State v. Nowlin, 59058

• Decision Date: 30 July 1976
• Docket Number: No. 59058,59058
• Citation: 244 N.W.2d 596
• Parties: STATE of Iowa, Appellee, v. George Junior NOWLIN, Appellant.
• Court: Iowa Supreme Court

Page 596

244 N.W.2d 596

STATE of Iowa, Appellee, v. George Junior NOWLIN, Appellant.

No. 59058.

Supreme Court of Iowa.

July 30, 1976.

Thomas M. Walter, of Barnes, Schlegel & Walter, Ottumwa, for appellant.

Richard C. Turner, Atty. Gen., David L. Brown, Asst. Atty. Gen., and David M. Remley, Jones County Atty., Anamosa, for appellee.

McCORMICK, Justice.

Defendant appeals his conviction and sentence for first-degree murder. He was tried and found guilty by a jury upon an indictment charging him with murdering Maureen Ann Connolly in Jones County on March 10, 1974. We have separately affirmed his conviction and sentence for murdering Michael Servey on the same occasion, State v. Nowlin, 244 N.W.2d 591 (Iowa 1976), and we previously affirmed the conviction and sentence of an alleged accomplice, Atwell Junior Conner, State v. Conner, 241 N.W.2d 447 (Iowa 1976). We also affirm here.

This case was tried in Cerro Gordo County on a change of venue. The State's evidence in this case was similar to the evidence summarized in State v. Conner, supra, at 450--451. However, there were two notable differences in the evidence here. Conner testified as a witness for the State in this case, and defendant interposed a defense of insanity. The case was prosecuted and submitted against defendant on alternative felony-murder theories that he murdered Maureen in perpetration of rape upon her or in perpetration of robbery upon her and Michael Servey.

As in the Conner prosection, the State offered evidence that defendant and Conner forced Maureen and Michael into defendant's car at gunpoint in Cedar Rapids at about midnight on March 9, 1974. The jury could find the following from the evidence. Two loaded sawed-off 20 gauge shotguns, a five-shot pump weapon and a single shot weapon, were in defendant's possession. Defendant robbed Michael of $42. He then drove to a point in rural Jones County on a gravel road near Old Morley Bridge where, armed with both shotguns, he took Maureen from the car and raped her. Then, as she attempted to run away, he shot and killed her. Defendant returned to the car and directed Conner to drive to Palisades Park in Linn County. He killed Michael there.

Defendant testified he and Conner picked up Maureen and Michael because Conner wished to rape Maureen. He said he had a fight with Michael at Palisades Park and admitted killing him in a struggle which ensued. He said he did not intend to kill Michael but lost control when Michael attacked him. He denied raping or killing Maureen. Defendant asserted he remained in the car when it was parked near Old Morley Bridge. He said Conner got out of the car with Maureen and defendant later heard a gunshot. Conner returned alone to the car and told defendant he had shot Maureen.

In support of his insanity defense, defendant offered testimony of various family members who said defendant had a history of episodes of violent temper after which he could not remember what he had done. In rebuttal, Dr. Paul Loeffelholz, director of the medical security facility at Oakdale, testified defendant did not have any serious mental disorder, and he could find no clinical basis to support defendant's claim he experienced blackouts.

The jury convicted defendant of first-degree murder, and this appeal followed.

The questions presented for review are whether trial court erred: (1) in refusing to allow defendant to defer his opening statement until the end of the State's case-in-chief; (2) in allowing evidence of a conversation by a witness with the deceased; (3) in allowing the clothing of the deceased in evidence; (4) in allowing photographs of the deceased in evidence; (5) in allowing evidence regarding a wound inflicted on decedent's body after death; (6) in allowing the medical examiner to give an opinion as to the place of decedent's death; (7) in allowing a shotgun in evidence; (8) in allowing Dr. Loeffelholz, who examined defendant at the defendant's request, to be used as a witness against him; (9) in overruling defendant's motion for directed verdict; (10) in overruling defendant's objection on constitutional grounds to the court's instruction on the felony-murder statute; and (11) in overruling defendant's motion for new trial.

I. Reservation of opening statement. After the prosecutor made the State's opening statement, defense counsel requested the right to reserve defendant's opening statement until after the State's case-in-chief. The State resisted, and the trial court denied the request. Defendant contends the court erred.

The order of trial is prescribed in § 780.5, The Code. In relevant part, it provides:

The jury having been impaneled and sworn, the trial must proceed in the following order:

1. Reading indictment and plea. * * *

2. Statement of state's evidence. The county attorney may briefly state the evidence by which he expects to sustain the indictment.

