State v. Pardock

215 N.W.2d 344, 1974 Iowa Sup. LEXIS 1270
CourtSupreme Court of Iowa
DecidedFebruary 20, 1974
Docket55372
StatusPublished
Cited by22 cases

This text of 215 N.W.2d 344 (State v. Pardock) is published on Counsel Stack Legal Research, covering Supreme Court 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. Pardock, 215 N.W.2d 344, 1974 Iowa Sup. LEXIS 1270 (iowa 1974).

Opinion

MASON, Justice.

John Francis Pardock was charged with operating a motor vehicle on September 22, *346 1971, while under the influence of an alcoholic beverage in violation of section 321.-281, The Code. He appeals from judgment following conviction by a jury of the crime charged.

Two Des Moines police officers in a patrol car first observed defendant stopped, slumped over the steering wheel of his car, at a traffic light near Fourth and Walnut. As the traffic light changed defendant proceeded to drive ahead making a right turn at the intersection. The officers followed and after observing the erratic manner In which defendant was driving, turned on the red spinner lights on the patrol car and honked the horn. Defendant pulled over to his right and stopped. The officers stepped out of the patrol car and approached defendant’s vehicle. He was the only occupant in the car.

After observing defendant for a few moments a sergeant of the Des Moines police department was called to the scene. The sergeant observed defendant’s appearance and behavior, placed him under arrest and directed the two patrolmen to take defendant to the police station. In the opinion of the three officers, as they testified at trial, defendant was intoxicated.

Defendant alleged the trial court erred in the following particulars: (1) in admitting into evidence the breath, coin, etc., tests and explanation thereof, without proper foundation since a blood test was not first offered; (2) in submitting instruction 9 to the jury; (3) in admitting testimony of Sergeant Noel as to police procedure in a charge of this type; (4) in refusing to segregate a State’s witness whose testimony was interrupted by a court recess; (5) in refusing to grant defendant’s motion for a directed verdict"; and (6) in refusing defendant’s motion for a new trial.

The foregoing assignments will not necessarily be considered in the order asserted; defendant elected to argue all assignments together.

In reviewing defendant’s assignments relied on for reversal we have examined not only the printed record but also have studied the reporter’s transcript of the trial proceedings.

I. In his fifth assignment defendant argues the court erred in overruling his motion for directed verdict. On a motion for a directed verdict the evidence must be viewed in the light most favorable to the State. State v. Schurman, 205 N.W.2d 732, 733 (Iowa 1973). The court should submit the cause to the jury and not direct a verdict if there is any substantial evidence reasonably tending to support the charge. State v. Johnson, 196 N.W.2d 563, 566 (Iowa 1972); State v. Schurman, 205 N.W.2d at 733.

The evidence, in brief, is that two officers observed defendant driving his car in an erratic manner, just barely missing a parked car at one point. Further testimony was that defendant was unsteady on his feet, smelled of alcohol and admitted to consuming a quantity of liquor and beer. The evidence was clearly sufficient for the pause to be submitted to the jury; trial court did not commit error in overruling the motion for directed verdict. The assignment is without merit.

II. Defendant’s second assignment challenges instruction 9. No argument or recitation of authority is presented by defendant on this point; he merely sets out a long statement of error. Reasons stated therein were that the jury should first have been instructed that defendant must first be offered a blood test and it unduly biased the jury.

The amended record shows defendant made no objection when the instruction was submitted to counsel; he merely reserved objections. No objection was made whatsoever to the giving of instruction 9; furthermore, no objection to the instruction was made in the motion for new trial. Of course, no specifications of grounds *347 were made either. Any error was therefore waived by failure to object. State v. Brandt, 182 N.W.2d 916, 917 (Iowa 1971); State v. Beer, 193 N.W.2d 530, 532 (Iowa 1972); and State v. Joss, 211 N.W.2d 320, 321 (Iowa 1973). This assignment is without merit.

III. Defendant also contends it was reversible error to refuse his motion to segregate witness Brewer whose testifying was interrupted by a court recess. No authority is presented for this argument. Iowa has no statute dealing with separation of witnesses at trial although section 761.12, The Code, 1973, allows such at a preliminary hearing before a magistrate.

Iowa follows the majority view of abuse of discretion rule in determining whether refusal to sequester constitutes reversible error. In re Will of Smith, 245 Iowa 38, 40-46, 60 N.W.2d 866, 868-870; see also Comment, 46 Iowa L.Rev. 889; and 24 C.J.S. Criminal Law § 1439, p. 48. There is no code provision relating to the factual situation here; research has disclosed no authority on similar circumstances.

It is our view that for reversible error to be committed prejudice must be shown. There is no showing of such from the records; the witness, under cross-examination by defense counsel, stated he had not discussed the case with any one during the recess. This assignment is without merit.

IV. Defendant’s third assignment is that reversible error was committed in admitting Officer Noel’s testimony about the procedure he follows when making an arrest for OMVUI. It is argued on this appeal that such evidence misled and biased the jury so as to deny defendant due process of law. The abstract of record shows that either no objection was made to evidence of the procedure Noel followed or the objection was not on the grounds now urged. Matters not raised in trial court, including constitutional questions, may not be effectively asserted for the first time on appeal. State v. Tokatlian, 203 N.W.2d 116, 120 (Iowa 1972); State v. Bruno, 204 N.W.2d 879, 884 (Iowa 1973); State v. Burtlow, 210 N.W.2d 438, 439 (Iowa 1973); and State v. Joss, 211 N.W.2d at 321. This assignment cannot be sustained.

V. Defendant’s first assignment attacks the court’s ruling admitting evidence relative to a breath test as being irrelevant without proper foundation. Defendant argues that since the evidence was uncon-tradicted a blood test was not first offered, testimony relating to a breath test and defendant’s refusal to submit to the same was error.

The State concedes in written argument that a blood test must be first offered to and refused by the suspect in an OMVUI case before the results of a breath test can be received into evidence. Rodriguez v. Fulton, 190 N.W.2d 417 (Iowa 1971). If the results of a breath test are not admissible because a blood test was not offered first then testimony as to the suspect’s refusal to take the breath test is also inadmissible.

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Bluebook (online)
215 N.W.2d 344, 1974 Iowa Sup. LEXIS 1270, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pardock-iowa-1974.