State v. Evans

• Decision Date: 10 June 1969
• Docket Number: No. 53070,53070
• Citation: 169 N.W.2d 200
• Parties: STATE of Iowa, Appellee, v. Monroe Harold EVANS, Appellant.
• Court: Iowa Supreme Court

Page 200

169 N.W.2d 200

STATE of Iowa, Appellee, v. Monroe Harold EVANS, Appellant.

No. 53070.

Supreme Court of Iowa.

June 10, 1969.

Phillip S. Dandos and Ray N. Berry, Sioux City, for appellant.

Richard C. Turner, Atty. Gen., William A. Claerhout, Asst. Atty. Gen., Edward F. Samore, County Atty., Alvin Hayes, Jr., Asst. County Atty., for appellee.

BECKER, Justice.

Defendant was tried and convicted of the crime of robbery with aggravation. He was sentenced to 25 years in the State Penitentiary at Fort Madison and now appeals. We reverse and remand for new trial.

I. One of defendant's complaints is failure to grant a motion for a directed verdict. We consider the evidence for such purpose in the light most favorable to the State. State v. McClelland, Iowa, 164 N.W.2d 189, 197.

The robbery for which defendant was tried and convicted occurred in Sioux City, Iowa at about 8:25 p.m. on May 25, 1967 at Solomon's I.G.A. Grocery Store. The robber walked into the store, proceeded down the aisle to the gondolas where the customers were and returned to the cash register. He held a .38 caliber snubnosed revolver on Mr. Solomon, told him to open the cash register and hand over the 20's, 10's and 5's but no silver. Solomon complied. The robber also demanded and took Mr. Solomon's wallet containing credit cards, other identification and left the building.

Eugene Chan, an employee, was working in the store at the time but didn't see the actual holdup. He did observe the robber as he walked down the aisle. He described the robber as follows: 'He was wearing black gloves and he had dark clothing on. He had kind of light brown hair, he was not wearing a hat; I don't remember anything else about his appearance; when I first saw him he was looking east down the aisle.'

At the trial both witnesses identified defendant as the robber. Defendant has had four fingers of his left hand amputated. This fact did not directly affect the identification as the robber wore gloves as indicated. Evidentiary problems connected with these identifications are discussed below.

II. Defendant was arrested near Miles City, Montana when he cashed a check in the presence of a station attendant and deputy sheriff Victor Adrian, with a credit card issued to Maurice Solomon as identification. The station attendant phoned the bank and determined there was no account for the check. The deputy then pursued defendant, overtook him about 15 miles out of Miles City and took defendant to the county jail. No formal arrest was made.

Defendant's automobile was locked and left on the highway where defendant was apprehended. At the sheriff's office Adrian told defendant they would have the car towed in or he (Adrian) would drive it. Defendant threw Adrian the keys and said, 'Here, you can drive it in.' Adrian brought the car into the city. When he went back to lock the car Adrian took a credit card from a clear plastic visor just above the driver's position. He had previously noticed the card when it was used at the station and when he drove the car into town.

Defendant identified himself at the sheriff's office as Maurice Solomon. Teletype inquiry was put out under this name, the Sioux City authorities isued a warrant for defendant's arrest, and Iowa authorities came to Miles City, Montana. Defendant waived extradition and was returned to Sioux City.

Defendant contends the identifications by Solomon and Chan were so weak as to require a directed verdict of not guilty. We do not agree. The weight of the testimony was for the jury.

We have carefully considered the admissible evidence in the record and find the State generated a jury question on the issue of defendant's guilt. In State v. McClelland, supra, we said: 'The quality of evidence necessary to convict, whether it be circumstantial or direct, must be sufficient to raise a fair inference of guilt. It must generate something more than suspicion, speculation or conjecture. State v. Myers, 253 Iowa 271, 274, 111 N.W.2d 660, 662; State v. Daves, 259 Iowa 584, 586, 144 N.W.2d 879, 881.

'In a criminal case, however, the cause should be submitted to the jury and the court should not direct a verdict of acquittal if there is any substantial evidence reasonably tending to support the charge. State v. Miskell, 247 Iowa 678, 686, 73 N.W.2d 36, 41; State v. Horrell, 260 Iowa 945, 151 N.W.2d 526, 529.' (loc. cit. 164 N.W.2d at page 197).

