Three West Des Moines youths, Gerald Hoffman Jr.,
15, his brother, Geoffrey, 14, and Jeffrey Beavers, 14, were shot in a
downtown Des Moines building they were cleaning, and a Des Moines man,
William Baldwin, 30, was shot to death in a nearby adult bookstore,
where he worked.
Daniel Munro, a drifter and Alabama prison escapee,
was convicted in the youths' deaths, but the charge in Baldwin's death
was dropped because of a lack of evidence.
August 27, 1980
STATE OF IOWA, APPELLEE,
DANIEL RUSSELL MUNRO, APPELLANT.
APPEAL FROM POLK DISTRICT COURT, RAY E. FENTON, J.
[295 NW2d Page 438]
Considered by Reynoldson, C.J., and LeGRAND,
Uhlenhopp, Allbee, and McGIVERIN, JJ.
The opinion of the court was delivered by:
This appeal involves the propriety of the trial
court's refusal to grant motions to suppress evidence and to exclude
evidence. The motions to suppress were presented both prior to and in
the course of a multiple-murder trial.
We recite only sufficient facts for disposition of
the issues raised in the appeal. The case arose out of the deaths of
four Des Moines residents on the morning of February 19, 1978. That
day the bodies of three teenage boys were found lying on the floor of
a downtown business establishment which was in the process of being
remodeled. The body of William Baldwin, a clerk at an adult bookstore
about a block away, was found on the floor of his place of employment.
All four were killed by gunshot wounds to the head. Money was missing
from the cash register at the bookstore.
Defendant Daniel Russell Munro was a suspect. He
was arrested in Little Rock, Arkansas, on April 28, 1978, pursuant to
a warrant issued in the State of Alabama for unlawful flight to avoid
confinement for a previous conviction. After interrogation in Arkansas
by agents of both the Iowa and federal criminal investigation bureaus,
Munro was transported to Iowa and formally charged with the February
19th homicides. [295 NW2d Page 439]
Prior to trial, Munro filed a motion to suppress
evidence obtained as a result of an April 28th search of his living
quarters in Little Rock and any statements made by him to BCI and FBI
agents while he was in their custody. The district court overruled the
motion, finding that Munro consented to the search of his premises and
that he "knowingly, voluntarily and intelligently waived his
constitutional rights as to any conversation between himself and the
law enforcement officers."
After a change of venue to Linn County, trial
commenced on January 8, 1979. At the close of the State's evidence,
the trial court sustained Munro's motion for directed verdict as to
the count based on Baldwin's death. On January 19, 1979, the jury
found Munro guilty of the remaining three counts of first-degree
murder. Munro filed a motion for new trial, which was denied. The
trial court sentenced him to three terms of life imprisonment and
appointed appellate counsel. Munro then appealed to this court.
Munro bases his appeal on three asserted errors by
the trial court: (1) in finding that Munro consented to the April 28
search of his living quarters, (2) in holding that he knowingly,
voluntarily, and intelligently waived his rights to remain silent and
to the presence of counsel, and (3) in admitting evidence regarding
alleged shoeprints found at the scene of the boys' bodies.
I. Search of Munro's living quarters.
Munro contends that the April 28 search of his
Little Rock apartment was illegal and that all fruits of the search
should therefore have been suppressed. The State relies on Munro's
oral and written consent.
Formerly we held that consent to an otherwise
illegal search had to be proved by clear and convincing evidence.
State v. Freese, 166 N.W.2d 785, 787 (Iowa 1969). As a result
of intervening federal decisions, however, we adopted a preponderance
of the evidence rule in State v. Folkens, 281 N.W.2d 1, 3 (Iowa
1979). We there stated:
Despite the language of our earlier cases imposing
the higher standard of proof, we hold that a preponderance of the
evidence by the state is sufficient to establish exceptions, including
consent, to the "per se unreasonable" status of a warrantless search.
Two FBI agents, Danny Sisco and Dale Kent, arrested
Munro in Little Rock on April 28. They did so at approximately 12:00
P.M. at a Salvation Army transient lodge and transported him to the
Little Rock FBI office. At the pretrial suppression hearing Sisco
testified he told Munro "he didn't have to let us search his room if
he didn't want to," but Munro nevertheless responded, "I don't care. I
don't have anything to hide." Munro's counsel then proceeded to
Q. Did you ask him to sign anything in regard to
searching his room? A. Yes.
