State v. Miller

• Decision Date: 16 October 1962
• Docket Number: No. 50586,50586
• Parties: The STATE of Iowa, Appellee, v. Jerry MILLER, Appellant.
• Court: Iowa Supreme Court

Page 447

117 N.W.2d 447

254 Iowa 545

The STATE of Iowa, Appellee, v. Jerry MILLER, Appellant.

No. 50586.

Supreme Court of Iowa.

Oct. 16, 1962.

Rehearing Denied Dec. 11, 1962.

Dekay & Barnes, Atlantic, for appellant.

Evan Hultman, Atty. Gen., of Iowa, John Allen, Asst. Atty. Gen. of Iowa, Des Moines, Peter J. Peters, Pottawattamie County Atty., Avoca, and Manning Walker, Asst. Pottawattamie County Atty., Avoca, for appellee.

SNELL, Justice.

Defendant-Appellant was indicted on a charge of rape, tried before a judge and jury, convicted of assault with intent to commit rape and sentenced to the reformatory for a period of not to exceed 20 years.

Prior to trial defendant filed a motion for order to produce statements, (the motion was sustained), motion for continuance, two applications for writ of certiorari, motion to suppress exhibits and statements, notice of taking depositions, demurrers (the first demurrer was sustained and defendant then re-indicted), motion to continue and in the alternative for time to prepare case. This last motion was filed October 26, 1961. The record shows counsel had represented defendant since prior to June 22nd. Four months time for preparation should be adequate. We have reviewed the record and the Clerk's transcript showing all preliminary proceedings and find no error.

I. Defendant then filed motion for change of venue on the ground that he could not receive a fair and impartial trial because of prejudice of the presiding judge. The motion was overruled and defendant claims error. About 53 pages of defendant's brief and argument are devoted to this claimed error and to the duty of judges.

It is academic, axiomatic and beyond ground for debate that a defendant is entitled to trial in and before a fair, impartial and unprejudiced tribunal.

Because of the seriousness of the charge we have examined in detail not only the printed record, but also the Clerk's transcript of all proceedings and the Court Reporter's transcript of all the evidence.

The charge of prejudice and unfairness is without support and is unfounded.

When a trial judge must pass upon a motion for change of venue based on allegations of his own prejudice he must consult his own feelings, as well as other matters, and grant or deny the change, as he may think the right demands, in the exercise of a careful discretion. Abuse of discretion must appear before we will interfere. State v. Foley, 65 Iowa 51, 52, 21 N.W. 162; State v. Billings, 77 Iowa 417, 423, 42 N.W. 456; State v. Williams, 197 Iowa 813, 816, 197 N.W. 991; State v. Mauch, 236 Iowa 217, 224, 17 N.W.2d 536. Here there was no abuse of discretion.

II. No useful purpose would be served by reciting the lurid details of the events leading to the indictment in this case.

The prosecuting witness and defendant had met only once before. Defendant was a married man. His wife, following an argument, was away 'until we got things hashed out.'

With some slight reluctance but at the invitation of friends the prosecuting witness went on a double date with defendant and another couple. The date, arranged by others, began in the late evening following a high school alumni party. The two couples went by car to a place called Pix. Pix is a place where food, set ups and drinks are served and dancing is permitted. One of the men had a bottle of vodka. The prosecuting witness drank no liquor but otherwise there was general participation. About two hours were spent in visiting, drinking and dancing. From time to time other customers joined the group and another friend was invited to ride home with them. During the first part of the trip home there were five in the car.

The parties did not live in the same town and so had to separate. The prosecuting witness suggested that she ride the rest of the way with the other couple and thus relieve defendant of an extra trip. Defendant, however, insisted on taking her home in his own car and the tragic part of the evening followed.

Instead of following the main highway defendant turned off onto a country road, stopped, parked and turned off the car lights. The parties tell an entirely different story as to what followed. The prosecuting witness says she protested against parking. She described her struggles against defendant's advances, her frantic and vigorous defense of her virtue, her outcries, defendant's use of force and his final success in having intercourse against her will. Defendant tells of amorous activity, admits intercourse but denies use of force.

