State v. McKee, 65498

• Citation: 312 N.W.2d 907
• Decision Date: 25 November 1981
• Docket Number: No. 65498,65498
• Parties: STATE of Iowa, Appellee, v. Dennis Lee McKEE, Appellant.
• Court: United States State Supreme Court of Iowa

Page 907

312 N.W.2d 907

25 A.L.R.4th 1201

STATE of Iowa, Appellee, v. Dennis Lee McKEE, Appellant.

No. 65498.

Supreme Court of Iowa.

Nov. 25, 1981.

Rehearing Denied Dec. 18, 1981.

Jon M. Kinnamon of Kinnamon, Kinnamon, Russo & Meyer, and William L. Thomas of Crawford, Sullivan & Read, Cedar Rapids, for appellant.

Thomas J. Miller, Atty. Gen., Lona Hansen, Asst. Atty. Gen., and Denver D. Dillard, Asst. Linn County Atty., for appellee.

Considered by LeGRAND, P. J., and HARRIS, McCORMICK, ALLBEE, and LARSON, JJ.

McCORMICK, Justice.

Defendant Dennis Lee McKee appeals from his conviction and sentence for sexual abuse in the first degree in violation of sections 709.1 and 709.2, The Code. He challenges trial court rulings on a motion to suppress evidence of inculpatory statements, evidentiary objections, and an objection to submission of an instruction on the serious injury element of the offense. He also contends the court erred in giving the jury a supplemental instruction in his absence. We find no reversible error and therefore affirm the trial court.

The State's evidence was that the offense occurred during the evening of November 12, 1979. The victim was in her Cedar Rapids home with her two small children. The jury could find that defendant broke into the home, held a knife to the victim's neck, threatened to kill the sleeping children if she resisted him, placed her on the floor and taped her hands behind her back. Next he gagged her and taped a covering over her head. He removed most of her clothing, using the knife to cut off the bottom of her nightshirt. He then struck her and engaged in various acts of sex abuse, including placing his penis in her rectum and putting his fist in her vagina. She described the vaginal pain as more severe than the pain of childbirth. When she attempted to cry out, defendant again threatened the lives of the children. When defendant finished he asked the victim if she had any drugs. When she said she did not, he kicked her in the side of the head. He then stole money from her purse and left.

Approximately six weeks later, the police interrogated defendant about his possible involvement in a homicide case and other offenses. Before the second day of interrogation, the officers noticed a shiny white tape on the shift knob of defendant's automobile. One of them remembered that similar tape had been used to bind the victim in this case. The victim was brought to the police station where she was shown a group of 52 photographs including defendant's. She identified defendant as her assailant from these photographs.

Subsequently the officers shifted their interrogation of defendant to his possible involvement in the sexual abuse offense. He allegedly made incriminating oral admissions. He was then charged, tried and convicted of the present offense. This appeal followed.

I. The motion to suppress. Defendant contends the trial court erred in overruling his pretrial motion to suppress the alleged inculpatory oral statements made to two police officers during custodial interrogation. This contention presents the familiar problem of determining whether to accept the officers' version of the circumstances or defendant's version. Reviewing the evidence de novo, we find the State proved by a preponderance of evidence that the defendant made a voluntary and intelligent waiver of his Miranda rights and made the statements to which the officers testified. This makes it unnecessary to interpret language used by the trial court in its ruling which defendant argues is inconsistent with that court's holding.

Our task in reviewing this issue would have been simplified if the officers had, as suggested by defense counsel, taken the precaution of recording the interrogation.

II. Evidentiary rulings. In response to a defense motion in limine, the trial court admonished the State not to offer evidence informing the jury the defendant was a suspect in a homicide case or any specific case. Nor was the jury to be told he admitted other crimes during the interrogation. However, the court ruled the jury could be informed that defendant was being interrogated in connection with the investigation of another case when he made the alleged admissions relevant to this case.

