State v. Johnson

• Citation: 152 N.W.2d 426,260 Iowa 1207
• Decision Date: 11 July 1967
• Docket Number: No. 52207,52207
• Parties: STATE of Iowa, Appellee, v. Irwin JOHNSON, Appellant.
• Court: Iowa Supreme Court

Page 426

152 N.W.2d 426

260 Iowa 1207

STATE of Iowa, Appellee, v. Irwin JOHNSON, Appellant.

No. 52207.

Supreme Court of Iowa.

July 11, 1967.

Rothschild & Nadler and Zimmerman, Zimmerman & Pesch, by Carl H. Pesch, Waterloo, for appellant.

Richard C. Turner, Atty. Gen., David A. Elderkin, Asst. Atty. Gen., D. Quinn Martin, County Atty., and L. Don Snow, Asst. County Atty., for appellee.

SNELL, Justice.

Defendant has appealed from judgment following conviction of sodomy (fellatio). The sufficiency of the evidence to sustain a conviction if admissible and believed by the jury is not challenged. We have reviewed the printed record and the trial transcript. We will refrain from discussion of unnecessary details.

The principal witness was the victim of the crime. His name was Lyle Schrader, a 20 year old male, referred to by other witnesses as 'the boy' or 'the kid.' For convenience we will refer to him as Lyle. From the witness stand Lyle testified that defendant and two others made him the victim of sodomy per os. At the time all were inmates in Black Hawk County jail.

I. Defendant, appellant, argues that the trial court erred in allowing an incompetent witness to testify over defendant's objection. Lyle, the complaining witness, had at some time prior thereto been a patient in the Mental Health Institute in Independence. At the time of trial he was a patient in Woodward State Hospital and School. Whether he was there as a voluntary or committed patient does not appear.

Prior to trial counsel for defendant moved for an order for psychiatric examination of Lyle in Black Hawk County. An order was made and examination made. By letter the doctor reported to the judge. We quote excerpts from the letter:

'At the time of the interview, this young man, rather thin, poorly dressed, poorly groomed, in fairly good contact with environment, appeared to be cooperative and respectful. * * * His emotional responses as described before were superficial, immature, and the patient appeared to be rather depressed. He did not show any signs of delusional or hallucinatory experiences. * * * He was fairly well oriented in all spheres. His memory for recent and remote events was fair. His insight was poor. His judgment was poor. Consequently, we agree with the diagnosis of 'Mental Deficiency, Mild' previously formulated by other workers, and we feel that this boy is at the present time, because of his inadequate insight and poor judgment, incompetent to manage his own affairs, and unable to adequately testify in Court.'

When called and sworn as a witness at the trial Lyle was first examined on voir dire by defendant's counsel, the court, again by defendant's counsel and by counsel for the State. His examination showed a limited or lack of understanding of many words but the court overruled an objection to his competency. We quote the concluding part of his voir dire examination:

'BY THE COURT:

'Q. Let me ask you this, Mr. Schrader, do you understand what it means to promise to do something, if you promise to do something? A. Yeah.

'Q. Do you know the difference between telling the truth and telling a lie? A. Yes.

'Q. Would you understand that if you promised to tell the truth you should tell the truth rather than tell a lie about something or to make up a story? A. Its better to tell the truth.

'Q. When you take an oath, which is what you did when you raised your right hand, you say you solemnly swear that the testimony you are about to give will be the truth. A. Yes.

'Q. That means you promise to tell the truth? A. Right.

'Q. And you think that you would keep that promise? A. Yes.

'MR. FRERICHS: May I ask one more question, Judge?

'THE COURT: Yes.

'Q. In connection with this telling the truth, did the County Attorney tell you how to answer these questions when you were talking to him? A. Yeah.

'MR. FRERICHS: Your Honor, I would submit to the Court and object to the introduction of this testimony on the basis that this witness is incompetent to testify, and any answer that he has given showing his competency has obviously been coached into him prior to this hearing.

'MR. SNOW: If we might ask a few questions also along this same line.

'THE COURT: I will reserve ruling. You may ask some questions.

'Q. Mr. Schrader, you talked with myself prior to coming in here today, didn't you? A. Yeah.

'Q. Did you talk to anyone else? A. Yes.

'Q. Who? A. Him.

'Q. The gentleman who was just questioning you? A. Yeah.

'Q. Now in the course of my conversation with you this afternoon, did I tell you to say anything? A. Yeah.

'Q. What did I tell you to say? A. You told me to tell the truth and not to lie about it.

