
                        IN THE SUPREME COURT OF IOWA

                              No. 142 / 04-0062

                           Filed February 17, 2006


STATE OF IOWA,

      Appellee,

vs.

HAROLD ARTHUR DUNCAN,

      Appellant.



      On review from the Iowa Court of Appeals.


      Appeal from the Iowa District Court for Clay County, Frank B.  Nelson,
Senior Judge.

      Appeal from judgment  of  conviction  and  sentence  for  first-degree
murder under Iowa Code sections 707.1  and  707.2(2)  (2001).   DECISION  OF
COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.

      Linda Del Gallo, State Appellate Defender,  and  David  Arthur  Adams,
Assistant State Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General,  Bridget  A.  Chambers,  Assistant
Attorney  General,  Michael  L.  Zenor,  County  Attorney,  and  Michael  J.
Houchins, Assistant County Attorney, for appellee.

LAVORATO, Chief Justice.
      A jury convicted Harold Arthur Duncan  of  first-degree  murder.   The
victim was his wife of  forty-three  years,  Karen  Kay  Duncan.   Following
sentencing, Harold appealed, contending the district  court  erred  when  it
admitted character and bad-acts evidence as improper rebuttal evidence.   We
transferred the case to the court of appeals, which  affirmed.   We  granted
Harold’s application for further review.   On  our  review,  we  affirm  the
court of appeals decision and the judgment of the district court.
      I.  Background Facts.
      Harold and Karen, known as Kay, were married in  December  1959.   The
couple lived in a motor home parked at a trailer  court  in  Spencer,  Iowa.
Harold was retired, and Kay  worked  as  a  manager  in  a  Subway  sandwich
restaurant in Spencer.
      On January 13, 2003, Kay did not report to work at  Subway.   Her  co-
workers became concerned, and one of them drove by the Duncans’  home  where
she saw the couple’s van parked at the residence.  The  co-worker  called  a
second co-worker and they decided to ask the Duncans’ landlord to  check  on
Kay at the couple’s residence.  The landlord received  no  response  to  her
knocks on the door, which prompted her to call the police.
      After failing to get anyone to come to the door, a Spencer city police
officer gained entrance through a window.  He found Harold and Kay  sprawled
out on their bed; Harold was face up and Kay was face down.   Kay  had  been
shot twice, once to the front of her body, and once to her  back.   She  was
pronounced dead at the scene.  Harold appeared to have a  serious  wound  to
the face but was alive.  Police found a shotgun in the hallway of the  motor
home.  In the cockpit area of the motor home, the police found an  open  box
of 12-gauge shotgun shells.
      Harold was taken to a local hospital and then to a hospital  in  Sioux
City where a Division of  Criminal  Investigation  (DCI)  agent  interviewed
him. Harold admitted shooting Kay twice and admitted shooting himself.
      Later in the day, Harold was transferred to a hospital in Omaha  where
another DCI agent interviewed  him.   During  this  interview,  Harold  gave
conflicting stories.  In the first version,  Harold  said  he  and  Kay  had
argued about her work schedule at the restaurant.  He got  the  shotgun  out
and as the argument got out of control, he shot her in the  chest  and  then
as she turned around to retreat to the back of the motor home, he  shot  her
in the back.  In the second version, Harold related that Kay had gotten  the
shotgun out of a closet in the back of the motor home and he  took  it  away
from her.  He then shot her in the chest and as she  retreated  towards  the
back of the motor home, he shot her in the back.  The third version was  the
same as the first.  Harold also told the agent that his wife was not  “going
to hold the answer to the argument” and admitted that he  had  attempted  to
kill himself.
      II.  Proceedings.
      On January 29, 2003, the State charged Harold with first-degree murder
in violation of Iowa Code sections 707.1 and 707.2  (2001).   Later,  Harold
filed a notice of diminished responsibility and a notice of self-defense.
      Before trial, Harold filed a stipulation with the court  in  which  he
stated that on January 13, 2003, he fired two shots from a 12-gauge  shotgun
resulting in the death of his wife, Kay.  He fired one  shot  to  her  chest
and one shot to her back.
      At trial, the stipulation was read to  the  jury.   Additionally,  the
jury heard testimony  regarding  Harold’s  admissions  to  the  DCI  agents.
Testimony  also  revealed  that  Harold  had  a  sixth-grade  education  and
functioned  at  a  range  between  mental  retardation   and   below-average
intelligence.
      Harold testified as follows.  Kay called him into  their  bedroom  and
told him she wanted a divorce.  At the time, Kay was lying on  the  bed  and
pulled out a shotgun.  He grabbed the shotgun and took  it  away.   He  then
grabbed her and  she  slid  off  the  bed,  and,  as  he  characterized  it,
“[t]hat’s when everything went wrong.”   He  had  no  recollection  of  what
happened after that.
      Following trial, a jury found Harold guilty  of  first-degree  murder.
The court later sentenced Harold to life in prison.
      Harold appealed, and we transferred the case to the court of  appeals.
The court of appeals affirmed.  We granted Harold’s application for  further
review.
      III.  Issues.
      On appeal, Harold raised the following issue:   Whether  the  district
court erred in admitting evidence of the  defendant’s  character  and  prior
bad acts as improper rebuttal evidence.
      IV.  Defendant’s Character and Prior Bad Acts.
      A.  The challenged evidence.  The issue  revolves  around  the  cross-
examination of Harold and the subsequent rebuttal testimony of  one  of  his
daughters.  On direct examination, Harold testified about going to the  bank
several days before the shooting so that Kay  could  open  accounts  in  her
name and remove her name from the accounts that she jointly held  with  him.
Harold also testified about Kay’s discussion of divorce.
      On cross-examination of Harold,  the  following  exchange  took  place
without objection:

