State v. Levy

• Decision Date: 18 July 1968
• Docket Number: No. 52602,52602
• Parties: STATE of Iowa, Appellee, v. Lewis LEVY, Appellant.
• Court: Iowa Supreme Court

Page 460

160 N.W.2d 460

32 A.L.R.3d 893

STATE of Iowa, Appellee, v. Lewis LEVY, Appellant.

No. 52602.

Supreme Court of Iowa.

July 18, 1968.

Henry T. McKnight and Louis A. Lavorato, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., James C. Sell, Asst. Atty. Gen., and Ray A. Fenton, County Atty., Des Moines, for appellee.

RAWLINGS, Justice.

Charged by indictment with first degree murder, defendant entered a not guilty plea, trial jury returned verdict finding him guilty of crime charged in the second degree, judgment was entered, and he appeals. We reverse.

The record discloses defendant and Karen Staver entered into a common-law marriage about May 21, 1965. He entered military service January 10, 1966, and at time here concerned was home on leave.

While defendant was absent, in the armed forces, Karen and their infant child roomed with Mr. and Mrs. Joseph Ayala. Also in the home was a son, Benjamin Ayala.

During leave from the service defendant stayed with a brother, Bob Levy.

In the forenoon, March 13, 1966, he engaged in target practice at a rifle range, then returned to Bob's apartment. His revolver and a gun belt were there placed on a chest of drawers in the bedroom.

Using Bob's Chevrolet Super Sport Convertible he went to the Ayala home, later leaving with Karen and the baby.

Sometime between 9:00 and 9:25 P.M. accused returned with his wife and child to the Ayala second floor apartment. Benjamin was there.

Defendant and Karen then went downstairs to the front porch, leaving their child in the apartment. Soon Benjamin joined them.

Shortly thereafter defendant departed, went to the car parked in an alley, and upon leaving passed the Ayala apartment building. A shot was fired from an automobile described by one witness as a black Chevrolet, which sped away.

Karen ran upstairs, the Ayalas came down, found Benjamin lying at the bottom of the stairs, and carried him to their quarters. He died of a gunshot wound.

The police were called and several officers responded.

The Polk County Medical Examiner removed a bullet from the body and turned it over to a ballistics expert in the Department of Criminal Investigation.

Policemen Tinker and Slater went to Bob Levy's apartment. In response to a knock on the door they were told to enter by Charles Siever, a roomer in the home. They opened the door and went in. Defendant came out of a bedroom, identified himself, and was told to get his coat and accompany the officers downstairs. He went back into the bedroom, followed by the two policemen. They there saw a shotgun, asked defendant if he had any other weapons, and he pointed to the revolver wrapped in a cartridge belt on top of the chest of drawers. The police took possession of the gun and belt. Upon leaving the apartment defendant was told he need say nothing and that anything said could be used against him. He was taken to the police station, and shortly after arrival talked to an attorney. Other relevant evidence will be later considered as it relates to issues presented on appeal.

Defendant contends reversible error resulted from, (1) admission of certain exhibits into evidence; (2) misconduct on the part of the assistant county attorney during prosecution of the case; and (3) refusal of defendant's requested jury instruction relative to character evidence. They will not necessarily be considered in the order presented.

I. Several days prior to commencement of trial defendant and Karen were officially married. This is conceded by the State.

In the course of investigation a written statement was given by Karen.

During his opening statement the prosecutor referred to questioning by officers of the young lady involved in the case. Defense counsel immediately objected, requesting a mistrial if the assistant county attorney persisted in his attempts to infer withholding of information by defendant's wife. The jury was then advised by the court to disregard any statement made relative to information given police by Mrs. Levy. The assistant county attorney was also told he would not be allowed to proceed beyond a showing police officers had talked to Karen.

When Mrs. Ayala was testifying, the prosecutor inquired as to what Karen said to her after the shooting. Upon objection interposed the prosecutor was again cautioned by the court.

However, Officer Leaming, as a witness for the State, was later shown a written statement purportedly given by Karen and asked to identify it. When defense counsel objected the State's attorney admitted he had no intention of offering the exhibit in evidence.