'MR. SNOW: That's all I have. 'THE COURT: I will permit the witness to testify. The objection is overruled.'

We find no error in this ruling.

Section 622.1, Code of Iowa, provides:

'Witnesses--who competent. Every human being of sufficient capacity to understand the obligation of an oath is a competent witness in all cases, except as otherwise declared.'

The trial court found the witness competent under the statute. The question of the competency of a witness is for the court. State v. Beckner, 197 Iowa 1252, 198 N.W. 643. Thereafter it was for the jury to determine the weight and credit to be given his testimony and whether his testimony should be believed.

In State v. Patrick, 201 Iowa 368, 207 N.W. 393 a Mongolian type imbecile with a mental age of about 6 years and 8 months was allowed to testify. We said:

'The question therefore is whether or not the court erred in permitting her to testify. After having studied the record with care, we are not disposed to disturb the court's ruling in this respect. It is true that her evidence is very unsatisfactory and in many instances contradictory but at the same time we are not disposed to reverse the court in this respect.' (loc. cit. 371, 207 N.W. loc. cit. 394)

See also State v. Alberts, 199 Iowa 815, 202 N.W. 519.

In State v. Meyer, 135 Iowa 507, 113 N.W. 322, a 6 year old girl was permitted to testify. She did not know the meaning of the words 'oath' or 'testimony.' We said: 'If, without being familiar with the use of such words, she had an adequate sense of the impropriety of falsehood, she understood the nature of an oath, even though not able to state what those words meant. * * *

'As the law stands, the judge is to pass upon the capacity of the witness to testify, and, save upon a clear abuse of discretion, his decision will not be disturbed on appeal. State v. King, 117 Iowa 487, 91 N.W. 768.' (loc. cit. 508 and 509, 113 N.W. loc. cit. 323.)

We note as did the trial court in ruling on defendant's motion for a new trial that neither the psychiatrist who wrote the requested letter to the judge nor any other witness was called at the trial by defendant to attack the competency of the witness.

We find no abuse of the discretion of the trial court in determining the competency of the witness.

II. Stanley Wyatt, at the time of the alleged offense an inmate of Black Hawk County jail and at the time of trial brought back from the Federal Correctional Institution, Sandstone, Minnesota, testified for the State. His testimony, on direct, cross, redirect and recross examination, covers nearly 40 pages in the transcript. He testified with but very few objections of any kind to activities in the jail, observations, statements and conversations with Lyle immediately after the alleged offense.

At the close of this witness' testimony defendant moved to strike that portion relating to statements and allegations of the complaining witness because elicited in question and answer form and not within the res gestae rule. The motion was overruled.

The motion to strike was not timely.

We will discuss the res gestae problem and our duty to consider the record without regard to technical defects in subsequent divisions.

III. Defendant made timely objections to the testimony of Arnold Marsh, the night jailer who was on duty at the time of the alleged offense. Defendant objected to testimony as to Lyle's statements as hearsay and beyond the res gestae exception.

Marsh testified that he was called back to the cell block because of a plugged toilet. Just how soon he was called after the alleged offense does not appear with exactness but it was not long and was probably within a half hour. He found Lyle 'lying in his bunk, moaning' and asked him what was wrong. Lyle said he was sick and that he hurt. Lyle would not tell him more and Marsh left. After about 15 minutes Wyatt and Lyle called him back. Lyle wanted to be put 'in solitary' so he would 'be able to sleep' and wouldn't 'be afraid.' It was during this 15-minute period that Wyatt had noticed Lyle lying in his bunk 'huddled close to the wall and shaking like he was going out of his mind' and said 'they would kill him if he told' what had happened.

Marsh put Lyle in solitary and noticed blood on his clothing. Marsh asked what happened. Lyle would not talk until Wyatt told him to. He then told what happened. Lyle was then taken to another room where his statement was typed and signed.

During cross examination at the trial Lyle was not too sharp mentally and at times was confused as to time and who among the officers he had talked to. Probably to emphasize Lyle's confusion defendant introduced the statement. The statement made the same charges against defendant as did the trial testimony.

Defendant urges error in overruling objections to this testimony.

Having introduced the written statement defendant is in no position to challenge the fact or substance of Lyle's complaint.

Defendant argues that the statements were not a part of the res gestae in that they were not spontaneous and were elicited by questions.

In Roushar v. Dixon, 231 Iowa 993, 996, 2 N.W.2d 660, 662, cited by appellant, this quotation from Stukas v. Warfield-Pratt-Howell Co., 188 Iowa 878, 175 N.W. 81, appears:

'We have repeatedly said that...