State v. Hackett
Decision Date | 19 September 1972 |
Docket Number | No. 55158,55158 |
Citation | 200 N.W.2d 493 |
Parties | STATE of Iowa, Appellee, v. David Gordon HACKETT, Appellant. |
Court | Iowa Supreme Court |
F. L. Bedell, Newton, for appellant.
Richard C. Turner, Atty. Gen., Richard N. Winders, Asst. Atty. Gen., and Dennis F. Chalupa, County Atty., for appellee.
By a Jasper County Grand Jury indictment defendant David Gordon Hackett was charged with the crime of sodomy, tried and found guilty. From sentence accordingly entered, he appeals. We affir.
The factual situation instantly involved, being substantially as set forth in State v. Hackett, 197 N.W.2d 569 (Iowa 1972), need not be here repeated.
In support of his claimed right to reversal defendant contends trial court erred in (1) overruling his objection to competency of two minor witnesses; (2) holding venue was adequately established; (3) permitting impeachment of accused by showing of a prior felony conviction; (4) overruling his motion for a directed verdict based on insufficiency of evidence; (5) submitting an instruction regarding open exchange of views by jurors in the course of their deliberation. These assignments will be considered in the order presented.
I. The prosecutrix in this case was 10, the other State's witness 12. Both girls were preliminarily interrogated at some length by trial court and counsel for defendant. Trial court thereupon found
them qualified to testify and they were then sworn.
We find here no reversible abuse of discretion. See The Code 1971, Section 622.1; State v. Ragona, 232 Iowa 700, 701, 5 N.W.2d 907 (1942); State v. Yates, 181 Iowa 539, 540--542, 164 N.W. 798 (1917). See also State v. Rankin, 181 N.W.2d 169, 172--173 (Iowa 1970); 2 Wigmore on Evidence, §§ 505--509 (3d ed.); McCormick on Evidence, § 62, at 140--141.
II. Neither did trial court err in holding a jury question as to venue was adequately generated.
Prosecutrix testified the act charged occurred outside of ira. There is also testimony by the corroborating witness from which it could be reasonably found the alleged offense took place in Ira, a town located within Jasper County and about seven miles east of the west boundary. This sufficed. See The Code 1971, Chapter 753; State v. Hackett, 197 N.W.2d at 570--571; State v. Conley, 176 N.W.2d 213, 215 (Iowa 1970); State v. Stumbo, 253 Iowa 276, 278--280, 111 N.W.2d 664 (1961); 1 Underhill's Criminal Evidence, § 95 (5th ed.).
III. As above stated defendant next asserts his privilege against self-in-crimination was violated by requiring him, while testifying on his own behalf, to state whether he had ever before been convicted of a felony. In support of this position defendant invokes U.S.Const. Amend. V, and Amend. XIV, § 1. It is, of course, understood we are here concerned with the matter of permissible impeachment. Also in that area, trial court's original instructions included one which specifically restricted consideration by the jury of any evidence regarding defendant's prior felony conviction to the matter of credibility.
The Code 1971, Section 622.17 states:
At the outset Spencer v. State of Texas, 385 U.S. 554, 560--564, 87 S.Ct. 648, 652--654, 17 L.Ed.2d 606 (1967), to the extent here applicable holds, in substance, it is not for the United States Supreme Court to promulgate state rules of criminal procedure. Therefore the rule of exclusion concerning evidence of prior felony convictions does apply when a defendant has testified and the state seeks to impeach hise credibility by showing he has been so previously convicted. In such instances the interests of an accused are deemed adequately protected by appropriate limiting jury instructions. And a state rule permitting introduction of such impeaching evidence is not prohibited by any provision of the United States Constitution.
Moore recently in McGautha v. California, 402 U.S. 183, at 215--216, 91 S.Ct. 1454, at 1471--1472, 28 L.Ed.2d 711 (1971), the constitutionality of a jury determination of guilt and punishment in both unitary and bifurcated trials was challenged. In resolving that matter the court touched upon the problem at hand and in so doing stated:
'It has long been held that a defendant who takes the stand in his own behalf cannot then claim the privilege against cross-examination on matters reasonably related to the subject matter of his direct examination. See, e.g., Brown v. Walker, 161 U.S. 591, 597--598, 16 S.Ct. 644, 647, 40 L.Ed. 819 (1896); Fitzpatrick v. United States, 178 U.S. 304, 314--316, 20 S.Ct. 944, 948, 44 L.Ed. 1078 (1900); Brown v. United States, 356 U.S. 148, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958). It is not thought overly harsh in such situations to require that the determination whether to waive the privilege take into account the matters which may be brought out on cross-examination. It is also generally recognized that a defendant who takes the stand in his own behalf may be impeached by proof of prior convictions or the like. See Spencer v. Texas, 385 U.S. 554, at 561, 87 S.Ct. 648, at 652, 17 L.Ed. 606; cf. Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948); but cf. Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965); United States v. Palumbo, 401 F.2d 270 (CA2 1968). Again, it is not thought inconsistent with the enlightened administration of criminal justice to require the defendant to weigh such pros and cons in deciding whether to testify. (Emphasis supplied.)
See State v. Van Voltenburg, 260 Iowa 200, 208--210, 147 N.W.2d 869 (1967); State v. Cote, 108 N.H. 290, 235 A.2d 111, 114--116 (1967), cert. denied, 390 U.S. 1025, 88 S.Ct. 1412, 20 L.Ed.2d 282 (1968). See Generally Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972); United States v. Scarborough, 147 U.S.App.D.C. 46, 452 F.2d 1378, 1379--1380 (1971); State v. Milford, 186 N.W.2d 590, 593 (Iowa 1971); State v. Shipp, 184 N.W.2d 679, 680--681 (Iowa 1971); State v. Kelley, 161 N.W.2d 123, 124--125 (Iowa 1968); 3A Wigmore on Evidence, §§ 889--891 (Chadbourn rev.), id., §§ 980--984; McCormick on Evidence, § 43 at 89--94; 58 Am.Jur., Witnesses §§ 685--689. See also Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936, 938--941 (D.C.Cir.1967); State v. Santiago, 492 P.2d 657 (Hawaii 1971); Rule 609, Revised Draft of Proposed Rules of Evidence for the United States Courts and Magistrates, 51 F.R.D. 315, 391 (1971); 1 Underhill's Criminal Evidence, § 244 (5th ed.); 15 So.Dak.L.Rev. 160 (1970).
Confining ourselves to the constitutional issue here posed we now hold it must be and is resolved adverse to defendant.
IV. This brings us to the contention, trial court erred in overruling defendant's motion for a directed verdict.
In support of this claim he first reargues matters heretofore considered, then argues proof of penetration is lacking.
Due to comparability of the facts in the instant case with those involved in State v. Hackett, 197 N.W.2d at 571--572, the reasoning and result there reached on the issue at hand is hereby adopted.
The assignment here considered cannot be sustained.
V. Finally, defendant challenges Instruction 17 by which the jury was told:
It is at once apparent this is not the so-called 'Allen' or 'dynamite' charge. See State v. Kelley, 161 N.W.2d at 126--128; Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299, 302--305 (1971); Anno...
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