State v. Coffee, 53686

• Decision Date: 15 December 1970
• Docket Number: No. 53686,53686
• Citation: 182 N.W.2d 390
• Parties: STATE of Iowa, Appellee, v. Hoover Lincoln COFFEE, Appellant.
• Court: Iowa Supreme Court

Page 390

182 N.W.2d 390

STATE of Iowa, Appellee, v. Hoover Lincoln COFFEE, Appellant.

No. 53686.

Supreme Court of Iowa.

Dec. 15, 1970.

Stanley M. Nielsen and William F. Olinger, Cedar Rapids, for appellant.

Richard C. Turner, Atty. Gen., and Roxanne Barton Conlin, Asst. Atty. Gen., William G. Faches, County Atty., for appellee.

LeGRAND, Justice.

Defendant was charged by county attorney's information with fatally shooting Michael Earl Lawson in violation of section 690.1, The Code, 1966. Upon trial the jury found him guilty of second degree murder. He appeals from judgment on that verdict.

The appeal raised four issues: (1) error in the admission of two guns owned by defendant but totally unrelated to the crime; (2) error in the admission of certain statements of defendant's common-law wife allegedly relating to prior criminal conduct; (3) error in instructing the jury on the included offense of manslaughter; and (4) error in overruling defendant's motion for new trial upon a showing of bias and prejudice of one of the jurors. We affirm the trial court.

I. Early in the trial a Cedar Rapids police officer testified he gathered up certain evidence at the scene of the shooting, including a Mossburg shotgun, the weapon

used in the killing, and two other guns--a 22-caliber rifle and a 32-caliber pistol. These last two were admitted as exhibits over defense objections as to relevancy. In ruling, the trial court announced they were subject to being connected up.

On cross-examination the police officer gave his opinion that the rifle and the pistol had no connection with the crime. At that time defendant again unsuccessfully asked the exclusion of the exhibits.

At the conclusion of the State's case, the trial court upon its own motion withdrew the two exhibits with this announcement to the jury:

'* * * Exhibits 5 and 6 * * * being a 22 Marlin Rifle and a 32 revolver * * * have not been connected up in this case. There has been no showing of any relevancy or materiality of these exhibits and * * * (they are) hereby excluded * * *. The jury is to give these two exhibits absolutely no consideration whatsoever in any of their deliberations. They are entirely excluded from evidence.'

The real question before us, then, is whether the defendant was prejudiced by the time and manner of withdrawing these exhibits.

If evidence is improperly admitted but is later withdrawn with a cautionary statement to the jury to disregard it, there is no error except in extreme instances where the prejudicial effect would probably remain to influence the verdict despite its exclusion. State v. Caringello, 227 Iowa 305, 309, 288 N.W. 80, 82; State v. Gillam, 230 Iowa 1287, 1289, 1290, 300 N.W. 567, 568; State v. Miskell, 247 Iowa 678, 690, 73 N.W.2d 36, 42; State v. Olson, 249 Iowa 536, 554, 86 N.W.2d 214, 225; Castner v. Wright, 256 Iowa 638, 652, 127 N.W.2d 583, 591; 5 Am.Jur.2d, Appeal and Error, section 807, page 249.

Here the trial court withdrew the exhibits as soon as the State had rested and it had become apparent they were not to be connected up--the premise upon which they had been received in the first place. The trial court then also ordered the jury to disregard this evidence. The cautionary statement was both specific and clear; nor was the evidence such as would naturally create prejudice which such a statement could not remove.

We are satisfied there was no error here.

II. The next assignment of error deals with the testimony of Joan Harkless Coffee, defendant's common-law wife.

On cross-examination the State sought to show defendant had displayed a violent temper toward her on several occasions. While this evidence was probably more favorable than unfavorable to defendant, objection was made that it went beyond the scope of direct examination. No other ground for its exclusion was urged.

In submitting the case to the jury the trial court on its own motion directed the jury to disregard all this evidence as being 'immaterial to this case.'

For the first time defendant now urges he is entitled to a new trial because the evidence of his wife disclosed the commission by him of other crimes unrelated to the one for which he was on trial. He relies principally on State v. Brown, 253 Iowa 658, 113 N.W.2d 286 and State v. Gill, 259 Iowa 142, 143 N.W.2d 331.

These cases, and the authority they cite, announce the familiar rule that the State (with certain exceptions not applicable here) cannot prove against a defendant any crime except the one alleged in the indictment or information, either as a foundation for separate punishment or to suggest he is guilty of the one charged. However, that does not aid defendant here.

