State v. Johnson, 60174

• Decision Date: 20 December 1978
• Docket Number: No. 60174,60174
• Citation: 272 N.W.2d 480
• Parties: STATE of Iowa, Appellee, v. William Cotalious JOHNSON, Appellant.
• Court: Iowa Supreme Court

Page 480

272 N.W.2d 480

STATE of Iowa, Appellee, v. William Cotalious JOHNSON, Appellant.

No. 60174.

Supreme Court of Iowa.

Dec. 20, 1978.

Linda J. Thompson, Mt. Pleasant, for appellant.

Richard C. Turner, Atty. Gen., J. Susan Carney, Asst. Atty. Gen., and Steven S. Hoth, County Atty., for appellee.

Considered by REES, P. J., and UHLENHOPP, HARRIS, ALLBEE and LARSON, JJ.

REES, Justice.

Defendant was charged by county attorney's information with the crime of murder in the first degree, in violation of § 690.2, The Code, 1975. Following a verdict of guilty, he was sentenced, and appeals. We affirm on condition and remand with instructions.

Specifically, the defendant was charged with having murdered one Hobart Sharp. Following an exchange of words in a tavern in Burlington, the defendant drew a revolver and fired three shots, two of which struck the decedent. The defendant testified he shot at the decedent in self-defense, alleging Sharp had threatened him further testifying that Sharp had threatened other persons with a knife in another tavern on at least two other occasions. A pocketknife was found at the scene of the shooting, but there was no direct evidence to connect the victim with the ownership of the knife. One of the investigating officers, Detective Robert Stevens, testified over a hearsay objection that decedent "did not have any kind of weapon at all" at the time of the shooting. Twelve eyewitnesses, including the defendant, testified concerning the shooting and the circumstances which led up to and followed the event. No witness was able to testify that he or she had seen the knife in the hands of Sharp, but neither was testimony elicited stating positively that decedent was not armed with a knife. The defendant alleges that the only direct testimony to the effect that Sharp did not have a knife came from Detective Stevens, who was not present at the time of the shooting.

The State concedes in this appeal the testimony of Stevens in this regard was inadmissible hearsay testimony, but contends the admission of the same was harmless error.

About 30 minutes following the shooting, defendant was arrested at the home of one Lorraine Meriweather in Burlington. At the time of his arrest Johnson stated that he had thrown the gun in the river. The firearm was later found, as the result of information volunteered by Ms. Meriweather, in her dwelling. No other statement was made by Johnson at the time of his arrest. On direct examination of the police officers, the prosecuting attorney asked if the defendant had made any statements other than to the effect that he had thrown the gun in the river. All of the witnesses testified that he had not made any further statement. During closing argument the State made reference to the fact that defendant had admitted nothing prior to his testimony at trial. Following the filing of the county attorney's information, defendant filed a motion asking the court to require the county attorney to produce certain evidentiary material and other information alleged to be necessary for the defendant's defense, including copies of all signed statements of any persons relating to the alleged offense or to the defendant which were then in the possession of the State, and the names and addresses of all persons known to the State who had any knowledge or information concerning the facts of the alleged crime or relating to defendant's guilt or innocence, including the names and addresses of all persons who had knowledge of any exculpatory evidence in possession of the State regarding the defendant. The motion was overruled with respect to the items referred to above.

The following issues are stated for review:

(1) Was the admission of hearsay testimony by an investigating officer that the decedent Sharp was unarmed harmless error, when a knife was found at the scene and no witnesses could state positively whether or not the knife had been in the possession of the decedent Sharp?

(2) Was the defendant's exercise of his constitutional right to remain silent improperly referred to by the prosecutor to create an inference of guilt when several police officers were permitted to testify to the defendant's silence at the time of his arrest, and when, during closing argument, the State made reference to the fact that defendant had waited until trial before making any admissions? Was this issue waived by the defendant in failing to object at the trial level?

(3) Was defendant improperly denied the opportunity to discover possible exculpatory material by the overruling of his pretrial motion to compel production of signed statements taken by investigating officers and the names and addresses of persons having knowledge of the alleged crime?

I. The defendant first challenges the admissibility of a certain portion of the testimony of Officer Robert Stevens to the effect that, from the statements he had gathered from those present at the scene of the shooting, "Mr. Sharp, that was shot, did not have any kind of a weapon at all." This testimony was clearly hearsay. State v. Menke, 227 N.W.2d 184 (Iowa); State v. King, 225 N.W.2d 337 (Iowa). Objection thereto was timely made, and overruled by the court. The State concedes the trial court erred in overruling the objection to the foregoing testimony but asserts that the admission of the testimony constituted harmless error.

Error in the admission of hearsay is presumed to be prejudicial unless the contrary is affirmatively established. State v. Menke, Supra, at 188. Although not specifically in the hearsay context, we have stated that prejudice will not be found where substantially the same evidence is in the record without objection. State v. Gilmore, 259 N.W.2d 846 (Iowa). The State alleges that in the case at bar there is a considerable body of evidence in the record, without objection, to the effect that the decedent was not armed, and a close scrutiny of the record leads us to conclude the State's contention in this regard is correct.

While it is true a small knife was found about ten feet from the victim's body in the tavern and that the police could not establish the ownership of the knife among those present at the time of the shooting, it remains clear from the record there is a great deal of testimony substantially corroborative of Officer Stevens' statement to the effect the victim was not armed. We are mindful of the fact Stevens' testimony was given in the context of the knowledge he had gained during the course of his investigation of the shooting. A paraphrasing of Stevens' testimony might be said to be as follows: "On the basis of my interviews with the witnesses to the shooting, I would conclude that Mr. Sharp did not have any kind of weapon at all." Eleven witnesses to the shooting testified they had seen no knife in Sharp's hands at the time of his confrontation with the defendant. Admittedly, some of the witnesses could not testify that Sharp did not have a weapon in his hand, which fact could be partially explained by the dim lighting in the tavern. Even the testimony of the defendant was to the effect that he had at no time seen a knife in Sharp's possession.

There are independent sources of the same line of testimony, which came into the record without objection, similar to the testimony of Officer Stevens. Detective Ingrahm testified that in the course of his investigation he came across no evidence to indicate the decedent was armed with a deadly weapon, and Detective Smith testified that his investigation reflected no indication the decedent was armed.

After a full consideration of the record, we conclude there is substantially the same information therein as that to which Officer Stevens testified, namely, that there was no indication at the time of the shooting that the victim Sharp was armed with a weapon. We conclude the admission of Officer Stevens' statement was harmless error in light of the multiplicity of other sources of information which duplicate his testimony.

II. In his next issue stated for review, the defendant contends the prosecution placed impermissible emphasis on defendant's silence at the time of his arrest, both during the case-in-chief and during closing argument to the jury. In questioning the police officers who were present when the defendant was arrested, the prosecution asked whether Johnson had made any statement other than the one to the effect that he had thrown the gun in the river. All of the officers answered such interrogatories in the negative.

It is true defendant was entitled to rely on the right to silence guaranteed him by the Fifth Amendment to the United States Constitution, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, and that the State may not impose a penalty upon the defendant for...