State v. Garrett

• Decision Date: 09 February 1971
• Docket Number: No. 54289,54289
• Parties: STATE of Iowa, Appellee, v. Charles Patrick GARRETT, Appellant.
• Court: Iowa Supreme Court

Page 652

183 N.W.2d 652

STATE of Iowa, Appellee, v. Charles Patrick GARRETT, Appellant.

No. 54289.

Supreme Court of Iowa.

Feb. 9, 1971.

Joe P. Crookham, Oskaloosa, for appellant.

Richard C. Turner, Atty. Gen., and Robert Spayde, Sp. Pros., for appellee.

BECKER, Justice.

Defendant was charged with the crime of arson, tried to a jury, found guilty, sentence to 20 years incarceration in the Men's Reformatory and placed on parole. He appeals his conviction. We affirm.

Defendant does not challenge sufficiency of the evidence to sustain a verdict. Nevertheless we must review the evidence to some degree. At the time of the fire defendant Garrett was a student at Central College in Pella, Iowa. He lived with Will Krist, another student, in a farmhouse rented from Roy DeBruin, located about 5 miles east and 3 miles north of Pella. The men were asked to move and rented another house from Roy DeBruin's son, Ronald. This second house was about 2 miles south of the Roy DeBruin house. On June 12, 1969 Garrett and Krist made application at the Van Grop Insurance Agency for $3000 household cotents insurance on the newly rented structure. On June 19 Krist left for Chicago. On June 20 Garrett, with the help of Ronald Bethards, another student, hauled two trailer loads of personal property from the Roy DeBruin to the Ronald DeBruin house.

Daniel Clark, a 15 year old boy, testified he knew defendant Garrett and Krist and also Joe Snyder, operator of a service station where Daniel Clark worked. Clark said he was with defendant Garrett and Snyder during the evening of June 20, 1969. Snyder drove defendant Garrett to the Roy DeBruin house at which he lived. On the trip Clark testified he heard the two men discuss their intention to set fire to a house.

Clark further testified that after leaving defendant Garrett at the Roy DeBruin house, Snyder drove to the newly rented Ronald DeBruin house, went inside and started it afire. Clark accompanied Snyder into the house, saw him gather some kindling in the house and light it. The two then left and drove to Pella.

Clark testified he hard Snyder and Garrett discuss the insurance money the next morning. Garrett had insured the contents of the house for $3000. According to Clark the discussion was that William Krist was to get $1000, Garrett was to get $1000 and Snyder was to get $600 because he owed $400 to a fraternity of which Garrett and Krist were members.

Clark said he did not participate in the discussion about burning the house and did not take part in the setting of the fire. However, he did accompany Snyder inside the house, saw what was happening, did not protest and did not try to stop the fire or get help.

By other witness the State introduced testimony to show the $3000 insurance policy for which Garrett and Krist applied was never issued; but after the fire Garrett and Krist made claim for loss of household property having an acquisition value of $5100. Among the contents listed on the claim was $250 worth of whiskey and wine. The insurance agent checked the scene of the fire but could not find bottles indicating a $250 liquor loss. He reported the matter to the fire marshall's office. After further investigation defendant was charged by county attorney's information.

I. Defendant's first assignment of error challenges the court's handling of a motion in limine and motion to suppress evidence filed on the morning of trial. The motion was divided into four parts. The first portion of the motion stated the 15 years old witness had given hearsay testimony at the preliminary hearing and demanded that he and the prosecutor be specially instructed to avoid hearsay testimony, that Clark be told not to detail conversations of others (where defendant was not present) and not to go into such matters without first obtaining permission of the court in the absence of the jury.

No evidence was offered to support this motion. Counsel orally stated to the court that the alleged hearsay testimony referred to had been given at preliminary hearing but referred to no specific area of testimony, only that it dealt with conversations.

The trial court observed that defense counsel could protect his record by proper and timely objection and overruled the motion. This action was proper.

We have recently had occasion to recognize the motion in limine as a useful tool to avoid reversible error. State v. Johnson, 183 N.W.2d 194, (Iowa 1971) (decided January 19, 1971).

Limitations on the motion are discussed in Lewis v. Buena Vista Mutual Ins. Assoc., 183 N.W.2d 198, (Iowa 1971) (decided January 19, 1971) where we said:

'We deem this appeal an appropriate one in which to say that cases are coming to this court revealing questionable use of the motion in limine--questionable in the manner of its use or in its use at all. The motion is a drastic one, preventing a party as it does from presenting his evidence in the usual way. Its use should be exceptional rather than general. Trial counsel would be well advised to keep in mind the suggestions found in Sidney, Motion in Limine, Workshop Outlines at Ninety-Second Annual Meeting, Iowa State Bar Association, A1 at A8--A9 (1965). The motion should be used, if used at all, as a rifle and not as a shotgun, pointing out the objectionable material and showing why the material is inadmissible and prejudicial. Since no one knows exactly how the trial will proceed, trial courts would ordinarily be well advised to require an evidentiary hearing on the motion when its validity or invalidity is not manifest from the face of the motion.'

It has been said granting or rejecting a motion in limine can never be reversible error. 5 Washburn Law Journal 232, 233. This court has not insisted on a subsequent record where the motion in limine Is granted on hearing which is evidentiary in nature, the court is completely apprised of the factual situation and nothing occurs at trial to change the posture of the parties. Gustafson v. Iowa Power & Light Co., 183 N.W.2d 212, (Iowa 1971) (decided January 19, 1971). Cf. Sacramento and San Joaquin Drainage Dist. v. Reed, 215 Cal.App.2d 60, 29 Cal.Rptr. 847, 853 (1963).

But where the motion Is denied, the complainant must base his complaint on the trial record. The reasons for dependence on the trial record where the motion is denied are given in Division II. We have examined the record with care. Both counsel and the court were alert to keep out objectional material. While neither the form of direct questioning on the one hand nor the form of objections on the other, were models of clarity, we are satisfied the trial court held the witness to recitations of conversations at which defendant was present and in which he participated. The motion achieved its purpose. No error occurred.

II. Defendant also moved to exclude all reference to a simultaneous investigation of defendant by the officers in connection with charges receiving stolen goods and possession of drugs. The court did not rule on this matter and defendant assigns such failure as prejudicial error. Under other circumstances we have said failure to rule on objections to evidence is not error unless complainant has insisted on a ruling. Thus complainant proceeds at his own risk. State v. Hephner, 161 N.W.2d 714, 717 (Iowa 1968) and authorities cited therein. Here defendant did try to get a ruling but failure to rule was not error for another reason.

Since the very...