State v. Kern

• Decision Date: 17 June 1981
• Docket Number: No. 64398,64398
• Citation: 307 N.W.2d 22
• Parties: STATE of Iowa, Appellee, v. Robert Lee KERN, Appellant.
• Court: Iowa Supreme Court

Page 22

307 N.W.2d 22

STATE of Iowa, Appellee, v. Robert Lee KERN, Appellant.

No. 64398.

Supreme Court of Iowa.

June 17, 1981.

Rehearing Denied July 9, 1981.

Leon F. Spies, Iowa City, for appellant.

Thomas J. Miller, Atty. Gen., Julie F. Pottorff, Asst. Atty. Gen., and Edward W. Kemp, Cedar County Atty., for appellee.

Considered by UHLENHOPP, P. J., and HARRIS, McGIVERIN, LARSON, and SCHULTZ, JJ.

UHLENHOPP, Justice.

This appeal involves several legal problems which arose in the trial of a first-degree murder charge. See also State v. Judy Kay Kern, 307 N.W.2d 29 (Iowa 1981).

Viewing the evidence in the light most favorable to the guilty verdict, State v. Robinson, 288 N.W.2d 337, 340 (Iowa 1980), the jury could find the facts substantially as follows. Ady and Jeanne Jensen were spouses. Jeanne was a close friend of defendant Robert Lee Kern and his wife Judy Kay Kern. Defendant was an agent for an insurance firm owned by Phillip Brammer. Jeanne Jensen was having an affair with Brammer, and her marriage to Ady had deteriorated.

Jeanne desired to have Ady done away with, and so informed Judy Kay Kern. Judy told her that defendant knew a person in Illinois who would kill Ady for a fee.

Defendant, Judy, and Jeanne then conceived the idea of procuring a life insurance policy on Ady for $50,000, of defendant's having the Illinois individual, Andrew J. Oglevie, kill Ady, and of splitting the insurance.

Defendant made arrangements with Oglevie in accordance with the plan. He directed Jeanne to get the fee of $50, a picture of Ady, and a description of a truck Ady drove. Jeanne subsequently passed an envelope to the Kerns containing those three items. Later Jeanne, at defendant's request, brought the Kerns a cancelled check bearing Ady's signature. With defendant, Judy, and Jeanne present, Jeanne helped defendant fill out a life insurance application on Ady, signed by defendant and also bearing Ady's forged signature.

Defendant presented the application and a premium check, likewise bearing Ady's forged signature, at Brammer's office, and those instruments were then forwarded to the insurance company.

Defendant, Judy, and Jeanne discussed wiring Ady's truck so that it would explode. Oglevie came from Illinois to perform his contract. He, defendant, and Judy went to the Jensen home while Ady was at work. Jeanne had given defendant the keys to Ady's truck, and defendant and Oglevie went to the garage and wired the truck to explode. Later, however, Ady discovered the wiring of the truck, and the plot to blow him up failed.

Undaunted, Oglevie decided on a different approach. He was informed that Ady was to go from Iowa City to his parents' rural West Branch home on a Saturday morning. Oglevie, defendant, and Judy planned that Oglevie would go to that home and wait, and when Ady left for that place Judy would call there and let the telephone ring three times.

Defendant helped Oglevie cut lines to tie up Ady's parents, and drove him to West Branch late Friday night. Oglevie, carrying a shotgun and wearing a handkerchief mask and rubber gloves, broke into the parents' home. He tied up the parents, made a number of statements in their presence endeavoring by ruse to draw attention away from defendant, Judy, and Jeanne, and told the parents he would get a telephone signal when Ady left Iowa City.

On Saturday morning Ady left for his parents' home, and Jeanne so informed Judy. Judy then called the home of Ady's parents and gave the telephone signal. Ady arrived at the elder Jensens' place. Oglevie confronted Ady, bound him up, and killed him by shooting him in the front and back. Oglevie then stole $300 from the home and left in a car of the elder Mrs. Jensen.

After these events defendant and Judy wanted Oglevie to stay away from Iowa. Defendant paid the back storage bill on Oglevie's van which was stored in this state, and towed it to Illinois for Oglevie.

The life insurance company received notification of Ady's death but denied coverage. Investigators subsequently concluded that the application and premium check were forgeries. They also learned of Jeanne's affair with Brammer. Fearful that he might become involved in a homicide charge, Brammer began to tape-record his conversations and telephone calls with Jeanne and the Kerns, and turned the tapes over to the investigating officers. As time passed, Jeanne began to confide to Brammer the details of her involvement in Ady's death, and Brammer funneled that information also to the investigators.

