State v. Roth

• Decision Date: 15 April 1987
• Docket Number: No. 85-663,85-663
• Citation: 403 N.W.2d 762
• Parties: STATE of Iowa, Appellee, v. John Frank ROTH, Appellant.
• Court: Iowa Supreme Court

Page 762

403 N.W.2d 762

STATE of Iowa, Appellee, v. John Frank ROTH, Appellant.

No. 85-663.

Supreme Court of Iowa.

April 15, 1987.

Charles L. Harrington, Appellate Defender, and Raymond E. Rogers, Asst. Appellate Defender, for appellant.

Thomas J. Miller, Atty. Gen., Richard J. Bennett and Ann DiDonato, Asst. Attys. Gen., and Lee W. Beine, Co. Atty., for appellee.

Considered by REYNOLDSON, C.J., and LARSON, SCHULTZ, CARTER, and WOLLE, JJ.

REYNOLDSON, Chief Justice.

A jury found defendant John Frank Roth guilty of first-degree murder, see Iowa Code sections 707.1 and 707.2 (1983), and district court entered the appropriate judgment. Defendant appealed, asserting the court erred in not allowing him to cross-examine his wife and his son, both State witnesses, concerning her twenty-year-old murder conviction. We transferred the case to the court of appeals, which reversed the conviction and remanded for new trial. Upon further review we vacate the decision of the court of appeals and affirm the district court judgment.

Roth does not challenge the sufficiency of the evidence to sustain his conviction. To place the issues he raises in perspective, however, we briefly summarize the facts the jury could have found under this record.

Martien Marie Harper (Tina) was murdered on the night of December 26, 1984, or in the early morning hours of December 27, 1984. She was last seen alive by anyone other than Roth at about 8 p.m. on December 26. At that time, Roth accompanied Tina, who was his stepdaughter, as she left the Roth home. Roth returned about a half hour later. Tina was not with him.

Later that evening Roth and his wife Sharon, Tina's mother, left the house to search for Tina. Around 10:45 p.m., Roth returned home without Sharon. He picked up and loaded his son John's .22 caliber rifle and then left, telling John he was going to look for Tina and was going hunting. Later that night a car similar in color and shape to Roth's car was seen by a prosecution witness on the gravel road where Tina's body subsequently was found. The following day Roth told John not to say anything about the gun.

Early the next morning, December 27, 1984, Tina's body was found on the road near Clarence, Iowa. An autopsy revealed she had been shot seven times--three times in the chest, three times in the head, and one time in the base of the skull. A State expert established the bullets recovered from Tina's body had been fired from the .22 caliber rifle belonging to John and carried by Roth the previous night. December 28, 1984, the police searched Roth's basement and recovered the rifle and several boxes of .22 caliber shells, which Roth had attempted to hide.

Before his arrest Roth denied all knowledge of the murder. Nor did he ever claim to the police, while under questioning, that his wife, Sharon, had any connection with the killing. He falsified a story about a sister's accidental death in Nebraska and prepared to leave town. Further, although he had not been told that a .22 caliber rifle had been the murder weapon, Roth mentioned several names as suspects to a police officer, and indicated one of them owned such a gun.

Law officers eventually arrested Roth and charged him with first-degree murder. After being held in the Cedar County jail for forty-eight days he attempted to escape, carrying a handmade knife, but was quickly recaptured.

The State filed a pretrial motion in limine seeking to prevent Roth from presenting any evidence concerning Sharon's 1965 second-degree murder conviction for the death of Walter Adams. Roth filed a resistance, asserting this evidence would substantiate that Sharon had the predisposition, ability, and tendency to commit such a crime, and, having committed murder, would be more likely to do so again. He argued the evidence he sought to establish would "present to the jury a fact which the State cannot deny and [which] would bear directly on the issue ... whether ... [Tina] was murdered by John Roth or Sharon Roth."

Roth's resistance further asserted his belief, based on Sharon's deposition, that she would testify at trial that she had never fired a gun of any kind, and that it was critical to his case that he establish her capability and knowledge in using a firearm by examining her concerning the 1965 murder, in which a .22 caliber handgun was used. Additionally, he should be permitted to impeach her with evidence of the conviction. Finally, Roth contended he should be permitted to ask his son John, who would be a State witness, whether he was aware of his mother's murder conviction and whether he was scared of her, in order to establish John was lying because of fear of Sharon.

