State v. Everett, No. 52203

CourtUnited States State Supreme Court of Iowa
Writing for the CourtSTUART; GARFIELD; LeGRAND
Citation157 N.W.2d 144
PartiesSTATE of Iowa, Appellee, v. Jerry Joe EVERETT, Appellant.
Decision Date05 March 1968
Docket NumberNo. 52203

Page 144

157 N.W.2d 144
STATE of Iowa, Appellee,
v.
Jerry Joe EVERETT, Appellant.
No. 52203.
Supreme Court of Iowa.
March 5, 1968.
Rehearing Denied June 10, 1968.

Page 145

L. M. Hullinger, and Margaret L. Beckley, Cedar Rapids, for appellant.

Richard C. Turner, Atty. Gen., William A. Claerhout, Asst. Atty. Gen., and Jack M. Fulton, Linn County Atty., for appellee.

STUART, Justice.

Jerry Joe Everett was charged on a county attorney's information in Linn County with the crime of larceny of a motor vehicle in violation of section 321.82, 1962 Code of Iowa. He was tried and convicted. He has appealed from the judgment of the trial court sentencing him to the state reformatory for an indeterminate period not to exceed ten years.

I. The first error assigned challenges the sufficiency of the evidence to support a conviction. Under such contention, we consider the evidence in the light most favorable to the state. State v. Frink, 255 Iowa 59, 64, 120 N.W.2d 432, 435; State v. Jackson, 251 Iowa 537, 541, 101 N.W.2d 731, 733.

As a witness for the state, Donald Good testified he operated a used car business in Cedar Rapids. On October 18, 1965 he owned a yellow and white 1955 four door Belair Chevrolet with green interior and bearing Kentucky license plates. It was on his used car lot. No other person had authority to allow anyone to take automobiles from the lot. He did not give defendant permission to drive this car. The keys to the car were in the office that evening and were still there the next morning, however the car could be started without a key. About midnight on the same date the police department informed him they had this car. His employee Greg Connor picked it up at the police station the next day and returned it to the lot.

Two police officers working as a team in an unmarked squad car testified they saw the above described automobile on the Cedar Rapids streets about 8:30 p.m. on October 18, 1965. It was later observed behind a tavern on First Street, N.E. About an hour later one person got into the car and drove it away. The officers followed it and on one occasion were close enough to identify the driver as Jerry Joe Everett. He stopped at another tavern and transferred some articles from the car to a station wagon. He was subsequently observed driving the car toward downtown Cedar Rapids at a high rate of speed. The patrolmen called for assistance after observing a traffic signal violation. The automobile was stopped by four other officers.

After defendant's motion for directed verdict was overruled, he testified in his own behalf. He recounted his activities that evening and admitted he was driving the car during the time and at the places

Page 146

testified to by the officers. He claimed he had borrowed it from Smiley Burns, a bar tender, and was returning from an errand for Burns when he was stopped.

Two of the officers who stopped defendant testified in rebuttal. Their observation of defendant's conduct at that time caused them to believe he had been drinking. They decided to take him to the police station for a sobriety test. Defendant first refused the officers permission to move the car out of the lane of traffic. Officer Ralston testified: 'We informed him that he could give us permission to move the car or we would have to have it towed out of the lane of traffic. He then told us that he would like to have the car taken to Good's used car lot. * * * he stated that he had gotten the car from a salesman at Good's car lot.'

On sur-rebuttal defendant denied having made such statements.

Defendant challenged the sufficiency of the evidence by a motion to direct a verdict at the close of the state's evidence, motion for directed verdict at the close of all evidence and by motion for new trial. We will consider all of the evidence as it is not reversible error for the trial court to refuse to direct a verdict at the close of state's evidence. State v. Mabbitt, 257 Iowa 1063, 1065, 135 N.W.2d 525, 527; State v. Kulow, 255 Iowa 789, 793, 123 N.W.2d 872, 875; State v. McLaughlin, 250 Iowa 435, 439, 94 N.W.2d 303, 305.

The verdict of the jury is binding upon us unless it is without substantial support in the record or is clearly against the weight of the evidence. State v. Frink, 255 Iowa 59, 64, 120 N.W.2d 432, 435.

Defendant argues there is no evidence he took the car with intent to keep it and wrongfully convert it to his own use. State's evidence disclosed defendant did not own the automobile. It was taken from the owner's premises without his consent. Defendant was apprehended driving the automobile on the streets of Cedar Rapids the same evening. The unexplained possession of recently stolen property justifies an inference of guilt of the possessor. State v. Girdler, 251 Iowa 868, 873, 102 N.W.2d 877, 879. Defendant argues his explanation of his possession of the car and the fact that he made no attempt to conceal it prove he had no intent to steal. This is a jury argument. It is the province of the jury to pass upon defendant's explanation of his possession of the recently stolen automobile. State v. Prentice, 192 Iowa 207, 214, 183 N.W. 411. There was sufficient evidence to generate a jury question on defendant's guilt of the crime charged. State v. Register, 253 Iowa 495, 498, 112 N.W.2d 648, 649; State v. Jackson, 251 Iowa 537, 545, 101 N.W.2d 731, 736; State v. Girdler, supra; State v. Sweetman, 220 Iowa 847, 849, 263 N.W. 518, 519; State v. Prentice, supra.

II. Defendant claims his constitutional rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution were violated when the police were permitted to testify on rebuttal as to statements made by defendant when at the scene of his arrest for a traffic violation to the effect that the car should be returned to Good's lot and that he had been given permission to drive it. At that time he had not been advised of his right to counsel or right to remain silent.

