State v. Wallace

• Decision Date: 18 October 1966
• Docket Number: No. 52074,52074
• Parties: STATE of Iowa, Appellee, v. Ronald J. WALLACE, Appellant.
• Court: Iowa Supreme Court

Page 615

145 N.W.2d 615

259 Iowa 765

STATE of Iowa, Appellee, v. Ronald J. WALLACE, Appellant.

No. 52074.

Supreme Court of Iowa.

Oct. 18, 1966.

David F. Setter, of Kintzinger, Kintzinger & Van Etten, Dubuque, for appellant.

Lawrence F. Scalise, Atty. Gen., Don R. Bennett, Asst. Atty. Gen., and Robert W. Burns, Dubuque, County Atty., for appellee.

RAWLINGS, Justice.

By county attorney's information defendant was charged with the crime of kidnapping, entered a plea of not guilty, tried, found guilty by a jury and appealed.

He assigns as errors the following: (1) overruling defendant's objections to admission of evidence concerning a shotgun and shells found in an automobile; and (2) the trial court's refusal to instruct the jury on intent as an element of the offense. We find no merit in the second assignment but are satisfied the first assignment necessitates a new trial.

The record discloses Geraldine Richardson, complaining witness, attended an informal party at the Roshek residence in Dubuque. About 3:00 a.m., August 30, 1965, the young lady became upset because of something said and left the house.

She had walked about one mile when an automobile passed her and the occupants made some apparently unintelligible remark. The car soon returned, again went past, turned back and came to a stop a short distance away. The defendant got out of the car and asked Geraldine if she wanted a ride. He then put his arms around the girl's waist and forced her into the rear seat of the automobile which was driven away.

A short time later, or about 3:30 a.m., the subject vehicle was stopped by Officers O'Brien and Lambert of the Dubuque police department. Geraldine got out of the car which she had been forced to enter, went to the squad car occupied by the police officers and told them what had previously occurred. Defendant contends the girl voluntarily entered and remained in the car. She was in no manner molested other than being allegedly held by her wrists in the automobile prior to the time it was stopped.

The automobile in which defendant was riding was a Chrysler which belonged to his mother, operated at the time by his brother Sidney. The other two occupants were James L. Lucy and Richard L. Dunwoody.

There was no search of the subject car at the time it was stopped. Rather, one of the officers told Sidney to drive to police headquarters, which he did. There the Chrysler was locked by one of the policemen and the four young men, being then 'arrested', were placed in cells. The car keys were left with the desk sergeant. This all occurred about 4:00 a.m. These two officers then went off duty but returned at 8:00 p.m.

About 11:30 p.m. of the same day these same policemen secured the Chrysler car keys from the desk sergeant and without having secured consent from anyone, with no search warrant, proceeded to search the subject vehicle. Officer O'Brien, exploring the rear of the car, pulled the back seat forward and there found an unassembled double barreled twelve gauge sawed off shotgun. Officer Lambert, examining the front seat area, found two shotgun shells in the glove compartment. Using the shells which had been discovered these policemen tested the gun and found it fired.

By a motion In Limine defendant challenged the propriety of any reference to, or any attempted presentation by the State of evidence relative to finding of the gun and shells. In so doing defendant asserted these items had been obtained by an unconstitutional search and seizure, were irrelevant, and could only be referred to or placed in evidence for the purpose of prejudicing the jury against defendant. The trial court ordered that no reference be made to the gun or shells during selection of a jury or in opening statements.

Then during trial, after an in camera hearing, the court, over defendant's repeated objections permitted officers O'Brien and Lambert to describe in detail the search, the gun and the shells.

At close of trial defendant requested the jury be instructed as to the meaning of the word 'willfully', and 'intent' be included as an element of the offense charged. These requests were refused.

I. As previously stated defendant in argument challenges all evidence relative to the sawed off shotgun and shells claiming: (1) they were obtained by an unreasonable search, and (2) irrelevant to any issue in the case.

In support of the claimed unconstitutional search and seizure defendant leans heavily on Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, contending a search of the car some 20 hours after apprehension was unconstitutional.

The State contends Preston is not here controlling since the original arrest there made was for vagrancy, while in the case now before us the arrest was for kidnapping, and the automobile used in perpetrating the offense, having been seized or impounded could be later inspected for incriminatory evidence.

State v. Raymond, Iowa, 142 N.W.2d 444, is cited in support of this view. Incidentally no search was involved in the Raymond case.

