State v. Hill
Decision Date | 30 June 1976 |
Docket Number | No. 58728,58728 |
Citation | 243 N.W.2d 567 |
Parties | STATE of Iowa, Appellee, v. Steven Wayne HILL, Appellant. |
Court | Iowa Supreme Court |
John C. Wellman Des Moines, for appellant.
Richard C. Turner, Atty. Gen., Thomas Mann, Jr., Asst. Atty. Gen., and Ray A. Fenton, County Atty., for appellee.
Heard before MOORE, C.J., and LeGRAND, REES, UHLENHOPP, and HARRIS, JJ.
This is an appeal from a conviction of delivery of a controlled substance in violation of § 204.401(1), The Code. Defendant's two assignments challenge trial court rulings admitting evidence. We affirm the trial court.
Steven Wayne Hill (defendant) was charged as a result of his actions on February 26, 1975. Two special agents assigned to narcotics and drug enforcement (Wilbur and Grassman) and two confidential informants went to a Des Moines residence in an attempt to purchase LSD. They went upstairs and talked to a woman who advised them they would have to wait until 'Steve' brought the LSD.
Sometime later Wilbur, Grassman, and the two informants were taken downstairs where they met defendant. The defendant advised them his price was $100 for 'fifty hits' of LSD. After the two agents claimed to be $5 short of his asking price, defendant sold the fifty dosage units to Wilbur and Grassman for $95.
George Bell testified for the defense. On direct examination Bell stated he was with Hill at the Des Moines residence on the night in question when four people came in and went upstairs. Bell stated that when the four came back downstairs defendant did not have any conversation with them and did not give anything to any of the four.
On cross-examination Bell again denied Hill had any conversation with or gave anything to either Wilbur or Grassman. The prosecutor then continued his questioning of Bell:
The prosecutor then returned to his questioning of the witness's observations on the night in question.
I. Defendant's first assignment claims the trial court erred in permitting the cross-examination of Bell as above quoted. He claims the examination went unreasonably beyond the scope of direct examination. The State rightly resists this assignment on the ground any error was waived. It is to be noted defense counsel did not timely object, did not move to strike the testimony, did not ask that the objection precede the answer, and did not give any reason for failing to sooner object. Accordingly no error was preserved. State v. Hinkle, 229 N.W.2d 744, 748 (Iowa 1975); State v. Hendren, 216 N.W.2d 302, 305 (Iowa 1974).
II. Defendant's second assignment challenges a trial court ruling admitting rebuttal testimony of Agent Wilbur who was called again by the State after the defense had rested. Wilbur first reiterated making the purchase of LSD from Hill on February 26, 1975. Wilbur was then asked about a conversation with defense witness Bell occurring February 27, 1975, the night after the 'buy' was made from Hill. Bell, it will be remembered, had already denied such meeting or conversation. In rebuttal the prosecutor asked Wilbur:
.
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Hill contends this testimony was hearsay which '* * * must be presumed to be prejudicial unless the contrary is affirmatively established * * *.' State v. Branch, 222 N.W.2d 423, 427 (Iowa 1974). The State asserts the evidence was admissible to impeach the credibility of defense witness Bell.
A prior, inconsistent, out-of-court statement, offered for impeachment purposes, does not come within the definition of hearsay. Wigmore explains:
(Emphasis in original.) 3A Wigmore, Evidence (Chadbourn Rev.1970) § 1018, p. 996. See McCormick on Evidence (Second Ed. 1972) § 34, p. 67 ( ); 81 Am.Jur.2d, Witnesses, § 596, p. 606 ( ). See also Sims v. State, 313 So.2d 388 (Miss.1975).
The general rules regarding impeachment by use of prior inconsistent statements were explained in State v. Frommelt, 159 N.W.2d 532, 535--536 (Iowa 1968):
See Grocers Wholesale Coop., Inc. v. Nussberger Truck Co., 192 N.W.2d 753, 755 (Iowa 1971); State v. Thomas, 162 N.W.2d 724, 727 (Iowa 1968); Basch v. Iowa Power & Light Co., 250 Iowa 976, 979--980, 95 N.W.2d 714, 716 (1959); 4 Jones on Evidence (Sixth Ed. 1972) §§ 26:2, 26:3, pp. 172--181; McCormick, supra, §§ 34, 36, 37, pp. 67--75; 2 Wharton's Criminal Evidence (Thirteenth Ed. 1972) § 468, pp. 410--421; 3A...
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State v. Neiderbach
...40 the inconsistent statement, if it is to be admissible, must be material and not collateral to the facts of the case. State v. Hill, 243 N.W.2d 567, 571 (Iowa 1976). X. Prosecutorial Misconduct. A. Background Facts and Procedural History. Jonas's allegation of prosecutorial misconduct rel......
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State v. Neiderbach
...of the inconsistent statement, if it is to be admissible, must be material and not collateral to the facts of the case.State v. Hill, 243 N.W.2d 567, 571 (Iowa 1976).X. Alleged Prosecutorial Misconduct. A. Background Facts and Procedural History. Jonas's allegation of prosecutorial miscondu......
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State v. Fowler
...State v. Peterson, 219 N.W.2d 665, 671 (Iowa 1974). Even so, the above precept is circumscribed by this pronouncement in State v. Hill, 243 N.W.2d 567, 571 (Iowa 1976): 'It is well settled, however, the right to impeach by prior inconsistent statements is not without limit. The subject of t......
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Fenske v. State, 97-608
...statement does not violate the hearsay rule because it is "not offered as a testimonial assertion to be relied upon." State v. Hill, 243 N.W.2d 567, 570 (Iowa 1976) (quoting 3A Wigmore Evidence § 1018, at 996 (1970)). The general rules regarding impeachment by use of prior inconsistent stat......