DocketNumber： No. 52241
Citation Numbers： 260 Iowa 957, 151 N.W.2d 496, 1967 Iowa Sup. LEXIS 819
Judges： Becker, From, Larson, Mason, Rawlings, Who
Filed Date： 6/6/1967
Status： Precedential
Modified Date： 11/9/2024
The Polk County grand jury returned an indictment charging Jack Irwin LaMar with breaking and entering with intent to commit larceny contrary to section 708.8, Code, 1966. Following a plea of not guilty the matter proceeded to trial by jury which returned a verdict of guilty. Defendant was sentenced to imprisonment in the state penitentiary for a term not to exceed ten years.
From this final judgment defendant appeals.
His assignments of error may be summarized: (1) allowing a demonstration in the jury’s presence of the manner in which certain tools in evidence might be used in opening a safe, (2) instructing on defense of alibi, (3) violating his constitutional right against self-incrimination and (4) misconduct of assistant county attorney in final argument.
I. During the early morning hours of September 5, 1965, Richard Kail, a Des Moines police officer, and James J. Riccio, then a civil defense auxiliary officer, were patrolling in the neighborhood of 5722 Hickman Road, Des Moines. About 3:30 a.m. they drove to the Chili King Restaurant No. 2 and proceeded to examine the doors and windows. In checking Kail looked through a small window in the north wall of the building and saw two men, one he claims to have recognized as Jack LaMar. After kicking in the front door, Kail apprehended one man but saw only the legs and feet of the other going through a ventilating hatch opening. A search of the scene was conducted by numerous Des Moines police officers.
George Karaidos, the restaurant owner, went to the restaurant in response to a police call, found the front door opened and the window pried open. He noticed there were tools on the floor and that the safe had been pulled away from the wall.
Defendant, arrested some days later, claimed he was several miles from the scene at his mother-in-law’s home at the time the crime was alleged to have been committed. His alibi was corroborated by his mother-in-law who testified he had been at her home between 2 a.m. and 8 a.m. September 5.
At the trial Kail identified .certain tools found at the scene including vise grips, punch, sledgehammer, pry bars and a pair
George Kachelhoffer, another police officer participating in the search, testified these pry marks on the window could have been made by one of the pry bars found at the scene. On his second trip to the restaurant he took the pry bar or crowbar and it matched the pry marks. He identified the tools found lying, by the safe in the restaurant and over defendant’s objection demonstrated the manner in which they could be used in peeling a safe and removing the dial and tumblers.
Jim Alexander, restaurant manager, testified he closed the restaurant about 2 a.m. September 5. There was a safe in the rear of the building containing approximately $1000 he placed there before leaving at 2:30, the doors and windows were locked and none of the various tools in evidence were in the restaurant at that time. He returned to the restaurant at noon and did not recall seeing the tools. Although the safe had been removed from its usual position, it had not been opened nor did it appear to have been otherwise tampered with. In identifying a photograph of the scene offered in evidence Alexander testified the safe appeared to have been moved away from the wall and was in that position when he observed it Sunday noon.
II. Defendant does not question the admissibility of the tools found at the scene nor Kachelhoffer’s testimony that the window had been jimmied by a bar with a split bit similar to the pry bar admitted into evidence. However, he argues the court’s failure to strike or stop Kail’s demonstration was damaging to him in that it allowed the jury to speculate and guess with regard to matters which were not a part of the record; to allow the witness to engage in prejudicial and inflammatory specula
Defendant’s position cannot be sustained. Although he had objected to the offer in evidence of the various tools found at the scene, as stated he does not question their admissibility on appeal. Properly identified articles found at the scene of the crime which tend to show its commission or the manner thereof, or explain some related matter in issue, are admissible in evidence for jury inspection. State v. Drosos, 253 Iowa 1152, 1159, 1160, 114 N.W.2d 526, 530, 531.
The determination of relevancy and explanatory value of demonstrative evidence is primarily within the discretion of the trial court. Kunzman v. Cherokee Silo Company, 253 Iowa 885, 892, 114 N.W.2d 534, 538, 95 A. L. R.2d 673, and citations; State v. Harless, 249 Iowa 530, 535, 86 N.W.2d 210, 213, and citations.
“The question of what constitutes ‘burglar’s tools’ is and has been a question of some difficulty, but generally speaking it has always been held to refer to tools and implements which when assembled in combinations have such character as thosé commonly used to commit the crime of burglary. The fact that each tool or implement, or combinations of them, may be also used for an honest and legal purpose is held to be immaterial.” Mahar v. Lainson, 247 Iowa 297, 299, 300, 72 N.W.2d 516, 518, and citations, including a quotation from 9 Am. Jur., Burglary, section 86, now 13 Am. Jur.2d, Burglary, section 74.
