State v. Hackett , 1972 Iowa Sup. LEXIS 905 ( 1972 )

RAWLINGS, Justice.

By a Jasper County Grand Jury indictment defendant David Gordon Hackett was charged with the crime of sodomy, tried and found guilty. From sentence accordingly entered, he appeals. We affirm.

The factual situation instantly involved, being substantially as set forth in State v. Hackett, 197 N.W.2d 569 (Iowa 1972), need not be here repeated.

In support of his claimed right to reversal defendant contends trial court erred in (1) overruling his objection to competency of two minor witnesses; (2) holding venue was adequately established; (3) permitting impeachment of accused by showing of a prior felony conviction; (4) overruling his motion for a directed verdict based on insufficiency of evidence; (5) submitting an instruction regarding open exchange of views by jurors in the course of their deliberation. These assignments will be considered in the order presented.

I. The prosecutrix in this case was 10, the other State’s witness 12. Both girls were preliminarily interrogated at some length by trial court and counsel for defendant. Trial court thereupon found them qualified to testify and they were then sworn.

We find here no reversible abuse of discretion. See The Code 1971, Section 622.1; State v. Ragona, 232 Iowa 700, 701, 5 N.W.2d 907 (1942); State v. Yates, 181 Iowa 539, 540-542, 164 N.W. 798 (1917). See also State v. Rankin, 181 N.W.2d 169, 172-173 (Iowa 1970); 2 Wigmore on Evidence, §§ 505-509 (3d ed.); McCormick on Evidence, § 62, at 140-141.

II. Neither did trial court err in holding a jury question as to venue was adequately generated.

Prosecutrix testified the act charged occurred outside of Ira. There is also testimony by the corroborating witness from which it could be reasonably found the alleged offense took place in Ira, a town located within Jasper County and about seven miles east of the west boundary. This sufficed. See The Code 1971, Chapter 753; State v. Hackett, 197 N.W.2d at 570-571; State v. Conley, 176 N.W.2d 213, 215 (Iowa 1970); State v. Stumbo, 253 Iowa 276, 278-280, 111 N.W.2d 664 (1961); 1 Underhill’s Criminal Evidence, § 95 (5th ed.).

III. As above stated defendant next asserts his privilege against self-incrimination was violated by requiring him, while testifying on his own behalf, to state whether he had ever before been convicted of a felony. In support of this position defendant invokes U.S.Const. Amend. V, and Amend. XIV, § 1. It is, of course, understood we are here concerned with the matter of permissible impeachment. Also in that area, trial court’s original instructions included one which specifically restricted consideration by the jury of any evidence regarding defendant’s prior felony conviction to the matter of credibility.

The Code 1971, Section 622.17 states: “A witness may be interrogated’ as to his previous conviction for a felony. No other proof is competent, except the record thereof.”

At the outset Spencer v. State of Texas, 385 U.S. 554, 560-564, 87 S.Ct. 648, 652-654, 17 L.Ed.2d 606 (1967), to the extent here applicable, holds, in substance, it is not for the United States Supreme Court to promulgate state rules of criminal procedure. Therefore the rule of exclusion concerning evidence of prior felony convictions does apply when a defendant has testified and the state seeks to impeach his credibility by showing he has been so previously convicted. In such instances the interests of an accused are deemed adequately protected by appropriate limiting jury instructions. And a state rule permitting introduction of such impeaching evidence is not prohibited by any provision of the United States Constitution.

More recently in McGautha v. California, 402 U.S. 183, at 215-216, 91 S.Ct. 1454, at 1471-1472, 28 L.Ed.2d 711 (1971), the constitutionality of a jury determination of guilt and punishment in both unitary and bifurcated trials was challenged. In resolving that matter the court touched upon the problem at hand and in so doing stated :

“It has long been held that a defendant who takes the stand in his own behalf cannot then claim the privilege against cross-examination on matters reasonably related to the subject matter of his direct examination. See, e.g., Brown v. Walker, 161 U.S. 591, 597-598, 16 S.Ct. 644, 647, 40 L.Ed. 819 (1896); Fitzpatrick v. United States, 178 U.S. 304, 314-316, 20 S.Ct. 944, 948, 44 L.Ed. 1078 (1900); Brown v. United States, 356 U.S. 148, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958). It is not thought overly harsh in such situations to require that the determination whether to waive the privilege take into account the matters which may be brought out on cross-examination. It is also generally recognized that a defendant who takes the stand in his own behalf may be impeached by proof of prior convictions or the like. See Spencer v. Texas, 385 U.S. 554, at 561, 87 S.Ct. 648, at 652, 17 L.Ed. 606; cf. Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948); but cf. Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965); United States v. Palumbo, 401 F.2d 270 (CA2 1968). Again, it is not thought inconsistent with the enlightened administration of criminal justice to require the defendant to weigh such pros and cons in deciding whether to testify. (Emphasis supplied.)

