State v. Feddersen

• Decision Date: 25 June 1975
• Docket Number: No. 47478,47478
• Parties: STATE of Iowa, Appellee, v. David Keith FEDDERSEN, Appellant.
• Court: Iowa Supreme Court

Page 510

230 N.W.2d 510

STATE of Iowa, Appellee, v. David Keith FEDDERSEN, Appellant.

No. 47478.

Supreme Court of Iowa.

June 25, 1975.

Francis W. Henkels and James L. Dahlquist, Dubuque, for appellant.

Richard C. Turner, Atty. Gen., Nancy J. Shimanek, Asst. Atty. Gen., Robert Curnan, County Atty., and Thomas Schrup, Asst. County Atty., for appellee.

Considered en banc.

RAWLINGS, Justice.

Appeal by defendant, David Keith Federsen, from judgment on jury verdict finding him guilty of rape. We affirm.

This is the record upon which the aforesaid guilty verdict was returned.

Frieda Heim, prosecutrix, testified she formerly resided at 1357 Main Street in Dubuque. The evening of May 11, 1974, while watching television, she apparently fell asleep and about 2:00 a.m. was awakened by the sound of her apartment door being opened. A man, later identified as defendant, entered the residence, approached the couch on which she was lying and raped her. Mrs. Heim later escaped. Clad only in a blouse, she ran out the front door, down the steps and into the street. Defendant allegedly followed her. Mrs. Heim ran south on Main Avenue to 13th Street, then east to the intersection of 13th and Central Avenue where the Dubuque Police Station is located. Several officers emerged from the station upon hearing Mrs. Heim screaming for help. Defendant, at this time proceeding west on 13th Street, was pointed out by Mrs. Heim as her assailant.

Defendant testified he had been drinking since about 11:00 p.m. in the Plaza Bar located at the intersection of 11th Street and Central Avenue. Shortly after 2:00 a.m. he left the bar and proceeded up 11th Street. At the intersection of 11th and Iowa he turned north, traveling on the west side of Iowa. While in the 1200 block defendant testified he heard a scream, then saw Mrs. Heim running east at the intersection of 13th and Iowa. Due to building obstructions, defendant stated he could no longer see Mrs. Heim after she passed through the intersection. When defendant reached 13th Street he proceeded west and was later arrested.

A defense-called witness testimonially stated he was sitting in the Cavalier Tavern, situated at the corner of 13th and Main, and had observed a man several inches taller than defendant running a half block behind Frieda Heim on Iowa Street. This unidentified man was never apprehended by the police.

Prior to trial defendant filed what is denominated a 'Motion in Limine to Suppress Eyewitness Identification' testimony by prosecutrix on the asserted basis of a suggestive 'station house' confrontation. This motion was overruled and the foundational objection thereof was not renewed in course of trial.

After presentation of the State's evidence, and again at close of trial, defendant ineffectively moved for a directed verdict upon alleged insufficiency of testimony corroborating Mrs. Heim's identification of defendant as her assailant.

By prejudgment motion Feddersen unsuccessfully requested he be granted a new trial for these asserted reasons: (1) the erroneous overruling of his motion seeking to suppress Mrs. Heim's identification testimony; (2) misconduct on the part of a juror in visiting the scene of defendant's alleged chase of prosecutrix after commission of the charged offense; (3) error in failing to submit two defense requested instructions; (4) overruling of a new trial motion premised upon newly discovered evidence.

i. As previously noted, defendant filed a pretrial 'Motion in Limine to Suppress Eyewitness Identification' by prosecutrix of defendant as the involved offender. At the outset some uncertainty attends the above captioned motion.

In State v. Johnson, 222 N.W.2d 483, 485 (Iowa 1974), this court observed, motions in limine and to suppress evidence are distinguishable. Cited in Johnson is Twyford v. Weber, 220 N.W.2d 919, 922--923 (Iowa 1974), where we said, in part:

'The function of a motion in limine is not only to exclude during the voir dire examination and opening statements, reference to anticipated evidence claimed to be objectionable because incompetent, irrelevant, immaterial or privileged but to also restrict opposing counsel in asking questions or making statements in offering such matters until the admissibility of the questionable evidence can be determined during the course of the trial by presenting to the court in the absence of the jury such evidence by offer and objection.'

See also State v. Liesche, 228 N.W.2d 44, 46 (Iowa 1975).