Q. All right. Do you have a copy of that with you
at this time? A. The form that we entitle The Consent to Search Form,
and it is just an authorization.
Q. Do you now whether or not this was signed by Mr.
Munro prior to the time that his room or the area where he was living
at the Salvation Army was searched? A. Yes, it was.
While Sisco obtained Munro's consent, Kent actually
performed the search. At the pretrial suppression hearing Kent was
asked, "At the time you made the search of 4/28/78 you didn't obtain
consent from the defendant, did you, personally?" Kent responded, "No,
I personally did not." During trial Kent was again questioned
regarding the execution of the consent form:
Q. Now, once [Munro] was transported back to the
FBI office I believe you have said that is where you took him, is that
correct? A. Yes, sir.
Q. Once he was transported back there what was done
at that time? A. He provided a form consent to search his room and
gave to. Agent Sisco, who gave to me, and I went down to search his
room at the Salvation Army.
Q. So he did sign a consent form on that? A. Yes,
sir, he did. [295 NW2d Page 440]
The foregoing uncontradicted testimony together
with Munro's signed consent form abundantly establish that Munro
voluntarily consented to the April 28 search of his apartment. We find
no inconsistency between Kent's statement at the suppression hearing
that he did not personally obtain a consent form from Munro and his
trial testimony that he obtained Munro's consent form through Sisco.
The district court did not err in rejecting Munro's challenge of the
April 28 search.
II. Interrogation of Munro.
Munro argues that the trial court erred in
admitting evidence obtained through the State's interrogation of him
on the ground that the State employed "psychological coercion" which
caused "any statements made by him to have not been made knowingly,
voluntarily or intelligently." The State responds that Munro received
the Miranda warnings prior to each interrogation session and that
prior to each session he knowingly, voluntarily, and intelligently
waived his rights to remain silent and to counsel.
The test for determining the admissibility of
confessions or inculpatory statements is voluntariness. Culombe v.
Connecticut, 367 U.S. 568, 602,
81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037, 1057
(1961). This court determines the issue of whether officers have
exercised coercion so as to render statements involuntary by examining
the totality of the circumstances. We have explained this "totality of
the circumstances" test in the following manner:
No one factor is determinative of the voluntariness
of a confession which necessarily depends upon the totality of the
circumstances of the individual case.
There is not talismanic definition of
voluntariness. The "totality of the circumstances" encompasses the
characteristics of the accused and the details of the interrogation
process. The court determines the facts surrounding the inculpatory
statement, assesses their psychological impact on defendant, and
evaluates the legal significance of defendant's reactions.
Defendant's choice to confess must be essentially
free and unconstrained with his will not overborne and his capacity
for self-determination not critically impaired.
State v. Cullison, 227 N.W.2d 121, 127 (Iowa
1975) (citations omitted).
The "facts surrounding the inculpatory statement"
here are these. When the homicide investigation began to focus on
Munro, Des Moines police obtained a medical file on him from the
Alabama Board of Corrections. The file contained reports of
psychological evaluations while Munro was incarcerated in Alabama for
a prior offense. Des Moines police also contacted an Alabama
psychiatrist, Dr. Brown, who examined Munro on a previous occasion,
and Barry Hess, an Alabama attorney who defended Munro in a previous
criminal prosecution. No waivers of doctor-patient or attorney-client
privileges were obtained. Among the items of information derived from
these sources were the facts that Munro is of above average
intelligence (I.Q. of 130), is a "loner," has a close relationship
with his mother, has an alcohol problem, has attempted suicide on at
least one occasion, and has been diagnosed as paranoid schizophrenic.
This information was relayed to a Des Moines psychiatrist, Dr. Taylor,
for the purpose of developing a "psychological profile" of Munro. Dr.
Taylor then suggested certain interrogation techniques to Des Moines
police which he believed would be most effective in dealing with a
person of Munro's psychological makeup. Included among his
recommendations were treating Munro with respect, addressing him as
Mr. Munro, avoiding too close contact with him, and breaking eye
contact. Dr. Taylor also suggested that only one officer interrogate
Munro at any given time, because someone with Munro's psychological
profile would probably refuse to talk if more than one investigator
tried to question him.
Agent Wood of the BCI was the first officer to
interrogate Munro after his arrest. That interview occurred on April
28, 1978, the same day Munro was arrested in Arkansas. It took place
in Pulaski County [295 NW2d Page 441]
Jail in Arkansas with only Wood and Munro present,
although other officers listened to the interrogation through an
intercom. Munro was informed of his rights and signed a waiver form.