           Q.  And isn’t it true that you were shaking violently  when  you
      were at Northwest Federal?  A.  What is violently?
           Q.  Shaking?  A.  Well, yeah.  They were  shaking  pretty  good.
      We sat there in the chair, Kay and I did, together.
           Q.  And that’s because you were upset and angry with Kay because
      she was opening up her own account?  A.  No, sir.  Mother  could  have
      any account she wanted.  My three daughters are out here in the crowd.
       They could tell you.

      Later, during the cross-examination, the  prosecutor  focused  on  the
relationship between Harold and Kay, again without objection:

           Q.  You talked about your relationship with your wife, Kay?   A.
      Yes, sir.
           Q.  That was an abusive relationship,  wasn’t  it?   A.   I  got
      three daughters out there.  I  don’t  think  so,  and  I  don’t  think
      they’ll tell you that either.  We had a  wonderful  time.   We  had  a
      great big boat.  We went to Lake Superior.  I named the boat Lady  Kay
      and we always got fish.  We hunted together.  My wife  road  hunt,  so
      she would load the gun and handed it to me when we  went  out,  and  I
      would slide it out  of  the  case  and  walk  the  ditches.   We  were
      together, her and I.

      Harold was then asked about hitting Kay, calling her  names  (such  as
fat and stupid), and belittling her.  He admitted  striking  Kay  once  that
left bruises, but did not recall any other time that he hit her.  He  denied
the name calling and belittling.
      The State presented the following rebuttal evidence, consisting of the
testimony of the Duncans’ youngest daughter:

           Q.  You’ve been present during the testimony during this  trial.
      Correct?  A. Correct.
           Q.  When your father was testifying, he said it was—that he  was
      a good father, he was a good husband, and that we should just ask  his
      daughters whether he was such.  And you’re one of his  daughters?   A.
      Correct.
           . . . .
           Q.  Okay.  I’m going to ask you then what type of father was the
      defendant?  A.  My father—

      It was  at  this  point  that  the  defense  counsel  made  his  first
objection:

           DEFENSE COUNSEL:  Hold on one second,  please.   Your  Honor,  I
      don’t mean to interrupt this young lady but  the  question  that  [the
      prosecutor] is prefacing came  vis-à-vis  his  cross-examination,  not
      something we put into evidence and, two, it’s not really  relevant  to
      any issue that’s framed here and it’s improper character  evidence  at
      this point in time.
           The Court:  Well, the objection  is  overruled.   Go  ahead  and
      answer the question.
           Q.  What type of father was the defendant, Harold Duncan?

