State v. Martin, No. 55207

• Court: United States State Supreme Court of Iowa
• Writing for the Court: RAWLINGS; In all fairness it must be conceded that when the cause at hand was tried the standard we today adopt was not, of course, in effect. On the other hand; MOORE; UHLENHOPP; MOORE
• Citation: 217 N.W.2d 536
• Parties: STATE of Iowa, Appellee, v. Charles Reno MARTIN, a/k/a William Gottfried, Appellant.
• Decision Date: 24 April 1974
• Docket Number: No. 55207

Page 536

217 N.W.2d 536 STATE of Iowa, Appellee,
v.
Charles Reno MARTIN, a/k/a William Gottfried, Appellant. No. 55207. Supreme Court of Iowa. April 24, 1974.

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John P. Roehrick, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Raymond W. Sullins, Asst. Atty. Gen., Ray Fenton, County Atty., and Michael Hansen, Asst. County Atty., for appellee.

Considered en banc.

RAWLINGS, Justice.

Defendant, Charles Reno Martin, a/k/a William Gottfried, appeals from judgment on jury verdict finding him guilty of robbery with aggravation in violation of The Code 1971, Sections 711.1, 711.2. We reverse.

April 30, 1971, a gun point robbery was perpetrated at the Safeway Super Market store, East 14th and University in Des Moines. About an hour later the police arrested Martin. He then had in his possession a sack of money identified as having come from said store, and a pistol. By information defendant was accused of the above stated offense.

Prior to trial defense counsel moved for an order in limine by which the State would be prohibited from making any inpresence-of-jury inquiry of Martin regarding his prior felony convictions, except those related to truth and veracity. This motion was overruled.

Like objections were interposed as to such evidence at appropriate stages during the trial and again overruled. Ultimately on cross-examination, Martin admitted he had been previously convicted of several prior felonies.

Defendant's attorney also endeavored to prove Martin was under the influence of narcotics at time of the aforesaid robbery. In support thereof several attempts were made to introduce opinion evidence, via hypothetical questions asked of a claimed expert, as to the effect drugs had upon people. Objections thereto because of inadequate foundation and absence of qualifications on the part of the witness were sustained.

In support of a reversal defendant here asserts, trial court erred in (1) allowing prosecution cross-examination of defendant regarding prior felony convictions unrelated to truth and veracity, and (2) refusing to permit introduction of testimony by a defense called expert witness.

I. The first question posed relates to prior felony convictions impeachment of a defendant-witness.

The effect of prior felony convictions upon testimonial rights has long been a matter of concern to both courts and legal scholars.

At common law a person was deemed incompetent to testify if he or she had previously been convicted of what was termed an 'infamous crime'. See 2 Wigmore on Evidence, §§ 519--520 (3d ed.); McCormick on Evidence, § 43 at 89 (1954). See generally 12 Drake L.Rev. 141 (1963).

The above rule was later abolished by statutory enactments in every state. See Code § 622.1, 622.3.

In so doing, however, the legislative bodies in most jurisdictions enacted statutes

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comparable to our Code § 622.17 which says: A witness may be interrogated as to his previous conviction for a felony. No other proof is competent, except the record thereof.'

This Act constitutes a statutorily imposed exception to the basic rule that evidence showing the commission of crimes other than the one with which an accused stands charged is not ordinarily admissible. See State v. Wright, 191 N.W.2d 638, 639--640 (Iowa 1971).

Furthermore, evidence made competent by the above quoted statute is for the sole purpose of impugning the credibility of a witness. See Brown v. United States, 125 U.S.App.D.C. 220, 370 F.2d 242, 244 (1966); State v. Milford, 186 N.W.2d 590, 593 (Iowa 1971); State v. Anderson, 159 N.W.2d 809, 812 (Iowa 1968); Gaskill v. Gahman, 255 Iowa 891, 896, 124 N.W.2d 533 (1968); State v. Underwood, 248 Iowa 443, 445--446, 80 N.W.2d 730 (1957); 41 Iowa L.Rev. 325 (1956).

On the other hand this court has not heretofore held the testimonial impeachment allowable under § 622.17 is restricted to felony convictions involving dishonesty, truth or veracity, nor limited as to time thereof.

Absence of any change in that regard is probably due to the fact that related error has not, in most instances, heretofore been preserved for appellate review. See e.g., State v. Shipp, 184 N.W.2d 679, 680 (Iowa 1971); State v. Schatterman, 171 N.W.2d 890, 896 (Iowa 1969); State v. Anderson, 159 N.W.2d at 812--813.

We are satisfied, however, the instantly assigned error was adequately preserved for consideration by this court. See generally 22 Drake L.Rev. 435, 445, 457--469 (1973). See also Griggs v. State, 494 P.2d 795, 797 (Alaska 1972); cf. State v. Byrnes, 260 Iowa 765, 767, 150 N.W.2d 280 (1967).