Wood testified he followed Dr. Taylor's advice and asked Munro about
his mother. Munro made no incriminating statements during this
interview and generally denied involvement in the Des Moines
Wood next interrogated Munro on the morning of
April 29, 1978. He again informed Munro of his rights and Munro again
signed a waiver form. A short time after this session began, Munro
indicated "he probably should talk to an attorney." One of the
officers listening to the interrogation over the intercom testified
Munro "said that he didn't want to talk anymore with anyone and
requested an attorney." The interview ended at that time. No steps
were then taken however to procure counsel for Munro, and he was
apparently not represented by counsel throughout the interrogation
procedures at issue here.
On the morning of May 3, 1978, FBI Agent Sisco was
ordered to go to the Pulaski County Jail to obtain photographs and
fingerprints of Munro for FBI files. During this procedure, Munro was
not given the Miranda warnings. Agent Sisco testified he asked Munro
whether he had contacted his mother since his arrest, and further
I told him — I said Dan, if you want to talk about
this. I said, if you didn't do it tell me where the gun is and the gun
will show that you didn't do it. And I left him my name, address and
telephone number and left.
That afternoon Munro called Sisco's office and left
a message that he would like to see Sisco again. Sisco testified that
the following occurred when he returned to the jail:
Q. [Munro] himself initiated this conversation, did
he not? A. Yes. Matter of fact, when I walked in the room the first
thing he said to me, well, I just wanted to tell you where the gun is.
Q. That is before you advised him of his rights? A.
Sisco also testified:
Q. At that time did you advise him of any Miranda
warnings? A. I did.
Q. And was there a written consent form? A. There
Q. Was it executed by the defendant? A. It was.
Q. At that time do you know whether or not the
defendant had an attorney? A. No, I do not. He did not request an
Q. At least to you he hadn't? A. No, he had not to
Q. What did he tell you? A. He told me where the
gun was located.
In return for telling Sisco the location of the
gun, Munro obtained a promise from Sisco that the FBI would do the
original examination of the gun. This was apparently to allay fear,
later expressed by Munro, that Des Moines police would attempt to
"frame" him. The gun was found as Munro had indicated at a pawnshop in
Springfield, Illinois, and was introduced in evidence at trial. The
metal inside the barrel had been scratched and cut away.
At the close of the interview on May 3, Sisco again
told Munro that "if he felt like writing me a letter or calling me or
anything feel free to do so."
In a letter dated May 11, 1978, Munro asked Sisco
to "let me know where I stand with the authorities from Iowa." By that
time Munro had been transferred to Kilby State Prison in Montgomery,
On June 5, 1978, Sisco went to Kilby Prison at the
request of the United States District Attorney in Des Moines to ask
Munro additional questions about the gun, which by this time was in
the hands of Des Moines police. Munro was given the Miranda warnings
and signed a waiver form. The interview that followed lasted
approximately two hours. Sisco testified regarding that interrogation:
Q. Okay. What was the gist of the conversation? A.
We talked primarily about the gun and about what he had [295 NW2d Page
done while he was in Des Moines with the gun and
everything that happened. Well, basically he had told me what he had
done on Sunday, February the 19th.
Q. And at all times he was proclaiming his
innocence? A. Yes. Matter of fact, he told me — I told him that the
gun had not checked out to my knowledge at the time, and he said that
is good. I hoped it hadn't.
Q. Your comment that the gun hadn't checked out,
was that a true statement? A. At that time to my knowledge. I can't
say it was true or not, but to my knowledge I was informed that the
gun had not checked our at that point, yes.
Q. And you terminated that conversation fairly
abruptly. Why did you do that? A. Fairly abruptly?
Q. I get it from the motion produced. A. I think we
had a conversation about an hour and a half.
Q. And then you said you would see him the next
day? A. I asked him if I could come back to see him. He said he
wouldn't do you any good, but, yes, you can come back.
Sisco returned to Kilby Prison at approximately
9:00 A.M. on June 6, 1978. Munro was given the Miranda warnings and
signed a waiver form. Sisco then interviewed Munro for approximately
two hours. After characterizing the interview of the previous day as
"just basically general conversation," Sisco testified:
Q. All right. Now, was that also true with the
second conversation? A. The second day I got a little bit more
specific in my interviewing and I asked Dan why he didn't want to talk
about the murders in Des Moines.
