State v. Grady

Decision Date09 February 1971
Docket NumberNo. 54384,54384
PartiesSTATE of Iowa, Appellee, v. Thomas GRADY, Appellant.
CourtIowa Supreme Court

Arthur H. Johnson and Dale A. Johnson, Fort Dodge, for appellant.

Richard C. Turner, Atty. Gen., Max A. Gors, Asst. Atty. Gen., David A. Opheim, County Atty., Fort Dodge, for appellee.

MASON, Justice.

Defendant Thomas Grady, twenty-two, was charged by county attorney's information, tried and convicted by a jury of the crime of rape contrary to section 698.1, Code, 1966. Motions in arrest of judgment and for new trial were overruled and defendant was sentenced to imprisonment in the men's reformatory for a period of 10 years. The case must be reversed.

Defendant appeals assigning eight errors relied on for reversal. In view of our disposition of the appeal some asserted errors will probably not occur in a retrial and will therefore not be passed upon. Others will be considered for the purpose of furnishing guidelines to be followed in a retrial. As we discuss defendant's assignments the grounds asserted will be amplified.

Defendant admitted intercourse with prosecutrix but denied the act was accomplished with force or against her will.

The incident from which the criminal charge arose occurred October 28, 1969. Prosecutrix, fifty-one, had been drinking whiskey with friends earlier in the evening. Around 10:30 she went to a tavern in Fort Dodge to make a telephone call. After getting change from the tavern operator to make the call, prosecutrix asked defendant who had been playing pool if he would dial the number as she had left her glasses at home. After abandoning efforts to complete the call, defendant asked her to buy him a beer which she did. There was some conversation between defendant and prosecutrix about him giving her a ride home. In any event, they both got in the front seat of defendant's car accompanied by another boy whom she did not know.

After stopping to purchase more liquor, the two boys drove her to a gravel road near Kalo and parked. According to her version, prosecutrix asked to be let out but the boys insisted they were going to give her a ride home. At this point the other boy hit her on the back of the head. She then jumped out of the car but defendant and his companion put her back. Each and intercourse with prosecutrix then drove her back to a filling station in Fort Dodge where they let her our.

Prosecutrix went home, talked to her husband, later went to a friend's house and called the police who took her to the hospital where she remained until the following morning.

I. The factual background from which defendant's eighth assignment of error stems occurred after evidence was completed, arguments concluded, and instructions given. The jury had commenced its deliberation about 11:45 a.m. Ten hours or more later, the court called the jury back into the courtroom without advising defendant's counsel of its intention to do so and, outside the presence of defendant and his counsel, attempted to further instruct the jury. There is no contention a reasonable effort was made to notify defendant or his counsel or procure their attendance. No record being made of this proceeding, there is uncertainty as to the contents of the instruction communicated to the jury. Within one hour the jury returned a verdict of guilty. Neither defendant nor his attorneys were aware of what took place until later.

Defendant urged the foregoing facts as the eighth ground in his motion for new trial. They are set forth in affidavits of defendant, his two attorneys and a member of the jury.

Defendant contends the court thus committed reversible error since section 777.19, Code, 1966 provides:

'Personal presence at trial. If a felony is charged, the defendant must be personally present at the trial, but the trial of a misdemeanor may be had in his absence, if he appears by counsel.'

'While the jury is deliberating, the court may in its discretion further instruct the jury. Rule 197, Rules of Civil Procedure, states: 'While the jury is deliberating, the court may in its discretion further instruct the jury, in the presence of or after notice to counsel. Such instruction shall be in writing, be filed as other instructions in the case, and be a part of the record and any objections thereto shall be made in a motion for a new trial.' Such instructions, of course, are to be governed by the same rules applicable to the giving of instructions prior to jury deliberation. 53 Am.Jur., Trial, § 948.' Brown v. Lyon, 258 Iowa 1216, 1220, 142 N.W.2d 536, 538.

This statement from the opinion in State v. Register, 253 Iowa 495, 504--505, 112 N.W.2d 648, 653 is well-adapted to defendant's contention:

'* * * In State v. Wilcoxen, 200 Iowa 1250, 1252, 206 N.W. 260, we held, under section 13806, Code of Iowa, 1924, now section 777.19, Code of Iowa, 1958, I.C.A., the defendant was entitled to be present when additional instructions were given and the failure to have him present is reversible error. In State v. Harding, 81 Iowa 599, 47 N.W. 877, an oral explanation of instructions, not reduced to writing until a verdict had actually been reached, was held to be reversible error.

