State v. Hinkle

• Decision Date: 21 May 1975
• Docket Number: No. 56309,56309
• Citation: 229 N.W.2d 744
• Parties: STATE of Iowa, Appellee, v. Elbert James HINKLE, Appellant.
• Court: Iowa Supreme Court

Page 744

229 N.W.2d 744

STATE of Iowa, Appellee, v. Elbert James HINKLE, Appellant.

No. 56309.

Supreme Court of Iowa.

May 21, 1975.

Holmes, Ralph & Kutmus, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Jim P. Robbins, Asst. Atty. Gen., and Ray Fenton, County Atty., for appellee.

Heard by MOORE, C.J., and LeGRAND, REES, REYNOLDSON and HARRIS, JJ.

REYNOLDSON, Justice.

Defendant was indicted for first degree murder, a violation of § 690.2, The Code. Following trial and conviction, judgment was entered sentencing him to life imprisonment. Upon defendant's appeal, we affirm.

From the record before us the jury could have found the following facts.

The homicide victim, Patty Bradley, and her husband, Abraham, lived at 1358 Idaho Street, Des Moines, Iowa. Patty and Abraham were separated for two or three months, during which time defendant Hinkle was staying at the Idaho street home. Apparently there was a reconciliation. Abraham went to the house when he left his work shortly before midnight on October 5, 1972. He attempted to persuade Hinkle to return the keys to the house and to Patty's car.

When Hinkle left to get the keys Abraham, frightened, armed himself with a short-barrelled, eight-shot .22 caliber revolver kept under a mattress in the house. He loaded it with the only shells he had, three .22 caliber 'long' cartridges. After Hinkle returned with the keys Abraham transported him and his 'luggage' to a Hutton street address. When Abraham returned to 1358 Idaho he placed the gun back under the mattress.

The next morning, October 6, Abraham drove Patty to her employment, delivered their two children to a day-care center, the transacted business downtown. When he returned home he discovered someone had broken a window latch, entered the home and had taken groceries and some of Patty's clothing. He did not then determine the gun was missing. A window in Patty's auto was broken, some gas had been removed, and motor wiring pulled loose.

Until Abraham left home at 3:15 P.M. to go to his employment he was busy installing new window and door locks.

At about 4:15 P.M. Abraham received a call from Patty. He was permitted to testify, over objections to be later discussed, that he told her he did not think Hinkle would kill her and to take a cab home from work instead of the bus. When Abraham went home for supper he finished installing the window locks and returned to work.

At about 8:10 P.M. a neighbor lady, Patricia Cason, started toward the Bradley home for a visit, then recognized defendant's voice coming from the porch. She retreated to an adjoining house occupied by Judy Parrish. Patricia Cason and July heard glass breaking and Patty Bradley screaming. Patricia ran to her own home to call the police. Judy saw a person breaking out the front door glass with a chair, then standing inside the home with his arm raised. She heard shots while she was engaged in protective measures for her own children.

The police responded within minutes. Patty Bradley was found dead on the front room floor, lying on her back in a pool of blood. She had been shot seven times. One bullet had pierced the top of her pantsuit before it entered her abdomen, but subsequently this top had been pulled up to chest level. Her legs and things were spread and her slacks and panties were pulled down around her right ankle.

Defendant Hinkle was found crouching in a small room in the basement. Responding to an inquiry from the officer who found him, he said 'This is where I keep my stash.' Only items ordinarily found in a basement were in this room. Defendant had on his person the same eight-shot .22 caliber revolver left under the mattress by Abraham early that morning. It contained seven spent cartridges. Defendant also carried a new, partially-filled box of .22 caliber 'short' cartridges and a butcher knife. His clothing and shoes were blood stained. Human blood samples taken from his trousers and the fly area of his undershorts were the same type blood as that of the victim.

At a later police-station interrogation defendant admitted he had obtained the gun earlier in the day. That evening, according to defendant, he had been drinking and went to return dresses to Patty Bradley. She told him, through the door, to leave them on the porch. He then took a porch chair and broke the glass out of the door and went in. Patty was sitting on the couch and he went to the basement for a drink. He denied killing her. The dresses referred to by defendant were never found.

Tests of defendant's right hand revealed minute traces of lead which may result from firing a gun. A witness from the Bureau of Criminal Investigation laboratory testified that in his opinion, based on certain tests and microscopic inspections, one of the less damaged bullets removed from the victim's body had been fired from the revolver taken from defendant.

The only evidence offered by defendant was testimony from two witnesses relating to his claimed intoxication on the evening of October 6, a condition controverted by law officers who arrested him.

Two of the propositions defendant relies on for reversal relate to admission of testimony, the remaining two are directed to claimed erroneous instructions.

