State v. Burt, 59316

• Decision Date: 19 January 1977
• Docket Number: No. 59316,59316
• Citation: 249 N.W.2d 651
• Parties: STATE of Iowa, Appellee, v. William Earle BURT, Appellant.
• Court: Iowa Supreme Court

Page 651

249 N.W.2d 651

STATE of Iowa, Appellee, v. William Earle BURT, Appellant.

No. 59316.

Supreme Court of Iowa.

Jan. 19, 1977.

Charles T. Mattson, Mattson & Gilliam, P.C., Waterloo, for appellant.

Richard C. Turner, Atty. Gen., Lee M. Jackwig, Asst. Atty. Gen., and David H. Correll, County Atty., for appellee.

Heard by MOORE, C.J., and MASON, UHLENHOPP, REYNOLDSON and McCORMICK, JJ.

REYNOLDSON, Justice.

Defendant was charged by county attorney's information with shoplifting an item worth more than $20 in violation of § 709.20, The Code. A jury found him guilty and he was sentenced to serve a term not to exceed five years in the Men's Reformatory at Anamosa. Defendant appeals and we affirm.

There was abundant trial evidence upon which the jury could have found the following facts.

September 2, 1975, Eugene Handeland, manager of Black's College Square in Cedar Falls, returned from dinner break and observed defendant in a semi-crouch behind a rack of coats. Maneuvering for a better view, Handeland observed defendant, still crouching, stuffing something into a shopping bag resting on the floor. The bag was bulging. Right above defendant on the rack was an empty, rocking coat hanger.

Defendant left the store at a fast walk. Handeland told a clerk to call the police 'because somebody just stole a coat' and chased defendant up the street. The latter entered a vehicle operated by a female driver. Handeland testified he stood by the open, passenger-side window and 'I put my hand on the door and said 'Sir, I would like to talk to you ". Defendant made no response. The car drove off.

Handeland followed the auto carrying the defendant for some time but was unable to stop it. He reported the license number to the police. The car was driven by defendant's girlfriend who testified for the State that defendant had entered the car with a sack, another man 'come outside' and stood by the car and defendant said 'Come on, let's go'. She saw the other car following the one she was driving.

A control record check made by Handeland upon his return to the store disclosed the garment taken was a woman's size large, patch work, multi-colored, leather coat valued at about $48.

Two or three days later defendant returned to the store and offered to pay Handeland for the coat, although he denied stealing it. The police had asked defendant to meet them at the police station. When Handeland mentioned payment would not terminate the prosecution, defendant said he would talk to the policeman first. The coat was neither returned nor paid for.

Seeking reversal of his conviction, defendant raises four issues which we treat in the divisions which follow.

I. Did trial court erroneously admit testimony relating to defendant's offer to pay for the coat?

Questions eliciting Handeland's testimony concerning defendant's offer to pay for the coat were timely objected to as calling for hearsay and an offer of civil compromise. The objection further asserted the evidence was no an admission.

We are convinced, however, this evidence was admissible as a quasi-admission against penal interest. State v. Ritchison, 223 N.W.2d 207, 212 (Iowa 1974); State v. Williams, 207 N.W.2d 98, 107--108 (Iowa 1973).

The exclusionary rule designed to exclude an offer of compromise in a civil case when tendered as an admission of weakness of opposing party's claim or defense is ordinarily not applicable in a criminal case, except in a plea-bargain situation. McCormick on Evidence § 274, at 664--665 (2d ed. 1972); 4 Wigmore on Evidence § 1061, at 46 (Chadbourn rev. 1972). The public policy of promoting compromise which lies behind the exclusionary rule in civil controversies has no application in the criminal law field where statutory safeguards against compounding felonies and offenses apply. See §§ 722.1, 722.2, 773.50, The Code. From the testimony concerning defendant's offer to pay for the coat, the jury could have inferred he had in fact stolen it and wanted to avoid prosecution for a public offense.

We find no merit in this ground advanced for reversal.

II. Was trial court correct in admitting evidence of a prior robbery conviction to impeach defendant as a witness?

Before presenting his evidence defendant asked for a ruling on 'the impeachment possibility'. Apparently prior discussions in chambers had gone unreported. Trial court, ascertaining defendant had prior felony convictions for robbery and carrying a concealed weapon, ruled the prosecutor might cross-examine defendant for impeachment on the robbery conviction but not that of carrying a concealed weapon.

Following this ruling, evidence of the robbery conviction was elicited on defendant's examination in chief. In not contending this waived any asserted error, the State was probably mindful of our consideration of this issue on its merits despite a claim of waiver in State v. Miller, 229 N.W.2d 762, 770 (Iowa 1975).

As we interpret it, defendant's argument has two facets. First, he argues we should further narrow our holding in State v. Martin, 217 N.W.2d 536 (Iowa 1974) to restrict impeachment to prior convictions bearing directly on defendant's credibility (such as perjury, fraud and deceit, and larceny by misrepresentation) or hold all such impeachment evidence violative of defendant's constitutional right to testify in his own defense. Passing the issue that the record does not disclose these grounds were urged below, we are not disposed to constrict application of § 622.17, The Code, further than we have in Martin, supra.

We have held a conviction for larceny reflects on veracity and, when all other Martin criteria are met, is available for impeachment purposes. State v. Conner, 241 N.W.2d 447, 454--455 (Iowa 1976); State v. Miller, supra, 229 N.W.2d at 769--770. We decline to hold that robbery, which in essence is larceny from the person with additional elements including force or violence or fear thereof, is any less reflective of defendant's veracity.

The second facet of defendant's argument seems to assert the robbery conviction is so similar to the charge of shoplifting its value for impeachment in this trial was outweighed by a substantial danger of undue prejudice. Defendant relies on a rationale articulated in People v. Delgado, 32 Cal.App.3d 242, 248--249, 108 Cal.Rptr. 399, 404--405 (1973), a decision cited in Martin, supra, 217 N.W.2d at 543.

We hold the probative value of a robbery conviction for impeachment purposes in a shoplifting trial is not outweighed by any likelihood that a jury will be led astray and convict an innocent man because of his bad record. See Martin, supra, 217 N.W.2d at 543. That danger is no more apparent here than it was in Miller, supra, where we approved (in a shoplifting trial) admission of four prior convictions: two for larceny in the nighttime, one for larceny and one for shoplifting.

Trial court did not abuse its discretion in admitting evidence of defendant's prior robbery conviction.

III. Was trial court right in refusing to examine the jurors to determine the possible prejudicial effect of a newspaper article published during trial?

Trial of this case commenced Monday, February 2, 1976. Apparently no evidence was taken until Tuesday morning, February 3. On the morning of February 4, defendant made an in-chambers record, introducing into evidence a news article which had appeared in 'Tuesday night's' February 3 issue of The Waterloo Daily Courier. Defendant argued this publication conveyed to the jury the impression defendant faced other criminal charges. Defendant moved for mistrial and, in support of that motion, requested the court to examine the jury 'based upon the following question: Have any of the jurors read the article concerning this matter which appeared in last night's Courier'.

The news release in question fairly summarized the evidence and trial progress to time of publication but in concluding, stated:

'In Monday's Courier, it was erroneously reported Burt is on trial in connection with the alleged theft of some record albums.

That theft involves the theft of 10 record albums from Penney's department store at the Cross Roads shopping center and is not connected with the Black's department store case now being tried.'

The State resisted, arguing ...