The tools found at . the scene may properly be called burglar’s tools. State v. Harless, supra, 249 Iowa, at 534, 86 N.W.2d, at 213. They were so described by Kail and Kachelhoffer.
It was a necessary part of the State’s case to prove'
Although the tools were described as “the exact tools you would need to get into a safe”, it must be admitted they could also be used for a lawful and honest purpose. It was material and proper for the court to permit the witnesses to illustrate the manner in which they might also be used to commit larceny. The fact defendant’s activities were interrupted by the police before he had time to put the tools into actual use does not affect their relevancy on the issue of intent.
It is within the discretion of the trial judge to permit a witness to illustrate or explain his testimony by the use of maps, diagrams, pictures and physical objects. 98 C. J. S., Witnesses, section 327. In a footnote eited as supporting this statement appears the following statement from McKee v. Chase, 73 Idaho 491, 253 P.2d 787, 792, 793:
“Photographs, maps, and other drawings, are recognized as proper evidence to supplement the testimony of witnesses where the subject matter of the testimony is difficult to portray without such aids, or where the jury can be given a better understanding of the physical facts with which they are concerned. Their admission is proper to illustrate the testimony. They are also regarded as a proper means of expressing the witness’ testimony. That is, a witness may be unable, by means of words or gestures alone, to convey to the jury an accurate understanding or picture of the relative position of the physical objects or their physical characteristics, without the assistance of photographs or drawings. So, he may make a drawing or a photograph, or identify and adopt such drawing or photograph, made by*964 another, as a means of portraying to the jury facts.which are within his knowledge, and which he is not as well able to portray without such help (citing cases).”
“It is the rule that a trial court may, in its discretion, permit a witness to illustrate his testimony by the use. of a physical object to the jury.” Edwards v. State, 171 Tex. Cr. R. 70, 74, 344 S.W.2d 687, 690. Defendant’s argument here was rejected in Berry v. Harmon, 329 S.W.2d 784, 793 (Mo.). In Kennedy v. Oleson, 251 Iowa 418, 425, 100 N.W.2d 894, 898, we held a scale drawing made by the witness from field notes of a deceased surveyor was admissible as illustrative of the testimony.
Defendant’s objection that the witness never actually opened a safe by using similar tools in the manner demonstrated by him is without merit.
With a safe containing a large sum of money pulled from its normal position and a collection of tools that could be used to enter it in the manner described by the officers, there was evidence from which a jury could find defendant had the intent to commit larceny although he had not yet tampered with or damaged the safe.
III. Defendant complains of misconduct by the assistant county attorney in final argument which was reported. The assistant county attorney told the jury, “I think this case is so lopsided it is almost ridiculous to send you folks out for a decision. What happened in some other case has nothing to do in this case. But just to give you an example, it wasn’t long ago that a ease identical to this one, the jury returned a verdict of guilty in three minutes, and there wasn’t as much evidence in that case as there is in this case. Noav, Mr. Morris does a beautiful — .” Defendant immediately took exceptions to the remark, moved that it be stricken and the jury be admonished. At that point the court ruled:
“The Court is going to sustain that objection. Actually, what happened in other cases, and the friendship of Mr. McKeon and Mr. Morris over the years, and Mr. Morris’ activity as a County Attorney really have nothing to do with this case at all., I’m requesting that the jury disregard the remarks concerning
“Simply listen to this case, decide it on the basis of what you have heard here.”
“We have held repeatedly that misconduct of the prosecuting attorney in argument does not require granting a new trial unless it appears to have been so prejudicial as to deprive defendant of a fair trial (citing cases).
“We have also frequently pointed out that the trial court is in much better position than we are to judge whether claimed misconduct of counsel is so prejudicial as amounts to denial of a fair trial. Considerable discretion is allowed the trial court in passing on such a matter and we will not interfere with its determination unless it clearly appears there has been a manifest abuse of such discretion (citing cases).” State v. Harless, supra, 249 Iowa, at 536, 86 N.W.2d, at 213, 214. See also State v. Barton, 258 Iowa 924, 931, 140 N.W.2d 886, 891, and citations.
Referring to what is said in State v. Harless, supra, page 535 of 249 Iowa, page 213 of 86 N.W.2d, to the effect “without expressing approval of the argument we are not persuaded it entitles defendant to a reversal”, we condemn this type of argument by a prosecutor. However, we are not prepared to hold the trial court abused his discretion. This assignment cannot be sustained.
