State v. Harmon, 58371

• Decision Date: 21 January 1976
• Docket Number: No. 58371,58371
• Citation: 238 N.W.2d 139
• Parties: STATE of Iowa, Appellee, v. Herman (NMN) HARMON, Appellant.
• Court: Iowa Supreme Court

Page 139

238 N.W.2d 139

STATE of Iowa, Appellee, v. Herman (NMN) HARMON, Appellant.

No. 58371.

Supreme Court of Iowa.

Jan. 21, 1976.

John W. Ackerman, Cedar Falls, for appellant.

Richard C. Turner, Atty. Gen., Earl W. Roberts, Asst. Atty. Gen., and David J. Dutton, County Atty., for appellee.

Heard by MOORE, C.J., and MASON, LeGRAND, HARRIS and McCORMICK, JJ.

McCORMICK, Justice.

Defendant appeals his conviction and sentence for robbery with aggravation in violation of § 711.2, The Code. He contends the trial court erred in two evidentiary rulings and in finding the evidence sufficient for jury consideration. We find no merit in his contentions and affirm the trial court.

This offense allegedly occurred on Thursday, January 23, 1975, at about 7:00 p.m. The State asserts that at that time the defendant and two other black males, Bobby Cage and John Kidd, robbed at gunpoint the Shamrock Tap in Waterloo and several of its patrons. The State also claims that Corby Kidd, wife of John Kidd, was an accomplice, having been in the tavern a few minutes before the robbery for the purpose of 'casing it'. None of these persons testified at the trial. Identification of the three men who perpetrated the robbery depended upon circumstantial evidence.

We recite the evidence in its light most favorable to the verdict. See State v. Staker, 220 N.W.2d 613, 617--618 (Iowa 1974).

The State's key witness was Angela Love. On the date of the robbery she and her three-year-old son resided with Edgar Gibson in a Waterloo apartment. She was acquainted with the Kidds, Cage, and defendant. In the late afternoon on the day involved she and her son accompanied Gibson when he drove to Lindbergh's Tavern on Sumner Street, just off East Fourth Street, in Waterloo, looking for Cage. Gibson went into the tavern and came out with Cage, the Kidds, and defendant. They stood near the Gibson car and talked. Love could not hear all that was said but did hear Gibson ask Cage 'what he was going to be doing later' and heard Cage say 'he was going to make some money'. She said Cage asked Gibson what he was going to do 'and Edgar said he was going home. And we left.' She testified that she, Gibson, and her son then returned to their apartment where they remained until evening.

Ellen Stocks, bartender at the Shamrock Tap, testified to Corby Kidd's visit to the tavern shortly before the robbery. She said that at about ten minutes to seven Corby Kidd, identified by the witness from a photograph, entered the tavern, went to the waitress stall at the middle of the bar, purchased a 7-up, and looked over the people in the tavern. Then she left.

Events during the robbery must be reconstructed piecemeal from the testimony of Stocks and several patrons of the tavern. When so reconstructed, the following picture appears.

A few minutes after Corby Kidd left, three black males entered the tavern. All were armed and wearing ski masks. Two of them entered from the rear and one from the front. One who entered from the rear wore a gray flannel coat and gray denim pants which had a chevron pattern. He held a 410 bolt-action shotgun on the bartender. There was black tape on the handle of the shotgun. The second man who entered from the rear wore a green army jacket. He had a handgun, and he went forward to remove the money from the cash register. The man who entered the tavern from the front wore plaid slacks. He carried a handgun. The two men who entered from the rear were slender and about six feet or six feet one in height. The man who entered from the front was shorter.

About a dozen patrons were in the tavern. All were in booths except two, who were on barstools near the front. As the robbers entered, one said, 'All right, everyone on the floor.' When Edwin Schmidt, sitting on a barstool, did not respond fast enough, the robber at the front of the tavern knocked him and the barstool to the floor and said, 'You motherfucker, get down on the floor.' A woman who had been on a barstool moved toward a pool table and got down near or under it. The robber who knocked Schmidt off the barstool put his gun next to the head of a man sitting in a booth with his wife and daughter and told him to get on the floor. The daughter let out a scream and was quieted by her mother.

Money was taken from the cash register and from the patrons. The men were in the tavern a total of one to five minutes. Then they all ran out the rear of the tavern where a witness saw them heading south. The tavern was at 737 Logan Street. John Kidd's mother's home was several buildings south on the same block at 703 Logan.

