State v. Reese, 59747

• Decision Date: 23 November 1977
• Docket Number: No. 59747,59747
• Citation: 259 N.W.2d 771
• Parties: STATE of Iowa, Appellee, v. Charles O. REESE, Appellant.
• Court: Iowa Supreme Court

Page 771

259 N.W.2d 771

STATE of Iowa, Appellee, v. Charles O. REESE, Appellant.

No. 59747.

Supreme Court of Iowa.

Nov. 23, 1977.

F. J. Kraschel, Council Bluffs, for appellant.

Richard C. Turner, Atty. Gen., Mark S. Beckman, Asst. Atty. Gen., and Lyle Rodenburg, County Atty., for appellee.

Heard by MOORE, C. J., and RAWLINGS, REES, HARRIS and McCORMICK, JJ.

REES, Justice.

The defendant, Charles O. Reese, was charged by county attorney's information with the crime of murder in violation of § 690.1 as defined and punishable by § 690.2, The Code, 1975. Following the entry of his plea of not guilty, he was tried to a jury, convicted and sentenced to life imprisonment. He appeals. We reverse and remand.

The State contends the defendant participated with others in the murder of one Charles Sallis of Omaha. Sallis' body was found on January 18, 1976, along Interstate Highway # 80 east of Council Bluffs. Jerry Hildreth, Isaiah Jones and defendant Reese were all charged with Sallis' murder. Jones was granted immunity by the State in consideration for his agreeing to testify at the trial of defendant.

Jones testified that Sallis' wife, Kathy, had written a note offering to compensate anyone who killed her husband, and that the note had been seen by defendant. Jones testified that he, Hildreth and Reese seized Sallis on an Omaha street during the early morning hours of January 18, 1976 and took him to Jones' house where defendant tied Sallis' hands together with a wire. He further testified that at about 5:45 a. m. the same morning the three men placed Sallis in the trunk of an automobile and drove on Interstate Highway # 80 to Iowa. During the ride into Iowa an argument ensued among the three men over whether Sallis should be killed. Jones stopped the car and defendant and Hildreth alighted therefrom and opened the trunk. Then, according to Jones, Reese and Hildreth advanced the thought there were too many cars along the highway to kill Sallis at that point. Jones testified he then drove the car further down the Interstate until Hildreth again ordered him to stop. When he did so, Reese and Hildreth again opened the trunk and Sallis jumped out, bumping Hildreth causing him to fall down. Sallis then started to run along the Interstate with Reese and Hildreth following him, Hildreth being then armed with a shotgun. According to Jones, Sallis ran out of his range of vision. Hildreth and defendant returned to the automobile about five minutes later. Jones testified Reese had blood on his coat and on the rubber gloves he was wearing. Later Hildreth told Jones he had shot and killed Sallis, and it was during the testimony of Jones in this connection that the prosecuting attorney elicited from Jones the fact that defendant had told him he had killed other people on other occasions.

Defendant testified in his own behalf that he and his confederates had captured Sallis in order to scare him and had no intention of killing him. He declared that Mrs. Sallis' note had not been exhibited to him by Jones, and that he was not present when Sallis was shot in Iowa but remained at the Jones home where he was sleeping at the time the killing occurred.

Hildreth testified the defendant did not accompany him and Jones when they took Sallis into Iowa.

During the closing arguments of counsel certain physical evidence which had been introduced into the record were handed to the jurors in connection with the prosecutor's argument. The items still had affixed to them the identification tags which had been placed on them by the county medical examiner or by other law enforcement officers. Some of the exhibits were photographs which bore the legend on the reverse side: "Homicide; Charles Dean Sallis". Defendant's counsel started to object to the use of the exhibits in such manner, and to the jurors' examining them during closing arguments, but did not pursue the matter to a determination or ruling by the court. Later, defense counsel moved for a mistrial based on the fact the jurors had seen the exhibits with what he termed prejudicial statements and inscriptions upon them. The motion was overruled. The defense counsel also objected to the exhibits being taken into the jury room by the jury during its deliberations, and so the court restricted the taking of all of the physical evidence to the jury room except the photographs which it permitted the jurors to take with them.

Following the arguments of counsel, final draft copies of the court's instructions were exhibited to counsel. The preliminary instructions had not included an instruction on second degree murder, and defendant's counsel objected to such omission and requested that the court give to the jury an instruction on second degree murder, which the court refused to do.

