State v. Sallis

• Decision Date: 18 January 1978
• Docket Number: No. 59795,59795
• Citation: State v. Sallis, 262 N.W.2d 240 (Iowa 1978)
• Parties: STATE of Iowa, Appellee, v. Katherine L. SALLIS, Appellant.
• Court: Iowa Supreme Court

Page 240

262 N.W.2d 240

STATE of Iowa, Appellee, v.Katherine L. SALLIS, Appellant.

No. 59795.

Supreme Court of Iowa.

Jan. 18, 1978.

Hugh P. Finerty, Jr., Council Bluffs, for appellant.

Richard C. Turner, Atty. Gen., Mark S. Beckman, Asst. Atty. Gen., David E. Richter, County Atty., for appellee.

Heard before MOORE, C. J., and MASON, REES, REYNOLDSON and McCORMICK, JJ.

MASON, Justice.

January 20, 1976, Katherine L. Sallis was arrested in Omaha, Nebraska, for the murder of her husband, Charles Sallis.Although the trial court docket entries did not originally reflect this fact, defendant was extradited to Iowa and arraigned March 16.She was tried and found guilty of the only charge submitted to the jury, first degree murder.She appeals from judgment imposed upon her conviction.

May 25 defense counsel filed a motion to dismiss the entire jury panel.This motion was in pertinent part as follows:

" * * * That at the time of the setting of the trial of this defendant herein, the defendant, by and through counsel, indicated to the Court and to the plaintiff's attorneys that there was a companion case also set for the same date at the same time, at which time counsel for the defendant suggested a serious conflict.

"Counsel for defendant now finds that a third companion case is presently in trial, which companion case has required the same witnesses and which companion case has required substantially the same evidence as that required in the defendant's case herein.

"That at the selection of the jury for the case now being heard, to wit: Lee Otis Marisett, a/k/a Charles O. Reese, on motion of the attorneys representing Marisett, motion was made that they be permitted to select their jury from the entire panel from both the North and South Court.That such motion was granted and the selection of said jury in said case was from the entire jury panel.That during the selection of said jury for the Marisett case now being heard, the entire panel was present during exhaustive and intensive Voir Dire examination by both the State of Iowa and the defendant.That such examination, extending over several hours, during which time the defenses of the various companion cases was (sic) alluded to by both the prosecution and the defendant, Marisett, and in particular to the defense of the defendant, Kathy L. Sallis.

"That the evidence produced by the State of Iowa in presenting their case in the Marisett trial now being heard, is in many respects identical to the evidence which may or may not be presented in the Sallis case.That such exposure by the entire panel to the evidence, to the testimony of the witnesses to be called in the Sallis matter, to the facts and circumstances surrounding this defendant's defense are prejudicial and will, in fact, deny this defendant a fair and impartial trial by jury as required by the Constitution of the United States and the Constitution of the State of Iowa.

"II

"In further support of this application, the defendant respectfully shows to the Court that no request was made after the selection of the jury in the Marisett case for sequestration of the jurors and that said jurors were permitted, while in recess to commingle in hallways, restaurants, etc. and that such exposure by the remaining balance of the present jury panel is further prejudicial to this defendant.

"That the plaintiff knew or should have known of the unfitness of the present panel in light of the above facts and that a new panel should have been selected.

"WHEREFORE, this defendant respectfully prays that the entire present jury panel be relieved from serving in this defendant's trial and that said jury panel be dismissed for cause and that a sufficient new panel of jurors be empaneled to sit in judgment of this defendant's trial. * * * ."

At the hearing on this motion held May 26counsel for Reese (Marisett) testified to the following:

"Q.Now, during the voir dire concerning the magnitude of this particular case, can you tell us how exhaustive or extensive your voir dire was?A.I questioned each prospective juror individually.I did not offer questions, except one or two questions except one or two rather general questions to the entire panel.I attempted to determine the state of mind of each juror as an individual, and in so doing I used a guide or a list of items that I felt should be gone into.

"Q.In so doing did you allude in any way to other defendants in this case co-defendants?A.They were all named.

"Q.Companion cases, they were all named?A.Yes.

"Q.And did you make any inquiry as to any of the jurors' knowledge of the particular defendants?A.I did.