II. It must be conceded the existent unrestricted prior felony conviction impeachment view, to which reference is above made, has been subjected to more than minimal criticism.

We inceptionally note this censorious observation in McCormick on Evidence, § 43 at 93--94:

'The sharpest and most prejudicial impart of the practice of impeachment by conviction * * * is upon one particular type of witness, namely, the accused in a criminal case who elects to take the stand. If the accused is forced to admit that he has a 'record' of past convictions, particularly if they are for crimes similar to the one on trial, the danger is obvious that the jury, despite instructions, will give more heed to the past convictions as evidence that the accused is the kind of man who would commit the crime on charge, or even that he ought to be put away without too much concern with present guilt, than they will to its legitimate bearing on credibility. This places the accused, who has a 'record' but who thinks he has a defense to the present charge, in a grievous dilemma. If he stays off the stand his silence alone will prompt the jury to believe him guilty. If he elects to testify, his 'record' becomes provable to impeach him, and this again is likely to doom his defense. Where does the balance of justice lie? Most prosecutors would say with much force that it would be unfair to permit the accused to appear as a witness of blameless life, and this argument has generally prevailed. But in England and in Pennsylvania the accused who takes the stand is shielded, under certain circumstances, from inquiry or proof as to misconduct or conviction of crime when offered to impeach. Similarly the Uniform Rule provides that if the accused does not offer evidence supporting his own credibility the prosecution shall not be allowed, on cross-examination or otherwise, to prove for impeachment

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purposes his commission or conviction of crime. On balance it seems that to permit, as these provisions do, one accused of crime to tell his story without incurring the overwhelming prejudice likely to ensue from disclosing past convictions, is a more just, humane and expedient solution than the prevailing practice.'

See generally Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85, 91 (1964); State v. Underwood, 248 Iowa at 447--448, 80 N.W.2d at 733, State v. Santiago, 53 Haw. 254, 492 P.2d 657, 659--662 (1971); People v. Farrar, 36 Mich.App. 294, 193 N.W.2d 363, 368--369 n. 20 (1971); cf. Krulewitch v. United States, 336 U.S. 440, 453, 69 S.Ct. 716, 723, 93 L.Ed. 790 (1949) (concurring opinion); Michelson v. United States, 335 U.S. 469, 479--481, 69 S.Ct. 213, 220--221, 93 L.Ed. 168 (1948); 41 Iowa L.Rev. at 337--345. But see McGautha v. California, 402 U.S. 183, 215, 91 S.Ct. 1454, 1471, 28 L.Ed.2d 711 (1971); Spencer v. State of Texas, 385 U.S. 554, 560--565, 87 S.Ct. 648, 652--654, 17 L.Ed.2d 606 (1967); State v. Van Voltenburg, 260 Iowa 200, 210, 147 N.W.2d 869 (1967); Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255, 260--262 (1973).

III. That brings us to the specifies of the first question raised on this appeal.

Prior to trial, as previously observed, defense counsel moved the State be precluded from offering evidence in course of the prosecution regarding (1) defendant's prior felony convictions as to the same or a similar charge, or (2) any other conviction not involving truth and veracity. This motion was overruled.

During trial defendant testified on his own behalf and in response to an inquiry on direct examination stated he had been previously convicted of a felony. Noticeably he did not deny having ever been so convicted.

On cross-examination the county attorney inquired whether defendant had ever been convicted of burglary and voluntary manslaughter. Defendant's attorney promptly objected, first by renewal of grounds advanced in the above noted pretrial limine motion, then because (1) the question did not constitute prior course of conduct impeachment; (2) it did not go to truth and veracity; (3) it was designed to improperly prejudice the jury against defendant; and (4) it was immaterial and irrelevant. The objection was overruled and defendant thereupon stated he had been convicted of burglary, voluntary manslaughter, kidnapping and some other crimes.

By objection to jury instructions given, and again on motion in arrest of judgment and for a new trial, defense counsel reasserted the foregoing objections regarding prior convictions not related to truth and veracity.

State initially maintains, however, the controverted prosecutorial inquiry was proper under our prior Code § 622.17 holdings.

In resolving that issue we first address ourselves to the nature of an impeachment related prior felony conviction.

In that regard Chief Justice Warren Burger, while on the D.C. Court of Appeals, aptly stated in Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936, 940 (1967):

'(W)e must look to the legitimate purpose of impeachment which is, of course, not to show that the accused who takes the stand is a 'bad' person but rather to show background facts which bear directly on whether jurors ought to believe him rather than other and conflicting witnesses. In common human experience acts of deceit, fraud, cheating, or stealing, for example, are universally regarded as conduct which reflects adversely on a...