General principles governing motions in limine are delineated in Twyford v. Weber, 220 N.W.2d 919, 922-24 (Iowa 1974). We will assume, for purposes of this decision, that the record at trial remained the same as when the pretrial motion was sustained. Under that assumption, it was not necessary for defendant to make a further record at trial. The issue is simply whether evidence was received in violation of the pretrial ruling. Id. at 923-24. Of course, to the extent the motion was overruled, the pretrial ruling merely alerted the trial court to evidentiary problems which might occur at trial. When a motion in limine is overruled, it does not excuse the movant from lodging proper objections when the evidence is offered. See State v. Jensen, 216 N.W.2d 369, 373 (Iowa 1974).

At trial, the State introduced evidence, without defense objection, that defendant was interrogated about other crimes which he denied committing. Assuming this testimony might have been objectionable, it was nevertheless not a violation of the ruling on the motion in limine. The ruling barred testimony concerning other crimes which defendant admitted but did not preclude testimony that defendant denied other crimes.

At another point an officer testified to finding a list of female names in defendant's room. After the answer was in the record, defense counsel objected to the testimony on grounds of relevancy and breach of the ruling in limine. The Court sustained the objection on relevancy grounds, but no motion to strike was made. Subsequently the State offered the list in evidence, and no objection was made. Assuming the relevancy objection was good, we find that no violation of the pretrial ruling occurred and no reversible error has been shown.

Subsequently, during cross-examination, the prosecutor asked defendant about drinking and drug usage. No objection was made until defendant was asked, "Didn't you have a drug problem?" An objection to this question was sustained. Defendant contends the line of inquiry violated the pretrial ruling as "an attempt to raise the subject matter of defendant's prior drug conviction and to adduce evidence of other crimes." Again, the inquiry may have been objectionable, but it did not violate the in limine ruling. It did not call for testimony concerning convictions of crime.

The remaining incident cited by defendant involves rebuttal testimony by one of the officers who interrogated him. On cross-examination, defendant was asked why he thought the police would perjure themselves in their testimony about the interrogation. Defendant responded that one of the officers said, "I don't care what it takes to do, I'm going to get you even if I have to frame you." The officer was permitted, over defense objections based on relevancy, prejudice, other crimes, and collateral impeachment grounds, to testify that defendant was a suspect in another crime and that the officer had emphatically accused defendant of that offense but did not threaten to frame him. This testimony did not violate the pretrial ruling. The trial court had authorized the State to show defendant was being interrogated in connection with the investigation of a different crime. The rebuttal evidence was plainly relevant, and the trial court did not abuse its discretion in refusing to exclude it as prejudicial. Because the evidence was admissible independent of the contradiction to show the circumstances of the interrogation, it was not collateral. See State v. Hilleshiem, 305 N.W.2d 710, 713 (Iowa 1981).

Thus we do not find any violation of the ruling on the motion in limine. Nor do we find any reversible error in the court's rulings on defendant's objections at trial to alleged evidence of other crimes.

Defendant also contends the trial court erred in admitting two exhibits into evidence. One was a partial roll of adhesive tape which was found in his car. The tape was a common type, but it was also like the tape which had been used to bind the victim in this case. No objection was made to the exhibit, and therefore no issue was preserved for appeal. State v. Mark, 286 N.W.2d 396, 414 (Iowa 1979). The other exhibit was a piece of cloth which had been fastened by the same kind of tape to the gearshift of defendant's car. The trial court overruled a relevancy objection to this exhibit. We believe the trial court reasonably could conclude this evidence had probative value on the issue of defendant's involvement in the offense. Thus it was not an abuse of discretion for the court to admit the exhibit. See State v. Ball, 262 N.W.2d 278, 279 (Iowa 1978). In addition, because the roll of tape was already in evidence without objection, it is difficult to see how defendant could have been harmed by the court's ruling.

III. Sufficiency of the evidence of serious injury. Under section 709.2 a person commits first-degree sexual abuse "when in the course of committing sexual abuse the person causes another serious injury." The offense is a class "A" felony which carries a mandatory life sentence. "Serious injury" has a technical meaning. It is defined in section 702.18 as "disabling mental illness, or bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ."

The State's evidence included testimony by the victim that she thought the sexual abuse involved penetration of her vagina by defendant's fist, that it was very painful, and that when she was examined at the hospital after the incident she had uterine or vaginal bleeding, a bruise on her chest, and marks on her neck and wrists. She was not hospitalized, and the injuries healed. She...