State v. Clay

• Decision Date: 19 December 1973
• Docket Number: No. 55984,55984
• Citation: State v. Clay, 213 N.W.2d 473 (Iowa 1973)
• Parties: STATE of Iowa, Appellee, v. William Russell CLAY, Appellant.
• Court: Iowa Supreme Court

Page 473

213 N.W.2d 473

STATE of Iowa, Appellee, v. William Russell CLAY, Appellant.

No. 55984.

Supreme Court of Iowa.

Dec. 19, 1973.

Charles A. Stream, Oskaloosa, for appellant.

Richard C. Turner, Atty. Gen., Thomas D. McGrane, Asst. Atty. Gen., Glenn M. Bradley, County Atty., for appellee.

Heard before MOORE, C.J., and MASON, RAWLINGS, LeGRAND and UHLENHOPP, JJ.

MASON, Justice.

William Russell Clay was charged by county attorney's information with the crime of breaking and entering Powell's Hardware Store in South English, Iowa, on or about November 18, 1971, with intent to commit a public offense, to wit: larceny contrary to section 708.8, The Code, 1971. He appeals from judgment sentencing him to the Men's Reformatory for a term not to exceed ten years following conviction by a jury of the offense charged.

In the early morning hours of November 18, 1971, first Atha Trusler, and then her husband, Ross, noticed a dark colored car parked in the street in the business district of South English in Keokuk County. Two men were then observed by Mrs. Trusler walking down the street; a short time later she saw these same men moving about in the back of Powell's Hardware Store. After Mr. Trusler had joined her at the picture window of their apartment she called the sheriff. At least one of the men backed away from the hardware store and placed what appeared to be a pane of glass on the ground. Upon later examination of the premises by Mr. Powell, owner of the store, part of the glass from a back window of the store was found missing.

The sheriff and his deputy arrived shortly thereafter. Sheriff Wallerich examined part of the nearby lumberyard and observed nothing unusual. After talking with the Truslers and Deputy Merz he drove up to a black Ford parked about one block away. In the meantime, Merz, as he drove along an alley running east and west along the south edge of the lumberyard, observed someone running north in another alley. After ordering the person to halt through his public address system, and having him fail to do so, Merz pursued this person on foot and eventually caught him. This person was defendant. A search for a second person seen running from the scene was unsuccessful.

At trial the night deputy for North English, a town just a few miles from South English, testified that while on patrol in North English approximately one hour earlier on this same evening he had stopped a black Ford driven by defendant and suggested that he return home. A passenger in defendant's car at this time was one Ayers. The car driven by defendant was the same car noticed approximately one block from the scene of the break in in South English a short time later.

Powell testified that before he closed the hardware store the evening of November 17 he made his customary record of the contents of the cash register located in the center of the store. When he left around five o'clock the doors to the building were locked. Powell further testified his investigation of the premises when he returned to the scene in the early morning hours of November 18 in response to a telephone call disclosed not only that the glass had been removed from a rear window but the back door was also open and $19.75 was missing from the register.

Hamill Robison, manager of the lumberyard next to the Powell store, testified that when he left the lumberyard November 17 the doors had been locked and all windows had been closed. Upon inspection of the yard after arriving there around 2:30 the morning of November 18 he found the bottom panel of a walk-in door which led to the yard proper 'had been kicked in.' The witness also found a door from the alleyway of the lumberyard to the office had been demolished. He expressed the view the door had been broken by the use of a heavy object. Robison found one of his sledge hammers approximately three feet from the door.

Mrs. Trusler identified defendant as the same person she had seen walking down the street in South English in the early morning hours. No one actually saw any person inside either the lumberyard or Powell's store.

Some time after defendant had been incarcerated in the county jail, and the passenger of his car, Ayers, had also been arrested and placed in jail, Sheriff Wallerich overheard a conversation between them. Due to their separation the two men literally shouted to each other in order to communicate. This conversation was easily overheard by the sheriff. It included and referred to various things which had occurred on the early morning of November 18.

Defendant's appeal is primarily based on two grounds: (1) improper admission of evidence over his timely and sufficient objection and (2) failure to grant a directed verdict because of insufficient evidence in regard to the element of intent.

