State v. Hilleshiem, 65133

• Citation: 305 N.W.2d 710
• Decision Date: 13 May 1981
• Docket Number: No. 65133,65133
• Parties: STATE of Iowa, Appellee, v. Robert Dean HILLESHIEM, Appellant.
• Court: Iowa Supreme Court

Page 710

305 N.W.2d 710

15 A.L.R.4th 105

STATE of Iowa, Appellee, v. Robert Dean HILLESHIEM, Appellant.

No. 65133.

Supreme Court of Iowa.

May 13, 1981.

James Burns and Marion L. Beatty of Miller, Pearson, Gloe, Burns & Beatty, Decorah, for appellant.

Thomas J. Miller, Atty. Gen., Julie F. Pottorff, Asst. Atty. Gen., and William S. Hart, Winneshiek County Atty., for appellee.

Considered by LeGRAND, P. J., and McCORMICK, ALLBEE, McGIVERIN and SCHULTZ, JJ.

McCORMICK, Justice.

Defendant Robert Dean Hilleshiem appeals his conviction by jury and sentence for murder in the second degree in violation of section 707.3, The Code. Most of his assignments of error concern rulings on evidence. We affirm the trial court.

On November 14, 1979, defendant was living in the Waukon home of Sue Mathis. He was alone in the home with Mathis' two-year-old daughter Jennifer Buege while Mathis was at work. During the afternoon Jennifer suffered injuries which caused her death two days later. Defendant was subsequently charged with murdering the child. This appeal arises from his conviction of that offense.

The State relied on evidence which tended to show defendant employed abusive methods in disciplining Jennifer on prior occasions. It also relied on testimony of physicians which tended to establish Jennifer's injuries resulted from a beating rather than from a fall down a carpeted stairway as alleged by defendant.

Defendant contends the trial court erred (1) in admitting hearsay, (2) in permitting impeachment of a witness on a collateral issue, (3) in allowing evidence concerning prior injuries, (4) in overruling defense objections to evidence relating to defendant's toilet training of Jennifer, (5) in refusing to exclude physicians' opinions concerning the cause of Jennifer's injuries, (6) in denying him the right to read aloud from one of the doctors' depositions, (7) in overruling his motion for acquittal, (8) in instructing the jury on the included offense of voluntary manslaughter, and (9) in failing to enter a timely ruling on his motion in arrest of judgment.

I. The hearsay issue. Donna Schmidt, a State witness, was a friend of Mathis who frequently babysat with Jennifer. She testified about an allegedly deteriorating relationship between defendant and Jennifer during the few weeks defendant had lived in the Mathis home prior to Jennifer's death. Her testimony included the following:

Q. ... Mrs. Schmidt, tell me whether or not you ever heard conversation and statements by Jennifer Buege in the presence of the defendant as to the method of discipline that he used on Jennifer? A. Yes.

Q. Who was present at that time? A. Ellen Swan, Bob and I.

Q. And Jennifer? A. Jennifer.

Q. Where were you at? A. In the Mathis home, Sue's.

Q. What was said?

MR. BURNS: Objected to, hearsay, and all the reasons urged to the Court.

THE COURT: Overruled. You may answer.

A. Jennifer said Bobby beats me with a belt.

Q. What, if anything, was said by anyone else then? A. Bob held up his hand and said what do I hit you with?

Q. And what did Jennifer do or say at that time? A. She looked scared.

Defendant contends the court erred in overruling his hearsay objection.

If the hearsay rule can be found inapplicable here under any theory, the ruling will be upheld. State v. Kidd, 239 N.W.2d 860, 864 (Iowa 1976). In the present case, the trial court believed, among other grounds, that the statement was admissible to show Jennifer was afraid of defendant. The court offered to admonish the jury that the evidence was not admitted to show the truth of the assertion but only to show Jennifer said it. Defense counsel rejected the offer, and no admonition was given.

We believe the ruling can be sustained on the ground the statement was admitted without reference to the truth or falsity of the matter asserted. See State v. Leonard, 243 N.W.2d 887, 890-91 (Iowa 1976). First, it was admissible as circumstantial evidence of the relationship between defendant and Jennifer. Second, it was admissible to provide the context for defendant's admission that he hit Jennifer with his hand.

Earlier, through cross-examination of Sue Mathis, defense counsel sought to demonstrate a warm, playful relationship between defendant and Sue's children. Among other things, Mathis said: "When we moved they played. They jump on him and stuff like that." Defendant acknowledges that the relationship between himself and Jennifer was a proper subject of inquiry. See State v. Harrington, 284 N.W.2d 244, 248 (Iowa 1979) ("evidence of motive which might be inferred from prior relationships between defendant and the victim"). He argues that Jennifer's statement was not admissible on this theory because it bore only on her attitude and not on defendant's quo animo. This argument, however, pertains to the relevancy of the evidence, not its character as circumstantial evidence. Without deciding whether a relevancy objection might otherwise have had merit, we believe the statement was admissible as circumstantial evidence which was fairly responsive to defendant's effort to show an affectionate relationship between defendant and Jennifer. See State v. Pepples, 250 N.W.2d 390, 393-94 (Iowa 1977).