"Q.And did you at any time allude to any specific charges against specific defendants during the course of this voir dire?A.I would have to state from memory.I believe it was indicated that the case was part of several companion cases.I don't think it went beyond that.* * *

"Q.During the course of your voir dire examination of prospective jurors did you allude to a certain contract written contract?A.That was definitely referred to, yes.

" * * *

"A.There was reference made to a writing; I think that was the way we put it; or a note.

"Q.Commanding a murder to take place.A.Well, actually stated that way, I can't say.

" * * *

"Q.Very well, during the course of the trial, was there any mention made of any prior assault by defendantKathy Sallis?

" * * *

"THE WITNESS: I believe not.

" * * *

"A.The name Sallis was mentioned, and I believe that Kathy Sallis was mentioned.I don't think it was mentioned in that context.

" * * *

"Q.During the upon completion of the jury selection or voir dire examination and upon selection of the jury, what happened to the remaining panel the remaining amount of the panel?A.They were simply dismissed and told to report at a later date.

" * * *

"Q.There was was there any admonition given to the jurors who were not impanelled or selected to serve on your jury to the effect that they should remain out of the courtroom by virtue of the fact that they may be called for a companion case?A.There was no such admonition.

"Q.Was there an instruction that they should not go into your courtroom from that time on?A.No, sir.

" * * *

"MR. ALBRACHT: Did you make any independent observation to determine whether any of the other panel any members of the jury panel not serving your case were present in the courtroom?

"THE WITNESS: No. * * *

"CROSS EXAMINATION

"BY MR. RODENBURG:

"Q.Justone question, Mr. Kraschel.You have no independent knowledge of any commingling of jurors that might have affected the balance of the jury panel, except for the general voir dire of the combined jury panel north and south, is that correct?A.Well, I believe that would be correct, yes.

"Q.Well, there was no direct knowledge on your part of any conversations between the jurors in your case that had been selected and those remaining on the jury panel?A.I would have to say, no; because I was not in a position to make any observation.I was in the courtroom."

One other witness, the court reporter in the Marisett case, was called and testified no admonition was given the remaining members of the entire jury panel.He also testified to having no knowledge of any conversations among the jurors.

At the close of the hearing the court made the following statement:

"THE COURT: Well, the Court is satisfied that there hasn't been any commingling of the present jury serving in the case across the hall with the jurors remaining on the panel.And the motion to dismissthe panel is going to be overruled.We'll begin the selection of the jury."

Selection of the jury commenced at 10 a.m.May 26 and was completed at 4:15 p.m.The matter was then adjourned until May 28.

The morning of May 28 defense counsel renewed his motion for a mistrial on the ground the jury selected after the first hearing could no longer be fair and impartial.He based this contention on newspaper articles containing stories Reese had been found guilty and the other defendant had pled guilty.This motion was overruled by the court because defendant, in spite of the urging of her attorney that this publicity would prejudice the jury, decided to continue with the trial.

During the trial the prosecution asked many questions of a witness, Isaiah J. Jones, to which Mr. Jones was either not responsive or in answer launched into narrative statements.To these types of answers, defense counsel objected and the trial court sustained most of these objections.Two incidents of this type are called to our attention by defendant's appellate counsel.The first is as follows:

"MR. ALBRACHT: Your Honor, I'm going to object as leading and suggestive, and ask again that counsel be precluded from doing so; and at this time move for a mistrial.I'm placed in a position here to prejudice my own client by this constant objecting.

"THE COURT: Well, the objection is good, and let me say this, that when objections are made by counsel, they're not doing it with the intention of keeping things from you.They are attempting, I think, to assist the Court in admitting evidence that's proper.I think I should say that to the jury in view of the fact that you stated that you're prejudicing yourself, and I don't want your objections to be prejudicial to you and your client.

" * * *

"MR. ALBRACHT: Well, I object to any conversation this witness had with anyone outside the presence of this defendant.

"MR. RODENBURG: Now, just a minute, Your Honor.I object to this objection for the reason it's offered to prove the truth of what was asserted to prove it was asserted.That is not hearsay.It's part of a complicated matter.

"THE COURT: Well, I think he is being asked what he did, and I think he should confine his answer to that particular question.

"MR. RODENBURG: Would it be a fair statement, Mr. Jones, to say you made contact with Jackie Bell at or about 2:30 or the time...