State v. Anderson, No. 52851

CourtUnited States State Supreme Court of Iowa
Writing for the CourtLARSON
PartiesSTATE of Iowa, Appellee, v. Clifford Vernon ANDERSON, Appellant.
Docket NumberNo. 52851
Decision Date11 June 1968

Page 809

159 N.W.2d 809
STATE of Iowa, Appellee,
v.
Clifford Vernon ANDERSON, Appellant.
No. 52851.
Supreme Court of Iowa.
June 11, 1968.

Page 811

Walter W. Rothschild, Waterloo, for appellant.

Richard C. Turner, Atty.Gen., William A. Claerhout, Asst.Atty.Gen., Roger Peterson, County Atty., and David J. Dutton, Asst. County Atty., for appellee.

LARSON, Justice.

A county attorney's information was filed May 23, 1967, charging Clifford Vernon Anderson, the defendant, with the crime of breaking and entering in violation of section 708.8 of the Code of 1966. Subsequent to a plea of not guilty and trial by jury, defendant was convicted and on June 30, 1967, was sentenced to the Iowa State Penitentiary for a term not to exceed ten years.

The record discloses that in the early morning hours of April 9, 1967, there was a break-in at Herman and Dick's Sport Shop in Waterloo, Iowa. A witness, Willard Forbes, testified he was driving past that place of business about 1:25 A.M. and observed a man standing near the doorway of Herman and Dick's Sport Shop with a cash register in his hands. He closely observed this man, saw him drop and pick up the register, and go around the corner of the building. He also observed a hole in the door, and then went directly to the police station, a distance of one and a half blocks, to report what he had seen. Forbes was later contacted by police about 4 A.M. and a short time later identified the defendant as the man he saw holding the cash register in front of the sport shop.

Several police officers, called by the State, testified inter alia, as to the scene of the break-in, that the door plate glass was broken, that a cash register was found in a broken condition near the scene of the break-in, and that the defendant, spotted a block from the scene, ran into a nearby

Page 812

apartment building where he was apprehended.

Immediately after apprehension, but later denied in court, it appears defendant told the officers that a lady friend had driven him to the intersection of Eleventh and LaFayette Streets, about four blocks from where he was apprehended, and that he had been at a tavern, T. J.'s Tap, until around 2 A.M., although at that time it was only 1:55 A.M. In an attempt to verify his story the officers brought the owner of T. J.'s Tap to the scene. He said that he could not say for sure whether defendant had been in his bar that night, but recalled that he was alone in the bar after 1:20 A.M. A defense witness, Miss Apfel, testified defendant left Verla's Bar about four blocks from the sport shop at between 1:15 and 1:20 A.M.

The defendant took the stand in his own defense and testified, in response to a question by his attorney, that he had previously been convicted of a felony, the nature of which was not disclosed. He further testified that on the night in question he had been at Verla's Tap all evening, except for about forty-five minutes, during which time he went to T. J.'s Tap. He stated that he then did not leave Verla's Tap until about 1:20 A.M. He also said that, when he left there, he went to the apartment building where he was apprehended by officers. He explained that he was looking for his roommate and a man named Danny, who lived there.

On rebuttal the State introduced, over objection, a tape recording of police transmissions between 1:39 and 2 A.M. on the night of the break-in, for the purpose of resolving a dispute as to the time of the report of the break-in and the time the defendant was taken into custody. Testimony was also produced that no one named Danny lived in the building in which the defendant was apprehended after close pursuit by the officers.

Appellant assigns as error (1) the submission to the jury of Instruction No. 13 relating to a prior conviction of a felony, and (2) the admission into evidence of a recording of the police radio messages, over timely objections.

I. In considering defendant's appeal from conviction, the issue as to the sufficiency of the evidence must be viewed in a light most favorable to the State. State v. Allnutt, Iowa, 156 N.W.2d 266, 267; State v. Everett, Iowa, 157 N.W.2d 144, 145; State v. Frink, 255 Iowa 59, 64, 120 N.W.2d 432, 435; State v. Harless, 249 Iowa 530, 531--532, 86 N.W.2d 210, 211.

II. It is well established that when the defendant is a witness in his own behalf in a criminal case, he stands upon the same footing concerning his memory, history, motives, or matters affecting his credibility, as any other witness. State v. Everett, supra, Iowa, 157 N.W.2d 144, 147; State v. Allnutt, supra, Iowa, 156 N.W.2d 266, 273; State v. Voelpel, 208 Iowa 1049, 1050, 226 N.W. 770, 771.

Section 622.17, Code of 1966, provides: 'A witness may be interrogated as to his previous conviction for a felony. * * *'

It is well established in this jurisdiction that a defendant who takes the stand in his own behalf may be asked if he has been previously convicted of a felony. State v. Everett, supra; State v. Frink, supra, 255 Iowa 59, 68, 120 N.W.2d 432, 438; State v. Hardesty, Iowa, 153 N.W.2d 464, 469. A previous felony conviction, we have said, may be shown on Cross-examination to impeach the witness and For no other purpose. State v. Allnutt, supra; State v. Underwood, 248 Iowa 443, 445, 80 N.W.2d 730, 732; State v. Frink, supra; State v. Van Voltenburg, 260 Iowa 200, 147 N.W.2d 869, 874, 875.

