State v. Leonard

Citation243 N.W.2d 887
Decision Date30 June 1976
Docket NumberNo. 58652,58652
PartiesSTATE of Iowa, Appellee, v. Sharen Kay LEONARD, Appellant.
CourtUnited States State Supreme Court of Iowa

James William McGrath, Keosauqua, and Richard D. Hoadley, Fairfield, for appellant.

Richard C. Turner, Atty. Gen., David L. Brown, Asst. Atty. Gen., and Edwin F. Kelley, Jr., County Atty., for appellee.

En banc.

McCORMICK, Justice.

Defendant Sharen Kay Leonard appeals her conviction and sentence for assault with intent to commit murder in violation of § 690.6, The Code. The charge arose from an incident in the evening of August 19, 1974, when she shot her former husband Robert W. Leonard. Defendant challenges various evidentiary rulings, the court's instructions, and the sufficiency of evidence to support the charge. We affirm the trial court.

The parties agree on most of the facts. Defendant and Robert W. Leonard were married in 1969 and obtained a dissolution of their marriage in November 1973. The dissolution court granted defendant custody of the two children of the marriage. In July 1974, a court took the children from defendant and put them in a foster home; Robert testified at the hearing leading to that disposition. At that time defendant said she was going to get even with Robert if it was the last thing she did.

Defendant spent the night of August 18, 1974, with one John Fishel. She took a pistol from Fishel's residence when she left the next day. About 5:30 or 6:00 p.m. on that day, Fishel visited Robert at the post office in Fairfield, Iowa, where Robert worked, and told him to stay away from defendant. Robert asked Fishel to return in fifteen minutes to explain what he meant, but Fishel did not return. Robert closed the post office at 6:30 p.m. and proceeded toward his car in the parking lot.

Defendant met Robert in the post office parking lot. She got into his car with him, pulled the pistol from her clothing, and made him drive out of Fairfield. She had him stop on a dirt road in the country and get out of the car. Robert immediately began to run away, zigzagging. Defendant fired three shots in his direction, one of which struck him in the back below the right shoulder blade. Robert continued his flight, however, and after some 45 minutes obtained help at a hearby farm. An ambulance took him to a hospital in Fairfield and later to University Hospital in Iowa City. He recovered from his wound. Officers arrested defendant near Bethany, Missouri, about 11:30 p.m. on the day of the shooting.

This appeal arises from her subsequent conviction for assault with intent to murder Robert based on that incident.

Five question are presented: (1) did the trial court err in overruling defendant's hearsay objections to certain evidence? (2) did the court err in overruling objections to leading questions? (3) was defendant denied due process by confusing testimony? (4) did the court err regarding expert witness instructions? (5) did the court err in finding the evidence sufficient for submission of the charge to the jury?

I. Hearsay. Defendant objected several times that certain of the prosecutor's questions called for hearsay.

A. The first occasion was when Robert testified regarding his conversation with John Fishel at the post office.

Robert was the State's first witness. He was asked a number of routine background questions. He testified regarding the dissolution of his marriage to Sharen and her threat to get even with him for testimony against her in the subsequent custody proceeding which resulted in the children being removed from her custody and placed in foster care. Robert said he did not see Sharen again until the evening of August 19, 1974. When asked where he was at 6:00 p.m. on that date, he said he was performing duties preparatory to locking up the post office, where he was employed. Then the following testimony was given:

Q. Did anyone come to you prior to locking up the post office with any warning? * * * A. Yes, a man by the name of John Fishel. Well, there is another man that was there at the post office. He had another duty, and he informed me that John Fishel wanted to see me. Had something very important to tell me.

Q. What did Mr. Fishel state?

MR. McGRATH: Object, Calling for hearsay, your honor.

THE COURT: Overruled. The witness may answer.

A. Yes. He told me to stay away from Sharen, and I asked him at that point what in the world did he mean by this, and it happened to be at a time when we was getting ready to get a dispatch out, and I didn't have any time to discuss it any further with him, so I told him, John would you please come back in fifteen minutes and tell me what you are talking about, and at this time, he told me, well, he said, he would agree to this. After fifteen minutes went by, he did not show up, so I took it to mean it didn't mean anything to me. I figured it didn't mean nothing.

Q. Did you lock up the Post Office that night? A. I did, yes.

Q. What time approximately? A. Sixthirty.

Q. What did you do after you locked up the Post Office? A. I proceeded to go out to my car, and I got within approximately fifteen feet of it, I noticed Sharen coming on the other side of the car.

Robert then testified to the other events which led to the shooting a few minutes later.

Defendant's only objection to Robert's recital of Fishel's admonition was predicated on the hearsay ground. Since the objection was overruled, she is limited here in her attack on the court's ruling to the specific ground of her objection below. If the hearsay rule can be found inapplicable here under and theory, the ruling will be upheld. State v. Kidd, 239 N.W.2d 860, 864 (Iowa 1976); State v. Hinkle, 229 N.W.2d 744, 748 (1975) ('there is no reversible error if trial court's ruling which admitted the evidence in controversy may be sustained on any ground').

