State v. Nelson

Decision Date16 February 1983
Docket NumberNo. 67168,67168
Citation329 N.W.2d 643
PartiesSTATE of Iowa, Appellee, v. Gregory Irvin NELSON, Appellant.
CourtIowa Supreme Court

Paul T. Shinkle of Gottschalk, Shinkle & Long, Cedar Falls, for appellant.

Thomas J. Miller, Atty. Gen., Joseph P. Weeg, Asst. Atty. Gen., and David H. Correll, Black Hawk County Atty., for appellee.

Considered by LeGRAND, P.J., and McCORMICK, McGIVERIN, LARSON, and SCHULTZ, JJ.

SCHULTZ, Justice.

This is an appeal by defendant, Gregory Irvin Nelson, from his conviction of false imprisonment in violation of Iowa Code section 710.7 (1981). On appeal, defendant claims that (1) his sixth amendment right of confrontation was violated when the court admitted a written confession made by his codefendant, who did not take the stand; (2) his request for an instruction on the justification defense of "defense of property" should have been given; and (3) his claim of ineffective assistance of counsel should be reviewed on direct appeal. We hold that defendant did not preserve error on his confrontation claim, that the trial court correctly refused to instruct on the defense of property, and that claims of ineffective assistance of counsel must be reserved for a postconviction hearing. We therefore affirm.

The facts in this case are rather unusual. Nelson and codefendant, Georgia Stigler, are brother and sister. Reuben Stigler, one of the victims of the alleged false imprisonment, is the husband of Georgia. He, Georgia, and Georgia's twelve-year-old child from an earlier marriage lived together in a house that Georgia owned. Georgia rented a room of this house to Nelson. Nelson, who is single and partially disabled, is a devotee of military training, guns, and shooting, and had an extensive gun collection.

On the night of February 26, 1981, Nelson returned to his room and discovered that four of his guns, $1000, and other miscellaneous items had been stolen. Nelson told Georgia of the theft as soon as she came into the house. Shortly thereafter, Georgia found Reuben and she accused him of being involved in the theft. She told Reuben that the theft would be reported to the police if the items were not returned by morning.

Reuben testified that he and his friend, Russell Hill, went to a tavern where they recovered three of the stolen guns. They then brought the guns to the Stigler house. This partial recovery apparently did little to soothe the indignation of the codefendants.

The State's evidence indicates that when Reuben and Hill entered the house they were held at gunpoint by the codefendants and others. This situation continued for some hours, during which time various phone calls were made in an effort to recover the stolen items. Finally, Reuben and Hill made a dramatic escape from the home; according to Reuben, they upset a table and he dove through a closed window while Hill fled through the rear door. At this time the house was surrounded by police and the codefendants were soon arrested.

The State presented evidence from the victims and from the victims' relatives who had received phone calls that the defendants threatened to kill Reuben and Hill if the remainder of Nelson's property and money was not returned. Nelson testified that although he made threats of bodily injury, he held but did not point his gun at the victims. In regard to the threat to kill, he testified: "I never threatened to kill them. There's a semantic difference there. I said I should."

I. Confrontation. Georgia Stigler's statement given to the police consisted of twelve and one-half pages of single-spaced typed material. This statement was admitted into evidence against both defendants. The sole objection raised by Nelson's trial counsel, who represented both codefendants, was that this statement was hearsay to the defendant Nelson.

On this appeal Nelson abandons his objection of hearsay. He now claims that the admission of Georgia Stigler's statement against him violated his sixth amendment right of confrontation. The State submits that defendant never raised the confrontation issue at trial and waived it for purposes of appeal. The State further claims that any error was harmless as the statement and Nelson's testimony differed in only two minor respects. Since we determine that error has not been preserved, we need not reach the issue of harmless error.

An objection in trial court based on hearsay does not preserve an issue of a constitutional right of confrontation for an appellate court. This same question was recently addressed in State v. Farni, 325 N.W.2d 107, 109 (Iowa 1982), where we stated:

We do not reach this question because defendant did not raise at trial the constitutional grounds he seeks to assert here. We do not review issues, even on constitutional grounds, which are raised for the first time on appeal .... The objections that the question 'calls for hearsay' is too broad to raise the issue of constitutional right of confrontation. Objections to evidence must be sufficiently specific to inform the trial court of the basis for objecting. This one failed to meet this standard. The trial court ruled on the objection as it was made. Nothing more was required of him. (citations omitted)

We see no reason to depart from our holding in Farni. We find no error in the admission of Georgia's statement.

II. Defense of property. Defendant unsuccessfully requested that the trial court instruct the jury on the justification defense of defense of property. On appeal he claims the court's refusal to give such instruction was error. We hold that such instruction was not justified under the facts of this case.

The defense of justification of use of force in defense of property is codified in Iowa Code section 704.4, which in pertinent part states: "[a] person is justified in the use of reasonable force to prevent or terminate criminal interference with his or her possession or other right in property." We must determine, under this statutory definition, whether the defense of justification exists under the facts of this case. If we determine that there are substantial facts which if proved would satisfy this section, then it becomes the province of the jury to determine the validity of these facts.

The issue presented in this division is whether a justification defense exists under section 704.4 for a defendant who has at an earlier time been deprived of possession of his property by a wrongful taking committed out of his presence, and who then attempts by the use of force to recover the property, although the property is elsewhere. We hold that under this fact situation the defense is unavailable.

In interpreting a statute we look to its language, and if its meaning is clear, we are not permitted to search beyond its express terms. State v. Rich, 305 N.W.2d 739, 745 (Iowa 1981). The express terms of section 704.4 provide a defense in situations where the defendant attempts "to prevent or terminate criminal interference." If the criminal interference has occurred out of the presence of the defendant at an earlier time, and the property, the reason for the interference, is no longer present, force can no...

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11 cases
  • State v. Yelovich
    • United States
    • Washington Supreme Court
    • September 20, 2018
    ...be present during the thief’s interference with the property for defense of property to apply. See id. ; see also State v. Nelson, 329 N.W.2d 643, 646 (Iowa 1983) ("[T]he criminal act that defendant seeks to prevent or terminate must be committed in defendant’s presence.").¶ 41 Here, the ha......
  • State v. McCoy
    • United States
    • Iowa Supreme Court
    • February 4, 2005
    ...We ordered a limited remand to allow the district court to rule on the claim. See Iowa R.App. P. 6.12(7); see also State v. Nelson, 329 N.W.2d 643, 647 (Iowa 1983); State v. Aldape, 307 N.W.2d 32, 41 n. 3 (Iowa Following a hearing, the district court found McCoy had established his claim of......
  • State v. Lucero
    • United States
    • Court of Appeals of New Mexico
    • August 21, 1986
    ...within an exception to the hearsay rule. Such an objection was too broad to raise the right to the confrontation issue. State v. Nelson, 329 N.W.2d 643 (Iowa 1983). The trial court was only required to rule on the objection as it was made. The court fulfilled this duty. " 'Nothing more was ......
  • State v. Yelovich
    • United States
    • Washington Court of Appeals
    • October 24, 2017
    ...that a defense of property defense is not available unless a criminal act was committed in the defendant's presence. State v. Nelson , 329 N.W.2d 643, 646-47 (Iowa 1983) ; State v. Marley , 54 Haw. 450, 509 P.2d 1095, 1108 (1973). The court in Nelson emphasized that "the purpose of the [def......
  • Request a trial to view additional results

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