'Private communications between the trial court and jurors are universally condemned. Where the record affirmatively shows the communication had no tendency to influence the verdict a reversal is not required. If the record shows affirmatively defendant has been prejudiced there would be reversible error; likewise where the record is silent as to the possibility of prejudice, it would be presumed to be so and a new trial should be granted. * * * (citing authorities).'

The case before us is factually comparable to State v. Register, supra and Daniels v. Bloomquist, 258 Iowa 301, 306--307, 138 N.W.2d 868, 871--872. In the last cited case we discuss the necessity of preserving jury deliberations from the appearance of improper influences. State v. Fiedler, 260 Iowa 1198, 1205--1206, 152 N.W.2d 236, 241--242 is distinguishable. An examination of the record in State v. Kelley, 161 N.W.2d 123, 126 (Iowa 1968) reveals defendant and his counsel were personally present when the court gave the instruction to the jury after it had been deliberating approximately 22 hours. A portion of the instruction in the cited case was approved by defendant's counsel and a part objected to. This is not the situation in the present case.

Recently we have said not every communication between judge and jury after the jury's retirement to deliverate on a verdict is an instruction, State v. Fiedler, 260 Iowa at 1206, 152 N.W.2d at 240. Because of the manner in which the additional instruction was communicated to the jury, we have no way of determining its effect on the jury. However, the conduct described is so tainted with suspicion as to constitute prejudicial error requiring a new trial.

State v. LaMar, 260 Iowa 957, 150 N.W.2d 496 relied on by the State in resisting this assignment of error involves a completely different procedural question and does not aid the State here.

II. In another assignment defendant asserts the court's remarks injected into the record in the jury's presence created a situation which made it impossible for defendant to have a fair trial.

This court recognizes that remarks may be made by court or counsel in the heat of battle which on reflection in a lesstense situation would not have been voiced. However, '* * * the court should at all times be cautions of what he says and does when a jury is present. 23 C.J.S. Criminal Law § 987, p. 995; 53 Am.Jur. 75, Trial 76. They are particularly sensitive to a judge's views and the revelation of his feelings toward the parties, counsel or witnesses may influence the jury more than the evidence. See Pickerell v. Griffith (1947), 238 Iowa 1151, 1164--1165, 29 N.W.2d 588, 595--596; State v. Philpot (1896), 97 Iowa 365, 369, 66 N.W. 730, 732.

'At this time the courts are acutely aware of defendant's right to a fair trial and it is essential for trial courts to be impartial and circumspect in the treatment of defendant, his counsel and witnesses. See Annotation 62 A.L.R.2d 166, Conduct of Court--Rebuking Counsel. 'It is vastly more important that the attitude of the trial judge should be impartial than that any particular defendant, however guilty he may be, should be convicted.' Hunter v. United States (5th Cir. 1932), 62 F.2d 217, 220.' State v. Kimball, 176 N.W.2d 864, 867 (Iowa 1970).

We would hesitate to reverse on this assignment alone but, on retrial, court and counsel should carefully avoid any comment likely to arouse prejudice against defendant in the minds of the jury. State v. Kimball, supra.

III. In one assignment defendant contends the court erred in receiving into evidence over his objection certain articles of apparel claimed to have been worn by the complainant at the time of the incident in question.

He argues it is necessary to establish a complete chain of evidence, tracing possession of the exhibit from the witness to the final custodian, and if one link in the chain is entirely missing, the exhibit cannot be introduced into evidence.

'The rule followed in this jurisdiction is found in second paragraph of 29 Am.Jur.2d Evidence, section 774, page 845: 'The party offering the object or article in evidence must also show that, taking all the circumstances into account, including the ease or difficulty with which the particular object or article could have been altered, it was reasonably certain that there was no material alteration. It is not necessary that an object or article which is offered in evidence should be in precisely the same condition at the moment of its offer as at the time when it played a part in the occurrence which gave rise to its offer in evidence, but the change in its condition must not have been wrought for unjustifiable purposes, and it must not be of sufficient moment that the exhibit will mislead. " State v. Limerick, 169 N.W.2d...

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