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State v. Doornink12/11/2002
in the vehicle."
Doornink promptly moved for a mistrial, claiming the testimony violated his motion in limine. The trial court found its limine ruling had been breached, but that it was unintentional, and refused to grant a mistrial. The court then told the jury to completely disregard the statement, proceed as if the statement had never been made, and that it should not be considered in their deliberations in any way. The court also gave the jury a final instruction which told them testimony they had been told to disregard could not be considered as evidence.
Generally, where the trial court acts promptly to strike the improper testimony and advises the jury to disregard it, any prejudice to the defendant is avoided. State v. Veal, 564 N.W.2d 797, 809 (Iowa 1997). The testimony at issue was by no means the only evidence of Doornink's consumption of alcohol in the case. That he had an alcohol concentration level of .122 approximately three hours after the collision, with no intervening alcohol consumption, is essentially uncontroverted.
We conclude the court's prompt and unequivocal response to the deputy's testimony averted any necessity for a mistrial in this case.
B. Family medical expense testimony.
During cross examination in response to defense counsel's question, Harold Shoemaker, the driver of the car struck by Doornink, testified he had retained a lawyer to pursue damage claims against Doornink. On redirect, he testified to the medical expenses incurred by family members involved in the collision. Defense counsel objected on relevancy grounds. The trial court ruled only the driver's medical expense was relevant, and struck the testimony regarding family medical expense. After the State rested, Doornink moved for a mistrial, claiming irreparable prejudice as a result of the testimony.
Initially, we note discussion of the issues potentially involved in the civil lawsuit was invited by Doornink by opening the subject of the lawsuit in cross- examination. Arguably, as pointed out by the county attorney, Shoemaker was only seeking to justify commencing the civil case by calling attention to the substantial damages incurred by his family. A party may retaliate with otherwise inadmissible evidence when the subject is initially broached by his opponent. State v. Williams, 427 N.W.2d 469, 472 (Iowa 1989) (" hen one party introduces inadmissible evidence, with or without objection, the trial court has discretion to allow the adversary to offer otherwise inadmissible evidence on the same subject when it is fairly responsive."). However, we do agree with the trial court that the family medical expense was not relevant in this trial. Following Doornink's objection, the court sustained the objection for expenses other than for Shoemaker himself and advised the jury the testimony was not relevant and that it was stricken. We are satisfied this immediate response by the court, as in the limine violation discussed earlier, cured any potential prejudice.
We have carefully reviewed all claims of error by the defendant. We are convinced all of the challenged actions of the trial court were appropriate.
AFFIRMED
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