Love said she and Gibson left their apartment after having been there an hour or so and drove back toward Lindbergh's to look for Cage. She said it was then early evening; it was dark. As they proceeded on East Fourth Street toward Lindbergh's they saw Corby Kidd, alone, driving a 1975 blue Maverick in the opposite direction. Corby honked and pulled into a service station drive. Gibson drove alongside. Corby told Gibson that Cage wanted to see him. She said 'Follow me'. Gibson followed Corby in his automobile to a nearby house. Gibson and Corby entered and returned to the cars in a few minutes, accompanied by Cage, John Kidd, and defendant. The three men got in the Gibson vehicle. Both cars were driven to the Gibson apartment.

When they arrived at the apartment, the four men and Corby Kidd went to the living room, and Love went to the adjacent kitchen. While in the kitchen Love said she heard a conversation which took place among those in the living room. Then she testified as follows:

'Q. Now, what were their exact words? What exactly did you hear said? A. He--somebody, I don't know who it was--

Q. Now, who was it? Was it a man or a woman? A. It was a man.

Q. Okay. Go ahead and say exactly what the person said, the man said. A. He said, 'I hit this motherfucker and knocked him off the barstool.'

Q. Okay. And do you recall what else was said by anyone in the living room at that time? A. Somebody said something about it works better with three guys than two guys.

Q. It works better with three guys than two guys? A. Yeah.

Q. Okay. And did they say anything further about how the three guys worked on this occasion or the occasion they were referring to? A. Something to the effect that two went in the back and one in the front, or one went in the front and two went in the back, something like that.

Q. Okay. Did they say anything else about what had happened or what reaction there was by the people in the place? A. No, there was something said about a girl laying under a pool table screaming.

Q. All right. Did you hear any woman say anything at that time? A. No.'

She also testified that Corby Kidd told her she had driven the car 'during this incident' and had parked it in John Kidd's mother's driveway.

Love said that after 20 minutes to a half hour, they all got ready to leave the apartment in order to go to Cedar Rapids. Before they left, defendant, who is six feet one or two inches tall, asked Gibson if he would trade jackets with him. Defendant was wearing a 'green army coat'. Gibson, who is five feet five inches tall, had on a short brown leather jacket which he agreed to trade. The leather jacket was short in the sleeves for defendant. Gibson did not wear the green jacket. Love hung it in a closet, and Gibson later put it in the basement. The whole group traveled to Cedar Rapids in the Gibson car, where they visited a couple of places. At about 10:15 p.m. Cage placed a telephone call. They returned to Waterloo at about midnight.

Evidence showed John Kidd to be between five feet ten and six feet tall, and Bobby Cage, the shortest of the trio, to be five feet eight or nine.

Evidence also showed the 1975 Maverick had been rented by Blanche Hoosman, a cousin of Cage. The Kidds and Cage had visited her home before noon on the day of the robbery. About 2:30 p.m. Cage returned, gave her a ride to work in the car, and borrowed it from her. He was to pick her up when she got off work that evening. Instead she was picked up by her babysitter, Michelle Bell, who drove the Maverick. The telephone call placed by Cage in Cedar Rapids was to Michelle Bell at the Hoosman residence in Waterloo, telling her where the Maverick was, and asking her to pick up Hoosman.

About a week after the robbery a shotgun identified as the one used in the robbery, a handgun like one used in the robbery, and a sack of clothes containing gray denim coveralls, identified by the Shamrock Tap bartender as having a chevron pattern like that observed on the pants of one of the robbers, were found in the basement of the Hoosman home. Hoosman testified these articles did not belong to her and she did not know who put them in her basement.

Michelle Bell testified she was with Cage in the Maverick on the Sunday after the robbery when they were stopped by the Waterloo police and Cage was arrested. Bell took the car back to the Hoosman home. Bell said she later saw John Kidd remove clothes from the trunk of the Maverick. She did not say what he did with them, and she asserted she did not remember them well enough to know whether they were the clothes later found in the Hoosman basement.

Defendant did not testify and rested without offering any evidence. He moved for directed verdict on the ground of the alleged insufficiency of the evidence to identify him as one of the persons who robbed the tavern on the occasion involved. His motion was overruled. The jury subsequently returned a verdict of guilty, and defendant was later sentenced. This appeal followed.

I. Defendant contends the trial court erred in receiving over his objection part of an alleged statement of Michelle Bell. During her testimony Bell first denied having seen John Kidd remove a 22 rifle and clothing from the trunk of the Maverick at the Hoosman home on the Sunday following the robbery. The State confronted her with a written statement she...