State v. Nimmo, 58318

• Decision Date: 17 November 1976
• Docket Number: No. 58318,58318
• Citation: 247 N.W.2d 228
• Parties: STATE of Iowa, Appellee, v. Jerry NIMMO, Appellant.
• Court: Iowa Supreme Court

Page 228

247 N.W.2d 228

STATE of Iowa, Appellee, v. Jerry NIMMO, Appellant.

No. 58318.

Supreme Court of Iowa.

Nov. 17, 1976.

John C. Wellman, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Richard H. Doyle, IV, Asst. Atty. Gen., and Ray A. Fenton, County Atty., for appelee.

Considered en banc.

McCORMICK, Justice.

Defendant appeals his convictions and sentences on one count of possession of marijuana with intent to deliver and one count of possession of phenobarbital with intent to deliver in violation of § 204.401(1), The Code. The determinative question is the sufficiency of defendant's objections to opinion testimony on the subject of his intent to deliver the drugs. We reverse and remand.

During defendant's trial, Des Moines police officer Larry Leitzke was permitted over defendant's objections to answer questions regarding the intent with which defendant possessed quantities of marijuana and phenobarbital found in his possession during a police search.

Evidence was offered to show the circumstances under which the drugs were being held by defendant and to establish officer Leitzke's experience and qualifications as a narcotics officer. Then, regarding the marijuana, he was asked for his opinion 'as to whether this quantity under these circumstances would be held for personal use or for sale.' Defendant objected that the question called for an opinion on 'the ultimate issue for the jury to decide.' The trial court overruled the objection, and the officer testified that the amount of marijuana found in defendant's possession 'would be quite a bit more than a person would have on hand for personal use.'

Regarding the phenobarbital, Leitzke was subsequently asked for his opinion as to whether the quantity found in defendant's possession 'could be considered for personal use or transfer to othes.' An objection was made that this was 'the ultimate issue for the jury to decide.' The court overruled the objection, and the officer testified, 'This is far in excess of what a person would have even with a prescription in his residence.'

The intent with which defendant possessed the drugs was critical to the jury's determination of his guilt of the offenses charged. He was charged with possessing the drugs with intent to deliver them to another. Possession without such intent is a lesser offense. § 204.401(3), The Code.

In State v. Ogg, 243 N.W.2d 620, 621 (Iowa 1976), we held that a witness may not express an opinion on the subject of a defendant's intent to deliver no matter how expert he is. Such testimony violates the principle that a witness may not express an opinion on a question of law or mixed law and fact. The principle is expressed in Grismore v. Consolidated Products Co., 232 Iowa 328, 361, 5 N.W.2d 646, 663 (1942).

In Grismore, the court held that if a matter before a tribunal for determination is one in which opinion testimony is necessary or proper, 'the witness may express his opinion either as to the possibility, probability, or actuality of the matter of fact about which he is interrogated, and the answer will not be an invasion or usurpation of the province of the jury, even though it passes upon an ultimate fact which the jury must determine.' However, the court then said:

'Of course, we are not to be understood as saying that opinion testimony should be received as to all matters. It should be received only as to such matters as are proper subjects of opinion testimony. No witness should be permitted to give his opinion directly that a person is guilty or innocent, or is criminally responsible or irresponsible, or that a person was negligent or not negligent, or that he had capacity to execute a will, or deed, or like instrument, or as held by us in Halligan v. Lone Tree Farmers Exchange, 230 Iowa 1277, 1283, 300 N.W. 551, respecting whether the county attorney had probable cause to believe the plaintiff was guilty of the crime charged. But the reason is that such matters are not subjects of opinion testimony. They are mixed questions of law and fact. When a standard, or a measure, or a capacity has been fixed by law, no witness, whether expert or nonexpert, nor however qualified, is permitted to express an opinion as to whether or not the person or the conduct, in question measures up to that standard. On that question the court must instruct the jury as to the law, and the jury must draw its own conclusion from the evidence. However, courts have permitted both scientific and practical experts to express their opinion whether a certain method used, or course of conduct, was a proper one.'

This limitation on opinion testimony has been reiterated in several recent cases. See State v. Swartz, 244 N.W.2d 553 (Iowa 1976); State v. Ogg, supra, State v. Billings, 242 N.W.2d 726 (Iowa 1976); State v. Oppedal, 232 N.W.2d 517 (Iowa 1975); State v. Droste, 232 N.W.2d 483 (Iowa 1975); State v. Horton, 231 N.W.2d 36 (Iowa 1975).

The challenged inquiry in the present case comes squarely within the proscription of State v. Ogg, supra. However, the State has raised the question in this case of the sufficiency of defendant's objections to preserve the issue for review. That question was not involved in Ogg.

The test for determining the sufficiency of an objection to preserve error was stated in State v. Clay, 213 N.W.2d 473, 476--477 (Iowa 1973):

'The general rule is that unless the reasons for an objection are obvious one attempting to exclude evidence whether the attempted exclusion is by objection or motion has the duty to indicate the specific grounds to the court so as to alert the judge to the question raised and enable opposing counsel to take proper corrective measures to remedy the defect, if possible.'

Error may not ordinarily be predicated on an order overruling an inadequate objection. See Rule 103, Uniform Rules of Evidence. The burden of invoking a reason for exclusion of evidence is on the objector. State v. Buckner, 214 N.W.2d 164, 168 (Iowa 1974).

Because the function of an objection is to invoke a rule of evidence to regulate admission of proof at trial, it is sufficient if it alerts the trial court to the principle sought to be invoked. 'In...