State v. Tornquist

• Decision Date: 12 March 1963
• Docket Number: No. 50537,50537
• Citation: 120 N.W.2d 483,254 Iowa 1135
• Parties: The STATE of Iowa, Appellee, v. John Austin TORNQUIST, Appellant.
• Court: Iowa Supreme Court

Page 483

120 N.W.2d 483

254 Iowa 1135

The STATE of Iowa, Appellee, v. John Austin TORNQUIST, Appellant.

No. 50537.

Supreme Court of Iowa.

March 12, 1963.

Edward A. Doerr and Charles G. Rehling, Davenport, for appellant.

Evan Hultman, Atty. Gen., John H. Allen, Asst. Atty. Gen., Des Moines, Martin D. Leir, County Atty., Scott County, and Norman M. Peterson, Asst. County Atty., Scott County, for appellee.

THOMPSON, Justice.

On February 21, 1961, the body of Jacqueline Jane Tornquist, a four year old girl, was brought to the emergency room of St. Luke's Hospital in Davenport by the defendant, her stepfather, and his wife, Phyllis Ann Tornquist, her mother. The child was not breathing when brought to the hospital. A nurse administered oxygen, and Dr. H. M. Hurevitz, who was in the hospital, was called immediately. He determined she was dead, but attempted to resuscitate the child by administering artificial respiration. All efforts failed and she was pronounced dead.

Some questions were asked of the defendant as to what had happened and he answered. Shortly after he was taken to the police station in Davenport, questioned by police officers, and a written statement obtained. On March 27 next a county attorney's information was filed in the Scott District Court, charging the defendant with the crime of murder of the second degree. He pleaded not guilty, and upon trial to a jury was found guilty of the included crime of manslaughter. A motion for new trial was filed and denied, and judgment entered on the verdict. From this we have the present appeal.

The defendant assigns several errors which are claimed to have resulted in the denial of a fair trial. We shall consider them in order. Facts essential to a consideration of each error will be stated as the errors are discussed.

I. The first assigned error relates to claimed misconduct of the prosecuting attorney. The alleged misconduct divides into two parts: first, that in his opening statement the attorney for the state told the jury the state would prove mistreatment of the child by the defendant at other times not immediately connected with the fatal injury, which the defendant claims was evidence not admissible, and some of which was in fact excluded when offered; and second, that the state prosecutor was guilty of prejudicial misconduct in offering exhibits claimed to show blood stains which did not in fact so show, and this was known to the state when it offered them. No mistrial was asked by the defendant at any time because of these alleged improper statements or offers.

We shall deal first with the claim of improper statements concerning other abuses and mistreatments. A separate assignment, which will be considered later, asserts error on the admission of the evidence of these. We are concerned at this point only with the question whether the opening statement of the county attorney in regard to them was so prejudicial that it denied the defendant a fair trial.

The assistant county attorney, who made the opening statement for the state, told the jury that what the attorneys said was not to be considered as evidence or testimony in the case; that what he said was merely a statement of what the state expected to prove; that it was possible there might be rulings made which would exclude certain evidence, or for some other reason evidence the state relied on might not be produced; 'so that I wish in no way to indicate by this opening statement that these are the exact and precise facts throughout.' When the evidence as to other abuses of the child was produced, some of it was admitted and some excluded.

In State v. Thompson, 241 Iowa 16, 29, 39 N.W.2d 637, 644, we said: '* * * in every case that is tried, there is usually found statements by counsel as to what they expect to prove but later find that they are unable to do so. * * * we are not prepared to say that such statements show deliberate bad faith on the part of counsel, such as to constitute reversible error.' This was quoted with approval in State v. Myers, 248 Iowa 44, 51, 79 N.W.2d 382, 387. See also State v. Allen, 100 Iowa 7, 9, 69 N.W. 274. The defendant offered no objection to the opening statement for the state as it was made, and did not ask a mistrial. But he now contends that the statement was so prejudicial that no ruling of the court could obviate it or remove its prejudicial effect from the minds of the jurors. State v. Tolson, 248 Iowa 733, 82 N.W.2d 105; State v. Clark, 160 Iowa 138, 140 N.W. 821, and several other cases are cited. Without doubt we have held, under varying facts, that a course of conduct by the prosecution, such as unfounded statements made in bad faith, repeated asking of improper questions or other activities of the prosecution may have the effect claimed by the defendant here. But we have also said that generally the trial court has a large though not uncontrolled discretion in determining whether such harm has been done. State v. Bolds, 244 Iowa 278, 281, 282, 55 N.W.2d 534, 535, 536, and citations. We find no abuse of discretion here. If counsel had thought at the time the opening statement was made that it had the effect now claimed, a motion for mistrial would have been much in order. That no such motion was made leads to the conclusion that the damage was not so vital as counsel now assert.

