State v. Miller, 55386

• Decision Date: 21 February 1973
• Docket Number: No. 55386,55386
• Citation: 204 N.W.2d 834
• Court: Iowa Supreme Court
• Parties: STATE of Iowa, Appellee, v. Calvin L. MILLER, Appellant.

Page 834

204 N.W.2d 834

STATE of Iowa, Appellee, v. Calvin L. MILLER, Appellant.

No. 55386.

Supreme Court of Iowa.

Feb. 21, 1973.

Daniel J. Spellman, of Spellman, Spellman & Spellman, Perry, for appellant.

Richard C. Turner, Atty. Gen., Robert D. Jacobson, Asst. Atty. Gen., Stanley R. Simpson, County Atty., for appellee.

Heard before MOORE, C.J., and MASON, RAWLINGS, REYNOLDSON and McCORMICK, JJ.

MASON, Justice.

Defendant, Calvin L. Miller, was charged by county attorney's information with the crime of operating a motor vehicle while under the influence of an alcoholic beverage contrary to section 321.281, The Code, 1971. Following arraignment, defendant entered a plea of not guilty. Trial to a jury resulted in a verdict convicting him of the offense charged. He appeals from judgment imposing sentence.

The offense under section 321.281 involves two elements: intoxication of the driver and his act of operating a motor vehicle while so intoxicated. It is not limited to operation on a public highway. State v. Valeu, 257 Iowa 867, 870, 134 N.W.2d 911, 913; State v. Heisdorffer, 171 N.W.2d 513, 514 (Iowa 1969).

The issue of defendant's intoxication at the time of his arrest is not raised in this appeal.

Defendant and Donavan Fallstone began drinking beer together at about 2:30 p.m. May 28, 1971. They continued their consumption of beer throughout the afternoon and early evening while driving about the town of Woodward and the surrounding countryside. William Spence testified that at approximately 5:30 p.m. and again at 6:00 he had observed defendant riding in an automobile owned and driven by Fallstone. He further stated that at 7:00 p.m. he saw Fallstone driving defendant's automobile with defendant slumped over on the passenger's side of the front seat.

Approximately 7:30, Fallstone and defendant were involved in one-car accident which was witnessed by no one.

Clay North, a highway patrolman, testified he arrived at the accident scene about 7:45. There, be observed Fallstone wandering about the area and discovered defendant sitting in the back seat of the car. Both appeared to be intoxicated. He was unable to elicit from the men who was driving the automobile when the accident occurred. An ambulance was called and both Fallstone and defendant were taken to the hospital where North continued to interrogate them in the presence of Donald Hart, a Boone police officer.

Defendant testified he had no recollection of having driven his automobile after 10:30 a.m. May 28 or the circumstances surrounding the accident and subsequent hospitalization. Miller believed the amount of alcohol he had drunk and medication taken prior to the accident for the treatment of alcoholism accounted for his poor memory.

At the close of the State's evidence, defendant filed a motion for directed verdict alleging the State had failed to produce any substantial and sufficient evidence defendant was the operator of his motor vehicle at the time of the offense charged. Therefore, the prosecution had failed to prove an essential element of the crime of operating a motor vehicle while under the influence of an alcoholic beverage. The motion was overruled. Motion for directed verdict was renewed at the close of all evidence and was again overruled.

Following the verdict, defendant filed motion for new trial. It was overruled.

In his brief, defense counsel has combined those assignments of error which are closely related in seven divisions. These divisions will be considered other than in the order argued.

I. In regard to defendant's allegations for directed verdict stated supra, the record discloses substantial evidence was presented through testimony of highway patrolman Clay North and officer Donald Hart that defendant was operating the motor vehicle when it went into the ditch. However, the problem is whether such evidence was competent in view of defendant's challenge to its admissibility as shown by the record presented.

Defendant directs one division of his argument to this issue. He maintains the court committed reversible error by allowing North and Hart to testify as to statements purportedly made by Fallstone who was not called and did not appear as a witness at trial.

Defendant also asserts it was error for the court to permit North to relate a conversation the witness claimed to have had with defendant.

We deal first with defendant's challenge to the testimony of North and Hart insofar as it relates to statements allegedly made by Fallstone. Defendant contends this evidence was inadmissible hearsay and its admission denied him the opportunity to cross-examine the utterer.