He assigns eight errors upon which he relies for reversal or new trial. Five of these asserted errors involve the trial court's overruling his objections to questions propounded to the State's witnesses and defendant's motions to strike testimony received in response thereto.

The five evidentiary issues will be considered first since it is well settled that on defendant's appeal from criminal conviction based on jury verdict challenging sufficiency of evidence to sustain the verdict, this court views the evidence in the light most favorable to the State and accepts as established all reasonable inferences tending to support the jury's action. It is necessary to consider only the supporting evidence whether contradicted or not. It is for the fact finder, not us, to resolve questions of fact and determine the credibility of witnesses. And a finding of guilt is binding on this court unless without substantial support in the record, or is clearly against the weight thereof. State v. Still, 208 N.W.2d 887, 888 (Iowa 1973).

I. One of defendant's assignments concerns the testimony of Ronald H. Cox, a night marshall in North English, who was called as a State's witness. Cox testified that while patrolling in North English around 1:30 a.m. November 18 he observed and shortly thereafter stopped a 1968 black Ford automobile being driven by defendant. He further testified as to the owner of the car and a conversation had with defendant at this time. Defense counsel objected five times on the grounds of incompetency, irrelevancy and immateriality. Each objection was overruled. Counsel objected three times on the basis of opinion and conclusions and once in regard to best evidence; these objections were in regard to testimony calling for the make, model and owner of the car. All were overruled by the court.

Defendant's counsel on appeal who had not represented him at trial relies only on the grounds of relevancy and immateriality in support of this assignment as well as the contentions asserted in his fourth, fifth, sixth and seventh assignments.

As pointed out, trial counsel had used the terms 'incompetent, irrelevant and immaterial' in urging exclusion of the challenged evidence.

The form of defendant's objections raises the issue whether such objections preserved any question for review in this court.

The general rule is that unless the reasons for an objection are obvious one attempting to exclude evidence whether the attempted exclusion is by objection or motion has the duty to indicate the specific grounds to the court so as to alert the judge to the question raised and enable opposing counsel to take proper corrective measures to remedy the defect, if possible. State v. Williams, 207 N.W.2d 98, 109--110 (Iowa 1973). The general objection of 'incompetent, irrelevant and immaterial' is not sufficiently specific in calling the court's attention to the reason the proposed evidence is inadmissible when reliance is placed by the objector upon incompetency. The evidence may be thought to be incompetent on many different grounds which may or may not appear on the surface and the court to which it is offered is entitled to know on what grounds its competency is challenged. Ferris v. Riley, 251 Iowa 400, 410, 101 N.W.2d 176, 182.

'The word 'incompetent' as applied to evidence means no more than inadmissible, and thus cannot be said to state a ground of objection.' McCormick on Evidence, Second Edition, section 52. It is condemned for lack of precision.

As respects objection to testimony the terms 'immaterial and irrelevant' are used interchangeably; but 'immaterial' more precisely denotes evidence which is offered to prove a proposition not at issue, while 'irrelevant' denotes evidence which does not logically tend to establish any material proposition. See State v. Wilson, 173 N.W.2d 563, 565 (Iowa 1970) and authorities cited.

Stated somewhat differently, 'materiality ordinarily relates to the pertinency of offered evidence to the issue in dispute or to the issue of credibility. An objection that evidence is immaterial specifically raises that point, and additional words add little more. Relevancy on the other hand, relates to the probative value of evidence in relation to the purpose for which it is offered.' Ladd, Objections, Motions and Foundation Testimony, 43 Cornell L.Q. 543, 547.

The objections, 'irrelevant and immaterial,' when admissibility of evidence is challenged in the trial court on either of those grounds are sufficiently specific to raise the issue in this court.

The law of evidence does teach what evidentiary facts are incompetent because in violation of the exclusionary rules. But as to irrelevant and immaterial matters logic and the reasoning processes are the only tests.

Dean Ladd at page 546 of the law review article just cited suggests, 'The label 'general objection' is misleading because what is designated as a general objection is in fact a very specific objection commonly used to test relevancy and materiality. * * * While the wording (incompetent, irrelevant and immaterial) may appear to be a 'catch-all,' it strikes basically at the materiality of offered proof...