State v. Ruble

• Decision Date: 31 July 1985
• Docket Number: No. 84-714,84-714
• Citation: 372 N.W.2d 216
• Parties: STATE of Iowa, Appellee, v. Fred L. RUBLE, Jr., Appellant.
• Court: Iowa Supreme Court

Page 216

372 N.W.2d 216

STATE of Iowa, Appellee, v. Fred L. RUBLE, Jr., Appellant.

No. 84-714.

Supreme Court of Iowa.

July 31, 1985.

Charles L. Harrington, Appellate Defender, Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., Rebecca L. Claypool, Asst. Atty. Gen., and Patrick C. McCormick, County Atty., for appellee.

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

LARSON, Justice.

Alleged accomplices of the defendant testified for the State in the defendant's prosecution for kidnapping in the first degree, assault while participating in a felony, and conspiracy to commit murder. The first accomplice to testify was arrested because his testimony was claimed to have been false, thus breaching a plea agreement under which he was to testify truthfully as to the facts surrounding the crimes. Also, in the defendant's later cross-examination of another of these accomplices, the defendant was precluded from inquiring about the witness's "fear" of the prosecuting attorney because of charges still pending against the witness. On the defendant's appeal, we affirm.

The evidence showed the defendant, with several others, beat, kidnapped and ultimately killed Michael Felton. At trial, the State called several of these accomplices as witnesses, including Bernie Bahmer, James Simeon, Pete Gentile, and Kevin Babb, each of whom either participated in or was present during the beating of Felton. Each of these witnesses, pursuant to plea bargain agreements, had agreed to testify truthfully with regard to the events before, during and after Felton's murder.

Bernie Bahmer was the first of the witnesses to testify for the State. Parts of his testimony did not support the State's case and were inconsistent with two of his previous statements. The county attorney, having concluded that Bahmer had breached his plea agreement, had Bahmer arrested before any of the other accomplices testified. The record shows that news of the arrest was common knowledge in the courthouse, and one juror later testified that "the whole courthouse was buzzing about it." No other details, such as the grounds for the arrest, were related by the juror.

The defendant moved for mistrial, claiming:

The reason I am moving for mistrial is for the reason that my client's rights are highly prejudiced by that move, for the reason there are still three other witnesses who are to testify who have plea bargains of the same nature. So that by doing this before they testify, Mr. Hisey [the assistant county attorney] has threatened witnesses by simply saying to them, "you testify the way I want you to testify or I will cancel your plea bargain agreements as I did with Bernie Bahmer," so that the witnesses in the middle of the trial will be under great pressure or duress as a result of this action so that Mr. Ruble's rights have been--are highly prejudiced by this action. Secondly, I say just for mere fact that it was done is sufficient prejudice; however, I cannot corroborate it by talking to the remaining witnesses, for the reason if I ask them if they knew of the fact that Mr. Hisey filed an arrest for Bernie Bahmer, they would know that and I, myself, then would be informing them of the fact, so that I cannot inquire of them without prejudicing the defendant myself. Thirdly, even if Mr. Hisey says he didn't tell anybody, if a warrant has been issued, its very obvious through police channels, inquiries made as to his whereabouts, things like that, so that Mr. Bahmer or friends or relatives or other people will obviously know about it. And the evidence is clear in this case that all the people involved are friends, so it is presumable if one knows, all would know.

The defendant's request to voir dire the jurors to determine whether they had actual knowledge of Bahmer's arrest was denied, but subsequent inquiry after the verdicts were returned indicated that at least some of them knew of the arrest prior to their deliberation. In his motion for new trial, the defendant alleged that the arrest of Bahmer "had the effect of the jury believing that he lied on the stand so as to deny this defendant a fair trial."

After Bahmer was arrested, James Simeon testified. His testimony in some respects supported the State's case but, in other respects, it did not. On cross-examination, Ruble attempted to establish that Simeon had an interest in pleasing the State, through favorable testimony, in order to avoid arrest for his part in the crimes. The trial court sustained the State's objection, and Simeon was not able to further relate the facts bearing on his motives.

On appeal, defendant urges two grounds for reversal: (1) the trial court abused its discretion in overruling defendant's motion for a mistrial based upon the prosecutor's actions in arresting Bernie Bahmer prior to the testimony of the other witnesses; and (2) the trial court erred in sustaining the State's objections to defendant's cross-examination of the State's witness, Simeon, regarding his interest in testifying.

I. Prosecutorial Misconduct.

Defendant first contends the arrest of the witness Bahmer constituted misconduct on the part of the prosecuting attorney and that he was prejudiced by it.

To prevail on a matter of prosecutorial misconduct, the defendant must show both the misconduct and that he was prejudiced by it. See State v. Williams, 315 N.W.2d 45, 55 (Iowa 1982); State v. Love, 302 N.W.2d 115, 119 (Iowa 1981); State v. Lyons, 210 N.W.2d 543, 549 (Iowa 1973); State v. Harless, 249 Iowa 530, 536, 86 N.W.2d 210, 213-14 (1957), cert. denied, 357 U.S. 908, 78 S.Ct. 1154, 2 L.Ed.2d 1158 (1958).

Trial courts are vested with broad authority to determine whether prejudice has resulted from an act of prosecutorial misconduct. Williams, 315 N.W.2d at 55 (citing State v. Vickroy, 205 N.W.2d 748, 750 (Iowa 1973)). We do not overturn trial court rulings in the absence of a showing of abuse of discretion. Love, 302 N.W.2d at 119; State v. Harrington, 284 N.W.2d 244, 251 (Iowa 1979); State v. Trudo, 253 N.W.2d 101, 106 (Iowa), cert. denied, 434 U.S. 903, 98 S.Ct. 299, 54 L.Ed.2d 189 (1977). "Abuse of discretion is shown only when it is demonstrated that such discretion was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable." Williams, 315 N.W.2d at 55 (quoting Trudo, 253 N.W.2d at 106). With these general principles in mind, we take up defendant's complaint against the prosecutor.

It is true that a prosecuting attorney may not threaten or intimidate witnesses. See State v. Ivy, 300 N.W.2d 310, 314 (Iowa 1981). Some jurisdictions hold that intimidation of witnesses is a ground for reversal even without a showing of prejudice. See United States v. Hammond, 598 F.2d 1008, 1013 (5th Cir.1979); United States v. Morrison, 535 F.2d 223, 228 (3rd Cir.1976); United States v. Thomas, 488 F.2d 334, 336 (6th Cir.1973) (per curiam); see also United States v. MacCloskey, 682 F.2d 468, 479 (4th Cir.1982); Berg v. Morris, 483 F.Supp. 179, 182 (E.D.Cal.1980).

The problem with the defendant's argument here is not whether prejudice existed or whether the conduct of the attorney in causing the arrest of Bahmer amounted to misconduct. The issue is whether there was intimidation. The defendant made no showing that any of the other witnesses were aware of Bahmer's arrest, or, if they were, that they were aware of the particular reason for the arrest. In view of the lack of evidence to support this argument, it would require us to assume that the other witnesses knew of the arrest and knew of the grounds for the arrest in order to determine that there had been intimidation. The record simply does not support that finding. Ruble complains that he could not develop this evidence because if he inquired of the remaining witnesses as to their knowledge of Bahmer's arrest he would in effect poison their testimony himself. On the other hand, he did not investigate the possibility of an in camera inquiry into these matters by the court or any other means of developing the record. In view of this fact, we cannot assume the record...