“Further, a defendant whose motion for acquittal at the close of the Government’s case is denied must decide whether to stand on his motion or put on a defense, with the risk that in so doing he will bolster the Government case enough for it to support a verdict of guilty. E. g., United States v. Calderon, 348 U.S. 160, 164 and n. 1, 75 S.Ct. 186, 188, 99 L.Ed. 202 (1954); 2 C. Wright, Federal Practice and Procedure § 463 (1969); cf. American Bar Association, Project on Standards for Criminal Justice, Trial by Jury 107-108 (Approved Draft, 1968). But see Comment, The Motion for Acquittal: A Neglected Safeguard, 70 Yale L.J. 1151 (1961); cf. Cephus v. United States, 117 U.S.App.D.C. 15, 324 F.2d 893 (1963). Finally, only last Term in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), we had occasion to consider a Florida ‘notice-of-alibi’ rule which put the petitioner in that case to the choice of either abandoning his alibi defense or giving the State both an opportunity to prepare a rebuttal and leads from which to start. We rejected the contention that the rule unconstitutionally compelled the defendant to incriminate himself. The pressures which might lead the defendant to furnish this arguably ‘testimonial’ and ‘incriminating’ information arose simply from

“ ‘the force of historical fact beyond both his and the State’s control and the strength of the State’s case built on these facts. Response to that kind of pressure by offering evidence or testimony is not compelled self-incrimination transgressing the Fifth and Fourteenth Amendments' Id., at 85, 90 S.Ct., at 1898.” (Emphasis supplied.)

See State v. Van Voltenburg, 260 Iowa 200, 208-210, 147 N.W.2d 869 (1967); State v. Cote, 108 N.H. 290, 235 A.2d 111, 114-116 (1967), cert. denied, 390 U.S. 1025, 88 S.Ct. 1412, 20 L.Ed.2d 282 (1968). See Generally Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972); United States v. Scarborough, 147 U.S.App.D.C. 46, 452 F.2d 1378, 1379-1380 (1971); State v. Milford, 186 N.W.2d 590, 593 (Iowa 1971); State v. Shipp, 184 N.W.2d 679, 680-681 (Iowa 1971); State v. Kelley, 161 N.W.2d 123, 124-125 (Iowa 1968); 3A Wigmore on Evidence, §§ 889-891 (Chadbourn rev.), id., §§ 980-984; McCormick on Evidence, § 43 at 89-94 ; 58 Am.Jur., Witnesses §§ 685-689. See also Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936, 938-941 (D.C.Cir.1967); State v. Santiago, 492 P.2d 657 (Hawaii 1971); Rule 609, Revised Draft of Proposed Rules of Evidence for the United States Courts and Magistrates, 51 F.R.D. 315, 391 (1971); 1 Underhill’s Criminal Evidence, § 244 (5th ed.); 15 So.Dak.L.Rev. 160 (1970).

Confining ourselves to the constitutional issue , here posed we now hold it must be and is resolved adverse to defendant.

IV. This brings us to the contention, trial court erred in overruling defendant’s motion for a directed verdict.

In support of this claim he first reargues matters heretofore considered, then argues proof of penetration is lacking.

Due to comparability of the facts in the instant case with those involved in State v. Hackett, 197 N.W.2d at 571-572, the reasoning and result there reached on the issue at hand is hereby adopted.

The assignment here considered cannot be sustained.

V. Finally, defendant challenges Instruction 17 by which thé jury was told:

“The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous.

“It is your duty, as jurors, to consult with one another and to deliberate with the purpose of reaching an agreement, if you can do so without violence to individual judgment. An inconclusive trial is always highly undesirable. Each of you must decide the case for yourself, but do so after an impartial consideration of the evidence with your fellow jurors.

“In the course of your deliberations, do not hesitate to re-examine your own views and change your opinions if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of reaching a verdict.”

It is at once apparent this is not the so-called “Allen” or “dynamite” charge. See State v. Kelley, 161 N.W.2d at 126-128; Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299, 302-305 (1971); Annot., 100 A.L.R.2d 177.

Instruction 17 was given by trial court as a part of its original charge to the jury. In other respects it also conforms with ABA Standards Relating to Trial by Jury, Approved Draft, § 5.4(a), and commentary at 146-147. See Goff v. United States, 446 F.2d 623, 626 (10th Cir.1971); United States v. Fioravanti, 412 F.2d 407, 414-420 (3d Cir.1969), cert. denied, Panaccione v. United States, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969); United States v. Brown, 411 F.2d 930, 931-934 (7th Cir.1969), cert. denied, 396 U.S. 1017, 90 S.Ct. 578, 24 L.Ed.2d 508 (1970); State v. Thomas, 86 Ariz. 161, 342 P.2d 197, 199-201 (1959); State v. Randall, 137 Mont. 534, 353 P.2d 1054, 1057-1058 (1960); State v. Marsh, 490 P.2d 491, 492-503 (Or.1971); 8 Moore’s Federal Practice, § 31.04 (2d ed.).

We are satisfied the instruction above set forth is not subject to the abuses said to attend the giving of an “Allen” charge.

Neither do we find it vulnerable to the instant objection.

VI. Finally defendant asserts his motion for a new trial should have been sustained for all the reasons heretofore considered. Further discussion will serve no useful purpose. This assignment is without merit.

Affirmed.

All Justices concur, except Mc-CORMICK and MASON, JJ., who concur specially.