Q. What did he respond to that? A. He said if I
confess to it then I don't have a chance for an appeal and I would
just rather go to trial and take my chances on appeal. He also told me
that you have got to look at my side of it. I just don't believe it
would benefit me to talk about it now.
Q. Did you ask him about any of those items of
evidence [that Des Moines police were still searching for]? A. I asked
him where the bullets were that he purchased or had an individual
purchase for him in Des Moines, Iowa, and he told me that he thought
the Iowa authorities had enough evidence on him as it was and he
didn't want to tell me where they were.
Q. What was his appearance like when he told you
this? A. Well, at that point basically like his appearance is here. He
apparently showed no emotion.
Q. Was that also true when you discussed this part
about talking about the crime? A. At one point during our conversation
I related just a hypothetical situation to him regarding the crime and
I observed what appeared to be eyes watering and his right arm
The only other interrogation of Munro which appears
in the record occurred on July 6 and 7 while he was being transported
by automobile from Alabama to Des Moines for trial. BCI Agent Wood
accompanied Munro on that trip. Because no testimony was introduced at
trial regarding that interrogation and because it occurred subsequent
to the interrogation sessions which were referred to at trial, we do
not consider the circumstances of that interrogation to be a relevant
factor in determining the voluntariness of Munro's statements which
were introduced at trial.
The interrogation sessions referred to at trial
were the two May 3 interviews and the interviews of June 5 and 6. The
reference to the May 3 morning session was essentially for the purpose
of authenticating pictures of Munro's shoes which were taken at that
time and were later introduced in evidence at trial. Testimony
relating to the May 3 afternoon session explained to the jury how the
police discovered the gun. We have already set forth Sisco's testimony
in relevant part with regard to his June 5 and 6 conversations with
Munro bases his contention that his statements to
interrogators were psychologically coerced on two factors: (1) the use
of the [295 NW2d Page 443]
psychological profile that was compiled from
information given by Munro's prior physician and attorney, and (2) the
failure to provide Munro with an attorney when he first requested one.
After reviewing all the circumstances surrounding
the custodial interrogation of Munro, we agree with the trial court
the State has shown by a preponderance of the evidence that Munro's
statements in the course of the interviews were voluntarily made. We
note first that at each session he was informed of his rights and
signed a waiver form. That alone of course does not establish his
subsequent statements were voluntarily given. State v. Jump, 269
N.W.2d 417, 424 (Iowa 1978). The record also shows, however, that
Munro is of above average intelligence and has had prior experience
with the criminal law. Id. (defendant of "at least average
intelligence"); State v. Hansen, 225 N.W.2d 343, 350 (Iowa
1975) (defendant had "prior experience of being interrogated"). No
indication appears of physical mistreatment or of prolonged periods of
interrogation. See State v. Clough, 259 Iowa 1351, 1358, 147
N.W.2d 847, 852 (1967). Neither does deceit or an improper promise
appear. See State v. Jacoby, 260 N.W.2d 828, 833 (Iowa 1977).
Munro himself requested the May 3 meeting with Sisco at which he
divulged the location of the gun, and he specifically consented at the
end of the June 5 interview to Sisco's return the next day. That Munro
had enough control of his conduct to negotiate an agreement to have
his gun tested first by the FBI confirms our belief that his will was
not overborne during the interrogation process. See Rhode Island v.
Innis, ___ U.S. ___,
100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).
With regard to the interrogators' use of a
psychological profile based on allegedly privileged information, we
note first that most of the information on which the profile was based
can be found in Munro's Alabama prison records attributing to him
"superior intelligence" and "schizophrenic reaction, paranoid type, in
partial remission with alcoholism." This information was compiled by
the Alabama prison board's sanity commission apparently to determine
whether Munro should be transferred from prison to a hospital. Because
the examinations conducted by the prison board were for ascertaining
Munro's mental condition rather than for treating him, the information
in the prison records is not privileged. State v. Mayhew, 170
N.W.2d 608, 615 (Iowa 1969). See also State v. Cole, 295 N.W.2d
29 (Iowa 1980). We note also that section 622.10 of the Iowa Code,
which provides the basis for the physician-patient and attorney-client
privileges in Iowa, applies only to testimonial use of privileged
information; it is not a bar to the manner in which the allegedly
privileged information was used here. See State v. Pepples, 250
N.W.2d 390, 394 (Iowa 1977). Moreover, we are not convinced that
the manner in which the interrogators used Munro's psychological
profile in their interrogation overbore his will. We do not believe
that by treating Munro with respect, addressing him as Mr. Munro,
avoiding close contact, using only a single interrogator, breaking eye
contact, and making an occasional reference to Munro's mother, the
interrogators caused Munro to divulge information involuntarily.