I. Defendant formulates his first question presented by this appeal as follows:

'Did the court err in allowing into evidence the hearsay testimonies of the deceased's husband, neighbor and a police officer relative to threats made to deceased by appellant?'

Defendant argues,

'(T)he testimony at the trial did not come from a witness to the threat; the witness to the threat is dead. The testimony came from persons to whom the deceased had related the alleged threat. It is thus hearsay upon hearsay. In other words, if the threats had been heard by the neighbor, the husband, or the policeman, the court would have been perfectly justified in allowing their admission.'

Examining the issue as thus formulated and argued, it is apparent defendant overlooks a formidable array of Iowa decisions which have held admissible, as part of the 'res gestae,' statements made by a homicide victim before the assault. State v. Ebelsheiser, 242 Iowa 49, 54, 43 N.W.2d 706, 710 (1950); State v. Giudice, 170 Iowa 731, 748--749, 153 N.W. 336, 342 (1915); State v. Hessenius, 165 Iowa 415, 431, 146 N.W. 58, 65 (1914); State v. Jones, 64 Iowa 349, 353, 17 N.W. 911, 912 (1884). Further ignored in defendant's arguments are decisions and authorities arguments are decisions and authorities from Iowa and elsewhere which victim, or the victim's fear of the accused, communicated by the victim to a third person, may be testified to by the third person, particularly where (as here) the killer's identity is in issue. State v. Ebelsheiser, supra; State v. Gause, 107 Ariz. 491, 495, 489 P.2d 830, 834 (1971), vacated on other grounds, 409 U.S. 815, 95 S.Ct. 192, 34 L.Ed.2d 71 (1972); People v. Merkouris, 52 Cal.2d 672, 682, 344 P.2d 1, 6 (1959), cert. denied, 361 U.S. 943, 80 S.Ct. 411, 4 L.Ed.2d 364 (1960); Lowrey v. State, 87 Okl.Cr. 313, 339, 197 P.2d 637, 651 (1948); State v. Bauers, 25 Wash.2d 825, 838--839, 172 P.2d 279, 286--287 (1946); 40 Am.Jur.2d, Homicide § 334, p. 603; 3 Underhill's Criminal Evidence (Herrick 5 Ed. 1957) § 650 (1970 Pocket Part, p. 49); cf. People v. Hamilton, 55 Cal.2d 881, 362 P.2d 473 (1961); but see United States v. Brown, 160 U.S.App.D.C. 190, 490 F.2d 758 (1973) (employing an admissibility test weighing relevance vis-a-vis prejudicial effect).

But in the trial of this case the prosecution, apparently also disregarding the above rule, proceeded to prove the threats indirectly by introduction of testimony of what the witness said concerning defendant's threats communicated by the victim. In view of the overwhelming evidence of defendant's guilt, the State's convoluted and risky efforts in this regard were a classic example of evidentiary over-kill.

In overruling hearsay objections to questions seeking to elicit what the witness said on a prior occasion, trial court stated on the record the reason for the hearsay rule is that the person who makes the statement is not available for cross-examination and, as long as the question merely sought what the witness said, it was not hearsay. This pragmatic approach finds support in the notes of the advisory committee on the proposed federal rules (see 28 U.S.C.A. at 528--529); the Model Code of Evidence (American Law Institute, Model Code of Evidence, 1942, rule 503(b), pp. 231--234); the Uniform Rules of Evidence (Handbook of the National Conference of Commissioners on Uniform State Laws, 1953, rule 63(1), pp. 197--198); McCormick on Evidence (2 Ed.1972) § 251, pp. 601--604; and 3A Wigmore, Evidence (Chadbourn rev. 1970) § 1018, p. 996.

The transcript indicates the State may have persuaded the trial judge that in State v. Smith, 195 N.W.2d 673, 675--676 (Iowa 1972) we departed from the orthodox or traditional view that a prior statement of a witness is hearsay if offered to prove the happenings of the matter asserted therein. In Smith we quoted from the hearsay- defining portion of rule 801, proposed federal rules of evidence. We did not then, nor have we yet, adopted the balance of the proposed rule or the rule in its final form, 28 U.S.C.A. Rule 801, p. 525, although neither standing alone would support the admission of the testimony in controversy here.

With this backdrop we turn to the specific complaints made by defendant, limited by the issue as he has formulated it. We observe that the several events which climaxed in the death of Patty Bradley on the evening of October 6 commenced early on that same morning with the ejection of defendant from the Bradley home and thereafter motivated the movements and reactions of the involved parties. We further note our rule there is no reversible error if trial court's ruling which admitted the evidence in controversy may be sustained on any ground. See Dealers Warehouse...