State v. Green

• Decision Date: 09 April 1963
• Docket Number: No. 50821,50821
• Citation: 121 N.W.2d 89,254 Iowa 1379,95 A.L.R.2d 810
• Parties: , 95 A.L.R.2d 810 STATE of Iowa, Appellee, v. Oliver GREEN, Jr., Appellant.
• Court: Iowa Supreme Court

Page 89

121 N.W.2d 89

254 Iowa 1379, 95 A.L.R.2d 810

STATE of Iowa, Appellee, v. Oliver GREEN, Jr., Appellant.

No. 50821.

Supreme Court of Iowa.

April 9, 1963.

James Lawyer, Des Moines, for appellant.

Evan A. Hultman, Atty. Gen. of Iowa, John Allen, Asst. Atty. Gen. of Iowa, Sam Erhardt, County Atty. of Wapello County, John Moreland, Asst. County Atty. of Wapello County, for appellee.

PETERSON, Justice.

County Attorney's information was filed on March 24, 1961, against Oliver Green, Jr., charging him with arson. The fire occurred on the evening of October 1, 1960. The evidence was all circumstantial.

In substance as to the highlights, the facts offered in evidence were as follows: One witness testified that at approximately 6 o'clock P.M. on October 1, 1960, the appellant was observed entering the Marshall Auto Store in Ottumwa with two G.I. type gasoline cans. Defendant, a truck driver, admitted he was in Ottumwa, but denied he entered the Marshall store.

A few minutes before 8 o'clock on the evening of October 1st a pedestrian walking past the Marshall Auto Store detected a strong odor of gasoline.

At approximately 8 o'clock P.M. a loud explosion occurred at the Marshall Auto Store scattering debris over the adjacent streets. The building burst into red flames. Heavy black smoke came from the store. In spite of the almost immediate arrival of the firemen, and the application of great quantities of water, the building was consumed within one hour.

Three experts on the subject of fires testified in answer to hypothetical questions setting forth the circumstances of the Marshall Auto fire. They stated in their opinion the fire was of incendiary origin. The natural gas connection to the Marshall Auto building was closed at the time of the fire and tanks containing fuel oil in the basement of the building were intact after the fire.

A Deputy State Fire Marshall started looking for defendant on October 7, 1960, but did not find him until January 17, 1961. The Marshall found he had left his home in Kansas City a short time after the occurrence of the fire.

The State Fire Marshall, William Johnson, accompanied by M. D. Huffman, agent for the National Board of Fire Underwriters, found defendant living at El Monte, California. They interrogated him for four hours. He stated verbally he was willing to take a lie detector test. They made an appointment with him to see him at his home at 9 o'clock the following morning. When they arrived the next morning they found he had moved out with his wife and five children during the night, without leaving any forwarding address. They reported his disappearance to the F.B.I. and he was later found at Kansas City, Missouri.

In response to the County Attorney's information he was brought to Iowa, filed bail bond for appearance and was tried at Ottumwa in Wapello County in December, 1961.

Appellant urges six assignments of error. 1. The circumstances shown by the evidence offered were not sufficient to establish guilt and the case should not have been submitted to the jury. 2. The hypothetical questions submitted to three witnesses, did not give sufficient details as to the facts, to justify submitting them for an opinion as to the incendiary nature of the fire. 3. Instruction No. 13 with reference to flight was wrongfully submitted to the jury. 4. The trial court should have considered affirmatively the offer of newly discovered evidence submitted by defendant. 5. The County Attorney was guilty of misconduct in his opening statement to the jury in which he emphasized what he was goint to prove with reference to defendant taking a lie detector test. 6. Keeping the jury in the jury room through the night and for almost 27 hours without sleep or rest caused such a condition of mental and physical fatigue as to several jurors that defendant did not get the fair trial to which he was entitled.

We will consider later very briefly the four first assignments of error. They are without merit.

Defendant filed motion for arrest of judgment, and this we are rejecting.

On the basis of assignments 5 and 6 we are sustaining the motion for new trial and remanding the case.