With regard to the interrogators' failure to
provide Munro with an attorney when he first requested one, we are
aware of language which arguably requires the automatic exclusion of
any statement made to police interrogators in the absence of counsel
after a suspect has expressed a desire to see counsel and none had
been provided. State v. Moon, 183 N.W.2d 644, 649 (Iowa 1971).
In Moon we quoted Miranda and then stated:
From the foregoing it becomes evident that whenever
an in-custody accused in any manner or at any time invokes his right
to counsel, any questions thereafter asked of, or statements made to
him which are likely to, expected to, or do in fact elicit a
confession, including the affixing of his signature to any inculpatory
or exculpatory written document, [295 NW2d Page 444]
constitute a part of the Miranda proscribed
The statement from Moon does not mean that once an
interrogation begins and a suspect indicates a desire to have counsel
that he can never again be questioned without counsel. We noted in
Moon that "a suspect can at any time waive right to counsel." Id. at
647; see Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct.
1602, 1612, 16 L.Ed.2d 694, 707 (1966). Even if an in-custody
accused has at one time indicated a desire for counsel, the State may
nevertheless introduce evidence of later admissions if it (1) proves
that interrogation ceased at the time the request for counsel was
made, id., at 473-74, 86 S.Ct. at 1627, 16 L.Ed.2d at 723, and (2)
meets its "heavy burden" of demonstrating that the accused "knowingly
and intelligently waived his privilege against self-incrimination and
his right to retained or appointed counsel." Id. at 475, 86 S.Ct. at
1628, 16 L.Ed.2d at 724.
Munro's invocation of his right to counsel at the
April 29 meeting does not render his later statements inadmissible
under this record. Interrogation ceased when he requested counsel. He
was not thereafter questioned in any manner until the morning of May
3, when Sisco provided him with Sisco's address and telephone number
to permit him to contact Sisco if he decided to disclose the location
of the gun. Sisco testified at the pretrial suppression hearing
regarding the May 3 morning meeting that he could "not recall anybody
telling me that [Munro] had requested an attorney at that point." The
interrogation on the afternoon of May 3, at which Munro was given the
Miranda warnings, signed a waiver form, and told Sisco of the location
of the gun, occurred at Munro's request. On these facts the State has
made the required showing. We hold as the district court did that
Munro knowingly and intelligently waived his right to remain silent
and to counsel at the time he made his statements. See People v.
68 Cal.Rptr. 790, 794 (Cal.App. 1968)
(confession admissible when given one day after counsel requested, but
not yet provided); State v. Woods,
182 Neb. 668, 672,
156 N.W.2d 786, 789-90 (1968) (statements
admissible when the defendant failed to renew request for counsel
after Miranda warnings).
III. Footprint evidence.
Munro's final contention is that the trial court
erred in admitting evidence of an alleged footprint shown in
photographs of the crime scene. The State first argues that Munro
"opened the door" to the challenged footprint evidence by questions
his counsel asked during cross-examination of a witness for the State.
The State further argues that even if Munro had not opened the door,
his objection to the footprint evidence was deficient and that, in any
event, a sufficient foundation was established for the evidence. We
proceed no farther than the first argument.
The witness whose testimony is crucial on this
issue is Officer John Kilgore. When first called as a State's witness,
Kilgore testified only regarding his recovery of several bullets from
the doctors who performed autopsies and from the scene of the
homicides. Neither he nor the prosecutor made any reference to
footprints found at the scene or shown in photographs of the scene. On
cross-examination of Kilgore, defense counsel created an inference
which the State possessed evidence to dispel, as we will subsequently
relate. The cross-examination includes this:
Q. Officer Kilgore, you were at what is now called
the Coney Island or the crime scene on February 19, 1978, were you
not? A. Yes, sir.
Q. And you were there to take certain photographs?
State's Counsel: Object, Your Honor. Beyond the
scope of direct examination.
The Court: Overruled. You may answer.