However, we are satisfied the issue now before us need not be resolved under any constitutional mandate.

II. Admittedly evidence as to weapons or other articles sufficiently identified and used, or with respect to which there is sufficient proof to justify a reasonable inference they were or may have been used in the perpetration of the offense charged, is generally admissible in evidence. State v. Drosos, 253 Iowa 1152, 114 N.W.2d 526, and 22A C.J.S. Criminal Law § 712, page 956.

But such evidence must have probative value and be relevant to the issues involved.

In State v. Knox, 236 Iowa 499, 514, 18 N.W.2d 716, 723, this court recognized the relevancy test. We there said: 'It hardly needs authority to sustain the proposition that evidence presented in a case must be relevant to the issue. If not relevant it has no place in the trial. * * *

'By relevancy is meant the logical relation between the proposed evidence and a fact to be established. * * *' See also State v. McDougal, 193 Iowa 286, 296, 186 N.W. 929.

Then in State v. Slauson, 249 Iowa 755, 760--761, 88 N.W.2d 806, 809, this court stated as follows: 'Relevant evidence, of course, means evidence having any tendency in reason to prove any material matter and includes opinion evidence and hearsay evidence. See Model Code of Evidence, Rule 1(12); Uniform Rules of Evidence 1(2). Also see article on Determination of Relevancy, by Mason Ladd, in Tulane Law Review, Volume XXXI (1956), pp. 81--90.

'It is also true that even though the test of relevancy is met, the offered evidence is subject to the test of policy consideration. As pointed out in Dean Ladd's article referred to above, formost among these is the danger of Undue prejudice. Evidence having a minimum of probative quality and which is highly prejudicial must be excluded. While most all evidence against an adverse party is prejudicial in the sense that it creates a resistance to the success of one party's case, such objections as we found herein are really directed to the contention that the evidence is too remote and prejudicial to be accepted as relevant. Thus the prejudicial aspect becomes important only when the evidence has a minimum of probative quality. It follows, then, that primarily it is for the trial judge to decide, first, whether the offered evidence has some probative force, and second, to balance the value of that evidence as a contribution in the solution of the fact issue against the danger of its prejudicial or wrongful effect upon the triers of fact.

'Uniform Rule 45 summarizes the policy consideration as follows: 'Except as in these rules otherwise provided, the judge may in his discretion exclude evidence if he finds that its probative value is substantially outweighed by the risk that its admission will (a) necessitate undue consumption of time, or (b) create substantial danger of undue prejudice or of confusing the issues or of misleading the jury, or (c) * * *. " See also State v. Poffenbarger, 249 Iowa 480, 87 N.W.2d 441; State v. Snyder, 244 Iowa 1244, 1248--1249, 59 N.W.2d 223; and 22 A C.J.S. Criminal Law § 600, pages 385--392.

And as a general rule demonstrative evidence or that related thereto is usually received If it affords a basis for a reasonable inference on a point in issue, provided it meets other relevant tests of admissibility. See State v. Williams, 245 Iowa 494, 505, 62 N.W.2d 742, and State v. Kehr, 133 Iowa 35, 37, 110 N.W. 149.

However, evidence which has no tendency or only a slight tendency to establish guilt or innocence of an accused, or which if effective at all could serve only to prejudice, mislead or excite the passions of a jury, should not be admitted. 22A C.J.S. Criminal Law § 600, page 395; § 601, page 403; and § 712, page 965. See also Underhill, Criminal Evidence, Fifth Ed., section 11, page 14.

III. Of course error in admission of evidence must be prejudicial to an accused to constitute cause for reversal. State v. Post, 255 Iowa 573, 579, 123 N.W.2d 11, and State v. Collins, 246 Iowa 989, 995, 69 N.W.2d 31. See also State v. Martin, 243 Iowa 1323, 1334, 55 N.W.2d 258, 34 A.L.R.2d 904.

A common test to determine whether an error in admission of evidence was prejudicial is found in 5 Am.Jur.2d, Appeal and Error, section 783, page 225: 'The test is said to be whether, upon a review of the record, it sufficiently appears that the rights of the complaining party have been injuriously affected by the error, or that he has suffered a miscarriage of justice. The fact that the record as it stands may show that the evidence preponderated heavily in favor of the appellee does not foreclose consideration on the part of the reviewing court of any error or irregularity committed at the trial, and for the purpose of determining whether or not the appellant has been injured, it is proper to look to the whole record, and not to that part only which precedes and...