Opinion
No. 5-011 / 04-0062
Filed May 11, 2005
Appeal from the Iowa District Court for Clay County, Frank B. Nelson, Judge.
Harold Duncan appeals from his conviction for first-degree murder. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and David Adams, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney General, Michael L. Zenor, County Attorney, and Michael J. Houchins, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Zimmer and Hecht, JJ.
Harold Duncan appeals from his conviction for first-degree murder, in violation of Iowa Code sections 707.1 and 707.2 (2001). We affirm.
Background Facts and Proceedings.
When Kay Duncan failed to appear for work on January 12, 2003, a concerned co-worker drove to the motor home in which Kay and her husband Harold had been living. After receiving no response at the motor home, the co-worker called police officers who entered the motor home and discovered an obvious crime scene. The first officer to enter observed a partial set of dentures lying on the floor along with a shotgun and two spent shells. Blood was splattered through the interior of the motor home.
Kay was located in the couple's bed near the rear of the motor home, having been shot twice and killed. Harold was found seriously injured lying next to Kay on the bed. Harold was transported by ambulance to a Spencer hospital where he was interviewed by Special Agent Cowman. At least twice during the conversation with Cowman, Harold admitted that he had shot Kay two times, but he claimed it was Kay who first had the gun during the incident. After being transferred to another hospital, Harold twice told Iowa Department of Criminal Investigation agent Mortvedt that he shot Kay during an argument, once in the chest and a second time in her back as she retreated. In another version of the incident, Harold told Mortvedt that Kay retrieved the gun from the back closet and he shot her after taking the gun away from her.
The State subsequently charged Harold with first-degree murder. Harold filed a notice of diminished responsibility and a notice of self defense. Following a trial, the jury returned a verdict of guilty and the court sentenced Harold to life imprisonment. Harold appeals contending the court erred in admitting evidence of his character and prior bad acts as improper rebuttal evidence.
Claims on Appeal.
In support of his claim on appeal, Harold focuses on certain testimony elicited by the prosecutor's questions. The following exchange occurred during the prosecutor's cross-examination of Harold:
Q. And isn't it true that you were shaking violently when you were at Northwest Federal? A. What is violently?
Q. Shaking? A. Well, yeah. They were shaking pretty good. We sat there in the chair, Kay and I did, together.
Q. And that's because you were upset and angry with Kay because she was opening up her own account? A. No, sir. Mother could have any account she wanted. My three daughters are out here in the crowd. They could tell you.
Later during the cross-examination, the State asked Harold about his relationship with his wife:
Q. You talked about your relationship with your wife, Kay? A. Yes, sir.
Q. That was an abusive relationship, wasn't it? A. I got three daughters out there. I don't think so, and I don't think they'll tell you that either. We had a wonderful time. We had a great big boat. We went to Lake Superior. I named the boat Lady Kay and we always got fish . . .
Harold later admitted to striking his wife, but claimed he did not know if he had struck his wife on more than one occasion.
The State later called as a rebuttal witness Harold's daughter Vikki Weigum, who gave the following testimony:
Q. When your father was testifying, he said it was — that he was a good father, he was a good husband, and that we should just ask his daughters whether he was such. And you're one of his daughters? A. Correct.
Q. We visited about having you daughters testify about growing up with your father and your mother, and you were the one that was chosen to testify. Correct? A. Correct.
Q. Okay. I'm going to ask you then what type of father was the defendant? A. My father —
MR. SANDY: (defense counsel): Hold on one second, please. Your Honor, I don't mean to interrupt this young lady but the question that [the prosecutor] is prefacing came vis-à-vis his cross-examination, not something we put into evidence and, two, it's not really relevant to any issue that's framed here and it's improper character evidence at this point in time.
THE COURT: Well, the objection is overruled. Go ahead and answer the question.
Q. What type of father was the defendant, Harold Duncan? A. For my childhood growing up, my father was a very abusive alcoholic.
Q. Okay. And how did he treat you children? A. Most of the days was with drinking and violence involved. Again, we weren't really paid attention to. There was times that we as children were abused, hit and pushed through doors, et cetera.
Q. And while you were growing up in that home, how was the defendant with regard to your mother? How did he treat your mother? A. My father abused my mother very badly. Many times to get us children to behave he would take it out on my mom if we did something wrong. There was points where there was incidents where one time we were out boating and he threatened to push her over the boat and told us kids when he accomplished that that we would be next.
. . . .
Q. So its my understanding that after a period of time the physical abuse stopped? A. Correct.
Q. Were there times where the defendant actually threatened your mother's life? A. Yes, there were. The boat incident I spoke of earlier. Also there was a time when one of my sisters was home with her two small children and my — it was a Christmas Eve and —
Q. Were you present there during this? A. Yes, I was. I was. It was Christmas Eve and my father had been drinking and had become violent and actually sat and pointed at us and counted how many bullets you would need to kill us all.
After conceding on cross-examination that most of the abusive acts she had described occurred approximately twenty years ago before Harold quit drinking, the witness gave the following additional testimony:
Q. Just tell the jury what type of mother Kay was. A. My mom . . . the best way I can describe it is to know my mom was to love my mom, to know my dad was to tolerate my dad. My mom was a very loving woman, very loyal, you know. To know her was to love her.
