was to tell him it was not right to do things like that, and just to talk to him and explain why. On direct examination defendant had testified Harris stopped when he 'hollered' at him, that Harris came back and they started talking, that he was pointing his finger at Harris and was talking with his hands as he always did, and that when Harris came toward and pushed him defendant hit Harris. On cross-examination defendant said he hollered at Harris twice, that the second time Harris stopped, that he walked up to within two or three feet of Harris and talked to him. When Harris pushed defendant, he said he hit him 'automatically' with his fist, using the left hand which landed on the right side of Harris' face. He said he did not believe his left hand was stronger than his right, and willingly showed the jury his left arm with the sleeve rolled up and flexed his biceps. He further admitted success as an amateur Golden Gloves boxer. Thereafter objection, on the ground that the questioning went beyond the scope of the direct examination and was irrelevant and immaterial, was interposed. When overruled, defendant admitted he had won most of his fights by technical knockouts. He further stated he did not go out there to hurt Harris. No motion to strike this testimony was made. We are satisfied the court did not err in admitting this cross-examination, although there was no specific reference to his record as a boxer in direct examination. The subject matter reasonably involved his fighting experience. The questions also were relevant to his testimony as to his motive, capability, and the credibility of his version of the circumstances which resulted in the blow he struck. We think the jury was entitled to consider defendant's boxing record in evaluating his version of the affray.

II. Section 781.13, Code of Iowa 1966, provides: 'When the defendant testifies in his own behalf, he shall be subject to cross-examination as an ordinary witness, but the statute shall be strictly confined therein to the matters testified to in the examination in chief.' It is appellant's contention that the word 'strictly' contained therein means just that and it was error for the court to permit the State, over defendant's timely objection, to cross-examine Broten on his record as an amateur Golden Gloves boxer since that specific matter had not arisen on direct examination.

The rule is well established in Iowa that section 781.13 does not place a defendant, who offers himself as a witness, upon a different footing then any other witness with respect to his memory, history, motive, or matters affecting his credibility. State v. Kelley, supra, 161 N.W.2d 123, 124; State v. Frese, 256 Iowa 289, 292, 127 N.W.2d 83, 85; State v. Brown, 253 Iowa 658, 669, 113 N.W.2d 286, 293.

In State v. Kelley, supra, we considered this section of the Code and stated on page 124 of 161 N.W.2d: 'This section has been before us on numerous occasions. Our previous decisions have established that a defendant who offers himself as a witness subjects himself to the same rules on impeachment and credibility as other witnesses. He stands on the same footing as any other witness regarding his memory, history, motives and credibility. State v. Brandenberger, 151 Iowa 197, 204, 130 N.W. 1065, 1068; State v. Bittner, 209 Iowa 109, 118, 227 N.W. 601, 605; State v. Carter, 222 Iowa 474, 481, 269 N.W. 445, 449; State v. Brown, 253 Iowa 658, 669, 113 N.W.2d 286, 293; State v. Frese, 256 Iowa 289, 292, 127 N.W.2d 83, 85.' We adhere to the view expressed in those decisions.

In State v. Allnutt, Iowa, 156 N.W.2d 266, 273, this court, in considering section 781.13, said: 'When defendant elected to testify, his credibility as a witness became important', citing State v. Haffa, 246 Iowa 1275, 1283, 71 N.W.2d 35, 40, where it was stated: 'The purpose of the cross-examination is to test the credibility of the witness and the accuracy of his knowledge of the subject matter. * * * Of course the purpose of the cross-examination must be confined to discrediting the one examined as a witness and not as a defendant.' We are mindful of that distinction here.

This was not the case where the questions asked on cross-examination referred to some unrelated offense or occasion, and the cases cited by appellant in that regard are not in point.

In State v. Collins, 246 Iowa 989, 69 N.W.2d 31, the defendant was being prosecuted for drunken driving. On cross-examination he was asked...