State v. Carey

• Decision Date: 11 February 1969
• Docket Number: No. 52942,52942
• Citation: 165 N.W.2d 27
• Parties: STATE of Iowa, Appellee, v. James Schofield CAREY, Appellant.
• Court: Iowa Supreme Court

Page 27

165 N.W.2d 27

STATE of Iowa, Appellee, v. James Schofield CAREY, Appellant.

No. 52942.

Supreme Court of Iowa.

Feb. 11, 1969.

Richard L. Pinegar and Norman G. Jesse, of Des Moines, for appellant.

Richard C. Turner, Atty. Gen., and William A. Claerhout, Asst. Atty. Gen., for appellee.

LeGRAND, Justice.

Defendant appeals from judgment following his conviction of the crime of aggravated burglary as defined in sections 708.1 and 708.2, Code of Iowa, 1966. We reverse and remand for a new trial.

The charge arose out of an incident in Harlan, Iowa, on the evening of October 29, 1966, when defendant is alleged to have invaded the home of Robert Musich armed with a dangerous weapon--a blackjack--with intent to commit an assault.

On the date in question Robert Musich was employed by Western Pork Company, where a strike was in progress by members of United Packinghouse Workers of America. Defendant, an employee of Oscar Mayer & Co. at Perry, Iowa, was a member of that union; Musich was not. During the strike Musich continued working and crossed the picket lines each day.

Although Musich is distantly related to defendant's wife, the two men did not know each other. Because of the relationship, however, several members of the striking union suggested defendant should talk to Musich about honoring the picket lines.

Defendant went to Musich's home at approximately 8:00 P.M. on the evening of October 29. Musich, his wife and two children were there. Defendant knocked on the screen door and, when Mr. Musich answered, asked permission to come in the house. Although the testimony is in dispute, the State's evidence shows no verbal consent to enter was given. There is evidence, however, that Mr. Musich opened the door and defendant thereupon entered. How wide it was opened and whether this was an implied invitation to enter are matters of bitter disagreement. They will be discussed later.

In any event defendant contends he had permission, either express or implied, to enter the house. He argues this is a complete defense to the charge of burglary, since that crime under the facts of this case requires proof of an illegal entry. Section 708.1, Code of Iowa, 1966.

Defendant assigns four errors for our consideration. The first deals with prejudice alleged to have resulted from the misconduct of the bailiff during trial; the second with misconduct of the county attorney in the cross-examination of defendant; the third with failure of the trial court to sustain defendant's motion for directed verdict on the ground of insufficiency of evidence; and the fourth with objections to Instructions #10 and 14 relating to the issue of consent in defining the elements of breaking and entering.

I. Defendant first alleges misconduct on the part of the bailiff who was in charge of the jury. He claims this misconduct was sufficiently prejudicial to justify a new trial.

Trial of this case began on March 13, 1967, and on that day coffee was furnished in the jury room without charge. As far as the record shows the source of this gratuity was not then apparent to the jury.

The following morning when defendant's counsel arrived at the courthouse he noticed a coffee service set up in the jury room with a typewritten sign as follows:

'Coffee will be furnished in the jury room by the county clerk and the county attorney.'

He immediately asked for a mistrial, which was overruled after a hearing at which the bailiff testified concerning the circumstances surrounding this incident.

From this testimony it appears that the bailiff had purchased the coffee, although the county attorney apparently intended to reimburse her for it; that it was available for all in the courthouse who cared to enjoy it; and that the sign to which defendant objected was placed there without the consent or knowledge of the county attorney.

The trial court found the practice to be objectionable but denied a mistrial presumably because it was improbable that prejudice had resulted therefrom. We have consistently held misconduct with respect to the jury, whether it be by litigant, counsel or officer of the court, will not be grounds for a new trial unless prejudice is shown. 24B C.J.S. Criminal Law § 1926a, page 237; State v. Poffenbarger, 247 Iowa 552, 556, 557, 74 N.W.2d 585, 587, 588, and citations; State v. Faught, 254 Iowa 1124, 1133, 1134, 120 N.W.2d 426, 431, 432.

We are, however, confronted with another equally well-established rule in considering this error--that the jury is to be above suspicion and that any practice which brings its proceedings under suspicion is to be prohibited. While we absolve the county attorney of any misconduct in this regard since he was unaware of what happened, the result unfortunately is nevertheless the same. As far as the jury was concerned, coffee Was furnished with the compliments of the prosecutor for the State.

