Opinion
No. 2-884 / 01-0805
Filed February 12, 2003
Appeal from the Iowa District Court for Wapello County, E. Richard Meadows, Jr., Judge.
Kenny Hemm appeals his conviction and sentence for murder in the first degree and arson in the second degree following a jury trial. REVERSED AND REMANDED FOR NEW TRIAL.
Clemens Erdahl of Tindal, Erdahl, Goddard Nestor, Iowa City, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber and Douglas Hammerand, Assistant Attorneys General, Victoria Siegel, County Attorney, and Ron Kelly, Assistant County Attorney, for appellee.
Heard by Mahan, P.J., and Vaitheswaran, J., and Brown, S.J.
Senior Judges assigned by order pursuant to Iowa Code section 602.9206 (2001).
Defendant Kenny Chris Hemm appeals his conviction and sentence for murder in the first degree and arson in the second degree following a jury trial. He contends the trial court erred in excluding evidence, misconduct of the prosecuting attorney denied him a fair trial, he was denied constitutional rights, and his trial counsel was ineffective. We agree the court's exclusion of threats made by others against the victim should have been admitted in evidence and it was reversible error to exclude them.
Background facts and proceedings. The victim of this gruesome homicide was Larry Pippenger, a wheel chair bound paraplegic. Although he didn't live with Hemm, Pippenger was to have spent the night of April 16-17, 2000 in Hemm's house in Eldon, Iowa.
Authorities responded to a 911 call at 2:09 a.m. on April 17, 2000. They found Hemm's house engulfed in fire. No one was found in the home. A second 911 call at 3:11 a.m. reported a car fire at the home of Hemm's mother and stepfather in Eldon. Arriving there, officers found Hemm's car on fire and Hemm in the house.
Hemm related a rather bizarre chain of events. He said he awoke in his home and discovered the fire. He ran out of the house, noting that Pippenger, who had been sleeping on the couch in the living room, was not there, but his wheel chair was outside on the ground. Hemm saw a van driving away and he pursued it until he realized his own car was on fire. He turned around, drove past his own burning house to his mother's and stepfather's house. He apparently didn't tell them about the fires, but one of them discovered Hemm's car was burning and reported it. At various times Hemm related somewhat inconsistent versions of this scenario to different investigators.
Later that morning another car fire was reported at an abandoned house outside Eldon. Pippenger's body was found in that burning vehicle. He had been decapitated, dismembered, and his genitals had been placed in his mouth. His hands and feet were never located.
We will refer to other factual matters as necessary in our discussion of the issues.
Hemm was charged with first-degree murder in violation of Iowa Code section 707.2(1) (1999) and second-degree arson in violation of Iowa Code section 712.3. The State claims he killed Pippenger in his home, set fire to his house to cover up the killing, then moved the body to the vehicle outside Eldon and later set it on fire.
Hemm's motion to suppress his statements was overruled. He then filed a motion to adjudicate law points in which he sought a favorable ruling on evidence to which he anticipated the State would object. This evidence consisted of statements by various witnesses of threats against Pippenger supposedly made by others and statements which cast Pippenger in a bad light. The court did not allow the proposed testimony. At trial, Hemm again tried to present part of this evidence, but the State's objections were sustained. The jury convicted Hemm of both crimes charged.
On appeal, Hemm alleges several errors which he urges require reversal. He claims error in evidentiary rulings, error by the court in applying the wrong standard of proof in its ruling on Hemm's motion for new trial, misconduct of trial counsel, deprivation of constitutional rights, and ineffective assistance of counsel. We believe the trial court erroneously excluded statements of prior threats made by persons other than Hemm against the victim, Pippenger. We do not believe this error was harmless. We also find error on some of the other evidentiary issues raised. We need not discuss the remaining issues in view of our reversal of defendant's conviction.
Threats by third persons.
A. Testimony of Fosdyck and Francis. Hemm sought to introduce testimony by witnesses that persons other than Hemm had threatened harm and death to Pippenger. Hemm and the State entered into a stipulated offer of proof regarding the proposed testimony. Hemm offered testimony by Ted Francis that about six months before Pippenger's death one Jeff Casey tried to hire Francis to kill Pippenger and proposed to pay Francis $5,000 up front and $5,000 when it was accomplished. According to the offer of proof, Casey told Francis he was to drive Pippenger into the country where Casey and Dick Ash would shoot him.
Hemm also proposed to call Ronald Fosdyck who would testify that about thirteen months before Pippenger's death Doug Liles told Fosdyck, "I'm going to get that guy [Pippenger] someday," and further that Liles told Fosdyck, "when I do kill him I'm going to cut his head off and burn him up in a car."
