Opinion
No. 6-010 / 05-0145
Filed March 1, 2006
Appeal from the Iowa District Court for Pottawattamie County, Timothy O'Grady, Judge.
David James Duncan appeals from his conviction for willful injury and assault with intent to inflict serious injury. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Shellie L. Knipfer, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, Matthew D. Wilber, County Attorney, and Jon Jacobmeier and Shelly Sedlak, Assistant County Attorneys, for appellee.
Considered by Sackett, C.J., and Vogel and Mahan, JJ.
David James Duncan appeals from his conviction for willful injury in violation of Iowa Code section 708.4 (2003) and assault with intent to inflict serious injury in violation of Iowa Code sections 708.1 (2003) and 708.2(1) (Supp. 2003). We affirm.
I. Background Facts and Proceedings
John Bogdan returned home after work at approximately 10:00 p.m. on May 27, 2004. Shenanigans bar was a block away, with an alley leading directly from Bogdan's home to the bar. Duncan and Jeremy Thomas were drinking together at Shenanigans that evening.
As Bogdan exited his truck and walked toward his house, two men, whom Bogdan later identified as Duncan and Thomas, ran toward him. Duncan came to within six inches of Bogdan's face and said he was going to beat up Bogdan. Bogdan smelled alcohol on Duncan's breath. Duncan swung at Bogdan, hitting him on the shoulder and the top of the head. Bogdan hit back and knocked Duncan to the ground. Thomas hit Bogdan from behind, knocking him down to one hand.
Duncan got up, pulled out a knife, unfolded it, and began chasing Bogdan. Bogdan shoved a trash can towards the two men as they approached. Thomas tackled Bogdan, who fell into a gas grill. While Bogdan attempted to get up, Thomas pulled at Bogdan's shirt and hit him with his fists. Duncan stabbed Bogdan four or five times in his right side and back. As the struggle continued, someone in Bogdan's house turned on the porch light. Duncan and Thomas quickly walked away.
Bogdan went inside and told his girlfriend, Cindy Huit, he had been stabbed and needed to go to the hospital. While Huit dressed, Bogdan went back outside and saw Duncan and Thomas run back to Shenanigans.
At Shenanigans, Thomas tapped Duncan's friend Justin Moore on the shoulder and said, "[W]e need to get Dave [Duncan] out of here. We got in some trouble." Moore followed Thomas outside and saw Duncan getting up from the bed of a pickup truck, in which he had been lying flat. Moore thought Duncan looked as if he were hiding from something.
Before driving to the hospital, Bogdan instructed Huit to drive by Shenanigans. At the bar, Bogdan got out of the car and identified for Huit the two assailants standing in the parking lot. He told bystanders Duncan had stabbed him twenty times and Thomas had helped him. One of the men shouted, "Do you want some more?" Bogdan got back in the car and Huit drove him to the hospital.
Duncan left the bar on foot and flagged down a car driven by Scott Foster. Duncan got in the car and told Foster and his passenger, Roland Chapin, "Man, I just got into a fight. I need a ride out of the neighborhood." As they drove, Duncan told them, "[M]y cousin got into a fight with this kid. I walked up behind him and stuck him in the neck." Duncan and Chapin told Foster to "run" when police officers attempted to pull the car over, but Foster pulled over. At the police station Duncan was belligerent and resisted officers' attempts to photograph his hands. The photographs showed a fresh, bloody scrape on the knuckle of Duncan's right hand.
The day after the stabbing, Bogdan identified Duncan in a photo array as the man who had stabbed him. A few days later Bogdan identified Thomas in a photo array as the man who had hit and tackled him during the assault. The State filed a trial information charging Duncan with attempted murder and willful injury causing serious injury. Thomas was also charged, and the two men were tried together.
While Duncan and Thomas were in jail together, Thomas attacked Duncan with his fists. The State filed notices of additional witnesses who would testify concerning the fight. Duncan filed a motion in limine, seeking to prevent the State from introducing certain testimony from three officers involved in the incident. The court overruled the motion, concluding the challenged testimony came within the co-conspirator exception to the hearsay rule, and that its probative value was not outweighed by its potential for unfair prejudice. The officers testified at trial.
The jury found Duncan guilty of assault with intent to cause serious injury, as a lesser offense included within attempted murder, and of willful injury causing serious injury. The district court denied Duncan's motion for new trial. At sentencing, the court merged the two convictions and sentenced Duncan to an indeterminate term of ten years' imprisonment on the willful injury conviction.
Duncan appeals, contending the district court erred in admitting the testimony of officers over hearsay objections. The State contends Duncan failed to preserve error.