      The daughter then testified about Harold being an  abusive  alcoholic.
She said the children were abused,  hit,  and  pushed  through  doors.   The
prosecutor also asked the daughter how Harold  treated  Kay.   The  daughter
replied:

      My father abused my mother very badly.  Many times to get us  children
      to behave he would take it out on my mom if we  did  something  wrong.
      There [were] points where there [were] incidents  where  one  time  we
      were out boating and he threatened to push her over the boat and  told
      us kids when he accomplished that that we would be next.

      It was at this point  that  the  defense  counsel  lodged  his  second
objection:

           DEFENSE COUNSEL:  Your Honor, at this point again I would  renew
      my objection that we’re really getting out in left  field  for  events
      that took place forty years ago.
           The Court:  We understand it was a long time ago.

The daughter testified further that an officer had explained the  change  in
domestic abuse laws to her father.   The  daughter  admitted  that  after  a
period of time, the physical abuse stopped.
      The prosecutor then sought testimony from the daughter concerning  the
more recent state of affairs between Harold and Kay:

           Q.  I want to move to the more current  situation  between  your
      father and your mother.  Let’s move to the last three or  four  years,
      two or three years prior to her death.  A.  Okay.
           Q.  How would you describe their marital relationship?   A.   My
      father was very controlling of my mother.  My mother was  not  allowed
      to drive anywhere.  She did hold a driver’s license  but  it  was  for
      identification purposes only.  Dad did drive her to and from work, not
      that that  was  really  a  choice,  you  know.   My  father  was  very
      belittling of my mother.  When they would come to visit, he would  not
      allow us the time alone together for fear of what we would talk about.
       He controlled the keys.  He would hold the keys.  If she wanted to go
      out to the van or motor home, she would have to ask him for  the  keys
      and return them to him as soon as she returned.
           . . . .
           Q.  Were there times where  the  defendant  actually  threatened
      your mother’s life?  A.  Yes, there were.  The boat incident  I  spoke
      of earlier.  Also there was a time when one of  my  sisters  was  home
      with her two small children and my—it was a Christmas Eve and—
           Q.  Were you present during this?  A.  Yes, I was.   I  was.  It
      was Christmas Eve and my father  had  been  drinking  and  had  become
      violent and actually sat and  pointed  at  us  and  counted  how  many
      bullets you would need to kill us all.

      Under cross-examination, the daughter admitted that  the  majority  of
her comments related to situations when Harold was drunk,  that  he  stopped
drinking in 1983 when he got treatment, and he was sober for  twenty  years.

       On  the  State’s  redirect  examination,  the  prosecutor  asked  the
daughter to tell the jury what type of mother Kay was.  The defense  counsel
objected on the ground that testimony was outside the scope of direct.   The
court overruled the objection.  The daughter then responded:

      My mom—When I first got the call from Terry Klooster right after  this
      happened, he asked me to  explain  the  relationship  and  explain  my
      father, my mother.  And the best way I can describe it is to  know  my
      mom was to love my mom, to know my dad was to tolerate my dad.  My mom
      was a very loving woman, very loyal, you know.  To  know  her  was  to
      love her.

      B.  The parties’ contentions.  Harold’s contentions  are  as  follows.
First, the rebuttal testimony of the daughter about Harold’s failures  as  a
father or husband in the forty years prior to Kay’s death was  not  relevant
as to why Harold allegedly murdered his wife because it did not  demonstrate
proof regarding any of the  exceptions  stated  in  Iowa  Rule  of  Evidence
5.404(b).  For that reason that testimony was inadmissible.
      Second, the daughter’s rebuttal evidence, though ostensibly offered to
challenge  Harold’s  credibility,  went  solely  to  his  character.    Such
evidence established  Harold’s  alcohol  abuse;  his  negative,  controlling
character;  and  his  propensity  for  abuse.   The  rebuttal  evidence  was
entirely devoted to the demolition of Harold’s character.
      Third, the daughter’s rebuttal testimony about what  a  loving  mother
Kay was constituted  an  appeal  to  the  jury’s  passions  and  borders  on
prosecutorial misconduct.
      Last, the rebuttal evidence would  normally  not  have  been  admitted
under rule 5.404(b).  The prosecutor sought  to  “bootstrap”  this  evidence
under the guise of impeaching Harold’s  credibility.   What  transpired  had
all the trappings of  a  “setup”  because  in  cross-examining  Harold,  the
prosecutor asked a question that,  on  its  face,  was  bound  to  elicit  a
response favorable to Harold so that  the  prosecutor  could  use  otherwise
inadmissible evidence to impeach the self-serving response.
      The State contends that all of the challenged evidence was  admissible
under rule 5.404(b) to show Harold’s intent in  shooting  his  wife  and  to
rebut  his   claims   of   self-defense   and   diminished   responsibility.
Additionally, the State contends that the evidence of Kay’s good nature  was
properly admissible to rebut Harold’s claim that she was  the  aggressor  in
the altercation.  Finally, even  if  any  of  the  challenged  evidence  was
admitted in error, the error was  harmless  in  light  of  the  overwhelming
evidence of Harold’s guilt.
      C.  Analysis.  Iowa Rule of Evidence 5.404(b) provides that