IY. In his motion for new trial and on appeal defendant has challenged certain conduct of the assistant county attorney on voir dire examination of prospective jurors as violating his constitutional rights against self-incrimination. The incident complained of occurred when the prosecutor was examining the seventeenth juror and asked the question, phrased to some extent, as follows: “Can you think of any reason why a person would not take the stand in their own defense, unless there was something to hide ?” The question is asserted to have been propounded in the presence and hearing of all who were subsequently sworn and served as jurors. This examination was not reported and the incident became a part of the printed
Before considering this assignment further we give attention to the State’s contention that the record is not sufficient to raise the question on appeal. Code sections 786.5 and 786.6, cited in support, provide:
“786.5 Bill by judge. Either party may take an exception to any decision or action of the court, in any stage of the proceedings, not required to be and not entered in the record book, and reduce the same to writing, and tender the same to the judge, who shall sign it if true, and if signed it shall be filed with the clerk and become a part of the record of the cause.”
“786.6 Bill by bystanders. If the judge refuses to sign it, such refusal must be stated at the end thereof, and it may then be signed by two or more attorneys or officers of the court or disinterested bystanders, and sworn to by them, and filed with the clerk, and it shall thereupon become a part of the record .of the cause.”
Neither section was complied with. They have appeared in substantially their present form since the Revision of 1860, and provide a manner in which to make a part of the record for appeal incidents occurring in a criminal trial, such as those here.
We have repeatedly held alleged improper statements or prejudicial remarks of the prosecutor not preserved in the record cannot be reviewed. Rayburn v. Central Iowa Ry. Co., 74 Iowa 637, 641, 642, 35 N.W. 606, 608 (opinion on rehearing granted on other matters appears in 74 Iowa 637, 38 N.W. 520); State v. Bigelow, 101 Iowa 430, 434, 435, 70 N.W. 600, 601, and citations; State v. Burton, 103 Iowa 28, 30, 31, 72 N.W. 413, 414; State v. Berger, 90 N.W. 621, 622 (not reported in Iowa Reports).
The alleged objectionable remarks cannot be regarded as a part of the record when set out simply in an affidavit attached to a motion for new trial. The language alleged to be objectionable should be presented in a bill of exceptions. State v. Hall, 79 Iowa 674, 675, 44 N.W. 914; Ricker v. Davis, 160 Iowa 37, 47, 48, 139 N.W. 1110, 1116. Affidavits are insufficient
The bill cannot be signed and sworn to by an attorney for the defense after the judge’s refusal to do so. State v. Kilduff, 360 Iowa 388, 393, 394, 141 N.W. 962, 963, 964, and citations. Filing of counter-affidavits is not a waiver of the right to object to the competency of the affidavits. State v. Burton, supra, 103 Iowa, at 31, 72 N.W, at 414.
Defendant made no objections when the incident occurred. Objections to claimed improper conduct in argument must be made at the time. They are too late when raised for the first time in motion for new trial. State v. Smith, 248 Iowa 603, 610, 81 N.W.2d 657, 661, and citation. No motion for mistrial because of the alleged misconduct of the county attorney on voir dire examination was made. As bearing on this omission see State v. Hess, 256 Iowa 794, 797, 129 N.W.2d 81, 83.
The matter was not referred to in his motion for directed verdict and mistrial made at the close of the State’s evidence nor in the motions renewed at the close of all evidence.
Although it might be argued the prosecutor in resistance to defendant’s motion for newr trial, in effect, admitted the incident, the procedure followed by defendant’s counsel cannot be accepted as a substitute for the statutory requirement. 24A C. J. S, Criminal Law', section 175.1(2).
Under the interpretation of what is necessary procedure under Code sections 786.5 and 786.6 as declared by the authorities cited, the State’s position is well taken. Defendant’s contention under this assignment presents nothing for review''.
However, defendant claims under this assignment the conduct violated his privilege against self-incrimination. Thus the .issue presented is the permissibility of invoking our procedural
On April 28, 1965, the United States Supreme Court decided Griffin v. State of California, 380 U. S. 609, 85 S. Ct. 1229, 14 L. Ed.2d 106. On January 19, 1966, the Court decided Tehan v. United States, 382 U. S. 406, 86 S. Ct. 459, 15 L. Ed.2d 453, determining that the law as declared in Griffin v. State of California, supra, was applicable to all cases that were still pending on direct review at the time Griffin was announced.