We have repeatedly defined hearsay as a statement, other than one made by a declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. See, E.g. State v. Kidd, supra, at 864; State v. Miller, 204 N.W.2d 834, 840 (Iowa 1973); see rule 801(c), Federal Rules of Evidence. An out-of-court utterance is not hearsay unless it contains an assertion of fact and is offered to prove the truth of that assertion. State v. Watson, 242 N.W.2d 702, 704 (Iowa) filed May 19, 1976; State v. Miller, supra; rule 801, Federal Rules of Evidence. Such an assertion comes within the hearsay rule because it rests for its value on the credibility of the out-of-court asserter. McCormick on Evidence § 246 (Second Ed. 1972).

Wigmore explains the theory of the hearsay rule as follows:

'The theory of the Hearsay rule * * * is that, when a human utterance is offered as evidence of the truth of the fact asserted in it, the credit of the assertor becomes the basis of our inference, and therefore the assertion can be received only when made upon the stand, subject to the test of cross-examination. If, therefore, an extrajudicial utterance is offered, not as an assertion to evidence the matter asserted, but Without reference to the truth of the matter asserted, the Hearsay rule does not apply. The utterance is then merely not obnoxious to that rule. It may or may not be received, according as it has any relevancy in the case; but if it is received, this is in no way due to the Hearsay rule.' VI Wigmore on Evidence § 1766 at 177--178 (Third Ed. 1940).

See Greenblatt v. Munro, 161 Cal.App.2d 596, 326 P.2d 929, 932--933 (1958).

We do not think the hearsay rule required exclusion of the testimony challenged here.

First, Fishel's remark was not an assertion of fact. A nonassertive utterance is not hearsay. State v. Watson, supra, 242 N.W.2d at 704.

Second, even assuming the remark contained an implied assertion that Sharen intended to harm Robert, the making of the remark was relevant evidence without reference to its truth or falsity. Sharen testified she had spent the prior night with Fishel and had taken a pistol from his home. The fact that Fishel later came to the post office to see Robert was part of the whole transaction. What Fishel said to Robert explained his purpose in coming there. Robert's testimony about Fishel's coming to the post office and warning him could properly be received as relevant circumstantial evidence reasonably necessary to complete the whole story of the crime charged. See State v. Watson, supra, at 704; State v. Hinkle, 229 N.W.2d 744, 748 (Iowa 1975); State v. Lyons, 210 N.W.2d 543, 546--547 (Iowa 1973); VI Wigmore on Evidence, supra, § 1788 at 234 ('If, then, an utterance can be used as circumstantial evidence, i.e. without inferring from it as an assertion to the fact asserted * * * the Hearsay rule does not oppose any barrier, because it is not applicable.').

Robert's testimony was admissible on the theory it was not received to prove the truth of Fishel's remark, but was received without reference to the truth or falsity of any assertion in it. Since the testimony was admissible on this theory, we do not find reversible error in the trial court's ruling admitting it.

B. The trial court three times admitted testimony that shortly after the shooting Robert said his wife had shot him. Mrs. King, the farm wife, testified Robert said this at the farm where he first received help, the sheriff also testified Robert made such a statement at the farm; and an ambulance attendant, Allen Crandall, testified Robert said in the hospital emergency room that his wife shot him. The court admitted the testimony each time over defendant's objection of hearsay. This testimony clearly was hearsay. We think however it was admissible as res gestae. The testimony indicated that even the last of the statements, the one to Crandall, occurred within about 90 minutes of the shooting. Although some testimony indicated Robert was not excited when he made the statements, other testimony showed he was 'exhausted'. On one occasion this court held admissible the statements...

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  • State v. Crawford
    • United States
    • Iowa Supreme Court
    • March 18, 2022
    ...1975). Smith and Droste were correct statements of law, but neither case involved challenges to the sufficiency of the evidence. In State v. Leonard , however, we cited Smith for the proposition that a defendant could not challenge the sufficiency of the evidence with respect to a specific ......
  • State v. Crawford
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    • March 18, 2022
    ...1975). Smith and Droste were correct statements of law, but neither case involved challenges to the sufficiency of the evidence. In State v. Leonard, however, we Smith for the proposition that a defendant could not challenge the sufficiency of the evidence with respect to a specific element......
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    ...months prior to the time of her death regarding an assault then made upon her by Fowler. This was patently hearsay. See State v. Leonard, 243 N.W.2d 887, 890 (Iowa 1976); State v. Rush, 242 N.W.2d 313, 319 (Iowa 1976); D. Seidelson, The State of Mind Exception to the Hearsay Rule, 13 Duques......
  • People v. Jones
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    • February 20, 1998
    ...in the opinion.14 We recognize that out-of-court speech can constitute an assertion even if nonassertive in form. In State v. Leonard, 243 N.W.2d 887, 889 (Iowa, 1976), the court held that an assault victim's testimony about a warning given to him by a third party ("Stay away from Sharen") ......
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