State v. Zaehringer

• Citation: 325 N.W.2d 754
• Decision Date: 27 October 1982
• Docket Number: No. 67533,67533
• Parties: STATE of Iowa, Appellee, v. Steven Laverne ZAEHRINGER, Appellant.
• Court: Iowa Supreme Court

Page 754

325 N.W.2d 754

STATE of Iowa, Appellee, v. Steven Laverne ZAEHRINGER, Appellant.

No. 67533.

Supreme Court of Iowa.

Oct. 27, 1982.

Randy J. Hohenadel, Davenport, for appellant.

Thomas J. Miller, Atty. Gen., Teresa Baustian, Asst. Atty. Gen., and William Davis, Scott County Atty., for appellee.

Considered by REYNOLDSON, C.J., and HARRIS, McGIVERIN, LARSON, and CARTER, JJ.

REYNOLDSON, Chief Justice.

Defendant was charged with rape, a violation of Iowa Code section 698.1 (1977). We reversed his first jury trial conviction in State v. Zaehringer, 280 N.W.2d 416 (Iowa 1979), on the ground trial court erroneously excluded portions of defendant's evidence. District court then granted defendant's motion to dismiss, based on this court's delay in issuing procedendo and subsequent district court delay. We reversed and remanded for new trial. State v. Zaehringer, 306 N.W.2d 792 (Iowa 1981). Defendant now appeals from his second conviction and we again reverse and remand for new trial.

Following the second jury guilty verdict on September 4, 1981, trial court sentenced defendant to a term not exceeding twenty-five years. Defendant's brief asserts trial court erred (1) in permitting defendant to be impeached on the basis of his prior felony conviction for delivering marijuana, (2) in permitting the prosecutor to read into evidence the prior testimony of a witness at the 1978 trial, (3) in admitting testimony regarding the change in defendant's appearance between the time of the alleged offense and the 1981 trial, (4) in imposing a sentence of twenty-five years when the first conviction had resulted in a ten-year sentence.

I. Cross-Examination of Defendant about Prior Conviction.

Trial court overruled defendant's pretrial limine motion that sought to preclude State's inquiry regarding his 1973 felony conviction of marijuana delivery. See Iowa Code §§ 204.401(1)(a), 687.2 (1973). The court reasoned the crime involved a "question of dishonesty." It overruled defense objections of irrelevance and improper cross-examination. Defendant admitted he had been convicted of a felony.

Defendant argues trial court erred in permitting this cross-examination because delivery of marijuana does not involve indicia of deceit, fraud, cheating, or stealing. Consequently, he contends, the conviction does not adversely affect his honesty and integrity.

Iowa Code section 622.17 provides:

A witness may be interrogated as to his previous conviction for a felony. No other proof is competent, except the record thereof.

We have interpreted section 622.17 as granting Iowa trial courts discretion to admit evidence of prior felony convictions to impeach a criminal defendant, if the prior conviction involved dishonesty or false statement, and the trial court determines the danger of unfair prejudice does not substantially outweigh the conviction's probative value. State v. Conner, 241 N.W.2d 447, 454 (Iowa 1976); State v. Miller, 229 N.W.2d 762, 769 (Iowa 1975); State v. Martin, 217 N.W.2d 536, 542 (Iowa 1974). The purpose of admission is not to show the defendant is a bad person, but only to show facts bearing on the question whether the fact finder should believe the testimony. State v. Martin, 217 N.W.2d at 540. We have distinguished between acts of deceit, fraud, cheating, or stealing, which in common human experience reflect adversely on honesty and integrity, and acts of violence, which are less likely to do so. State v. Miller, 229 N.W.2d at 769; State v. Martin, 217 N.W.2d at 540-41. Crimes probative of honesty and integrity include perjury, State v. Jones, 271 N.W.2d 761, 766 (Iowa 1978), and felonies involving theft, State v. Conner, 241 N.W.2d at 455. We have found the crime of manslaughter inadmissible for purposes of impeachment. State v. Brewer, 247 N.W.2d 205, 213 (Iowa 1976).

We have yet to determine whether a violation of our Uniform Controlled Substances Act is a crime probative of veracity. In State v. Martin, 217 N.W.2d at 541, we quoted with approval the following language:

A "rule of thumb" ... should be that convictions which rest on dishonest conduct relate to credibility whereas those of violent or assaultive crimes generally do not; traffic violations, however serious, are in the same category.

Gordon v. United States, 383 F.2d 936, 940 (D.C.Cir.1967), cert. denied, 390 U.S. 1029, 88 S.Ct. 1421, 20 L.Ed.2d 287 (1968). ¹ As to the related issue of relevancy, we observed "only such instances as tend to show a lack of truthfulness or disposition [to lie]--for example, forgery, cheating and the like --are relevant and material." State v. Martin, 217 N.W.2d at 542 (emphasis added).

Our prior cases applying the first prong of Martin, "dishonesty or false statement," involved crimes that encompass deceit, fraud, cheating, or stealing in an elemental sense. See Iowa Code §§ 720.2 (1981) (perjury requires knowing false statement of material fact or false denial of knowledge), 714.1(1) (intent to deprive another as element of theft), 714.1(2) (misappropriation), 714.1(3) (deception), 714.1(5) (intent to defraud).