      [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.

Iowa R. Evid. 5.404(b).  The  key  to  whether  evidence  of  other  crimes,
wrongs, or acts is admissible is whether such evidence “  ‘is  relevant  and
material to some legitimate issue other than a general propensity to  commit
wrongful acts.’ ”  State  v.  Plaster,  424  N.W.2d  226,  229  (Iowa  1988)
(citation omitted).  On the admissibility issue, the district court  employs
a two-step analysis.  First, is the  evidence  relevant?   Second,  even  if
relevant, does the probative value of such evidence  substantially  outweigh
the danger of unfair prejudice pursuant to the  balancing  test  under  Iowa
Rule of Evidence 5.403?  Id.
      Here, whether there was prejudicial error requiring  reversal  in  the
admissibility  of  evidence  of  past  abuse  described  in  the  daughter’s
rebuttal testimony hinges on the issues of relevancy and prejudice.  To  put
the matter in context, we must understand the  defense’s  theory  underlying
its self-defense claim, as shown in the following  portion  of  the  defense
counsel’s final argument:

           Here’s one of the things that we had as a problem in looking  at
      this case.  Why would Karen Duncan  take  a  loaded  shotgun  to  bed?
      Doesn’t make  sense.   I  mean,  people  don’t  normally  take  loaded
      shotguns to bed, do they?  Not  in  my  household.   But  they  do  if
      they’ve suffered from domestic abuse for  the  last  forty-six  years,
      don’t they?  They do when she’s so fearful.
           Tammy Schwarting goes out to the trailer  that  morning  because
      she doesn’t show up for work.  They’re so fearful that the cell  phone
      person . . . noted the fear in this woman.  They would if—she not only
      expresses herself to Lola Wood, the  Northwest  Federal  employee  who
      changed the accounts . . . .
           And last but not least, [the Duncans’ daughter]  testified.  You
      heard her yesterday as to the years of abuse.  You take a gun  to  bed
      because you know you’re going to be getting  divorced  and  you  don’t
      know how he’s going to act and you want to be protected.   That’s  why
      she took the loaded shotgun to bed that January 12, 2003.

      Counsel continued:

      The blood got on the gun because Mr. Duncan was already shot  when  he
      got control of the gun.  He loaded it  with  another  shell,  shot  it
      twice at his wife.  The blood got on the stock because there was blood
      on his hand. . . .
           . . . .
           Now, let’s think about this a second.  You’ve just had half your
      face  blown  off  and  you  go  down.   You  regain   consciousness—or
      semiconsciousness.  What’s your first  thought?   She’s  in  the  back
      bedroom and that is where the rest of the guns are.  Even though  I’ve
      got this one, the other guns are back there.  She’s going for  another
      gun.
           . . . .
           One last thing that I haven’t touched upon is that after  Harold
      was shot, Kay Duncan did pick up her cell phone.  I submit to you that
      she tried to call 911 for an ambulance.  That is why when  they  found
      her body, she was holding the cell phone.
           What happens when somebody is injured?  She wasn’t  running  out
      of the place.  She was trying to call for an ambulance for her husband
      who just had half of his face blown off.  She never got that call made
      because she was shot then.