Q. You took certain photographs, did you not? A.
Q. Well, how about on the same date when, on
February 19th, did you go back to the scene at a second time? A. I
left the scene and did return, yes.
[295 NW2d Page 445]
Q. And for what purpose? A. I returned to
photograph and recover an additional bullet that had been found.
Q. Let me show you Defendant's Exhibit 39, and ask
you to familiarize yourself with it first and see if you can identify
that particular exhibit. A. Yes, sir. I am familiar with this exhibit.
Q. Can you locate on that particular exhibit where
the spent or the bullet that you photographed a second time, can you
point that out in that diagram? A. The approximate location, yes, sir.
Q. Where is it located next to? A. It is located
next to and to the west of an item called Bar No. 1 in the crime scene
sketch. . . .
Q. Now, throughout this scene here there were
various footprint impressions or impressions that left certain track
marks, isn't that correct? A. That is correct.
Q. Were there any photographs in this area where
the bullet was discovered? Were there any photographs that you took
specifically to look at for footprint impressions or some sort of
track impressions? A. No.
Q. Did you ever cause to be — did you ever examine
for the specific purposes to determine whether or not there was a foot
impression or some sort of impression left either by a footprint of a
wheelbarrow, what have you, in this area where the "X" is for the
purposes of testimony in this trial? [Objection.]
Q. On February 19th did you? A. Did I what, sir?
Q. Did you examine in the crime scene photo of
where the spent bullet was discovered any impressions that may have
been characterized as a wheelbarrow or a footprint or what have you,
anything like that? A. No, sir.
Later in the trial, Kilgore was again called as a
witness for the State. He was allowed to testify over objection that
Munro's shoes had a crosshatch pattern on their soles and that the
photographs of the floor at the scene of the crime referred to by
Munro's counsel during prior cross-examination of Kilgore also showed
a crosshatch pattern. The portion of the crime scene photograph
containing such a pattern was circled and shown to the jury.
This court has stated, "Where the direct
examination creates an inference as to the existence of a fact not
directly testified to, the witness may be cross-examined to rebut such
inference." Wheatley v. Heideman, 251 Iowa 695, 710, 102
N.W.2d 343, 353 (1960) (citations omitted). The same rule has been
applied to reverse situations — where cross-examination creates an
inference, the witness may rebut the inference on redirect
examination. State v. Kendall,
200 Iowa 483, 486,
203 N.W. 806, 807 (1925); see 98 C.J.S.
Witnesses § 419c (1957). For example, in an early Iowa case the
defendant was accused of criminal conversation with the plaintiff's
wife. Stumm v. Hummel,
39 Iowa 478 (1874). The wife was asked on
cross-examination regarding certain occasions of "indecent
familiarity" with the defendant. This court held that on redirect
examination she was properly allowed to answer more general questions
as to whether indecent conduct between her and the defendant had ever
occurred. Id. at 481.
Cases from other jurisdictions also provide
guidance for resolution of this issue. State v. Linebarger,
71 Idaho 255, 232 P.2d 669 (1951); People
19 N.Y.2d 65,
224 N.E.2d 108,
277 N.Y.S.2d 683 (1966); State v.
Kessler, 254 Or. 124, 458 P.2d 432 (1969).
In Linebarger a rape victim was asked on
cross-examination whether she said anything to her friends immediately
after the incident. She responded, "No." On redirect examination she
was asked "when and to whom she made complaint." The Idaho Supreme
Court held that the trial court did not abuse its discretion in
permitting the [295 NW2d Page 446]
latter question, since it pertained to matters
"referred to on the cross-examination." 71 Idaho at 258, 232 P.2d at
In Regina a police officer was asked on
cross-examination whether he made any notes on the night he observed
an occurrence. The officer responded, "No." On redirect examination
the officer was asked if he had ever made any notes of the occurrence
in question, to which the officer responded that he made notes three
days after the incident. The New York Court of Appeals found the
latter testimony proper in that it "did no more then to explain,
clarify and fully elicit a question only partially examined by the
defense." 19 N.Y.2d at 78, 224 N.E.2d at 115, 277 N.Y.S.2d at 693.