II. Preservation of Error
It is generally recognized that a motion in limine does not preserve error since error does not occur until the matter is presented at trial. State v. Delaney, 526 N.W.2d 170, 177 (Iowa Ct. App. 1994). The rule, however, has an exception. A defendant is not required to object at trial if the prior ruling on the motion in limine amounts to "an unequivocal holding concerning the issue raised." State v. Frazier, 559 N.W.2d 34, 39 (Iowa Ct. App. 1996) (citation omitted); see also State v. Edgerly, 571 N.W.2d 25, 29 (Iowa Ct.App. 1997) ("If . . . the ruling on the motion in limine reaches the ultimate issue of admissibility, it is a final ruling and the objection need not be renewed at trial.").
In our review of the transcript of the hearing on Duncan's motion, we conclude the district court's ruling on the hearsay issue raised in the motion in limine was unequivocal. See State v. Harlow, 325 N.W.2d 90, 91 (Iowa 1982) (holding that exception to the general rule applied where "[a] hearing was held, counsel presented legal arguments, and the trial court ruled the evidence would be received"). Therefore, Duncan was not required to object to the testimony at trial to preserve error.
In contrast, the court did make clear its rulings related to evidence challenged on the basis of Iowa Rules of Evidence 5.404( b) and 5.609 were preliminary and "subject to being revisited" at trial.
III. Standard of Review
We review the admission of hearsay evidence for errors at law. State v. Tangie, 616 N.W.2d 564, 568 (Iowa 2000). To the extent Duncan argues the challenged evidence was inadmissible under Iowa Rule of Evidence 5.403, our review is for an abuse of discretion. State v. Belken, 633 N.W.2d 786, 793 (Iowa 2001). An abuse of discretion occurs when the trial court exercises its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable. State v. Rodriquez, 636 N.W.2d 234, 245 (Iowa 2001).
IV. Discussion
Two officers testified at trial about the altercation between Thomas and Duncan while both were in jail. Detention Officer Mark Smith testified that when he asked Thomas after the fight what was going on, Thomas replied Duncan was a snitch and that was the only reason Thomas was in jail. Deputy Chad Freeberg testified Duncan told him that during the fight Thomas told Duncan he would kill Duncan if he testified against him.
Duncan asserts, as he did in district court, these statements were inadmissible hearsay and do not fall within the co-conspirator exception to the hearsay rule, as the State urged in district court. See Iowa R. Evid. 5.801( d)(2)(E). The State on appeal abandons its reliance on the co-conspirator exception to the hearsay rule. Although the State advances alternative bases for admissibility for the first time on appeal, we may affirm the district court's evidentiary ruling on any ground, whether presented to the district court or not. DeVoss v. State, 648 N.W.2d 56, 62-63 (Iowa 2002).
Hearsay is "a statement, other than one made by the declarant while testifying at the trial . . . offered in evidence to prove the truth of the matter asserted." Iowa R. Evid. 5.801( c). Hearsay must be excluded at trial unless admitted as an exception or other exclusion under the hearsay rule or some other provision. Iowa R. Evid. 5.802; State v. Dullard, 668 N.W.2d 585, 589 (Iowa 2003). The State, as proponent of the alleged hearsay, has the burden of proving the statements fall within an exception to the hearsay rule. State v. Long, 628 N.W.2d 440, 443 (Iowa 2001).
We assume without deciding the statements at issue were hearsay and erroneously admitted at trial. Hearsay inadmissible under the rule is considered prejudicial to the nonoffering party unless otherwise established. Dullard, 668 N.W.2d at 589. "The contrary is established when the record shows that the challenged evidence did not impact on the jury's finding of guilt." State v. Nims, 357 N.W.2d 608, 609 (Iowa 1984). We conclude the record in this case establishes Duncan was not prejudiced by the admission of either Officer Smith's or Deputy Freeberg's testimony.
First, the challenged testimony had little evidentiary value. It established, at most, that Duncan and Thomas had some prior connection. It did not definitively establish that such a connection arose from the events of this case.
Further, the evidence against Duncan was strong. Witnesses testified Duncan and Thomas were together at Shenanigans on the night of the crime. Within minutes after the stabbing incident, Bogdan drove to the bar and identified Duncan and Thomas. Bogdan identified both men a few days later in two separate photo arrays, and again at trial. Both men made self-incriminating statements shortly after the incident. The strength of the State's case, combined with the slight evidentiary value of the challenged testimony, leads us to conclude that even if the statements were hearsay, their admission did not prejudice Duncan.
We must also address Duncan's assertion the challenged evidence was inadmissible under Iowa Rule of Evidence 5.403. Rule 5.403 provides that even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Unfairly prejudicial evidence is "evidence that appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish, or triggers other mainsprings of human action that may cause a jury to base its decision on something other than the established propositions in the case." Rodriquez, 636 N.W.2d at 240.
The State concedes the probative value of the challenged testimony was "slight." However, it contends the potential for unfair prejudice was also slight. We agree. Other evidence in the record establishes the connection between Thomas and Duncan, particularly on the night of the crime. Under the circumstances of this case, the district court did not abuse its discretion in admitting the challenged testimony.