      As one can see, Harold’s  self-defense  claim  is  very  simple.   Kay
takes the shotgun to bed to defend herself against Harold in  the  event  he
reacts violently, as he has in the past, to the  news  of  her  decision  to
seek a divorce.  Kay shoots Harold  first.   Then  in  fear  of  being  shot
again, Harold takes the gun away from Kay and shoots her.   What  fuels  the
defense is Harold’s past abuse which causes Kay to fear Harold  and  induces
her to get him before he gets her.
      The above excerpts from the defense counsel’s final argument  and  the
following discussion show that counsel began laying the foundation for  this
abuse-induced  fear  beginning  with  voir  dire,  continuing  with  opening
statement and cross-examination  of  some  of  the  State’s  witnesses,  and
culminating with counsel’s explanation of the self-defense claim.
      In voir dire, the defense counsel  mentioned  Harold’s  abuse  several
times:

      [T]here is going to be some testimony of possible—some domestic  abuse
      in this household, some bad things there.   Even  though  that  person
      has, or what you may learn or believe at the end of the  case,  has  a
      history of that or that the victim had gone through a period  of  time
      of that, being abused, do you feel that the person [is] still entitled
      to the self-defense protection under the law and if the  circumstances
      weren’t, they have the right even though in the  past  they  may  have
      been a no good SOB but under those circumstances they still  have  the
      right to protect themselves?
           . . . .
           . . . [Y]ou’re going to hear about domestic violence and  abuse,
      things of that nature.  Are you going to be able to say, “Yeah, I know
      he may not have been the best person  in  the  world  but  he’s  still
      entitled to this self-defense protection under our laws”?
           . . . .
           . . . That is the guy.  I know he’s a bad person and I know he’s
      done things probably not in retrospect happy about  today  in  looking
      back, but he’s still entitled to that self-defense . . . .
           . . . .
           . . . [O]ne of the things that you’re going to  hear,  there  is
      going to be some maybe bad things about Mr. Duncan. . . .   [A]re  you
      going to be able to say, even though he may not be the type of  person
      I like, he is still entitled to the self-defense protection under Iowa
      law?
           . . . .
           . . . [T]here is going to be some testimony in  the  case  about
      domestic abuse.  If the Court directs you that, even though  there  is
      domestic abuse out there, that Mr. Duncan’s entitled to the defense of
      self-defense even though he may be a bad  person,  do  you  think  you
      could follow that?
           . . . .
           . . . There is going to be evidence that  domestic  abuse—that’s
      going to come out in this case.  You understand, even though  you  may
      not like Mr. Duncan at the end of this case, you  may  think  he’s—you
      may not find him to be a good person. Even though you don’t like  him,
      you don’t like the things  he’s  done,  he’s  still  entitled  to  the
      defense under the law of self-defense.

      In final argument, the defense counsel reminded the jurors about  what
he had said in his opening statement concerning the abuse:

           Last but not least, we have [the Duncans’ daughter’s testimony].
       She testified about the years of abuse.  If  you  recall  my  opening
      statement to you, I told you that these events were the culmination of
      a marriage which was marked with abuse.

      In his cross-examination  of  three  of  the  State’s  witnesses,  the
defense counsel attempted to plant the seed of  the  theory  underlying  the
self-defense claim by emphasizing Kay’s fear of Harold.   Tammy  Schwarting,
one of  Kay’s  co-workers,  testifying  for  the  State  without  objection,
described  the  relationship  between  Harold  and  Kay  as  “different   at
different times.  There [were] times where it was very good, and then  there
[were] times that it was very rocky.  But as long as it  was  Harold’s  way,
it would be okay.”  On occasion, according to  this  witness,  Harold  would
belittle Kay by calling her “fat” and “stupid.”
      On the defense counsel’s cross-examination of  Schwarting,  there  was
this exchange:

           Q.  And, in fact, when you and I previously met last April,  you
      characterized their relationship was one in which you  indicated  that
      she kind of had to walk on eggshells?  A.  Yes, she did.
           Q.   Their  relationship  became  more  tense  as   the   months
      progressed prior to the time of her death.  Correct?  A.  Yes.
           . . . .
           Q.  But there is no question whatsoever in your  mind  that  she
      became fearful of Harold Duncan?  A.  I did not say she was fearful of
      Harold.
           Q.  All right.  You said she walked on eggshells?   A.   Yes,  I
      did.
           Q.  What did you mean by that?  A.  She  just  had  to  be  very
      careful of what she did. . . .
           . . . .
           Q.  Karen Duncan did not appear for work the 13th.  .  .  .   A.
      No, she did not.
           Q.  And that gave you great concern?  A.  Yes, it did.
           Q.  What specifically was your concern?  A.  I was  scared  that
      something had happened to Kay.
           . . . .
           Q.  Did you ever indicate to Officer Lawson or Officer Warburton
      that you thought Harold may have harmed her?  A. I may have said, yes,
      he could have hurt her.