Defendant finally took the prosecuting witness home. She ran into the house carrying her undergarments, called to her parents, and said she had been raped. It was then about 4:00 A.M. A doctor was called by phone and the prosecuting witness and her parents went to the doctor's office. An extensive examination was made by the doctor

III. The mother and father of the prosecuting witness and the doctor who examined her testified to statements made by her soon after the alleged offense. These statements were clearly a part of the res gestae. They were admissible in corroboration. State v. Mitchell, 68 Iowa 116, 119, 26 N.W. 44; State v. Altomari, 199 Iowa 43, 46, 201 N.W. 51; State v. McGhuey, 153 Iowa 308, 313, 133 N.W. 678; State v. Stafford, 237 Iowa 780, 23 N.W.2d 832; Van Wie v. United States, D.C., 77 F.Supp. 22, 46. See also 24B C.J.S. Criminal Law § 1915(16).

Standing alone statements made to the doctor who treated the prosecuting witness were not of any probative value as to the circumstances of the alleged offense, but they were admissible to show why the doctor was called to his office at 4:00 A.M. and to give the reason for his examination. The history of an ailment is a part of a doctor's examination and the history as given to him may be stated in connection with his opinion. State v. Blydenburg, 135 Iowa 264, 273, 274, 275, 276, 112 N.W. 634; Devore v. Schaffer, 245 Iowa 1017, 1021, 65 N.W.2d 553, 51 A.L.R.2d 1041.

The jury might well have been cautioned as to the limited purpose of this testimony, but there was no reversible error in its admission.

In Division IV infra we set out the court's instruction as to this testimony.

IV. Defendant vigorously assails the admission of the doctor's opinion as an improper invasion of the province of the jury.

The doctor described in great detail the girl's condition determined from physical examination; her disheveled condition and appearance, her torn and bloody clothing; and her state of shock. He noted swollen parts, abrasions and contusions and their location. He gave the findings of his examination of the vagina and vaginal vault. He did a smear test under a microscope and a Wassermann blood test. He described and explained his observations, findings and treatment. He stated that prior to this assault the girl was a virgin.

Questions were then asked and answers received over defendant's objections, as follows:

'Q. Now, Doctor, is there any medical means of telling from an examination of a girl, a woman, within two or three hours of having intercourse, whether or not that intercourse was voluntary or a force penetration? Can you answer that question?

'Mr. Dekay: That is objected to for the reason the witness is incompetent; the question is incompetent, it is outside the scope of defendant's testimony; for the reason it invades the province of the jury.

'The Court: Overruled.

'The Witness: Will you repeat the question?

'(Last question read by the Reporter.)

'A. In some instances, yes.

'By Mr. Walker: Q. From your examination of Patricia Basler, could you express an opinion, based upon your experience and training? A. Yes.

'Mr. Barnes: The defendant objects to this line of questioning for the reason it invades the province of the jury; no proper foundation laid; it is irrelevant and immaterial; the foundation as to the circumstances have been not properly made of Record.

'The Court: Overruled.

'By Mr. Walker: Q. What is your opinion as to Patricia's situation?

'Mr. Dekay: That is objected to for the reason that the question of whether or not this intercourse, if there was intercourse, was voluntary is for the jury. The witness is now being asked the ultimate fact; we object to it therefore on the ground that it does invade the province of the jury, and it is the ultimate fact that is being asked; it is outside the scope of expert testimony at this point.

'The Court: Overruled; he is merely asking his opinion. You may answer.

'A. Yes, I would say she was forcibly raped or had intercourse or whatever you want to call it. Certainly not submitted to under those circumstances which she showed me that night.'

The leading authority on the admissiblity of expert testimony is the well known case of Grismore v. Consolidated Products Co., 232 Iowa 328, 5 N.W.2d 646, wherein the authorities are exhaustively analyzed and the rule of admissibility established. In that case the objection to the expression of an expert opinion as to the ultimate fact was based on two grounds. First, the proposed expert opinion was not predicated on any basis of scientific knowledge or skill, and second, it invaded the province of the jury. In the case at bar the doctor laid a firm foundation and basis of scientific knowledge and skill for his opinion.

We quote excerpts from the Grismore opinion:

'The courts and other authorities uniformly agree that the receipt of opinion evidence, whether lay or expert, and the extent to which it will be received in any particular case, are matters resting largely in the administrative discretion of the court.' (Citations) 'Courts, should be, and are, very loathe to interfere with such discretion unless it has been manifestly abused to the prejudice of the complaining party. * * *' See page 342 of Iowa Reports, page 654 of 5 N.W.2d.

On page 344, 5 N.W.2d on page 655 it is said:

'All of these objections stem from a misconception of the necessity and purpose of opinion testimony....