The trial took place in January, 1966 prior to the opinion in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (June 13, 1966) which set forth certain rules to be observed in custodial police interrogations. The opinion was not applied retroactively by the Supreme Court. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. We have also declined to do so. State v. Hardesty, Iowa, 153 N.W.2d 464, 469; State v. Kuliish, 260 Iowa 138, 148 N.W.2d 428, 434; State v. Rye, 260 Iowa 146, 148 N.W.2d 632, 638; State v. Allison, 260 Iowa 176, 147 N.W.2d 910, 912.

Page 147

There was no violation of defendant's constitutional rights ias interpreted prior to Miranda. State v. Myers, 258 Iowa 940, 943, 140 N.W.2d 891, 893; State v. Fox, 257 Iowa 174, 178, 131 N.W.2d 684, 686. We do not mean to suggest the facts here show a violation of the Miranda rules. The statements were made as a part of the res gestae at the time defendant was under arrest for a traffic violation. Statements made under such circumstances are not rendered inadmissible because defendant had not received the Miranda warnings. Hill v. State, Tex.Cr.App., 420 S.W.2d 408; Morris v. State, 157 Tex.Cr.R. 14, 246 S.W.2d 184. Police were not then conducting an incustody interrogation.

III. On cross-examination defendant was asked if he had ever been convicted of a felony. He answered in the affirmative. By exception to instruction and in his motion for new trial, defendant raised constitutional objections to this procedure claiming it deprived him of due process of law and a fair and impartial trial guaranteed him under the Fifth and Fourteenth Amendments to the United States Constitution. He relies primarily on Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, in which the Supreme Court held comment on defendant's failure to testify violated the Self-Incrimination Clause of the Fifth Amendment.

'It is a well established rule in this state that, when a defendant in a criminal case is a witness in his own behalf, he stands upon the same footing as any other witness, in so far as his memory, history, motives or matters affecting his credibility are concerned.' State v. Voelpel, 208 Iowa 1049, 1050, 226 N.W. 770, 771; State v. Allnutt, Iowa, 156 N.W.2d 266, filed Feb. 6, 1968; Gaskill v. Gahman, 255 Iowa 891, 896, 124 N.W.2d 533; State v. Haffa, 246 Iowa 1275, 1283, 71 N.W.2d 35, 40.

Section 622.17, Code of Iowa provides: 'A witness may be interrogated as to his previous conviction for a felony. * * *' We have long held a defendant who takes the stand in his own behalf may be...

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33 practice notes
  • State v. Conner, No. 57552
    • United States
    • United States State Supreme Court of Iowa
    • April 14, 1976
    ...defendant put his credibility in issue. His credibility could be tested under the standard applicable to all witnesses. State v. Everett, 157 N.W.2d 144, 147 (Iowa 1968). The trial court did not abuse its discretion in admitting evidence of his prior felony V. Admission of a photograph of t......
  • Brainard v. State, No. 2--56775
    • United States
    • United States State Supreme Court of Iowa
    • October 16, 1974
    ...motor vehicle without the owner's consent under Code § 321.76. Compare State v. Hawkins, 203 N.W.2d 555 (Iowa 1973) and State v. Everett, 157 N.W.2d 144 (Iowa 1968), with In re Champion, 221 N.W.2d 773 (Iowa 1974), filed September 18, 1974. The distinction is reflected in a nine-year differ......
  • State v. Osborn, No. 54973
    • United States
    • United States State Supreme Court of Iowa
    • September 19, 1972
    ...of recently stolen property may give rise to an inference of the guilt of the possessor of the crime of larceny. State v. Everett, 157 N.W.2d 144 (Iowa 1968). Section 708.1, The Code, does not permit conviction upon proof alone of Osborn's possession of the items stolen from the Rock home n......
  • State v. Hackett, No. 55158
    • United States
    • United States State Supreme Court of Iowa
    • September 19, 1972
    ...and McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971) support the majority position. See also State v. Everett, 157 N.W.2d 144, 147 (Iowa 1968). No other objection was made. I therefore concur in the opinion and However, I believe this case presents an appropriate o......
  • Request a trial to view additional results
33 cases
  • State v. Conner, No. 57552
    • United States
    • United States State Supreme Court of Iowa
    • April 14, 1976
    ...defendant put his credibility in issue. His credibility could be tested under the standard applicable to all witnesses. State v. Everett, 157 N.W.2d 144, 147 (Iowa 1968). The trial court did not abuse its discretion in admitting evidence of his prior felony V. Admission of a photograph of t......
  • Brainard v. State, No. 2--56775
    • United States
    • United States State Supreme Court of Iowa
    • October 16, 1974
    ...motor vehicle without the owner's consent under Code § 321.76. Compare State v. Hawkins, 203 N.W.2d 555 (Iowa 1973) and State v. Everett, 157 N.W.2d 144 (Iowa 1968), with In re Champion, 221 N.W.2d 773 (Iowa 1974), filed September 18, 1974. The distinction is reflected in a nine-year differ......
  • State v. Osborn, No. 54973
    • United States
    • United States State Supreme Court of Iowa
    • September 19, 1972
    ...of recently stolen property may give rise to an inference of the guilt of the possessor of the crime of larceny. State v. Everett, 157 N.W.2d 144 (Iowa 1968). Section 708.1, The Code, does not permit conviction upon proof alone of Osborn's possession of the items stolen from the Rock home n......
  • State v. Hackett, No. 55158
    • United States
    • United States State Supreme Court of Iowa
    • September 19, 1972
    ...and McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971) support the majority position. See also State v. Everett, 157 N.W.2d 144, 147 (Iowa 1968). No other objection was made. I therefore concur in the opinion and However, I believe this case presents an appropriate o......
  • Request a trial to view additional results

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