holding prosecutor’s comment in closing argument “that the jury should be concerned about returning defendant to the community was improper”
How later courts described this case
- holding prosecutor’s comment in closing argument “that the jury should be concerned about returning defendant to the community was improper”
- stating "ordinarily, a defendant may not claim prejudice where the same evidence is otherwise supplied by the defendant or is made overwhelmingly clear in the record."
- finding evidentiary error was not prejudicial when the defendant conceded the evidence or the same evidence was overwhelmingly clear on the record
- “[O]rdinarily, a defendant may not claim prejudice where the same evidence is otherwise supplied by the defendant or is made overwhelmingly clear in the record.”
Written by the judges who cited it.
The opinion
McCORMICK, Justice
(dissenting).
I do not agree with the majority holding in Division IV that it was harmless error for the trial court to receive, over defendant’s objection, the opinion of a police officer regarding the intent with which defendant possessed marijuana.
Defendant was on trial for possession of marijuana with intent to deliver as well as for delivery of marijuana. His plea of not guilty controverted and put in issue every material allegation of each charge. State v. Nelson, 234 N.W.2d 368, 372 (Iowa 1975). The burden was on the State to prove beyond a reasonable doubt every element of the crimes. State v. Monroe, 236 N.W.2d 24, 33 (Iowa 1975).
Intent to deliver is an essential element of a charge of possession of a controlled substance with intent to deliver under § 204.401(1), The Code. Permitting a witness to testify that a defendant possessed a drug with intent to deliver is tantamount to permitting the witness to express an opinion on the issue of the defendant’s guilt or innocence. It is error to permit such testimony over adequate objection. State v. Ogg, 243 N.W.2d 620, 621 (Iowa 1976); State v. Oppedal, 232 N.W.2d 517, 524 (Iowa 1975).
Although the majority does not decide the issue, I think the objection was adequate to preserve error in the present case. It was neither deficient in form nor untimely-
The form of an objection is sufficient if it alerts the trial court to the principle sought to be invoked. State v. Nimmo, 247 N.W.2d 228, 231 (Iowa 1976). The objection here challenged the evidence as “an improper subject of expert testimony.” This is the form of objection approved in State v. Oppedal, supra, 232 N.W.2d at 524 .
Moreover, the timing of the objection here was the same as approved in Oppedal . As the answer of the witness demonstrated, it was not clear from the question that the witness should limit himself to a “yes” or “no” answer. Nor was he instructed to do so. Furthermore, the majority’s suggestion the objection may have been premature rests on cases where no issue existed as to the propriety of inquiry into the subject matter involved. Here the subject matter is proscribed. Inquiry whether the witness has an opinion on such subject 'matter is afflicted by the same infirmity as a question seeking to elicit the opinion itself. In these circumstances, the objection was not premature.
Under the principles in Oppedal and Ogg , the trial court erred in overruling defendant’s objection.
It is well settled that a presumption of prejudice arises from an erroneous ruling on evidence. The error is reversible unless this presumption is affirmatively rebutted *110 by the record. State v. Mattingly, 220 N.W.2d 865, 869 (Iowa 1974).
I do not believe the presumption was overcome in the present case. The State’s evidence is not “overwhelming” unless the jury chose to believe it. Much of it was contradicted. For example, defendant denied he put the marijuana in individual bags. In addition, on the issue of intent he offered substantial evidence that he was under the influence of alcohol and marijuana on the occasion involved. Whether he had the requisite intent was the fighting issue on the possession charge. The trial court instructed the jury accordingly. The court told the jury to consider the-intoxication evidence in determining whether the State proved the intent element. We have recognized the availability of intoxication as a defense when it tends to negate one of the elements which the State must prove to establish guilt. State v. Booth, 169 N.W.2d 869, 874 (Iowa 1969). In evaluating the sufficiency of evidence to determine whether a jury issue exists on a matter of defense, we examine the evidence in its light most favorable to the defendant, not the State. State v. Tomlinson, 243 N.W.2d 551, 553 (Iowa 1976). The State does not contend nor does the court find the evidence was insufficient on the intoxication issue in this case. However, the effect of the court’s holding is to deprive the defendant of this defense as a matter of law. The court has put itself in the place of the jury. In doing so the court has denied the defendant the benefit of the presumption of innocence, the effect of his plea of not guilty, and his right to have the jury decide whether the State met its heavy burden to prove the intent element.
Contrary to the assertion by the majority, I do not believe the record shows he was neither injuriously affected nor denied justice by the trial court’s erroneous ruling.
I would reverse and remand for new trial on the possession charge.
MASON and RAWLINGS, JJ., join this dissent.