Within a couple months, with Brammer's encouragement, Jeanne agreed to turn State's evidence against the Kerns and Oglevie. In return the State charged her with conspiracy to commit a forcible felony. She pleaded guilty and was sentenced to incarceration in the Women's Reformatory.

Defendant and Judy were charged with first-degree murder and were jointly tried. They did not elect to testify. A jury found them both guilty, and the court sentenced them to life imprisonment. They both appealed, and the present appeal involves the case of defendant Robert Lee Kern. At the time of this trial Oglevie had not been tried.

I. Hearsay objection to testimony of Olga Jensen, Lebre, Gearhart, and Dooley. Defendant first contends that the trial court prejudicially erred in overruling his hearsay objection to the testimony of four witnesses.

A. The State claimed that the murder was the result of a conspiracy among the several individuals, and to prove its claim relied on Jeanne's testimony and circumstantial evidence. Evidence of the latter kind can be cogent, Wroblewski v. Linn-Jones FS Services, Inc., 195 N.W.2d 709, 712 (Iowa 1972), and in this case it was particularly damning.

The rule regarding admissibility of conspirators' statements is stated thus in State v. Kidd, 239 N.W.2d 860, 864 (Iowa 1976) (citations omitted):

(W)hen there is substantial evidence of a conspiracy, whether the offense charged is conspiracy or not, everything said by any conspirator in furtherance of the common purpose is deemed to have been said in behalf of all parties to the conspiracy. A statement by a co-conspirator of a party during the course and in furtherance of the conspiracy is thus admissible against the party as an admission.

Two conditions must be met for this rule to be applicable. First, the statement must have been made during the pendency of the conspiracy. Second, it must have been in promotion of the object or design of the conspiracy.

Also:

Once a conspiracy has been shown, the burden is upon the conspirator to show it has ended. A conspiracy to commit robbery does not necessarily end when the robbery has been committed; it may persist at least until the fruits of the crime have been divided. A conspiracy may also continue into a concealment phase.

Olga Jensen, Ady's mother, testified to statements by Oglevie, one of the conspirators, when she was bound and he was waiting for Ady's arrival. These had to do with his waiting for the ringing of the telephone, events at a garage, and other incidents involved in the conspiracy. Linda Lebre, Oglevie's girl friend, and her sister Judith Gearhart, testified to statements by Oglevie about contemporaneous events in the course of Oglevie's carrying out the abortive plan to blow up Ady's truck.

Much of the testimony of Olga Jensen about Oglevie's statements is not hearsay at all. Hearsay is an extrajudicial statement offered to prove the truth of the assertion. State v. Miller, 204 N.W.2d 834, 840 (Iowa 1973). Most of Oglevie's statements to Olga Jensen were in the act of the execution of the conspiracy. They were not used to prove the truth of what was said indeed, the State claims some of them were untrue but merely to show the actual execution of the conspiracy and performance of the murder contract. Other statements in Olga Jensen's presence appear to have been made for the purpose of concealing the conspirators' real motive and drawing attention away from the coconspirators. The issue is similar as to some of the statements to Lebre and Gearhart. See State v. Jones, 271 N.W.2d 761, 767 (Iowa 1978); State v. Wycoff, 255 N.W.2d 116, 118 (Iowa 1977).

The rest of the statements to Olga Jensen, Lebre, and Gearhart are, however, hearsay. But the existence of a conspiracy had been established, and these hearsay statements would be admissible if made when the conspiracy was subsisting, as they were, and if made in furtherance of the conspiracy. They appear to have been made to "aid or assist" the conspiracy. Kidd, 239 N.W.2d at 865. The statements in Lebre's presence likewise appear to be connected with "promotion of the common design," id., and Gearhart's testimony is of similar nature. This testimony meets the test, and defendant's objection to the testimony of these three witnesses lacks merit.

B. One of the side issues in the case, claimed by the State to be a red herring, was whether Ady, the victim, had been "running around" with Oglevie's wife. The State desired to refute the claim, in any event, but Ady was of course dead. A state agent, Dooley, interviewed a number of people who had been Ady's associates, trying to discover whether Ady in fact had any extramarital relationships. He found none.

Called to the stand, the agent was asked, after the necessary foundation was laid, whether he had found any evidence at all that Ady had engaged in any extramarital relationships. Over defendant's objection, the trial court permitted the agent to respond, and he answered that he had not learned anything of the sort. Defendant claims the court erred in permitting this testimony.

A plausible argument can be made that negative testimony of this nature indirectly introduces the out-of-court hearsay statements of the individuals questioned by the agent. A sounder analysis of the admissibility of such testimony, however, was made by the court in Thomas v. State, 54 Okl.Cr. 97, 98-99, 14 P.2d 953, 954 (1932) (citations omitted):

There...