Walter W. Rothschild, Waterloo, and Leona Durham, Iowa City, for appellant.
Richard C. Turner, Atty. Gen., and Lona J. Hansen, Asst. Atty. Gen., for appellee.
Considered by MOORE, C. J., and RAWLINGS, LeGRAND, HARRIS and McCORMICK, JJ.
We affirm defendant's first-degree murder conviction. There are three assignments of error. Defendant complains of the admission, over his objection it was hearsay, of testimony reciting the victim's statements to witnesses. Defendant asserts there was prosecutorial misconduct. And he contends there was insufficient evidence to show deliberation and premeditation. We believe all three contentions are without merit.
During the evening of December 2, 1975 Gary Lynn Frazer (defendant) and his brother, Michael, were drinking in two Oelwein bars. Sheila Foley, the victim, and her girlfriends were in one of the bars. Sheila became tired and went out to rest in the automobile of Patricia Goodin, one of her companions that evening. Sheila soon returned and told them defendant was in Patricia's car. Patricia told Sheila defendant was a "creep" and she did not want him in her car. Sheila gave the car keys back to Patricia, left the bar, and was not again seen by them alive.
After Sheila left, Patricia went to the window to make sure defendant left her car. While she watched, defendant got out of the car and went down the street, after which Patricia went out to lock her car. Sheila was not in the car when Patricia went out to lock it.
At midnight Rose Kisner and Carl Dugan were walking down an Oelwein street and
observed defendant sitting in a car with a girl who had shoulder-length, reddish hair and who was wearing a coat with a white fur collar. Sheila had shoulder-length, reddish hair and was wearing such a coat when she left home that evening.
At about 1:30 a. m. Greg Alessio came out of the bar. He observed defendant and a woman drive by in defendant's car.
When Sheila did not come home she was reported missing but was not found until December 10, 1975 when her nude body was found on a gravel road. As the result of an autopsy it was concluded Sheila had probably been run over by a car. Sand taken from her body matched the sand of the gravel road. From the autopsy it was also determined Sheila had died eight and one half to ten days before the autopsy and probably had sexual intercourse within 24 to 48 hours prior to death.
Agents of the bureau of criminal investigation (BCI) examined defendant's car and found what analysis showed to be human tissue and blood on the underside. The agents vacuumed the car and found head hair which was consistent with Sheila's.
Two boys found a pair of shoes near Lake Oelwein which her mother identified as Sheila's. BCI agents found a distinctive black nylon fiber attached to the left shoe at the edge of the sole. This was similar to nylon fibers from the floor mats in defendant's car.
The jury indicated by a guilty verdict it did not accept defendant's attempted alibi.
I. Defendant first asserts the trial court erred in admitting testimony of witnesses which recited statements made by the victim. Defendant objected on the ground of hearsay. The witnesses were Debbie Duckett and Patricia Goodin who had accompanied Sheila to the bar. Debbie Duckett's testimony included the following:
"Q. * * * While you and Patty (Goodin) were playing pool, did you have any communication with Sheila at all, do you recall? A. Yes.
"Q. And what did that concern?
"MR. PATTEE (defendant's counsel): Object to that as calling for a hearsay answer.
"THE COURT: Overruled. Go ahead.
"A. She said she was going to go out to the car for awhile. She wanted Patty's keys because her car was locked.
" * * *
"Q. And after she entered (the tavern), what, if anything, happened? A. She We were standing by the corner of the bar and she came up and said that Gary Frazer wanted her to give him a ride home.
"MR. PATTEE: Excuse me. I want to interpose an objection, and ask the objection be allowed to precede the answer, as I couldn't anticipate the witness would testify as to conversations with Sheila Foley. At this time I would object to the question and the answer as it calls for hearsay.
"THE COURT: Overruled. * * *."
During the testimony of Patricia Goodin she testified in part as follows:
"Q. Was there any conversation at all about Sheila going ...