Some background describing the manner in which the problem arose might be helpful.

Patrolman North, the State's second witness, testified he investigated the accident. He arrived at the scene sometime between 7:30 and 7:45, observed defendant and Fallstone and recalled seeing Max Hall there. The following is a part of North's direct examination:

'Q. Did you have any conversation with the defendant there? A. I asked him who was driving the car and nobody answered, and outside of that and trying to get out of them what happened, I got nothing out of them what happened, I got nothin'.

'Q. Where was the other guy? A. He was out walking around.

'Q. Did you talk to him? A. Yeah, I cornered him and him by--.'

At this point defendant's counsel made this record: 'Your Honor, I'd like to object at this time and take up a matter of law with the court on this matter concerning the testimony of the officer.' The court granted the request and excused the jury.

A record was made of the proceedings at the hearing which followed. Defense counsel inquired of the county attorney if he proposed to have North testify to any statements made by Fallstone relative as to who was driving the car. When advised this was the county attorney's intention, defendant made an objection which was extended by argument. In essence, defendant's objection was that any question which called for a recital of any statements made by Fallstone to patrolman North or any other witness was incompetent as calling for hearsay; such witnesses wewre being asked to repeat statements made by Fallstone who was not in court subject to cross-examination.

The State resisted the objection contending the proposed statements were admissible under an exception to the hearsay rule as a part of the res gestae and for the further reason the objection was premature. We will have more to say about this later.

The court overruled defendant's objection and the direct examination of North was resumed in the presence of the jury as shown by the following record:

'Q. Did you have any conversation or was there any talk by the defendant himself there at the scene of the accident? A. Just the cussin' and carrying on; that is just about all.

'Q. Did you ask him any questions? A. I asked him if he was the driver of the car.

'Q. What was his answer? A. He wouldn't answer me.

'Q. Do you know who the driver of the car was? A. Yes.

'MR. SPELLMAN: Your Honor, I would--

'A. Mr. Miller.

'MR. SPELLMAN:--I'd object to that, Your honor, I think the witness is not competent to answer that question; he did not observe the accident himself.

'THE COURT: He was investigating and the investigating officer. He may answer, the answer may stand.'

North indicated he had had a conversation with the other person involved in the accident and whom he identified as Donavan Fallstone but did not get much information at the scene of the accident from Fallstone or defendant.

His direct examination continued in this fashion:

'Q. All right, what was said there at the scene of the accident? A. I didn't get too much out of either of them at the scene; they wouldn't talk to me, they just didn't want anything to do with me, and neither of them would tell me who was driving.

'Q. Did they tell you there at the scene who was driving? A. No, but in the hospital They did.

'Q. Did both of them go to the hospital in the ambulance? A. Yes.' (Emphasis supplied).

We turn to that portion of Hart's testimony on direct examination pertinent to the assignments being considered in this division. Donald W. Hart, a Boone police officer, testified as a result of a call from North he proceeded to the Boone County hospital, arriving about ten minutes before North. Defendant and Fallstone were already at the hospital.

The following record is a part of his direct examination:

'Q. Did you have occasion to * * * (talk) or converse with the other fellow involved in the accident? A. Yes, he at different times was standing in the hall, in the doorway of the emergency room; he was in and another time he was in a room adjoining this one, directly South. Patrolmen North--I didn't myself speak to him, but I was in the room when Patrolman North talked to him, and asked him if Cal was driving the vehicle, and he said, 'Yes.'

'MR. SPELLMAN: Your Honor, I again object; this is pure hearsay and highly prejudicial, and for the reasons that I previously stated during Officer North's testimony, and Mr. Fallstone is not here, subject to cross examination and subject to oath, and such statements are hearsay and I object for the reasons previously stated as highly prejudicial to the Defendant.

'THE COURT: Overruled.'

We return to the State's contention urged in support of the court's ruling that the proposed testimony of North and Hart as to statements purportedly made by Fallstone was admissible as a part of the res gestae.

After the hearsay objection was urged by defendant, the burden was then upon the State to show that it came within the range of some specific exception. See Ladd, Objections, Motions and Foundation Testimony, Vol. 43 Cornell L.Q. 543, 553 n. 39 (1958) where the author says:

'The burden of proving the grounds of an objection is ordinarily not upon the opponent; whether he objects on the ground that the original of a document is not...