No one contends any juror here was corrupted for the price of a cup of coffee, but we along with all courts have zealously guarded the utter independence of jurors. For that reason we have criticized the conduct of a sheriff and his deputies, who were also witnesses in the case, who transported the jury to a restaurant where they ate together, State v. Faught, supra; a county attorney who gave jurors transportation during the trial, State v. Neville, 227 Iowa 329, 331, 288 N.W. 83, 84; an important witness who rode to the courthouse with a juror, Chicago Joint Stock Land Bank v. Eggers, 214 Iowa 710, 711, 243 N.W. 193; a defendant who drove a juror to the poor farm during a recess and invited him to dine with him, Lynch v. Kleindolph, 204 Iowa 762, 764, 216 N.W. 2, 3, 55 A.L.R. 745.

In Stafford v. City of Oskaloosa, 57 Iowa 748, 752, 11 N.W. 668, 670, a motion for new trial was sustained because of alleged misconduct of a juror who visited with one of the attorneys during the trial and spent the night with the attorney and his family, although it was shown the case was not discussed. There we said, 'We discover no evidence authorizing the conclusion that either the juror or the attorney intended any wrong. The good character and high respectability of neither are questioned.

'We are united in the opinion that the verdict ought not to stand, in view of the transactions and associations between the attorney and juror while the trial was pending. It would be extremely unsafe, for the pure and correct administration of the law, through trial by jury, to permit such transactions. * * *

'To sanction the transaction in question would bring disgrace upon the administration of the law. There is absolute safety in the rule we adopt; there is danger in a different one.'

In Lynch v. Kleindolph, supra, at page 764 of the Iowa Reports, 216 N.W. at page 3 we said, 'The question involved herein (a social engagement between defendant and one of the jurors) is of a more serious character than would appear at first blush. There is probably no more interesting or fascinating question involved in the history of courts than the origin and development of the jury system. It is one of the most vital elements of our system of government. So far as the average citizen is concerned, he is less in touch with the executive and legislative department. When he is confronted with private or public differences, he naturally turns to the courts for relief. His faith in the courts must be encouraged. When the time comes that our people lose faith in the courts, our form of government is fast nearing its end. * * * That faith can only be sustained by keeping our judicial proceedings not only free from wrong, but free from all suspicion of wrong. In other words, all our court proceedings should be like Caesar's wife--'above suspicion'.' (Emphasis added.)

Recently we had occasion to consider this question again in a civil case where it was claimed prejudicial error resulted because the trial judge called the foreman of the jury into his chambers and there carried on a conversation with him privately during the jury deliberations. We held this required a new trial. Daniels v. Bloomquist, 258 Iowa 301, 306, 138 N.W.2d 868, 872. We said there, 'In order that the institution of jury trials be preserved and its usefulness continued, its deliberations and pronouncements must be kept pure, and untainted, not only from all improper influences, But from the appearance thereof. It is often said that the jury trial is one of the bulwarks of our liberty, but it will remain so only as long as public confidence in the institution prevails. * * *

'Whether or not injury or injustice have resulted to the litigants by reason of the conduct, is not our primary concern. Rather, our concern is with the implication that attaches to the administration of justice under these circumstances. Confidence in our judicial system is imperiled if such conduct is countenanced in jury trials. Conduct which if proved would give rise to doubt and disrespect, or the mere appearance of such conduct as will not meet with the approval of public opinion, must be severely condemned. * * *' (Emphasis added.)

We reiterate those sentiments here. Our anxiety to protect the jury from any conduct which would lessen public confidence in our judicial system should be even greater in a criminal trial.

All blandishments, or apparent blandishments, all attempts to ingratiate one side or the other with the jury must be prevented. The fact that today it was only a cup of coffee is immaterial, for tomorrow something of perhaps greater value might be tendered. Likewise the fact that the conduct here was innocent is immaterial. The effect upon the jury and upon any member of the public who might become familiar with it was the same as if it had been an intentional attempt to secure favor with those persons who were even then in the process of passing upon the guilt or innocence of a man accused of a serious crime.

Certainly we would not permit the Defendant to furnish any honorarium to...