3. Statement of defendant's evidence. The attorney for the defendant may then briefly state his defense, and the evidence by which he expects to sustain it.

4. Offer of state's evidence. The state may then offer the evidence in support of the indictment.

5. Offer of defendant's evidence. * * *

Defendant asserts the trial court has discretion to vary this order and erred here by failing to do so. Such discretion existed before the matter was governed by statute. State v. Bateman, 52 Iowa 604, 3 N.W. 622 (1879). The issue is now controlled by the terms of the statute. The statute does not authorize the exercise of trial court discretion to vary the order of trial over the resistance of a party. The use of the word 'must' makes the designated order mandatory. See State v. Bethards, 239 Iowa 899, 903, 32 N.W.2d 769, 771 (1948).

The trial court did not err in refusing to permit defendant's opening statement to be given out of order.

II. Hearsay. The State's evidence showed Maureen and Michael had visited Beth Ann Wernimont in Iowa City during the evening prior to the homicides. Beth was Michael's girlfriend. She was recuperating from surgery at the home of a brother. On direct examination, Beth said she had said something to Maureen about Michael Servey during a telephone conversation earlier in the day. She was then asked, 'What did you tell Maureen with respect to Michael Servey?' A hearsay objection was made and overruled. Beth answered, 'I told her to call Mike and ask him if he'd bring her down because she wanted to come'. Although it is difficult to see how defendant could have been prejudiced by admission of this evidence, we will examine the merits of his objection.

The offense charged here occurred after Maureen and Michael had returned to Cedar Rapids. Beth's testimony was offered to show where Maureen and Michael had been earlier. No objection was made by defendant to the relevancy of the testimony. Beth testified without objection that Maureen was her best friend, and Michael was her boyfriend. She said they arrived at her brother's home at 7:15 p.m. and remained until 11:15 p.m.

No reversible error exists if the trial court's ruling may be sustained on any ground. State v. Kidd, 239 N.W.2d 860, 864 (Iowa 1976).

The testimony challenged as hearsay was apparently offered to explain in part why Maureen and Michael made the trip together to Iowa City. Evidence of an utterance which is offered to explain subsequent action of the person to whom it was addressed is not hearsay. Such evidence is not offered as an assertion but to give character to conduct. State v. Leonard, 243 N.W.2d 887 (Iowa, filed June 30, 1976); State v. Rush, 242 N.W.2d 313 (Iowa 1976); State v. Hinkle, 229 N.W.2d 744, 748--749 (Iowa 1975); VI Wigmore on Evidence § 1772 at 267--268 (Chadbourn Rev. 1976); McCormick on Evidence § 249 at 589 (Second Ed. 1972). We uphold the trial court's ruling on this ground.

The trial court did not err in overruling defendant's hearsay objection.

III. Admission of the victim's clothing. The clothing Maureen was wearing when her body was discovered was received in evidence over defendant's objection that its probative value was outweighed by its prejudicial effect. Some of the items were bloodstained, and two articles contained holes caused by shotgun pellets.

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. State v. Harmon, 238 N.W.2d 139, 144 (Iowa 1976). The problem of balancing the probative value of evidence against possible prejudice is a matter for exercise of trial court discretion. We reverse only for abuse of discretion. State v. Cassady, 243 N.W.2d 581 (Iowa, filed June 30, 1976).

Here, the clothing confirmed testimony by a number of witnesses regarding what Maureen was wearing when last seen alive. The clothing tended to confirm that she was fully clothed when slain and when a rectal wound was inflicted. The clothing also tended to confirm the sequence of events testified to by the alleged accomplice Conner.

Evidence of this nature tends to be gruesome because murder is gruesome. That alone is not sufficient reason to exclude it. State v. Lass, 228 N.W.2d 758, 771 (Iowa 1975).

This is true even when the defendant, as here, offers to stipulate to any facts which might be proven by the clothing. A defendant cannot by such a concession control the exercise of the trial court's discretion in order to deprive the State of graphic proof of such facts. State v. Griffin, 218 Iowa 1301, 254 N.W. 841 (1934); State v. Stansberry, 182 Iowa 908, 166 N.W. 359 (1918). Defendant's problem is compounded in the present case because he is unwilling to say the clothing is probative of any relevant fact.

The trial court did not abuse its discretion in admitting the clothing.

IV. Admission of photographs. Two photographs of Maureen's head wounds were received in evidence over defendant's objection. Defendant asserted any probative value of the photographs was outweighed by their prejudicial effect.

The...