In addition, it was admissible as part of "a reciprocal and integrated utterance between the two parties." United States v. Metcalf, 430 F.2d 1197, 1199 (8th Cir. 1970). Defendant's alleged response to Jennifer's statement was an admission that he hit her with his hand. No question exists about the admissibility of his statement. Yet his statement could not fully be understood out of context. Jennifer's statement was an essential component of the setting in which defendant's statement was made. Statements of one party to a conversation may be admitted without regard to their truth or falsity in order to show the context in which admissible statements by another party were made. See United States v. Kenny, 645 F.2d 1323, 1339-1340 (9th Cir. 1981); United States v. Ariza-Ibarra, 605 F.2d 1216, 1224 (1st Cir. 1979); United States v. Abrahamson, 568 F.2d 604, 606 (8th Cir. 1978) (per curiam); United States v. Lemonakis, 485 F.2d 941, 948-49 (D.C.Cir.1973), cert. denied, 415 U.S. 989, 94 S.Ct. 1586, 39 L.Ed.2d 885 (1974); cf. 7 J. Wigmore, Evidence § 2094, at 595 (J. Chadbourne rev. 1978) ("To look at a part alone would be to obtain a false notion of the thought.").

We find no error in the ruling admitting the evidence of Jennifer's statement. Defendant also complains, however, of the failure of the court to give a limiting instruction. The record shows he rejected the court's proposed admonition and neither requested a limiting instruction nor objected to the court's failure to give one. Hence no error can be predicated on the court's failure to instruct the jury on the limited purpose for which the evidence was admitted.

II. The impeachment issue. Defendant called an ambulance to the Mathis residence to take Jennifer to the hospital on the afternoon she was injured. Sue Mathis was at her place of employment. After Jennifer's arrival at the Waukon hospital, a nurse called Mathis to request permission for Jennifer's transfer to a hospital in La Crosse, Wisconsin. Called as a State witness, Mathis' version of the conversation was as follows:

Q. Did she indicate Jennifer had been injured on that date? A. She just asked if they could transfer my daughter to La Crosse.

Q. Did she explain why? Did she indicate there were injuries? A. No. I asked her which one. She said Jennifer. I said yes, they could.

Q. Did you talk to anyone else at that time? A. To Bobby.

Q. The defendant, Bobby Hilleshiem? A. Yes.

Q. Do you remember the very first thing you said to Bobby on November 14, 1979, when he first picked up the phone? A. Yes. I asked him what happened to Jenny.

Q. Are those your words? A. Yes.

Q. Are you certain the words you used were not "Bobby, what did you do to her?" A. No.

Q. You are not certain? A. No, I asked him what happened to Jennifer.

Q. You are positive those are the words you used? A. Yes.

In an effort to impeach Mathis' version of her initial statement to defendant on the telephone, the State called the switchboard operator at Mathis' place of employment. The operator testified she overheard Mathis' side of the conversation. Defendant objected to her testimony on grounds of relevancy, materiality and the alleged collateral character of the impeachment. After the objection was overruled, she testified as follows:

Q. What was the first thing you heard Sue Mathis say to this person she referred to as Bob? A. She said, "Bob, what did you do to her?"

Q. Do you have any doubt that's what she said? A. No.

Defendant now asserts the trial court erred in admitting the evidence because its relevancy was greatly outweighed by its prejudicial impact and because it was an attempt to impeach a witness on a collateral issue. We do not reach his assertion of undue prejudice because he did not preserve error on it. See State v. Mark, 286 N.W.2d 396, 410 (Iowa 1979).

We find no merit in defendant's contention that the attempted impeachment addressed a collateral issue. Impeachment evidence is not collateral if it could have been admitted for any purpose independent of the contradiction. State v. Gilmore, 259 N.W.2d 846, 853 (Iowa 1977); State v. Fowler, 248 N.W.2d 511, 520 (Iowa 1976); State v. Hill, 243 N.W.2d 567, 571 (Iowa 1976). As noted in division I, defendant acknowledges his relationship with Jennifer was a material issue in the case.

If Mathis' first question of defendant implied she believed he had injured Jennifer, the evidence would support the State's theory he was abusive in his prior discipline of the child. Because the relationship between defendant and Jennifer was material, evidence on that issue was not collateral. The impeachment evidence would have been independently admissible, although perhaps vulnerable to a hearsay objection. Thus it was permissible...