Trial court granted the State's motion in limine, and reaffirmed that ruling just before Roth offered his evidence in the trial.

On appeal Roth contends trial court erred in restraining him from eliciting testimony concerning Sharon's 1965 murder conviction. He relies on the same grounds, except that he no longer contends such evidence would be admissible to demonstrate her predisposition to commit the murder under scrutiny here.

I. Knowledge and Expertise.

The State's motion concedes that in 1965 Roth's wife Sharon, whose former married name was Hildebrant, was convicted of second-degree murder. Her conviction was summarily affirmed in this court under the old "clerk's transcript" procedure. See State v. Hildebrant, 136 N.W.2d 265 (Iowa 1965) (per curiam). Sketchy details of that crime emerge in our decision in State v. Miller, 259 Iowa 188, 191-94, 142 N.W.2d 394, 396-98 (1966). We affirmed the conviction of Miller, whom the State tried as an accomplice. The victim, Walter Adams, died from a bullet fired from a cheap, .22 caliber foreign-made revolver.

Under cross-examination as a State witness at trial, Sharon testified as she did on pretrial deposition: that she had never fired a "gun of any kind." Roth argues here, as he did in resistance to the State's limine motion, that the court should have allowed him to probe into the 1965 murder so that he could show Sharon's knowledge and experience with firearms and thus support his defense that she murdered Tina.

We preliminarily note that had Roth prevailed in his resistance to the limine motion, this trial rapidly could have disintegrated into two trials--the second controversy relating to the identity of the person who fired the revolver in the Adams murder. Our decisions do not indicate that either Sharon or Miller testified in their respective cases relating to that murder. The Miller decision does reflect the evidence relating to the killer's identity was circumstantial, and that Miller was convicted largely on his own statements to investigating officers that placed him and Sharon together when the murder weapon was bought and in the subsequent flight after he took the victim's truck. Id. at 192-94, 142 N.W.2d at 397-98. In her pretrial deposition in this case Sharon testified it was Miller who shot Adams, and her answer may well have been the same had Roth been allowed further cross-examination on the subject.

Roth's contention that he should have been permitted further cross-examination relating to Sharon's 1965 conviction implicates the long-established principle that evidence of other crimes will be excluded if relevant only to show an individual is a bad person capable of committing bad acts. State v. Spargo, 364 N.W.2d 203, 208 (Iowa 1985); State v. Mendiola, 360 N.W.2d 780, 782 (Iowa 1985); State v. Cott, 283 N.W.2d 324, 326 (Iowa 1979). This general rule is now codified in Iowa Rule of Evidence 404(b):

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Iowa R. Evid. 404(b). It should be observed, however, that rule 404(b) "also illustrate[s] some but not all situations in which evidence relevant to establish some legitimate issue in the case is not rendered inadmissible because it also reveals character or traits of character." State v. Barrett, 401 N.W.2d 184, 187 (Iowa 1987).

Our cases establish that under rule 404(b) evidence of other crimes may be admissible (1) if the evidence is relevant to a legitimate issue involved in the case, and (2) there is clear proof the individual against whom the evidence is offered committed the prior crime. State v. Emerson, 375 N.W.2d 256, 259-60 (Iowa 1985). Further, when similarity is essential to establish the relevancy of the evidence with respect to the issue relied upon, " '[t]he other offense must be reasonably similar to the crime charged.' " Id. at 260 (quoting State v. Cuevas, 282 N.W.2d 74, 80 (Iowa 1979)); see United States v. Earley, 657 F.2d 195, 198-99 (8th Cir.1981).

Although the principle codified in Iowa Rule of Evidence 404(b) has surfaced frequently with respect to the conduct of accused persons in criminal trials, this rule is equally applicable to witnesses generally. Iowa R. Evid. 404(b); see State v. Brewer, 247 N.W.2d 205, 213 (Iowa 1976). ¹

Once trial court concludes the evidence is relevant to an issue in the case, it must balance the probative value of the evidence against its potential prejudice. State v. Kern, 392 N.W.2d 134, 136 (Iowa 1986). Such balancing is required by Iowa Rule of Evidence 403 which states:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Iowa R. Evid. 403; see Barrett, 401 N.W.2d at 186. In determining the ultimate admissibility of evidence trial court exercises its sound discretion. Emerson, 375 N.W.2d at 260; State v. Zaehringer, 280 N.W.2d 416,...