State v. Wright
| Decision Date | 20 December 1972 |
| Docket Number | No. 55253,55253 |
| Citation | 203 N.W.2d 247 |
| Parties | STATE of Iowa, Appellee, v. Dick Charles WRIGHT, Appellant. |
| Court | Iowa Supreme Court |
Joseph Z. Marks, Des Moines, and Stanley Lamfers, Chariton, for appellant.
Richard C. Turner, Atty. Gen., Fred M. Haskins, Asst. Atty. Gen., and William L. Shelton, County Atty., for appellee.
Heard before MOORE, C.J., and LeGRAND, UHLENHOPP, REYNOLDSON, and McCORMICK, JJ.
Defendant was convicted by jury and sentenced for statutory rape under Code § 698.1. He claims trial court erred in finding sufficient corroboration to submit the case to the jury and in overruling his motions for mistrial and new trial based upon alleged prosecutor misconduct. We find there was sufficient corroboration but agree defendant was denied a fair trial by prosecutor misconduct and reverse and remand.
The State charged defendant committed statutory rape upon his 16 year-old stepdaughter Judy Carter at their home in Derby, Lucas County, on or about December 3, 1970. The incident was purportedly the last in a series of similar acts with Judy over a two-year period.
Defendant had married Judy's mother in 1961. He had two children by prior marriage and she had five. They had one child during their marriage. At the time involved, seven of the children were living with them. The State's evidence showed that three of the children, Judy, her sister Diane, age 9 at trial, and her stepsister Patricia Wright (defendant's daughter), age 15 at trial, shared a bedroom. Diane and Patricia slept in a double bed, and Judy slept in a small bed nearby.
Judy testified the offense occurred in this bedroom at about 1:00 a.m. December 3, 1970, when defendant entered the room in his underclothing and got in bed with her as he had on prior occasions. Patricia, defendant's daughter, testified she occasionally saw defendant get into Judy's bed during the night including or or about the date involved. Her testimony as to what she then saw and heard is consistent with Judy's version of what happened.
I. Sufficiency of corroboration. Section 782.4, The Code, provides:
'The defendant in a prosecution for rape * * * cannot be convicted upon the testimony of the person injured, unless she be corroborated by other evidence tending to connect the defendant with the commission of the offense.'
The standards governing determination of sufficiency of corroboration are discussed in State v. Lahmon, 231 Iowa 448, 1 N.W.2d 629 (1942) (opinion on rehearing). Applying the statute in this case, we find ample corroborating evidence, especially in Patricia Wright's purported eyewitness testimony. Trial court did not err in letting the jury pass upon its weight and probative force.
II. Prosecutor misconduct. The gist of defendant's claim of prosecutor misconduct is that the county attorney persistently sought to inject irrelevant, incompetent and prejudicial evidence into the case despite adverse trial court rulings. He contends that even though his objections to improper questions were usually sustained, the combined effect of the prosecutor's tactics was to establish by indirection what he could not show directly, and that defendant was thereby deprived of a fair trial.
We believe the county attorney's effort to elicit testimony concerning defendant's alleged lascivious conduct toward Patricia Wright is decisive.
The sequence of trial events is significant on this issue. Trial court and county attorney were both alerted to defendant's objection to any evidence of defendant's alleged lascivious behavior with his own daughter by motion in limine. Trial court overruled the motion stating it would rule on admissibility of the evidence upon objection to its relevancy and materiality when offered during trial. The county attorney made it clear he intended to offer the evidence on a theory it was 'corroboration.'
Judy Carter was the State's first witness. When asked what defendant had done to 'bother her' in the kitchen of the home, she volunteered that he took liberties with Patricia and her while the girls were doing dishes. No objection or motion to strike appears. The subject was changed, but later in direct examination she was asked, 'Did you ever observe Mr. Wright do anything to Patty Wright other than what you have referred to already?' This was objected to as irrelevant and immaterial and objection was sustained. The subject was not further pursued with Judy.
The next witness was Patricia Wright. She described defendant's occasional nocturnal visits to Judy's bed, including the claimed incident on or about December 3, 1970. Then this occurred:
Thereupon, out of the presence of the jury, defendant moved for mistrial. The State made an offer of proof only as to the mistrial and the county attorney said, 'We are not challenging the court's ruling on the motion.' In the offer of proof Patricia said her father had on other occasions gotten in bed with her and fondled her. These were different nights than those during which she claimed Judy was visited. The court's ruling stood, the motion for mistrial was overruled and trial resumed.
James Lee Carter later testified for the State. During his testimony he was asked the ages of Judy and Patricia. Then:
Later in his testimony he described bed marks on Judy's neck he said were caused by defendant's kissing. Then the record shows the following:
Based upon this record the second motion for mistrial was made and overruled. Trial was completed and the case submitted to the jury.
During jury deliberations, when the jury had been called back to the courtroom prior to overnight recess, a juror addressed the court:
The court responded:
When deliberations were resumed, defendant was found guilty. Prosecutor misconduct was urged as a ground for new trial, but the motion was overruled. With that background, we turn to the law.
Defense counsel properly alerted trial court to the issue involved and his claim of prejudice by the motion in limine:
'The primary purpose of a motion in limine is to avoid disclosing to the jury prejudicial matters which may compel declaring a mistrial. The trial judge is thereby alerted to an evidentiary problem which may develop in the trial. It should not, except upon a clear showing, be used to reject evidence. Careful procedure dictates the trial court's order on a motion in limine should prohibit disclosure of questionable evidence until the court during trial in the jury's absence has been presented an offer and objection. Thus a proper record may be made for review on appeal. (citations) State v. Johnson, 183 N.W.2d 194, 197 (Iowa 1971) (emphasis supplied).
In accordance with the italicized statement, the problem in this case could have been avoided had the county attorney been instructed at the time of the ruling upon the motion in limine that evidence of defendant's alleged misconduct with his daughter should first be offered in the jury's absence.
As it turned out, the prosecutor attempted to offer the evidence six times in the jury's presence, five of the attempts occurring after trial court...
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