On June 15, 1964, Malloy v. Hogan, 378 U. S. 1, 84 S. Ct. 1489, 12 L. Ed.2d 653, was announced, declaring that the protection of Amendment 5 to the United States Constitution was made applicable to the states by Amendment 14. •
The present case commenced March 14, 1966, long after both Malloy and Griffin were decided. Defendant knew on March 14, 1966, that the protection of Amendment 5 as to self-incrimination was made applicable to proceedings in Iowa. He must have been familiar with the cases cited herein interpreting the two statutory provisions as to bills of exceptions and those relating to the method of objecting to alleged misconduct on voir dire; that in order to protect his claim of constitutional rights under the circumstances here he had to make his claim known in the manner and at the time required by our authorities.
Our attention has been directed to O’Connor v. Ohio, 382 U. S. 286, 86 S. Ct. 445. 15 L. Ed.2d 337. For a history of this case see State v. O’Connor, 6 Ohio St.2d 169, 217 N.E.2d 685. However, we believe, the instant case differs from O’Connor where the Supreme Court reversed the Ohio court for holding defendant’s failure to object to the proscribed comment at his trial as then required by the Ohio Constitution, precluded the Ohio appellate court from considering the claim that petitioner’s federal constitutional rights had been infringed. O’Connor was tried in January 1964 with certiorari being granted December 13, 1965. Neither Malloy nor Griffin had been decided and the Supreme Court determined that he had not lost his right to
Prior to the decision in Griffin, under decisions of the United States Supreme Court, it was not a denial of a defendant’s federal constitutional rights under Amendments 5 and 14 to the United States Constitution for the trial court, in its charge to the jury in a criminal case, to comment upon the failure of defendant to testify pursuant to section 10, Article I of the Ohio Constitution. This was true as to the prosecutor’s right to comment under our practice as announced in State v. Ferguson, 226 Iowa 361, 363-373, 283 N.W. 917, 918-923.
Validity to such practice was established by Twining v. New Jersey, 211 U. S. 78, 29 S. Ct. 14, 53 L. Ed. 97, decided November 9, 1908, where the Supreme Court “* * ® held, explicitly and unambiguously, ‘that the exemption from compulsory self-incrimination in the courts of the states is not secured by any part of the Federal Constitution.’ 211 U. S., at 114, 29 S. Ct., at 26 * •* Tehan v. United States, supra, 382 U. S., at 410, 411, 86 S. Ct., at 462.
Under the Ohio practice until Griffin was decided no legitimate state interest or public purpose would be served by requiring defendant to raise the question at that time in order to secure what the United States Supreme Court later determined was a federal constitutional right to which he was entitled.
The present case also differs from the situation presented in People v. Griffin, 60 Cal.2d 182, 32 Cal. Rptr. 24, 383 P.2d 432, the decision from which certiorari was granted by the United States Supreme Court in Griffin v. State of California. In the state court defendant had failed to object to the proscribed comment as required by state procedure. The change brought about by Griffin gave defendant a federal constitutional right which had been held not to exist at the time of the trial in the state court.
Because of Twining v. New Jersey, supra, neither O’Connor nor Griffin could be said to have had a known constitutional right at the time of trial. But here at the time of the objection-' able incident defendant had a known constitutional right given
As supporting our position see footnote 9, Schmerber v. State of California, 384 U. S. 757, 766, 86 S. Ct. 1826, 1833, 16 L. Ed.2d 908, 917, where it is said:
«*= *• # ginee trial here was conducted after our decision in Malloy v. Hogan, supra, making those principles applicable to the States, we think petitioner’s contention is foreclosed by his .failure to object on this ground to the prosecutor’s question and statements.”
See also footnote 9 of Mapp v. Ohio, 367 U. S. 643, 659, 81 S. Ct. 1684, 1693, 6 L. Ed.2d 1081, where it is said:
“As is always the case, however, state procedural requirements governing assertion and pursuance of direct and collateral constitutional challenges to criminal prosecutions must be respected.”
Therefore, defendant’s claim of violation of his constitutional right against self-incrimination cannot be sustained.
V. Defendant’s remaining assignment is directed to the court’s instruction 10 defining alibi and failure to give defendant’s requested instruction 2 which would have placed the burden on the State to establish beyond all reasonable doubt defendant was present at the time and place the crime is alleged to have been committed.
The instruction given by the court, although placing the burden on defendant to establish his claim of alibi, is not as detailed ás the instruction held not to be reversible error in State v. Stump, 254 Iowa 1181, 119 N.W.2d 210, certiorari denied 375 U.S. 853, 84 S. Ct. 113, 11 L. Ed.2d 80. The holding in Stump on this proposition appears to express the view of the
Finding no error presented, the case is — Affirmed.