Mrs. Coffee testified her husband had once 'shot a gun up in the air.' Apparently this violated a city ordinance.

Defendant also insists the testimony shows he once assaulted his wife with a gun. We can find no such evidence, although we have read the transcript carefully in search of it. What it shows is that Mrs. Coffee pointed a gun at her own head in order to scare defendant during a family quarrel.

This is the evidence of other crimes about which objection is made. If indeed it is error at all, we doubt if the admission of such evidence could be seriously argued as reversible error.

But we need not even consider that matter for defendant raises nothing for us to review. As already stated, the only objection at trial was that the cross-examination went beyond the scope of direct examination. That objection has been entirely abandoned now. We find no mention of it in the brief nor was it argued orally. Instead defendant asks relief because the evidence improperly proved the commission of other crimes. This was not asserted in the trial court nor even in the motion for new trial. It is first advanced now.

We have held many times an objection to the introduction of evidence cannot be first made on appeal. The trial court has the right to know the basis for an objection so that any defect may, if possible, be remedied and the trial saved. Having failed to raise the issue before, defendant may not take advantage of it now. 4 C.J.S. Appeal and Error § 248, page 767; Ferris v. Riley, 251 Iowa 400, 408, 101 N.W.2d 176, 181; State v. Hodge, 252 Iowa 449, 462, 105 N.W.2d 613, 620; State v. Thompson, 254 Iowa 331, 338, 117 N.W.2d 514, 518; Englund v. Younker Bros., Inc., 259 Iowa 48, 54, 142 N.W.2d 530, 533; Linge v. Iowa State Highway Commission, 260 Iowa 1226, 1232, 150 N.W.2d 642, 646.

We have probably given more attention to this assignment than the circumstances justify. There is no merit to defendant's complaint.

III. Defendant next says the trial court's instruction on manslaughter was wrong because it failed to include a statement that if committed in the heat of passion induced by adequate provocation, the killing would be manslaughter.

After defining manslaughter as the unlawful and felonious killing of another, without malice, express or implied, the trial court explained that definition under the evidence before the jury as follows:

'The defendant * * * claims that the shooting * * * was the result of an accidental discharge of the weapon he then held in his hands, and * * * he substantially claims that he had the weapon for the purpose of frightening Michael Earl Lawson into leaving the bedroom and not for the purpose of shooting anyone, * * * If you find that the shooting which caused the death of Michael Lawson was an accident (as defined elsewhere in this instruction), you should acquit the defendant of the charge of murder in the first degree and also the charge of murder in the second degree. But if a person negligently, recklessly and heedlessly handles a firearm in such manner while attempting to frighten another one that it is discharged and thereby kills the person he was attempting to frighten, he will not be excused but his offense will be manslaughter as the crime is hereinbefore defined to you, though the firearm was pointed in the direction of the deceased by accident and with no design to wound or kill. * * *'

Defendant concedes this was his theory of the shooting but states also that there was other evidence tending to show heat of passion and provocation. He says he was entitled to the benefit of such evidence in the manslaughter instruction. Defendant requested such an instruction.

Defendant failed to point out, either in the record or in his brief and argument, the testimony which he thinks supports this argument, but it must be that of Brenda Coffee, his daughter, who testified to the events immediately preceding the shooting. We doubt if her testimony was sufficient to permit the instruction defendant wanted. Even if it were, however, there is no reversible error in its omission here.

We have held several times that when one is convicted of a higher degree of crime, an error in instructing on the lower is not prejudicial error. State v. Rutledge, 243 Iowa 179, 191, 47 N.W.2d 251, 259; State v. Ebelsheiser, 242 Iowa 49, 59, 43 N.W.2d 706, 712; State v. Baratta, 242 Iowa 1308, 1321, 49 N.W.2d 866, 873--874. See also 41 C.J.S. Homicide § 371, pages 155--158.

What we said in the Rutledge case is particularly applicable here:

'Error is assigned to the omission from instruction 18 of a statement that if the killing was committed in the heat of passion, induced by adequate provocation, the crime of murder would be reduced to manslaughter. Although such a statement might well have been included on this instruction on manslaughter we do not think its omission constitutes reversible error. One reason is that defendant was convicted of murder in the second degree, and the jury did not reach and had no reason to consider this instruction on the included offense of manslaughter. Hence, the jury could not have been misled by the claimed error in the instructions upon manslaughter.'

And in the Baratta opinion we find this:

'* * * Moreover, the jury found defendant...