The court ruled this testimony was hearsay. The State now concedes these two proposed witnesses' testimony should not have been excluded as hearsay, but maintains the court was correct in excluding the testimony on other grounds. The State correctly points out that "evidence of a third person's threat to commit the act with which defendant was charged" is not admissible without "a strong showing of relevancy and materiality." State v. Harrington, 349 N.W.2d 758, 761 (Iowa 1984). "Evidence offered by a defendant tending to incriminate another must be confined to substantive facts and create more than a mere suspicion that such other person committed the offense." State v. Wilson, 406 N.W.2d 442, 447 (Iowa 1987). It is appropriate to apply an Iowa Rule of Evidence 5.403 analysis to prevent the trial from "disintegrat[ing] into two trials," confusing and misleading the jury. Id. at 448. Thus, these threats must not only survive the hearsay challenge, they must be relevant and the statements must not possess any "undesirable characteristics which substantially outweigh its probative force." 7 James A. Adams Joseph P. Weeg, Iowa Practice Series, Evidence, § 403.1(A), at 176 (2002-03 ed.) (citations omitted). This balancing process allows the court to avoid "unfair prejudice, confusion of issues, or misleading the jury, or . . . considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Id. Iowa R. Evid. 5.403.
We question Hemm's rationale that the proposed testimony of these witnesses was not hearsay as it was not offered to prove the truth of the matter asserted. Iowa R. Evid 5.801( c). He claims its purpose was to merely prove the witness made the statement. However, he has not explained how the statements are relevant except to show that someone other than the defendant had a motive or inclination to do harm to Pippenger, which is what the statements asserted. However, we agree with Hemm's alternative contention that the testimony is admissible under Iowa R. Evid. 5.803(3) as a statement of the declarant's then existing state of mind. This permits hearsay testimony of a declarant's present intent and additionally may be used as evidence the declarant carried out the intended action. 7 James A. Adams Joseph P. Weeg, Iowa Practice Series, Evidence, § 803.3 at 687 (2002-03 ed.). Accord 2 John W. Strong et al, McCormick on Evidence, § 275 at 225-26 (5th ed. 1999); United States v. Sebetich, 776 F.2d 412, 427-28 (3d Cir. 1985) (error not to admit statements of witnesses that person other than defendant said he would commit robbery of which defendant was accused).
Iowa Rule of Evidence 5.403 permits the exclusion of relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
Initially we note evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Iowa R. Evid. 5.401. Whether someone other than Hemm had expressed a desire to kill Pippenger within a reasonable time before he was killed could surely lead a reasonable juror to think it less probable that Hemm was involved in the arson and murder, and that someone else was. This is particularly so, we think, when information contained in the threats predicted some of the unique facts of the crime.
We recognize that challenges may be made to the credibility of the persons relating the threats, but the jury should pass on that issue. United States v. Torres, 901 F.2d 205, 239-40 (2d Cir. 1990), cert. denied, 498 U.S. 906 (1990) (should not exclude rule 803(3) statements because of likely untrustworthiness and unreliability of declarant; weight is for jury).
In this case, although the circumstantial evidence supporting the jury's guilty verdict was substantial, it was by no means overwhelming. The evidence did not establish any motive for Hemm to kill Pippenger. Although the State is not required to prove it, motive has long been recognized to have "great probative force in determining guilt, especially in cases of circumstantial evidence," State v. Knox, 18 N.W.2d 716, 724 (Iowa 1945), and "the absence of motive is a strong argument for the defense." State v. Saling, 177 Iowa 552, 561, 159 N.W. 255, 258 (1916). The excluded testimony underscored motive for others to harm Pippenger, which we think is significant in these circumstances. The evidence of guilt in this case is neither overwhelming nor is the excluded evidence cumulative, two reasons for upholding the rejection of third party threat evidence in State v. Harrington, 349 N.W.2d at 761. We believe the relevance requirement is met for the excluded testimony and that its relevance outweighs any considerations of possible confusion or delay contemplated by Iowa Rule of Evidence 5.403.
There is some inconsistency in the Iowa cases regarding the standard of review for alleged errors in the admission or exclusion of hearsay evidence. The State contends that where evidence is excluded as hearsay, we should apply a discretionary standard of review, but review for errors of law when hearsay evidence is admitted. Hemm contends we should review for errors at law when hearsay evidence is either admitted or excluded. We find support for both positions. In State v. Ross, 573 N.W.2d 906, 910 (Iowa 1998) the court stated: "In the case of hearsay rulings, our review is for correction of errors at law because admission is prejudicial to the nonoffering party unless the contrary is shown." Ross, 573 N.W.2d at 910 (emphasis added). In McElroy v. State, 637 N.W.2d 488, 493 (Iowa 2001) the court stated: "[W]e review most evidentiary rulings by the district court for an abuse of discretion. However, we review hearsay rulings for correction of errors at law," citing Ross. McElroy, 637 N.W.2d at 493. Although McElroy involved the exclusion of hearsay, Ross was concerned with its admission. Other recent cases have reiterated the error-at-law analysis, although without discussion. Vasconez v. Mills, 651 N.W.2d 48, 55 (Iowa 2002) (hearsay erroneously admitted, but no reversal because cumulative); City of Dubuque v. Fancher, 590 N.W.2d 493, 495 (Iowa 1999) (same). On the other hand, in Harrington the court stated: "The challenged ruling which excluded the evidence [of a third party threat] was discretionary, whether viewed as a question of relevancy, or of hearsay." Harrington, 349 N.W.2d at 761 (emphasis added) (citations omitted). The case cited in Harrington is State v. Williams, 305 N.W.2d 428, 432 (Iowa 1981) which involved the admission of hearsay and also declared a discretionary standard for review.