III. However, other assigned errors impel reversal of this case and remand for retrial. Defendant gave notice of alibi and produced testimony in connection with his alibi claim. The court gave substantially the same instruction in this case as was given in State v. Galloway, Iowa, 167 N.W.2d 89, 95, 96. We there held: '* * *. The court gave the previously approved alibi instruction. It placed on defendant the burden of establishing the defense of alibi by the greater weight of the evidence bearing upon it. * * *

'Pursuant to these pronouncements and mandates by the United States courts the alibi instruction can no longer be approved. In this case timely exceptions were taken and preserved.

'The Supreme Court of the United States in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, said: '* * * a change in law will be given effect while a case is on direct review * * *.'

'The matter comes before us for direct review by appeal subsequent to the pronouncements in Stump, supra (Stump v. Bennett, 398 F.2d 111), and accordingly the case must be reversed and remanded.'

On the authority of State v. Galloway, supra, this case must be reversed and remanded for new trial. We should note State v. Galloway was decided after the instant case was tried.

IV. Defendant took the stand in his own behalf. The court's instruction in connection with defendant's testimony will not be repeated here in full. It was similar in form to the instructions approved in State v. Ford, 259 Iowa 744, 145 N.W.2d 638, but recently held to constitute reversible error in State v. Bester, Iowa, 167 N.W.2d 705 (decided April 6, 1969). The instant instruction contained the following sentence not found in the State v. Bester instruction: 'You should consider and treat him the same as any other witness in the case, and after considering all the facts and circumstances you will then determine whether or not such testimony is given in good faith or only for the purpose of avoiding a conviction, and you will give it such weight and credit as in your sound judgment you deem it to be entitled to.'

The State argues defendant's objection was insufficient to preserve the error. We need not decide the point. The case must be retried for the reasons stated in Division III. The trial court will be guided by State v. Bester, supra, in drawing its instructions for a new trial and the matter will not arise again in this case.

V. In view of the remand for retrial it is necessary to consider other errors assigned by defendant. Upon return to Iowa a preliminary hearing was set for July 18, 1967. Defendant had his own attorney but later requested court appointed counsel. The request was granted. After several continuances at defendant's request, the hearing was held and he was bound over to await action of the grand jury on August 11, 1967. On September 6, 1967 a county attorney's information was filed charging defendant with robbery with aggravation.

Defendant made numerous motions, some through his attorney and some acting for himself. These motions were all overruled except for a motion to submit the matter to the grand jury. The court acquiesced in the latter motion. Upon submission the grand jury returned an indictment charging the same crime. Thereupon defendant moved to dismiss the indictment on several grounds.

First, defendant claims he was denied a speedy trial. Because of chapter 400, section 148 and 244, Acts of the Sixty-second General Assembly, (1967) which changed the time for convening the grand jury from a time fixed in relation to terms of court to quarterly meeting dates, the grand jury did not meet in Woodbury County in September. Defendant was properly informed against within thirty days and the case was set for trial. It was at his own insistence that the matter was delayed to await the action of the grand jury which met in October. Defendant was promptly indicted.

After numerous motions filed by defendant were disposed of trial commenced on November 27, 1967. The delays were wholly due to various technical defenses raised by defendant and no demands were made as provided in sections 795.1 and 795.2, Iowa Code, 1966. There was no denial of a speedy indictment or speedy trial. State v. Johnson, Iowa, 167 N.W.2d 696 (decided May 6, 1969).

VI. Defendant also complains the trial court erred in impaneling of the grand jury in the absence of defendant's attorney. When the grand jury had gathered, defendant was brought before them to exercise his rights to challenge the panel. His attorney was not present and he asked for delay until his court-appointed attorney was present. The court refused the delay after asking if the attorney knew the grand jury was to be impaneled at that time and receiving an affirmative answer.

It would have been better had the court granted defendant's request but under all of the circumstances shown here we hold failure to delay proceedings until defendant's attorney could be called was not prejudicial error.

The United States Supreme Court, in examining claimed violations of constitutional rights, adheres in some types of cases to the 'totality of circumstances' doctrine. Cf. Mempha v. Rhay, 389 U.S. 128, 88 S.Ct 254, 19 L.Ed.2d 336 (Nov. 1967), (involving revocation of parole) where the total circumstances were examined but the phrase was not used. Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (Nov. 1968), (police lineup procedure) where the phrase is used.

The error claimed here does not reach constitutional dimensions when the...