State v. Carter

• Decision Date: 15 October 1968
• Docket Number: No. 52701,52701
• Citation: 161 N.W.2d 722
• Parties: STATE of Iowa, Appellee, v. Larry CARTER, Appellant.
• Court: Iowa Supreme Court

Page 722

161 N.W.2d 722

STATE of Iowa, Appellee, v. Larry CARTER, Appellant.

No. 52701.

Supreme Court of Iowa.

Oct. 15, 1968.

Rehearing Denied Dec. 10, 1968.

Allen L. Donielson and Nolden Gentry, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., William A. Claerhout, Asst. Atty. Gen., and Raymond A. Fenton, County Atty., Des Moines, for appellee.

MOORE, Justice.

On February 9, 1967 defendant, Larry Carter, was indicted in Polk County charged with the crime of assault with intent to commit murder in violation of section 690.6, Code, 1966, to which he entered a plea of not guilty. On trial the jury returned a verdict finding him guilty of the included offense of assault with intent to commit manslaughter. April 10, 1967 the trial court sentenced him to be confined in the State Penitentiary at Fort Madison for a period not to exceed five years as authorized under section 694.5, Code, 1966. Defendant has appealed. We affirm.

The three questions presented on this appeal are whether (1) there was probable cause for issuance of a warrant for search of defendant's automobile, (2) instruction 13 on alibi was erroneous and prejudicial and (3) the trial court erred in allowing into evidence an unspent bullet found upon search of defendant's automobile.

About 5:30 p.m., December 23, 1966 Detective Nolan Nicholls and other Des Moines police officers received a police radio report the Globe Loan Company at East Euclid and Wright Streets had been held up. About 5:34 p.m. while enroute to the scene Nicholls heard another radio report concerning a shooting near the Seneca Pharmacy located seven and a half blocks from Globe Loan. Immediately thereafter the police radio dispatcher broadcast a description of the Globe Loan robber as a man wearing a hooded jacket with a burlap face mask stuffed in around the corners of the hood, also wearing gloves and dark clothing. Next came a description of the man who had done the shooting as a colored male driving a white Chrysler product.

Upon arriving at Blobe Loan Detective Nicholls learned the robber had given the assistant manager a brown paper sack in which to place the money and had used a pistol. Thereafter Nicholls went to the Seneca Pharmacy at East 14th and Seneca Ave., where he talked to the victim of the attempted shooting, Mrs. Rose Marasco, and also a witness to the incident, Mrs. Pam Zug.

Mrs. Marasco related that as she drove her car into the south parking lot near the rear entrance of the pharmacy she noticed a light colored car parked at an angle to her left next to which a colored man of medium build and complexion was standing staring at her. While walking toward the pharmacy's rear entrance she happened to glance back over her shoulder and observed the same man pointing a pistol at her. About this time he fired a shot at her which luckily missed its mark. Mrs. Marasco ran quickly into the pharmacy where a pharmacist found her in a nearly hysterical condition.

Mrs. Pam Zug while walking to the pharmacy from her nearby apartment heard a loud sharp noise and observed what she described as a white Dodge Dart with the left taillight reflector broken out speeding out of the parking lot. She then entered the pharmacy and found Mrs. Marasco crying and extremely upset.

Detective Nicholls conducted an efficient search of the area near the shooting and found a .32 S & W lead bullet wedged between the sill and plate glass of a pharmacy window.

Des Moines Police Lieutenant Arthur W. Ferguson arrived on the scene in time to hear Mrs. Zug describe the white Dodge Dart. He immediately broadcast the description and shortly thereafter received a call from a fellow officer stating that defendant, Larry Carter, owned a vehicle fitting the description. Feeguson proceeded to defendant's residence at 909 East 17th Street but the car was not in sight.

After patrolling the nearby area for ten or twelve minutes Ferguson returned to find defendant backing his light colored Dodge Dart with its broken left rear reflector out of the driveway. As Ferguson approached, the defendant, a colored man of medium build and complexion, alighted from his vehicle and Ferguson asked him for his driver's license. At this time the officer noted a brown paper sack stuffed down in the front seat of defendant's automobile and also observed a burlap string hanging behind defendant's left ear. Following defendant's denial of his request to search the car Ferguson put defendant in the squad car and made a radio call requesting assistance and a search warrant for defendant's car and residence.