In contrast, the delivery of marijuana offense is defined as follows:

[I]t is unlawful for any person to ... deliver ... a controlled substance.

Iowa Code § 204.401(1) (1981). ² This definition incorporates no deceit, fraud, cheating, or stealing as delineated in Martin. Absent direct involvement of one or more of these elements in the offense, the conviction is inadmissible for purposes of impeachment. United States v. Lewis, 626 F.2d 940, 946 (D.C.Cir.1980); United States v. Millings, 535 F.2d 121, 123 (D.C.Cir.1976); see State v. Brewer, 247 N.W.2d at 213.

Our view that narcotic offenses do not meet the Martin requirements (dishonesty or false statement) finds support in other jurisdictions. United States v. Lewis, 626 F.2d at 946 (distributing heroin); United States v. McLister, 608 F.2d 785, 789 (9th Cir.1979) (marijuana possession); United States v. Hastings, 577 F.2d 38, 41 (8th Cir.1978) (absent specific underlying facts of dishonesty, narcotic conviction not admissible); United States v. Millings, 535 F.2d at 123-24; 3 J. Weinstein & A. Berger, Weinstein's Evidence p 609, at 609-74 (1981). These cases are bottomed on the finding that mere use or trafficking in drugs, without more, does not involve indicia of deceit, fraud, or dishonesty reflecting adversely on a person's veracity. United States v. Millings, 535 F.2d at 123; Hatchett v. State, 552 S.W.2d 414, 415 (Tenn.Cr.App.), cert. denied, 552 S.W.2d 414 (Tenn.1977); see United States v. Hastings, 577 F.2d at 41 (unless particular conviction rests on facts showing dishonesty or false statement); United States v. Hayes, 553 F.2d 824, 827 (2d Cir.), cert. denied, 434 U.S. 867, 98 S.Ct. 204, 54 L.Ed.2d 143 (1977) (something more than basic conviction is required).

Although several courts have held narcotic convictions admissible for purposes of impeachment, they typically do not examine the impact on veracity at any length, if at all. See People v. Von Latta, 258 Cal.App.2d 329, 336, 65 Cal.Rptr. 651, 655 (1968); Smith v. State, 6 Md.App. 581, 588-89, 252 A.2d 277, 281 (1969); People v. Douglas, 52 Mich.App. 224, 228, 216 N.W.2d 920, 922 (1974); State v. Knight, 295 N.W.2d 592, 594 (Minn.1980); State v. Smith, 12 Or.App. 112, 117, 504 P.2d 1072, 1074 (1972). When the veracity issue is analyzed, admissibility generally is predicated on the rationale that the offense indicates a disregard for legal duties and societal interests in favor of individual interests, and suggests a propensity to do so on the stand as well. See People v. Nelson, 31 Ill.App.3d 934, 938, 335 N.E.2d 79, 83 (1975), overruled in People v. Siebert, 72 Ill.App.3d 895, 28 Ill.Dec. 732, 390 N.E.2d 1322 (1979); People v. Duffy, 36 N.Y.2d 258, 262, 326 N.E.2d 804, 806-07, 367 N.Y.S.2d 236, 240, cert. denied, 423 U.S. 861, 96 S.Ct. 116, 46 L.Ed.2d 88 (1975). The State advances an analogous argument when it suggests the "gist of the ... offense is the assumption of a position which, under the law, the defendant knows he has no right to assume," thus encompassing elements of dishonesty and false statement. Accepting this theory, however, would preclude any principled differentiation among crimes of varying impact on witness veracity. Under the rule the State advocates felony traffic offenses or violence offenses, along with virtually every other felony offense, would be admissible for impeachment purposes. Cf. State v. Martin, 217 N.W.2d at 541 (violence, assaultive crimes and traffic offenses, however serious, generally do not affect credibility).

The State further relies on a federal court interpretation of Federal Rule of Evidence 609(a), which placed various crimes on a continuum with respect to their effect on credibility. Narcotic offenses were placed in a middle ground between offenses clearly probative of veracity, and crimes such as larceny and robbery, which the State notes are not encompassed by the federal rule. See United States v. Hayes, 553 F.2d at 827-28. The State argues by analogy that because we have found crimes such as larceny and burglary admissible for purposes of impeachment, the narcotic offenses placed in the middle of the continuum by the Hayes court are, a fortiori, admissible under the Iowa standard. The State's theory, however, rests on a shaky foundation. Federal courts are split on the admissibility of larcenous crimes for purposes of impeachment. E.g., United States v. Fearwell, 595 F.2d 771, 776 (D.C.Cir.1978) (petit larceny not admissible); United States v. Donoho, 575 F.2d 718, 721 (9th Cir.) (petty theft admissible), vacated on other grounds, 439 U.S. 811, 99 S.Ct. 68, 58 L.Ed.2d 102 (1978); United States v. Smith, 551 F.2d 348, 369 (D.C.Cir.1976) (robbery not automatically admissible); United States v. Wilson, 536 F.2d 883, 885 (9th Cir.), cert. denied, 429 U.S. 982, 97 S.Ct. 497, 50 L.Ed.2d 592 (1976) (attempted robbery reflects...