      The State offered two other witnesses, Pamela Santage and  Lola  Wood,
who had seen and talked with Kay several days before  her  death.   Santage,
an employee of a local cell phone company, testified that she had  sold  Kay
and Harold a cell phone some time before the events in question.   She  also
testified that three days before Kay’s death she  sold  Kay  a  cell  phone.
Santage related that Kay  was  upset  and  appeared  to  have  been  crying.
Santage further related that Kay said she needed a cell  phone  to  keep  in
contact with her place of employment, that Harold would not let her use  the
phone they had, that she could not believe she had been so  stupid  so  long
and she was not going to be with him anymore,  and  that  Harold  was  worse
than he had ever been.  This testimony too came in without objection.
      The defense counsel’s cross-examination of this witness was very short
and again emphasized Kay’s fear of Harold:

           Q.  But there was a marked difference on the 10th day of January
      2003, when she came in to see you, wasn’t there?   A.  Yes.   She  was
      very upset.
           Q.  Fearful?  A.  I think so, in some respect.

      And finally, Wood, a bank employee, described  without  objection  her
meeting with Harold and Kay at a local bank in  Spencer  on  the  same  day.
Wood testified that Kay wanted to be taken off of  the  joint  account  with
Harold.  Wood testified that Kay was sad while Harold was shaking  violently
the whole time during the transaction.
      The defense counsel’s cross-examination of this witness  was  likewise
very short, resulting in this exchange in  which  counsel  again  emphasized
Kay’s fear of Harold:

           Q.  I take it you felt she was in distress?  A.  Yes, I did.
           Q. Distress, the fear was pretty heightened, wasn’t it?  A. Yes,
      it was, sir.
           Q.  About as high as you can  get  when  you,  recognizing  that
      stress, instead of shaking her hand, wanted to give her  some  comfort
      by patting her back—  A.  Yes.
           Q.  —and hugging her.  Am I right?  A.  Yes.

      On cross-examination of  the  State’s  firearms  expert,  the  defense
counsel obtained a concession that the expert could  not  determine  whether
Harold or Kay was shot first.  This concession of course  was  important  to
the defense’s theory underlying its self-defense claim.
      So it is clear that beginning with voir dire, the defense counsel  was
relying on Harold’s past abuse of Kay to support the defense’s  theory  that
fear moved  Kay  to  be  the  aggressor  in  a  violent  confrontation  that
culminated in her death.  Later, in his final argument, the defense  counsel
made clear how the past  abuse-induced  fear  was  relevant  to  the  theory
underlying the self-defense claim.
      It would be strange indeed for us to allow Harold to use what  he  now
contends is irrelevant and prejudicial evidence to support  this  theory  of
self-defense  and  following  an  unfavorable  verdict  allow  him  to  urge
reversal on appeal based on the same  evidence.   He  cannot  have  it  both
ways.  He may not do  so  because  of  the  rule  commonly  referred  to  as
judicial  estoppel  but  more  accurately  referred  to  as  preclusion   of
inconsistent positions.  See 18B Charles Alan Wright,  Arthur  R.  Miller  &
Edward H. Cooper, Federal Practice and Procedure §  4477,  at  549  (2d  ed.
2002); Vennerberg Farms, Inc. v. IGF Ins. Co., 405  N.W.2d  810,  814  (Iowa
1987).
      In Snouffer & Ford  v.  City  of  Tipton,  this  court  described  the
doctrine of judicial estoppel against inconsistent positions this  way:   “A
party who has, with knowledge of the facts, assumed  a  particular  position
in judicial proceedings  is  estopped  to  assume  a  position  inconsistent
therewith to the prejudice of the adverse party.”  150 Iowa 73,  84-85,  129
N.W. 345, 350 (1911).  The court explained the rationale for the doctrine:

      If [taking inconsistent positions] were permissible, there would be no
      end of litigation, for with every defeat  a  party  might  change  his
      ground, mend his hold, and proceed  indefinitely.   Some  courts  have
      said that to take advantage of this rule the party to be estopped must
      be successful on his original claim.  This is true in some cases,  but
      this rule is not applicable here . . . .