Following the rendition of a verdict of guilty of murder in the first degree by the jury, defendant's counsel moved for a new trial on the basis the trial court's refusal to submit a second degree murder instruction was fatally prejudicial to the defendant and further the fact the jury was permitted to examine the exhibits with the claimed objectionable legends thereon so prejudiced the defendant that he was denied a fair trial. Upon the overruling of defendant's motion for a new trial, he appealed, asserting the trial court committed reversible errors which are raised by the following issues stated for review:

(1) The trial court erred by overruling the defendant's objection to the testimony of Isaiah Jones as a witness for the State to the effect that defendant had told Jones he had committed prior murders.

(2) Trial court erred in permitting the jury to see the exhibits introduced by the State with identification tags and information allegedly prejudicial to the defendant written thereon or appended thereto, and permitting some of the exhibits to be taken to the jury room with the jurors during their deliberations.

(3) Trial court erred in failing to instruct the jury on the elements of the charge of murder in the second degree.

(4) On the basis of all the foregoing claimed errors and in spite of any error committed by counsel in failing to preserve the same for appeal, that defendant was deprived of a fair trial.

I. Defendant first contends the trial court erred in overruling defendant's counsel's objection to certain testimony of the witness Jones. The transcript of testimony reflects the following line of interrogation and answers:

Q. Was there any conversation between yourself and Mr. Reese generally about Mr. Hildreth?

A. Yes.

Q. What was said?

A. They just talked about different people that they, you know, killed. That's all.

Q. Did Mr. Reese specify how many they had killed?

A. Mr. Reese told me earlier

MR. WHEELER: Your Honor, I want to object to this as being irrelevant and prejudicial and completely improper line of questioning on the part of counsel for the State making reference to events having nothing to do with the question in hand.

THE COURT: Overruled. You may complete your answer or answer the question.

THE WITNESS: Would you repeat the question?

Q. Did Mr. Reese tell you how many men they had killed?

A. Yes, earlier before Mr. Hildreth arrived. I think a couple of days after Mr. Reese arrived here in Omaha he was telling me about himself and I told him that I didn't want to listen to it.

Defendant's contention is that the testimony of the witness Jones about the statements made by defendant concerning other killings constituted evidence of prior crimes not related to the charge presently against the defendant, and that trial court should have excluded the same by sustaining defendant's objections. The State on the other hand, contends the defendant did not properly inform the trial court of the error since it was not timely and defendant did not make a motion to strike the evidence. Therefore, the State asserts, the error was not preserved and does not constitute basis for review here.

It is true that evidence of prior crimes normally is not admissible in a criminal case. State v. Johnson, 224 N.W.2d 617, 619 (Iowa 1974); State v. Wright, 191 N.W.2d 638, 640 (Iowa 1971). However, proof of prior crimes may be admitted in order to show: "(1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme or system of criminal activity embracing the commission of two or more crimes so related that proof of one tends to prove the other, or (5) identity of the person charged with the commission of the crime." State v. Wright, 191 N.W.2d at 640. In the matter before us here there was no evidence reflected by the record from which we could conclude the testimony set out above falls within any of the enumerated exceptions. Therefore, if the objection were properly made and the error preserved, we would have to conclude that the trial court committed reversible error in permitting the evidence of criminal activity to come before the jury.

However, we are persuaded the defense counsel did not properly preserve error in connection with this testimony. In order for their to be a proper preservation of errors committed by the trial court in the introduction of evidence at trial, objections to evidence must be timely and be raised at the earliest time the error becomes apparent. State v. Boose, 202 N.W.2d 368 (Iowa 1972); State v. Binkley, 201 N.W.2d 917 (Iowa 1972). It is likewise true that when an objection is made after the answer to a question is in the record, in order for the objection to be adequate a motion to strike must be made, application must be made to have the objection precede the answer, or an excuse offered for the delay in objecting to the evidence. State v. Hinkle, 229 N.W.2d 744, 748 (Iowa 1975); State v. Hendren, 216 N.W.2d 302, 305 (Iowa 1974); State v. Taylor, 201 N.W.2d 724, 727 (Iowa 1972). In State v. Hinkle, 229 N.W.2d at 748, the following apropos to this proposition appears:

"Abraham testified Patty telephoned at about 4:15 P. M., October 6,...