In Kessler an assault victim who identified the
defendant was asked on cross-examination whether he had been shown
photographs of suspects prior to the trial. The witness answered
affirmatively. On redirect examination the witness was asked about the
procedure followed by police in presenting the photographs to the
witness and was allowed to testify that he was presented nine
photographs of suspects from which he chose the defendant. The Supreme
Court of Oregon found no error in admitting the latter testimony,
The victim's testimony brought out on
crossexamination revealed to the jury that he had been shown
photographs of persons who might have committed the crime. Without
more the jury could have inferred that the victim was unable to
identify the defendant from any of the photographs shown to him. This
would certainly weaken the witness' identification in court. Under
these circumstances the state was entitled to overcome this possible
inference by showing that the witness had identified defendant in one
of the photographs.
254 Or. at 127, 458 P.2d at 434. See also State v.
Campbell, 294 N.W.2d 803, 808 (Iowa 1980) (defendant opens door
to otherwise inadmissible breath test by testifying "to his alcohol
consumption and introducing evidence which converted that to
blood-alcohol levels"); State v. King, 225 N.W.2d 337, 341
(Iowa 1975); State v. Sage, 162 N.W.2d 502, 504 (Iowa 1968);
State v. Chambers,
179 Iowa 436, 444-45,
161 N.W. 470, 473 (1917); State v.
154 Iowa 313, 315-16,
134 N.W. 851, 852 (1912); 24A C.J.S.
Criminal Law § 1843, at 589-92 (1962) ("Thus appellant or plaintiff in
error is estopped to complain of error in the admission of evidence,
where the evidence . . . was in rebuttal or explanatory of his
Applying this rationale, we hold that the trial
court did not abuse its discretion in admitting Kilgore's testimony
regarding the nature of the alleged footprint at the scene of the
crime and the pattern on the soles of Munro's shoes. Stumm,
Linebarger, Regina, and Kessler illustrate the proposition that when
the jury may draw an adverse inference from testimony given on
cross-examination of a party's witness, the party may rebut the
inference by further questioning.
That is precisely what happened here. Munro was
first to raise the issue of whether footprints were found at the scene
of the crime. While cross-examining Kilgore, Munro's counsel obtained
an admission by Kilgore that although footprints appeared on the floor
at the scene of the crime, no photographs were taken of the floor for
the purpose of looking for footprint impressions, and that on February
19th Kilgore did not observe "any impressions that may have been
characterized as a wheelbarrow or a footprint" in a photo taken of the
scene. From this testimony the jury could infer that Kilgore was never
able to discover any indication of a footprint in the photo. Actually
according to Kilgore, he discovered an apparent footprint in the photo
after February 19 which was similar to the soles of Munro's shoes. The
possible adverse inference arose because Kilgore answered "no" to a
question concerning the truth of a certain allegation at a particular
time. We hold that Kilgore was properly allowed to rebut that possible
Defense counsel made a tactical choice in
cross-examining Kilgore. He created an inference [295 NW2d Page 447]
to help his client, but he also opened the door to
rebuttal by the State. We do not agree with Munro's contention that
the prosecutor was the one who first "injected this issue of
comparisons into the record." The State did begin laying a foundation
for footprint evidence early in the trial by introducing Munro's shoes
into evidence and also by asking the police officers who were present
at the scene about the patterns on the soles of their shoes, to
eliminate the possibility that they made the footprint in question.
But Munro's shoes were originally admitted by the trial court for a
specific purpose unrelated to footprint comparison — to show that they
were the same shoes as those worn by a man, allegedly Munro, when he
resided in Des Moines under a different name at the time of the
homicides. At that stage in the trial no mention was made of
footprints found at the scene. Even if we were to accept Munro's
contention that "[t]here is no question . . . as to what use the State
intended to put this evidence," we believe the trial court was
justified in allowing the prosecutor to dispel an inference created
during cross-examination that no such evidence existed. See Shorter v.
412 F.2d 428, 431 (9th Cir.), cert.
denied, 396 U.S. 970, 90 S.Ct. 454, 24 L.Ed.2d 436
We also reject Munro's contention that the
admissibility of the footprint evidence had been determined by the
trial court prior to the time that it was introduced by either party.
See State v. Jones, 271 N.W.2d 761, 766 (Iowa 1978). In Jones
we held the defendant did not waive his right to challenge certain
evidence introduced by him where the trial court had previously ruled
such evidence admissible. Id. In this case the court had not, at the
time Munro's counsel first cross-examined Kilgore, ruled on Munro's
motion in limine to exclude footprint evidence. Munro's reliance on
Jones and similar cases is not well founded.
Munro's assignments of error are not meritorious.