Id. at 86, 129 N.W. at 350.
      More recently, we have described the doctrine as a  “  ‘common  sense’
rule,  designed  to  protect  the  integrity  of  the  judicial  process  by
preventing deliberately inconsistent—and  potentially  misleading—assertions
from being successfully urged in succeeding tribunals.”  Wilson  v.  Liberty
Mut. Group, 666 N.W.2d 163, 166 (Iowa 2003)  (citation  omitted);  see  also
Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 23 (1st Cir. 1998)  (“We
generally will not permit litigants to  assert  contradictory  positions  at
different stages of a  lawsuit  in  order  to  advance  their  interests.”).
Because the doctrine is intended to  protect  the  courts  rather  than  the
litigants, an appellate court may raise estoppel on its own motion.   In  re
Cassidy, 892 F.2d 637, 641 (7th Cir. 1990).
      Courts have applied the doctrine to bar a person from relying  in  the
same proceeding upon evidence that the person has brought into the case  and
then later assails it.  28 Am. Jur. 2d Estoppel and  Waiver  §  79,  at  504
(2000).  In Pace v. Assessor of Islip, 682 N.Y.S.2d 447, 450-51  (N.Y.  App.
Div. 1998), a homeowner who relied on  a  residential  assessment  ratio  to
prove full market value of his property in  the  lower  tribunal  could  not
thereafter on appeal take a position impeaching  this  value.   In  McKesson
HBOC, Inc. v. Islamic Republic of Iran, 271 F.3d 1101,  1110-11  (D.C.  Cir.
2001), vacated in part on other grounds, 320 F.3d 280, 281 (D.C. Cir.  2003)
(per curiam), the appellate court barred a party  from  claiming  the  trial
court erred because it used the  wrong  exchange  rate  in  calculating  the
amount of an award when the party’s own expert used the same exchange  rate.
 And in Georgetown Manor, Inc. v. Ethan Allen, Inc.,  991  F.2d  1533,  1540
(11th Cir. 1993), the appellate court  barred  a  party  from  claiming  the
trial court erred in submitting the question  of  how  interest  was  to  be
calculated when the party agreed on three alternatives,  one  of  which  the
jury chose.
      Here, it is clear from the defense counsel’s  voir  dire  and  opening
statement that not only was the jury aware of Harold’s past abuse  but  they
were also expecting such testimony.  Moreover, the defense  counsel  painted
Harold as a bad person who nevertheless was entitled to the defense of self-
defense under the law.  And then the jury learns in  the  defense  counsel’s
final argument why evidence of Harold’s past abuse  and  bad  character  was
relevant to his defense.  The defense counsel used the  daughter’s  rebuttal
testimony to Harold’s advantage by noting that there were  years  of  abuse.
In effect, the defense counsel invited what Harold now complains was  error.

      We have not overlooked the fact that the defense counsel  objected  to
the daughter’s rebuttal testimony.  Ordinarily a defendant  does  not  waive
error by  referring  to  evidence  that  the  defendant  has  unsuccessfully
challenged.  For example, in State v. Jones, the district court overruled  a
pretrial defense motion to prohibit the State  from  using  the  defendant’s
prior conviction for impeachment purposes on cross-examination.  271  N.W.2d
761, 765 (Iowa 1978).  During trial, the defense  counsel  brought  out  the
defendant’s conviction during direct  examination  of  the  defendant.   Id.
This court held that when