I. In his opening statement to the jury as to the proof he was going to offer, the County Attorney stated that defendant had agreed to take a lie detector test in his conversation with the witnesses Huffman and Johnson in California on January 17, 1961. He never took the test, which was his privilge. When the County Attorney made this statement to the jury at the beginning of the trial he knew the test had not been taken. He was an able and experienced lawyer and knew that the decisions of this court, as well as the decisions of the courts in almost all other states of the nation, held that reference could not be made to the taking or not taking of a lie detector test, and that such reference was misconduct. There was an attempt later in the trial of the case to inject the matter into the evidence but the trial court very carefully and meticulously sustained objections to the evidence being given to the jury.

The agreement to take a lie detector test in State v. McNamara, 252 Iowa 19, 104 N.W.2d 568, was in writing, and the court held on such basis, evidence about it was admissible. However, the court said in the McNamara case: 'The weight of authority in the courts of last resort is against receiving evidence of such tests in criminal cases either for or against the defendant.'

This is a very sensitive and touchy subject. It may appear somewhat insignificant upon casual consideration, but careful thought establishes the fact that the matter of taking a lie detector test is so important to a party in a criminal case that it has the possibility of making or breaking his case.

It is true the trial court in the case at bar cautioned the jury that they were to pay no attention to what had been said, nor to the evidence which had been elicited as to the lie detector test. However, the difficulty with this situation is that even in the face of such caution by the court the poison still remains. It is akin to the placing of a nail in a board. The nail can be pulled out, but the hole made by the nail cannot be removed.

This question received careful attention in the Minnescota case of State v. Kolander, 236 Minn. 209, 52 N.W.2d 458. We adopt the reasoning in this opinion. The court said: 'A great deal has been written on the development and reliability of the so-called lie detectors, but up to the present time the almost unanimous holding of all courts which have passed upon the question is that the results of such tests are inadmissible. * * * The state concedes that the results of a lie-detector test would not be admissible, but contends that it may nevertheless be shown that defendant refused to take such test, since such refusal is evidence of a consciousness of guilt similar to evidence of flight. With this we cannot agree. * * * The impact upon the minds of the jurors of a refusal to submit to something which they might well assume would effectively determine guilt or innocence, under these conditions, might well be more devastating than a disclosure of the results of such test, if given after a proper foundation had been laid showing how the apparatus functioned. Where a conviction rests so completely on circumstantial evidence, the erroneous admission of such action on the part of defendant might well be enough to tip the scales against him. We believe that it was prejudicial error to permit such refusal of defendant to submit to the test to be shown.'

In the case at bar the existence of the poison in the jury room appears in the affidavit of Juror Garnett Shank when she states in her affidavit in support of defendant's motion for new trial as follows: 'Nina McNamer repeatedly asked the question: If Oliver Green is so innocent, why didn't he take that lie-detector test?' Miss McNamar denied this in a counter affidavit, but the fact remains that three other jurors referred to the substance of this statement. One juror could have been mistaken, but this would hardly apply to four jurors.

The trial court attempted to excuse the statement and action of the county attorney by saying he acted in good faith. This is not the measuring stick to be used. The criterion is whether or not defendant was improperly and unduly prejudiced.

We said recently in State v. Tolson, 248 Iowa 733, 82 N.W.2d 105: 'A prosecuting attorney should use his best efforts to represent the state, vigorously and forcefully, in presenting its case within the bounds of proper legal procedure. He owes a second duty, of no less importance, to see that the accused has a fair trial. He is an officer of the court, and must observe the requirements of due process of law. We have commented upon this duty many times, and have been compelled to reverse many cases because it was disregarded.' Three citations.

As a general statement see 89 C.J.S. Trial § 462, Page 96: 'The verdict will be vitiated, however, if the jury discuss and consider as a basis for their findings of fact something which is not legally admitted evidence, or if they have let their verdict be influenced by the discussion and consideration of improper matters not in issue and which cannot legally have and effect on the rights of the parties.'

Because of these remarks by the County Attorney at the time of the commencement to the trial, and his attempt to inject the matter into the trial, defendant was prejudiced and did not receive a fair trial. Defendant's counsel moved for a mistrial immediately after these statements were made by the County Attorney, which motion was overruled by the trial court.

II. We start with the premise that ordinarily all deliberations in the jury room inhere in the verdict. If this were not true it would be difficult to ever finally conclude a case. However, there are rare exceptions to this rule: 1. If it definitely and affirmatively appears...