The second basis for the claim of misconduct for the state's counsel, the introduction of improper and immaterial evidence, is answered by much the same line of authorities and reasoning as the first. The prejudicial error here is asserted to arise from the introduction by the state of certain articles known in the record as Exhibits 54, 55, 56, 57, 58 and 60 through 65 inclusive. Officers of the Davenport police department testified as to where the articles were found, and that each contained stains which appeared to be blood. These were at first admitted. An expert witness for the state later testified that Exhibits 54, 55 and 56 did contain blood stains; that 57 and a part of 58 possibly contained blood stains but he was unable to confirm them; that a part of 58 did not contain blood stains, Exhibit 58 being a pajama set of coat and pajama top and bottom; that Exhibits 60 and 61 had stains which looked like, but were not, blood; and that 64 and 65 contained stains which were not blood. On motion of the defendant the trial court withdrew Exhibits 57, 58, 60, 61, 64 and 65 from the consideration of the jury and admonished the jury to disregard them as being immaterial; and to disregard the testimony of the police officer who had testified to the Exhibit 58, the pajama set, as to any blood stains thereon.

Again we do not find the discretion of the trial court abused. The authorities cited above, State v. Bolds, supra, and the cases cited therein, are in point; and this is particularly so in the absence of a motion for mistrial by the defendant. We do not say such a motion would have been good in any event; but that none was made again brings the thought that counsel did not regard the evidence introduced and later stricken as so damaging that their client could not receive a fair trial thereafter. In this we agree.

II. The second assigned error raises the important question of the sufficiency of the competent and material evidence to warrant submission to the jury; in other words, was there a jury qeustion? The trial court submitted the question of the defendant's guilt of murder of the second degree, and the included offense of manslaughter; and the jury convicted him of the latter. He contends there was insufficient evidence to generate a jury question; and as a collateral complaint, that it was prejudicial error to submit second degree murder.

It is correct to say that at this point we consider the evidence adduced by the state to be the material and governing consideration. If the defendant's evidence contradicted that of the state on material points, it did not more than make a question for the jury to decide. The fact of contradiction by the defendant is ordinarily not important when considering whether the state has made a prima facie case.

The state's evidence must be stated in some detail at this point. The defendant resided in Davenport with his wife and the child, Jacqueline Jane Tornquist, his stepdaughter, aged four years. The defendant was a representative and 'trouble-shooter' for a chain and cable company who travelled over territory in Iowa and neighboring states. His wife was also employed. When she was at work, the defendant often cared for her small daughter, Jacqueline. He would take her with him on local trips, or at times care for her at their home. On February 20, 1961, he took her with him on a trip to Galesburg, Ill. About five P.M. he returned to Davenport and stopped at a tavern, leaving the small girl in the car. He said he estimated his time in the tavern at about one hour; the tavern-keeper thought it about one hour and one half. Some time after returning home, perhaps the next day, he discovered scratches on the instrument board of the car, which he says the little girl admitted she placed there. So he undertook to chastise her. How he did this is the vital question in the case.

It is shown without contradiction that the defendant had charge of the little girl on February 21 for several hours immediately preceding the time she was taken to the hospital, already dead, about 4:20 P.M. Her mother had been at work during that time; but when she returned home a few minutes after four the defendant met her at the door and told her 'something had happened to Jackie.' They at once took the child to the hospital. It will be noted that there is substantial testimony from a medical expert, Dr. Francis C. Tucker, a pathologist, that the fatal injuries sustained by Jacqueline, a severe rupture of the liver and some damage to the pancreas, were sustained within three hours prior to her death; a time when she was in the sole...