      the issue is fully argued  and  trial  court,  carefully  apprised  of
      defendant’s objection, rules evidence of prior convictions admissible,
      we are not convinced defendant  must  abandon  all  trial  tactics  to
      preserve error.  We hold defendant has not waived his right to  assert
      error in this instance.
Id. at 766.
      In contrast to  Jones,  the  defense  counsel  here  never  challenged
evidence of past abuse before the daughter’s  rebuttal  testimony.   To  the
contrary, the defense counsel from voir dire on made it very  clear  to  the
jury that there would be such evidence.  Moreover, the  defense  counsel  in
Jones was  attempting  to  take  the  sting  out  of  the  prior  conviction
evidence.  In contrast, the defense counsel here  was  taking  advantage  of
the past abuse evidence to support the defense theory underlying  the  claim
of self-defense. The trial strategies  were  therefore  entirely  different.
Under these circumstances,  we  think  Harold  waived  error  regarding  the
rebuttal testimony.  Moreover, we think the defense counsel’s  objection  to
the rebuttal testimony was apparently an attempt to preserve  error  in  the
event the defense counsel’s strategy did not work.  But, as  we  have  said,
Harold cannot have it both ways.  To reverse this case on the  grounds  that
Harold now urges would not only be prejudicial to the State but  would  also
encroach upon the integrity of the judicial process.
      In fairness to the appellate counsel, we must point out  that  he  was
not the trial counsel.  It is clear to  us  the  appellate  counsel  had  no
choice but to take a position  inconsistent  with  the  position  the  trial
counsel took.  At the same time, we are not criticizing the trial  counsel’s
strategy.  Given the overwhelming physical evidence of  guilt  coupled  with
Harold’s admissions, this was Harold’s best chance for acquittal.
      As to the claimed setup, we reject it  out  of  hand  because  we  are
convinced there  was  no  setup.   In  State  v.  Werts,  we  described  the
prosecutor’s cross-examination of the defendant  and  a  rebuttal  witness’s
testimony as having “all the attributes of a setup.”  677  N.W.2d  734,  737
(Iowa 2004).  By that we meant that  “[i]n  cross-examining  the  defendant,
the prosecutor asked a question that, on its face, was  bound  to  elicit  a
response favorable to defendant so that he could use otherwise  inadmissible
evidence to impeach the self-serving response.”  Id.
      Here, everyone in the case was well-aware of Harold’s past abuse.  The
defense counsel had talked about it in voir dire and opening statement.  And
several defense witnesses had also talked about it.  So the question,  “That
was an abusive relationship, wasn’t it?”  was  not  on  its  face  bound  to
elicit a favorable response.  Given  what  went  on  before,  we  think  the
prosecutor as well as the defense counsel and jury were caught off guard  by
Harold’s response.  Because of Harold’s low intelligence,  he  probably  was
not in tune with the defense counsel’s reasons  for  wanting  the  abuse  in
evidence.
      We also find no basis for reversal based on Harold’s  contention  that
the daughter’s description of her mother as a loving person  constituted  an
appeal to the  jury’s  passion  and  borders  on  prosecutorial  misconduct.
Because no such objection was made to this testimony, the claimed error  was
not preserved.  Iowa R. Evid. 5.103(a)(1); State v. Martin, 704 N.W.2d  665,
669 (Iowa 2005).  Moreover,  the  testimony  was  cumulative  because  other
witnesses had  already  given  similar  testimony  without  objection.   See
Swartzendruber v. Lamb, 582  N.W.2d  171,  175-76  (Iowa  1998)  (concluding
inquiries and responses “were not  sufficiently  prejudicial  to  warrant  a
reversal of the judgment” because “[s]everal responses  were  cumulative  of
other evidence received without objection”); State v.  McCurry,  544  N.W.2d
444, 448 (Iowa 1996) (holding  district  court  did  not  err  in  admitting
reports that “were merely cumulative of evidence already in the record”).
      V.  Disposition.
      During trial, Harold relied on evidence of his past abuse  to  support
his claim of self-defense.  He cannot now on appeal  urge  reversal  on  the
grounds that such evidence was irrelevant  and  prejudicial.   Moreover,  we
are not convinced there was a setup by the prosecutor.  Finally, we find  no
reversible  error  based  on  Harold’s  contention   that   the   daughter’s
description of her mother constituted an appeal to the  jury’s  passion  and
borders on prosecutorial  misconduct.   Error  was  not  preserved  on  this
ground.  In  any  event,  such  evidence  was  cumulative.   For  all  these
reasons, we affirm the court of appeals decision and  the  district  court’s
judgment of conviction and sentence.
      DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.



