State v. Flesher

286 N.W.2d 218
CourtCourt of Appeals of Iowa
DecidedSeptember 28, 1979
Docket60946
StatusPublished
Cited by5 cases

This text of 286 N.W.2d 218 (State v. Flesher) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Flesher, 286 N.W.2d 218 (iowactapp 1979).

Opinions

CARTER, Judge.

Defendant appeals judgment and sentence entered upon her conviction of the offense of murder in the second degree.1 She raises three principal issues: (1) whether the victim’s husband was improperly permitted to testify over a hearsay objection with respect to a telephone conversation with the victim shortly before the time of the murder; (2) whether the trial court improperly admitted impeachment evidence relating only to collateral matters; and (3) whether the evidence was sufficient to support the verdict of the jury. We consider these issues separately and affirm the trial court.

I. At the trial the prosecuting attorney questioned the victim’s husband concerning a telephone conversation he claimed to have had with his wife at approximately 12:30 p. m. on the day of the murder. The relevant portion of the transcript reads as follows: [MR. BERGER:]

Q. How did that conversation end?
A. Well, there was a knock on the door—
MR. WINSTEIN: We object as calling for hearsay. There is no possible way he could know there was a knock on the door. I don’t understand the witness’s ability—
THE COURT: Apparently not. He has testified there was a knock on the door. The objection is overruled.
A. You can hear the knock on the door. I could hear it. Anyway, she says:
MR. WINSTEIN: Object to the conversation as hearsay.
THE COURT: Overruled.
A. The first thing she said to me was “It’s a man,” she went to the door and I could hear some conversation in the background, and she came back to the phone and she said “It’s Joan,” and I said “Did you let her in?” She said, “Yes, I did.” I said, “Well, just be careful.” She said, “I will,” and I said “I will talk to you later” and she hung up.
Q. Did you ever get a chance to talk to her later?
A. No.”

Joan is the defendant’s first name and the evidence shows that she was known to the victim and the victim’s husband. The victim died from a single gunshot wound. A witness who resided in the apartment adjacent to where the killing took place testified to hearing a single shot at approximately 1:00 p. m. on the day of the murder.

Defendant urges that given all of the foregoing facts, the clear purpose of the challenged testimony was to establish the truth of the matter asserted, namely that the defendant was in the apartment of the victim shortly before the killing took place. From this premise it is argued that the testimony falls within the definition of hearsay approved in State v. Judkins, 242 [220]*220N.W.2d 266, 267-68 (Iowa 1976) (“[A] statement, other than one made by declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted”).2

In meeting defendant’s arguments, we will assume that the challenged testimony was offered to prove the truth of the statements asserted by the declarant. We nevertheless conclude that it falls within a recognized area of exception to the hearsay exclusion. The substance of telephone conversations with homicide victims, pertaining to material facts preceding the killing, has been admitted over hearsay objections in Commonwealth v. Coleman, 458 Pa. 112, 115-19, 326 A.2d 387, 388-90, 74 A.L.R.3d 954, 956-58 (1974), and McCaskill v. State, 227 So.2d 847 (Miss.1969). A similar utterance made by a shortwave radio communication was held admissible in State v. Connley, 295 N.C. 327,. 341-45, 245 S.E.2d 663, 671-74 (1978).

In the latter two cases, the theory of admissibility applied was a generic res ges-tae exception to the hearsay rule. In the former case, the court relied on a more specific exception to the hearsay rule identified as “declarations of present sense impression.” This rule is recognized in McCormick, Evidence, § 298 at 710, and is included in Rule 803(1) of the Federal Rules of Evidence.3

The doctrine proceeds on the theory that under appropriate circumstances, an otherwise hearsay statement may possess circumstantial guarantees of trustworthiness sufficient to favor admissibility. .This exception to the rule differs from that relating to excited utterances in that emotional excitement is not required. Rather, it is based upon the theory that the substantial contemporaneity of event and statement negative the likelihood of misrepresentation. See McCormick, Evidence, § 298 at 710: Advisory Committee Note, Rule 803, Federal Rules of Evidence.

When the rule is applied to telephonic declarations by unavailable declarants, independent verification of the facts giving rise to the declarant’s impression may be impossible. Such is the situation in the present case. But verification has not been held to be a prerequisite to the applicability of this exception to the hearsay rule. Coleman, 458 Pa. at 119, 326 A.2d at 390, 74 A.L.R.3d at 959. While the applicability of the Fed.R.Evid. 803(1) has not been previously determined in this state, other portions of these rules relating to the definition of hearsay and matters not constituting hearsay have been approved. State v. Kidd, 239 N.W.2d 860, 864 (Iowa 1976). We conclude that the challenged testimony in the present case falls sufficiently within a recognized exception to the hearsay rule and is otherwise sufficiently reliable to sustain the trial court’s ruling.

II. We next consider defendant’s claim that the state was improperly permitted to impeach her testimony by evidence of immaterial and collateral matters. She complains of testimony by four different witnesses called by the state on rebuttal. Two police officers testified that defendant, the day before the killing, referred to her husband as “a son-of-a-bitch” and stated “I am not going to give up my property without kicking somebody’s ass.” The manager of a motel where defendant’s husband had been cohabiting with the victim of the shooting testified that a woman had called the motel sometime in October, 1976, identified herself as the wife of the motel guest sharing a room with the murder victim and stated: “My husband is in the room and he is shacked up with some woman. I want to talk to the son-of-a-bitch.” As to the testimony of the police officers and the motel [221]*221manager, no objection was made on the grounds presently asserted at the time it was introduced. Moreover, there was no motion made to strike this testimony after it was given. The consequence of failing to object is that the testimony becomes part of the evidence as fully and effectively as if it were not objectionable. Defendant has failed to preserve the objection now urged as a ground for appeal. State v. Johnson, 223 N.W.2d 226, 228-29 (Iowa 1974).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State of Iowa v. Randall John Clemens
Court of Appeals of Iowa, 2019
State of Iowa v. Donald Edward McIntyre
Court of Appeals of Iowa, 2019
People v. Watson
100 A.D.2d 452 (Appellate Division of the Supreme Court of New York, 1984)
State v. Flesher
286 N.W.2d 215 (Supreme Court of Iowa, 1979)
State v. Flesher
286 N.W.2d 218 (Court of Appeals of Iowa, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
286 N.W.2d 218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-flesher-iowactapp-1979.