State v. Hines, 57028

• Decision Date: 13 November 1974
• Docket Number: No. 57028,57028
• Citation: 223 N.W.2d 190
• Parties: STATE of Iowa, Appellee, v. Donald R. HINES, Jr., Appellant.
• Court: Iowa Supreme Court

Page 190

223 N.W.2d 190

STATE of Iowa, Appellee, v. Donald R. HINES, Jr., Appellant.

No. 57028.

Supreme Court of Iowa.

Nov. 13, 1974.

Rehearing Denied Dec. 12, 1974.

Michael M. Pedersen, Waterloo, for appellant.

Richard C. Turner, Atty. Gen., Nancy J. Shimanek, Asst. Atty. Gen., David J. Dutton, County Atty., and Charles F. Hinton, Asst. County Atty., for appellee.

Heard by MOORE, C.J., and MASON, UHLENHOPP, REYNOLDSON and McCORMICK, JJ.

REYNOLDSON, Justice.

Upon trial defendant was convicted of the offense of possession of a controlled substance, a violatin of § 204.401, The Code. Upon his appeal, we affirm.

I. Defendant asserts trial court erred in three particulars. Two of the asserted errors relate to the court's refusal to suppress drug evidence obtained by a warrantless search of an auto defendant was driving.

In a companion case, State v. Shea, 218 N.W.2d 610 (Iowa 1974), we upheld the validity of this particular search and seizure. The pre-trial suppression hearing, by agreement, applied to both defendants. Trial-developed facts leading up to the search were essentially the same in both cases. Our holding in Shea controls our ruling with respect to these two issues. We find no error.

II. Defendant's third ground for reversal asserts trial court erroneously permitted witnesses to testify 'as to their opinion of the ultimate issue in the case.'

The State asked police captain Dolan a hypothetical question which counsel prefaced with the warning it would be 'rather lengthy.' The question (covering three pages of transcript) incorporated all facts leading up to and including the controversial search, together with the materials found, all as set out in Shea, supra, and terminated with the query, 'Do you have an opinion as to what the defendant was doing in the area of the Music Box Tavern on June 30, 1972?'

After Dolan responded he had an opinion he was asked what it was. Defendant made the following objection:

'We * * * object * * * the hypothetical question assumes facts not in the record, calls for the opinion and conclusion of the witness, which he already testified to on cross-examination would be based on hearsay evidence as to him or as to this court. No proper foundation as to his answering this. It would be self-serving and furthermore invades the province of the jury.'

The objection was overruled, and Dolan responded:

'My opinion is that these two men were at the Music Box or in the area for one of two things. Either to sell drugs or to line up possible drug buyers. In other words, they would meet someone who wanted to buy drugs and then they would journey to another location at which point the drugs would be sold.'

Essentially the same hypothetical question was directed to detective Helgesen. A similar objection was lodged and overruled. Helgesen answered:

'My opinion Mr. Hines and Mr. Shea were at that location, the IPS, sitting on the IPS ledge waiting for the crowd to come out of the Music Box for the purpose of contacting members of that crowd and negotiating or selling drugs. * * *'

Defendant argues these witnesses were thus permitted to testify as to his intent at the crucial time. And because intent (given the admitted possession of drugs) is the gist of the crime charged, trial court abused its discretion by violating our rule that an expert may not be permitted to express an opinion concerning the guilt or innocence of a defendant in a criminal action. See State v. Galloway, 167 N.W.2d 89, 94 (Iowa 1969); State v. Jiles, 258 Iowa 1324, 1331, 142 N.W.2d 451, 455 (1966); State v. Miller, 254 Iowa 545, 554, 117 N.W.2d 447, 453 (1962); Grismore v. Consolidated Products Co., 232 Iowa 328, 361, 5 N.W.2d 646, 663 (1942).

Neither this rationale nor the cited rule were included in defendant's exceptions. Trial court could hardly be deemed to have abused its discretion when it failed to construe the ground above relied on was included in the objections that these questions 'invaded the province of the jury' and went 'to the ultimate fact.' See State v. Taylor, 201 N.W.2d 724, 727 (Iowa 1972); Grismore, supra, 232 Iowa at 344, 5 N.W.2d at 655--656.

The other grounds asserted in defendant's trial objections to the questions which elicited this opinion testimony are not argued here.

The State contends this use of expert opinion was permissible to show the Modus operandi of a particular type of crime to help the jury understand how seemingly innocent acts interrelate to form a patterned criminal scheme. See People v. Clay, 227 Cal.App.2d 87, 38 Cal.Rptr. 431 (1964); Annot., 100 A.L.R.2d 1433. But in...