State v. Slauson

• Decision Date: 11 March 1958
• Docket Number: No. 49288,49288
• Citation: State v. Slauson, 249 Iowa 755, 88 N.W.2d 806 (Iowa 1958)
• Parties: STATE of Iowa, Appellee, v. Charles Jesse SLAUSON, Appellant.
• Court: Iowa Supreme Court

Page 806

88 N.W.2d 806

249 Iowa 755

STATE of Iowa, Appellee, v. Charles Jesse SLAUSON, Appellant.

No. 49288.

Supreme Court of Iowa.

March 11, 1958.

Henry W. Wormley and Don Hise, Des Moines, for appellant.

Norman A. Erbe, Atty. Gen., Raphael R. R. Dvorak, First Asst. Atty. Gen., Freeman H. Forrest, Asst. Atty. Gen., Ray Hanrahan, County Atty., and Jim I. Myerly, Asst. County Atty., Des Moines, for appellee.

LARSON, Justice.

The sole question for review by this court is whether reversible error was committed when the prosecution exhibited a gun to the jury, when counsel knew that this gun could not be connected with the defendant. The facts are not in dispute. A few minutes before midnight on January 29, 1957, Alfred D. Harlow was the sole attendant at an oil station at Thirty-fourth and University Avenue in Des Moines. Approximately $175 was taken from him by a lone bandit who threatened him with a gun which he described as about six inches long and looked like a forty-five automatic. It might have been a thirty-eight, he couldn't say for sure. He identified the defendant as the person who held him up. There were no other witnesses to the holdup.

Defendant was arrested February 1, 1957, in a tavern after officers said they had received a tip that a man with a gun was present. However, no gun was found. His defense in the trial was one of alibi and he furnished witnesses who placed him with a woman acquaintance in a tavern drinking beer at the time of the holdup.

During the progress of the trial the prosecutor attempted to have Mr. Harlow, the state's principal witness, identify a gun which was marked 'Exhibit A'. He was asked, 'Mr. Harlow, at this time I hand you what is identified as State's Exhibit A for identification purposes and would ask you * * * Could you tell the jury, and for the record, what Exhibit A is?' Defense counsel objected stating, 'Let the record show at this time that we object to a display of Exhibit A in the presence of the jury in view of the present state of the record in that it has not been identified as being the property of the defendant or in any way connected with the defendant, and could only be brought into this case at this time and in the present state of the record for the purpose of intending to excite prejudice as far as the jury is concerned, and at this point in the record it's wholly irrelevant, incompetent, and immaterial.'

The objection was overruled by the court and Mr. Harlow was then asked, '* * * could you tell us for the purpose of the record what State's Exhibit A is for identification purposes?' Harlow answered, 'Well, it looks like the gun that he was using that night. Q. Now, can you state whether or not it is the gun? A. No, I can't state that it is the gun.' Defense counsel then said, 'At this point we move to strike out the evidence of the witness for the reason that no proper foundation has been laid to show him qualified to testify to Exhibit A, and for the further reason that he has positively stated that he can't state this is the gun, and in the present state of the record there is no connection shown between the defendant and Exhibit A.' The court sustained the objection, the state excepted, and defense counsel then said, 'We ask that the court caution the jury to disregard this evidence at this stage of the proceedings.' Thereupon the court said, 'The jury is admonished to disregard any evidence with reference to the gun at this stage of the proceedings as though it had not been produced and exhibited at all.' (Emphasis supplied.)

No request was made for a mistrial, but counsel for the state asked for and received a recess to discuss the legal point involved outside the presence of the jury. The record discloses this discussion as follows:

Counsel for the state requested a more full understanding of what the court ruling was with regard to Exhibit A. He stated, 'It is not the intent of counsel to introduce Exhibit A into evidence, but I thought I had the right to have Exhibit A marked and have testimony from the witness with regard to Exhibit A for comparative purposes only.' The court inquired, 'What do you plan to do? Compare with what?' Counsel then said, 'The witness stated from the stand * * * that this Exhibit A appeared like the gun that was used that night, and that is the only basis I propose and I do not propose to introduce it into evidence. But I thought I had the right to bring in a piece of property, or in this case Exhibit A, for the witness to compare as to his testimony with regard to physical evidence. * * *' The court then said, 'I can't follow that. When the defendant's freedom and liberty is at stake here, for him to conjecture to the fact that this may or may not be the weapon used that particular night to which he testified isn't strong enough as far as this court is concerned to permit it to remain in the jury consideration. Obviously, the State has done what it sought to do by producing a gun which he has said, in the presence of the jury, looked like the one. And you could exclude it from the jury the next 30 hours and they still have that.' State's counsel then said, '* * * that was my only purpose, to have something here which represented what the gun appeared like. I never intended to introduce this gun into evidence, nor do I expect to be able to do so. * * * Because some of the members of the jury may have never seen a gun and a gun such as Exhibit A for the purposes of identification. * * * I thought I would have to have it identified for the purposes of the record only, but that was my only idea in bringing the gun in at all.' (Emphasis supplied.) The court then ruled, 'Unless counsel can show me authority, I must exclude--* * * I am afraid of it. Let our witness describe the gun, but let's don't bring something in here that is wholly unconnected * * *.'

Thereafter no further reference was made to Exhibit A, but Mr. Harlow described the gun which he said the defendant displayed on the night of the robbery. He said it 'looked to me like a 45 automatic. It was about six inches long, I reckon, and about 4 1/2 inches high. I don't know a lot about guns, but the only thing I can go by is the size of it. I thought it was a 45 automatic as near as I could tell by looking at it off at a distance. Whether it was a 45 or whether it was a 38 or what it might be, I couldn't say to that for sure. The approximate time the defendant and I were in the office together was just a matter of seconds. He scared me when he told me to come and go with him. I was scared before, but that scared me worse than ever.'

From the record we learn the court overruled the defense motion for a directed verdict, and there appear to have been no objections to the court's instructions relative to this matter. The jury found defendant guilty, and the defense motion for a new trial partially based upon the alleged misconduct of the county attorney was overruled. Defendant appeals, contending the misconduct of the county attorney in attempting to introduce evidence relating to the displayed gun, Exhibit A, so prejudiced the jury that it must be held prejudicial error and requires reversal. We cannot agree.

I. Misconduct of the county attorney is not enough alone to require the granting of a new trial, unless his acts or statements appear to have been so prejudicial as to deprive the complaining party of a fair trial. State v. Haffa, 246 Iowa 1275, 1283, 71 N.W.2d 35, and cases cited therein. In announcing that well established rule in State v. Cooper, 169 Iowa 571, 587, 151 N.W. 835, 841, we also said, 'The trial court having heard all...