In the instant case, however, it is to us evident defendant, by his aforesaid pretrial motion, presented a question regarding admissibility of evidence which would and did eliminate the need for an in-course-of-trial-ruling thereon. In other words, it was more akin to a suppression motion than one in limine and is so entertained. See State v. Guess, 223 N.W.2d 214, 216 (Iowa 1974); State v. Johnson, Supra. See generally United States v. Cranson, 453 F.2d 123, 125--126 (4th Cir. 1971), cert. denied, 406 U.S. 909, 92 S.Ct. 1607, 31 L.Ed.2d 821 (1972); United States v. Ranciglio, 429 F.2d 228, 230 (8th Cir. 1970), cert. denied, 400 U.S. 959, 91 S.Ct. 358, 27 L.Ed.2d 268 (1970); McRae v. United States, 137 U.S. App.D.C. 80, 420 F.2d 1283, 1287--1289 (1969); McCormick on Evidence, ch. 15 at 364, et seq. (2d ed. 1972).

We therefore conclude the adverse ruling on defendant's motion to suppress, though interlocutory in form and effect, still sufficed to preserve error for appellate review despite absence of a renewed trial objection. See Carroll v. United States, 354 U.S. 394, 404, 77 S.Ct. 1332, 1339, 1 L.Ed.2d 1442 (1957); State v. Boer, 224 N.W.2d 217, 219 (Iowa 1974); State v. Untiedt, 224 N.W.2d 1, 2--3 (Iowa 1974).

II. At this point we look again to the record.

The morning after Feddersen's arrest Mrs. Heim went to the police station for the purpose of making an incident-related statement. She was there directed by a desk sergeant to wait in a consultation room. Upon entering those quarters prosecutrix momentarily observed defendant, in prison garb, then conversing with police officers. Defendant contends this confrontation was 'unnecessarily suggestive, prone to cause irrevocable harm and beyond the normal method used as proper police proceedings'.

At the threshold it must be conceded the stamp of approval cannot be placed upon any such 'station house' confrontation. But that is not alone determinative.

Mrs. Heim testified she had opportunity to clearly observe defendant for at least five minutes in a well lighted room after his aforesaid entry into her apartment. Subsequent to the assault prosecutrix ran into the street, followed by Feddersen, who fell during the chase, and she was again able to see her assailant. A short time later, when police apprehended defendants, Mrs. Heim again saw Feddersen in a 'fairly well lit area' and identified him as her pursuer.

There followed this colloquy between Mr. Schrup (Assistant County Attorney), Mrs. Heim (witness) and attendant objection by Mr. Henkels (defense counsel):

'Q. Is that man present in the Courtroom today? A. Right.

'MR. HENKELS: Your Honor, I am going to object at this point because there is no showing that this is an independent recollection, or that there has been subsequent identification of the person that she's going to identify.

'THE COURT: Overruled. You may answer.

'Q. Would you repeat the question? (Whereupon the previous question was read back by the Reporter.) A. Yes.

'Q. And could you indicate which person he is? A. He's the Defendant, sitting right there.

'Mr. SCHRUP: Let the record show that the witness has indicated the Defendant, David Keith Feddersen.'

No useful purpose will be served by a lengthy discussion as to timeliness of the above stated objection by defense counsel. As aforesaid error, if any, as to ultimate in-court identification was preserved by defendant's pretrial suppression motion.

So the question now posed is whether the above mentioned in-court identification by prosecutrix was shown by the State to be purged of any taint arising from the previously described 'station house' incident. See United States v. Wade, 388 U.S. 218, 241, 87 S.Ct. 1926, 1939, 18 L.Ed.2d 1149 (1967).

Our review of relevant circumstances, in totality, leads us to conclude the in-court identification of defendant by Mrs. Heim was adequately shown to have been of independent origin uninfluenced by the station house confrontation. See Neil v. Biggers, 409 U.S. 188, 198--199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972); United States v. Ranciglio, Supra; State v. Bash, 214 N.W.2d 219, 220--221 (Iowa 1974); State v. Houston, 209 N.W.2d 42, 44 (Iowa 1973); State v. Houston, 206 N.W.2d 687, 691--692 (Iowa 1973). Stated otherwise, there is no plausible basis upon which to hold the police station encounter was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. See Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968); Williamson v. State, 201 N.W.2d 490, 491 (Iowa 1972).

Defendant's first assigned error is without merit.

III. Next considered is Feddersen's contention regarding alleged misconduct by a member of the jury, Robert Fisch.

Jury deliberations commenced at 5:00 p.m., June 6, 1974. About 10:40 trial court recessed the jury overnight. Mr. Fisch thereupon went home. He and his wife then proceeded by automobile to the streets where the alleged chase and arrest of defendant occurred. By affidavit Mr. Fisch stated he:

'* * * proceeded south on Main Street, 13th Street to Central, Central to 11th Street, 11th Street to Iowa Street, then north on Iowa Street to 14th Street and from there to my home; that I observed the illumination and lighting in the area; that I observed the Plaza and the exit stoop as we proceeded by; that I observed the Medical Associates parking lot; and the view north on Iowa Street toward 13th Street as to openness...