Detective Nicholls then went to the home of a municipal judge and submitted to him a search warrant application and stated the facts as known and related to him, including Ferguson's report.

In searching defendant's Dodge Dart, as authorized by the search warrant issued by the municipal judge, the officers found an unspent .32 S & W caliber bullet in the front seat.

Before trial defendant filed a motion to suppress and a motion in limine seeking to bar the State from all inquiry concerning the .32 S & W caliber unspent bullet. On hearing of these motions Officers Nicholls and Ferguson testified to the facts as set out above. Nicholls also testified he considered both the robbery and the assault were committed by the same person and that information on one crime would be logically applied to the other.

Both motions were overruled by the trial court and the bullet found in defendant's car was identified and admitted in evidence on trial. A ballistics expert testified it and the bullet found at the pharmacy were of the same caliber. Defendant testified he had a box of such bullets or shells at his home. He denied he still owned the gun in which they could be used on the day of the shooting.

I. Defendant's first assigned error is limited to his claim there was not probable cause for the search warrant and therefore the evidence regarding the unspent bullet should have been suppressed and not admitted in evidence.

A search warrant, of course, cannot be issued unless upon probable cause supported by oath or affirmation. Amendment 4, United States Constitution; Article I, section 8, Iowa Constitution.

The challenge of want of probable cause is familiar to us. We have discussed at length the questions surrounding search warrants and probable cause in State v. Hall, 259 Iowa 147, 151--153, 143 N.W.2d 318, 321; State v. Lampson, 260 Iowa 806, 149 N.W.2d 116, 118, 119; State v. Oliveri, Iowa, 156 N.W.2d 688, 690, 691, in each of which we quote this from United States v. Ventresca, 380 U.S. 102, 107, 108, 85 S.Ct. 741, 745, 746, 13 L.Ed.2d 684, 688, 689: 'While a warrant may issue only upon a finding of 'probable cause,' this Court has long held that 'the term 'probable cause' * * * means less than evidence which would justify condemnation.' Locke v. United States, 7 Cranch 339, 348, 3 L.Ed. 364 (367), and that a finding of 'probable cause' may rest upon evidence which is not legally competent in a criminal trial. Draper v. United States, 358 U.S. 307, 311, 79 S.Ct. 329, 332, 3 L.Ed.2d 327 (331). As the Court stated in Brinegar v. United States, 338 U.S. 160, 173, 69 S.Ct. 1302, 1309, 93 L.Ed. 1879 (1889). 'There is a large difference between the two things to be proved (guilt and probable cause), as well as between the tribunals which determine them, and therefore a like difference in the quanta and modes of proof required to establish them.' Thus hearsay may be the basis for issuance of the warrant 'so long as there * * * (is) a substantial basis for crediting the hearsay.' Jones v. United States, supra, 362 U.S. (257), at 272, 80 S.Ct. (725), at 736 (4 L.Ed.2d 697) at 708, 78 A.L.R.2d 233). And, in Aguilar we recognized that 'an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant,' so long as the magistrate is 'informed of some of the underlying circumstances' supporting the affidant's conclusions and his belief that any informant involved 'whose identity need not be disclosed * * * was 'credible' or his information 'reliable. " Aguilar v State of Texas, supra, 378 U.S. (108), at 114, 84 S.Ct. (1509), at 1514 (12 L.Ed.2d 723 at 729).

'These decisions reflect the recognition that the Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.'

Probable cause for the issuance of a search warrant exists where the facts and circumstances within the affiant's knowledge, and of which he has reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable cause to believe an offense has been or is being committed. State v. Oliveri, supra, Iowa, 156 N.W.2d 688, 690 and citations.

Applying these now well established principles to the facts as we review them, we conclude defendant's first assignment of error is without merit. The trial court was correct in overruling defendant's motion to suppress and his motion in limine.

II. Defendant as required by section 777.18, Code, 1966, filed notice he would rely on an alibi.

On trial, defendant, his mother and a brother gave testimony from which the jury could have found he was at 909 East 17th Street, Des Moines, Iowa, his mother's home, when the shooting offense occurred.

Defendant's printed...