Although the latest cases declare the review is for legal error, we need not decide which is the appropriate standard in this case. We conclude the refusal of the court to admit the proffered testimony of Ronald Fosdyck and Ted Francis of the threats made to them by others concerning harm to Larry Pippenger was error. We reach this conclusion whether the exclusion of the testimony is reviewed for legal error or an abuse of discretion by the trial court. We further conclude this error was not harmless under all of the circumstances here and requires reversal and a new trial.
B. Other threat testimony. The stipulated offer of proof also embodied additional threats or other expressions of animosity toward Pippenger related by other persons. For example, one offer was that "Roger Garrels would testify . . . that he heard around town . . . that Dick [Ash] has been going around saying he was going to get even with [Pippenger]." Without detailing the other offers, we have considered each of them and are satisfied each involves at least one additional layer of hearsay and are merely vague expressions of ill will toward Pippenger. When an assertion apparently involves hearsay upon hearsay, each level must either qualify as a non-hearsay assertion under Iowa Rule of Evidence 5.801, or satisfy one of the exceptions permitting hearsay under Iowa Rule of Evidence 5.803 or 5.804. Iowa R. Evid. 5.805; State v. Williams, 427 N.W.2d 469, 471 (Iowa 1988). Also, the statements are cumulative to the Fosdyck and Francis statements. There was no error in excluding these statements.
Evidence of victim's criminal acts. In this assignment of error, Hemm claims the court erred in excluding evidence of Pippenger's criminal conduct which tended to establish that third parties had a motive to harm him. Although there is a serious error preservation problem, we address these because of the relaxed standard of review regarding evidentiary issues, DeVoss v. State, 648 N.W.2d 56, 62 (Iowa 2002), realizing the issue may reoccur in the event of another trial.
We have had difficulty in determining from his brief precisely the evidence which Hemm claims was erroneously excluded. He concedes that several of the specific act incidents incorporated in the stipulated offer of proof involved evidence of the bad character of Pippenger, excludable under Iowa Rule of Evidence 5.404. We discern his complaints are that he should have been allowed to present evidence of criminal acts involving Pippenger and others described by Fosdyck and Francis in their challenged hearsay statements.
According to the stipulated offer of proof, Fosdyck would have testified that Liles told him, as a part of Liles' threat, "I'm going to get that guy someday. [Pippenger] burnt up Tony Everett in a fire in Selam and Tony was my nephew. [W]hen I do kill him I'm going to cut his head off and burn him up in a car." Hemm asserts the italicized part is admissible as an "other crime" statement offered to prove something other than the truth of the statement, as permitted by Iowa Rule of Evidence 5.404( b). The principles of this rule are not limited to defendants and are applied to witnesses in general. State v. Nebinger, 412 N.W.2d 180, 186 (Iowa 1987).
Iowa Rule of Evidence 5.404( b) provides "[e]vidence 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."
The State claims the statement is hearsay. Hemm claims it is offered to show the motivation for Liles to do harm to Pippenger, not to prove Pippenger burned Tony Everett. Therefore, it is not hearsay. We agree with Hemm that the statement has a legitimate purpose to show motive by Liles to harm Pippenger. It also completes the story of why the threat was made by Liles.
The State also urges us to reject the statement under a rule 5.403 probative value versus unfair prejudice analysis. Much the same rationale applies here as in the case of the threat evidence discussed above. We do not think there is substantial danger of confusing the issues or misleading the jury. However, it would be advisable for the court to consider a cautionary instruction in this situation. See State v. Rodriquez, 636 N.W.2d 234, 243 n. 2 (Iowa 2001).
The other statement sought to be introduced by Hemm is a part of Casey's solicitation of Francis to kill Pippenger. Casey reportedly told Francis that Casey wanted this done because of a drug deal between Pippenger and Ash. The State reiterates its hearsay objection. Again, we think this statement was offered to prove motive on the part of Casey for wanting Pippenger dead, not to prove there had in fact been a drug deal involving the victim and Ash. We also reject the State's rule 5.403 argument of undue prejudice.
We conclude under the circumstances in this trial, the statements regarding the alleged criminal acts of Pippenger as reported by Fosdyck and Francis in the stipulated offer of proof should have been admitted.
Other issues. We do not address the remaining issues raised by defendant in view of our disposition of the case. The case is reversed and remanded to the district court for a new trial.
REVERSED AND REMANDED FOR NEW TRIAL.