Following this the prosecution inquired of defendant on cross-examination whether he knew where his wife was living prior to June 1964. When objection was voiced the State's attorney remarked, 'Well, we will get to that when she takes the stand then.' Trial court promptly admonished the jury to disregard this statement.

Additionally, despite repeated objections and attendant admonitions by trial court, the prosecutor during cross-examination of four defense witnesses attempted to invade the husband-wife privilege, thus compelling defense counsel in presence of the jury to constantly, in effect, reassert the statutory testimonial marital prerogative.

Thereafter on rebuttal the State called Mrs. Ayala. Among other things she was asked what Karen said when she came upstairs after the shooting. The question was withdrawn. But shortly the witness was asked if the police were told she had said to Karen, 'Either you tell them or I will.' Objection was sustained and there followed this question and answer: 'Q. What did you tell the officers or tell Karen Staver in the presence of the officers? A. I told her either she's tell the officer who did it or else I would.'

Then, in opening jury argument the assistant county attorney said: 'This is a circumstantial case and the Court is going to tell you that most--or there is an awful lot of circumstantial cases. There are--more of the crimes are committed not in the presence of eye witnesses, even though there is an indication that this one was, thus forcing the state to try this case on the basis of the rules that existed prior to the evolution of the legal revolution that we're having at the present time. And I'm saying the rules just haven't caught up with the main trend. I don't object to this because I get my--I get my duty done to you and to the citizens here when I do the best I can what I have got admissible, and I'm not apologizing to a single one of you. I did the best I could to win my fight and I lost it and I'm sorry.

'Because I for one believe that the jury, if they are to determine the truth, should have the truth before them, and I don't know how the law can be so anarchistic and archaic as to force us to try the case on--'

When told by trial court, on objection asserted, to change the subject there followed this remark,' 'And again, like I say, trying this case with one arm tied behind my back--' Defense counsel objected and trial court again advised the subject be changed.

Then came this statement by the prosecutor: '* * * we're trying this case under the rules as they exist today, and the law and the rules of evidence that apply to this particular situation. Like I say, I fought and I lost and I'm not bitter about it and I think the Court was right, as the law stands today.

'If you find that he had the gun in the car at the time he took her home and fired impulsively, it's murder to (sic). But if you find and if you feel that because of the absence of some of the testimony that may have at one time--'

Objection and another admonition brought forth this remark by the State's attorney: 'Then again if you find that the State has failed to produce for whatever reason--how did you like that--some of the evidence--'

Finally, not content with his prior abortive efforts, the assistant county attorney in course of rebuttal argument, said, 'All right. This is a murder case and I'm without a witness. I'm short one. There is one person who could have told--'

When stopped from proceeding, the prosecutor asked if defense counsel was suggesting Ben Ayala was still alive. Immediately thereafter the assistant county attorney said, 'At least to Ben Ayala. But now this particular situation is true in every murder case. We have one witness who knows what happened that is not available to tell you, at least one.'

Other trial incidents going to conduct of the county attorney's assistant will be later discussed.

Section 622.7, Code, 1966, provides in part:

'Husband or wife as witness. Neither the husband nor wife shall in any case be a witness against the other, except:

'1. * * *

'2. In a civil action or proceeding one against the other, * * *'

There is no reason to believe the attorney prosecuting the case at bar was not fully aware of this statute, and if he knew not of it when trial commenced, defense counsel and trial court promptly alerted him to its existence.

Despite that fact he repetitiously sought to impress upon the minds of the jurors, defendant's wife could reveal vital information if allowed to do so. This was aggravated by continuous reference to the matter in spite of constant objections by defense counsel and futile admonitions by trial court to desist, even to the point of cautioning a mistrial would be declared if the prosecutor continued in his efforts to abuse the statutory husband-wife privilege. Stated otherwise, the county attorney's assistant repeatedly endeavored by insinuations, inferences and innuendoes, both in presentation of evidence and arguments, to indelibly impress upon the minds of the jurors defendant was designedly suppressing his wife's testimony which, if given, would be damaging to him.

State v. Chrismore, 223 Iowa 957, 274 N.W. 3, deals with an analogous situation. There defendant's wife, called as a witness by the State, was questioned regarding marriage to accused a few days prior to commencement of his...