Appellant contends any felony that is not related to the truth and veracity of the witness is improper for impeachment purposes, but, while we may or may not agree with that position, that issue is not before us. Here the State did not ask the

Page 813

question of defendant, and there was no evidence as to the nature of the felony he said he had committed. Apparently, in the exercise of caution, the trial court gave Instruction No. 13 relating to the restricted purpose that testimony could be considered by the jury.

III. Appellant's principal complaint herein is the giving of Intruction No. 13, which states in part:

'The Defendant has admitted that he has previously been convicted of a felony and another witness also admitted that he had previously been convicted of a felony.

'These are recognized methods of impeaching a witness and discrediting a witness' testimony and should be considered for no other purpose. It is for the jury to say whether a witness has been successfully so impeached. You may disregard the testimony of an impeached witness, but you are not bound to do so, and you should not do so if the testimony is corroborated by other credible evidence, or if for any other reason, you believe such testimony to be true. The credit and weight of the testimony of the witnesses are to be determined by the jury alone, in view of all of the evidence, and all of the facts and circumstances of the case.

'The foregoing instruction is applicable to the Defendant's admission that he has been previously convicted of a felony notwithstanding the fact that this admission was made in response to direct examination by his counsel.'

We are satisfied the instruction was proper and that, under the facts revealed by the record, it was required. It matters not who asks the question. When no proper objection is made as to its relevance, the jury is bound to give it consideration...

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27 practice notes
  • State v. Stephenson
    • United States
    • Supreme Court of Tennessee
    • January 4, 2006
    ...or controvert evidence produced by an adverse party." Cozzolino v. State, 584 S.W.2d at 765, 768 (Tenn.1979) (citing State v. Anderson, 159 N.W.2d 809 (Iowa 1968); Hutchinson v. Shaheen, 55 A.D.2d 833, 390 N.Y.S.2d 317 (1976)). In this case, the Defendant gave notice that he intended to rel......
  • State v. Martin, No. 55207
    • United States
    • United States State Supreme Court of Iowa
    • April 24, 1974
    ...v. United States, 125 U.S.App.D.C. 220, 370 F.2d 242, 244 (1966); State v. Milford, 186 N.W.2d 590, 593 (Iowa 1971); State v. Anderson, 159 N.W.2d 809, 812 (Iowa 1968); Gaskill v. Gahman, 255 Iowa 891, 896, 124 N.W.2d 533 (1968); State v. Underwood, 248 Iowa 443, 445--446, 80 N.W.2d 730 (19......
  • State v. McClelland, No. 52825
    • United States
    • United States State Supreme Court of Iowa
    • January 14, 1969
    ...to the State. State v. Frink, 255 Iowa 59, 64, 120 N.W.2d 432, 435; State v. Allnutt, Iowa, 156 N.W.2d 266, 267; State v. Anderson, Iowa, 159 N.W.2d 809, The quality of evidence necessary to convict, whether it be circumstantial or direct, must be sufficient to raise a fair inference of gui......
  • State v. Hackett, No. 55158
    • United States
    • United States State Supreme Court of Iowa
    • September 19, 1972
    ...State v. Shipp, 184 N.W.2d 679, 680 (Iowa 1971); see also State v. Schatterman, 171 N.W.2d 890, 896 (Iowa 1969); State v. Anderson, 159 N.W.2d 809, 812--813 (Iowa 1968). I would decide the question now for the guidance of the bench and I. Is there discretion? I believe there is. Authority f......
  • Request a trial to view additional results
27 cases
  • State v. Stephenson
    • United States
    • Supreme Court of Tennessee
    • January 4, 2006
    ...or controvert evidence produced by an adverse party." Cozzolino v. State, 584 S.W.2d at 765, 768 (Tenn.1979) (citing State v. Anderson, 159 N.W.2d 809 (Iowa 1968); Hutchinson v. Shaheen, 55 A.D.2d 833, 390 N.Y.S.2d 317 (1976)). In this case, the Defendant gave notice that he intended to rel......
  • State v. Martin, No. 55207
    • United States
    • United States State Supreme Court of Iowa
    • April 24, 1974
    ...v. United States, 125 U.S.App.D.C. 220, 370 F.2d 242, 244 (1966); State v. Milford, 186 N.W.2d 590, 593 (Iowa 1971); State v. Anderson, 159 N.W.2d 809, 812 (Iowa 1968); Gaskill v. Gahman, 255 Iowa 891, 896, 124 N.W.2d 533 (1968); State v. Underwood, 248 Iowa 443, 445--446, 80 N.W.2d 730 (19......
  • State v. McClelland, No. 52825
    • United States
    • United States State Supreme Court of Iowa
    • January 14, 1969
    ...to the State. State v. Frink, 255 Iowa 59, 64, 120 N.W.2d 432, 435; State v. Allnutt, Iowa, 156 N.W.2d 266, 267; State v. Anderson, Iowa, 159 N.W.2d 809, The quality of evidence necessary to convict, whether it be circumstantial or direct, must be sufficient to raise a fair inference of gui......
  • State v. Hackett, No. 55158
    • United States
    • United States State Supreme Court of Iowa
    • September 19, 1972
    ...State v. Shipp, 184 N.W.2d 679, 680 (Iowa 1971); see also State v. Schatterman, 171 N.W.2d 890, 896 (Iowa 1969); State v. Anderson, 159 N.W.2d 809, 812--813 (Iowa 1968). I would decide the question now for the guidance of the bench and I. Is there discretion? I believe there is. Authority f......
  • Request a trial to view additional results

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