Harold's brief appears to challenge the district court's failure to exclude evidence tending to prove (1) Harold was an abusive husband and father, and (2) Kay was a loyal and loving woman. Harold first maintains this evidence was irrelevant. See Iowa R. Evid. 5.401. He next asserts the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. See Iowa R. Evid. 5.403. Finally, he asserts the evidence about his "failures as a father or husband" was inadmissible under Iowa Rule of Evidence 5.404( b) (providing that evidence of other crimes or acts is not admissible to prove the character of the person, but may be admissible for other purposes). The State maintains Harold has failed to preserve these claims for appellate review.
Iowa Rule of Evidence 5.403.
We first conclude Harold failed to preserve error on his claim that the probative value of the challenged evidence was substantially outweighed by the danger of unfair prejudice, as contemplated by rule 5.403. None of his objections referenced this rule either by number or substance. Accordingly, we do not address Harold's arguments under this rule because error was not preserved for our review.
Iowa Rule of Evidence 5.404( b ).
We conclude that Harold preserved his claim that the district court erred by failing to sustain his rule 5.404( b) objection to one question excerpted above. Although the objection failed to expressly refer to the rule number, the objection to "improper character evidence" sufficiently alerted the district court to Harold's claim that one question called for testimony objectionable under rule 5.404( b) ("Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith.").
We thus address Harold's contention the testimony of his daughter was inadmissible under Iowa Rule of Evidence 5.404( b) as evidence of other crimes, wrongs or acts. We review this claim for errors at law. State v. Tangie, 616 N.W.2d 564, 568 (Iowa 2000). Iowa Rule of Evidence 5.404( b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Evidence of prior bad acts is not admissible to show a general propensity to commit wrongful acts. State v. Haskins, 573 N.W.2d 39, 45 (Iowa Ct.App. 1997). Evidence of prior bad acts may be admitted, however, for one or more of the nonexclusive purposes listed in rule 5.404( b). Id. The key to determining admissibility depends upon "whether the challenged evidence is relevant and material to some legitimate issue other than a general propensity to commit a wrongful act." Id. (quoting State v. Uthe, 542 N.W.2d 810, 814 (Iowa 1996)).
In particular, Harold challenges evidence of his failings as a father and husband, and specifically that he was an abusive alcoholic who abused and controlled Kay. We conclude this evidence was relevant in this case for purposes other than proving that when Harold killed his wife, he acted consistent with a propensity for violence and domestic abuse. The challenged evidence was relevant to Harold's motive and intent, because it sheds light on his attitudes toward the victim and his intent and motive at the time of the homicide. Moreover, we conclude the single question objected to under rule 5.404( b) was cumulative of similar evidence received in evidence withoutobjection. State v. McCollom, 260 Iowa 977, 983, 151 N.W.2d 519, 522 (1967) ("It is elementary that admission of evidence is not prejudicial error where substantially the same evidence is in the record without objection."). Accordingly, we affirm on this issue.
Relevance.
Harold articulated a relevance objection and preserved error on that ground as to only one question excerpted above. However, we concluded in the preceding division of this opinion that the answer to that question posed to his daughter Vikki was admissible for a proper purpose as it was relevant to Harold's motive and intent. Accordingly, the court did not err in receiving the evidence over Harold's relevance objection.
"Set Up"
Harold finally alleges the prosecutor "asked [him] questions which were bound to elicit a favorable response from [him], who, as expected, minimalized the negative aspects of his relationship with his wife." Harold posits that the challenged questions were part of the prosecutor's intentional strategy to justify introduction of the daughter's testimony about Harold's prior bad acts. He characterizes this "bootstrapping" of otherwise inadmissible evidence as a "set up" and a "blatant attempt to frustrate the application of the rules of evidence." See State v. Werts, 677 N.W.2d 734 (Iowa 2004).
Setting aside any error preservation problems with this claim, we conclude the State did not engage in the type of conduct found improper in Werts. In Werts, during cross-examination of the defendant, "the prosecutor asked a question that, on its face, was bound to elicit a response favorable to defendant so that he could use otherwise inadmissible evidence to impeach the self-serving response." Id. at 737. Our supreme court characterized such prosecutorial conduct as the improper "bootstrapping" of otherwise inadmissible evidence. Id. Here, on the other hand, there is no such indication the State was attempting to "set up" Harold through its questioning. First, Harold's testimony suggesting that his daughters would support his testimony, which prompted further testimony from his daughters, was not responsive and could not have been anticipated by the State. Moreover, we have already concluded that certain evidence regarding his abusive and controlling attitude and actions toward his wife were admissible for proper purposes. Accordingly, we conclude the State did not engage in the conduct proscribed in Werts. We therefore affirm Harold's first-degree murder conviction.
AFFIRMED.
Hecht, J., concurs; Sackett, C.J., concurs specially.
I concur with the majority opinion in all respects except that I would not address the challenge to the prosecutor's questions that defendant contends were a setup because error was not preserved.