State v. Harvey

• Decision Date: 19 May 1976
• Docket Number: No. 57508,57508
• Citation: 242 N.W.2d 330
• Parties: STATE of Iowa, Appellee, v. Gary HARVEY, Appellant.
• Court: Iowa Supreme Court

Page 330

242 N.W.2d 330

STATE of Iowa, Appellee, v. Gary HARVEY, Appellant.

No. 57508.

Supreme Court of Iowa.

May 19, 1976.

Michael J. Laughlin, of Erickson, Seckington, Laughlin & Huston, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Earl Roberts, Jr., Asst. Atty. Gen., Ray A. Fenton, County Atty., for appellee.

Heard before MOORE, C.J., and MASON, RAWLINGS, LeGRAND and REES, JJ.

MASON, Justice.

April 3, 1974, a county attorney's information was filed in the Polk District Court charging Gary Sylvester Forrester and Gary Warren Harvey with the crime of robbery with aggravation as defined in sections 711.1 and 711.2, The Code. Defendants plead not guilty and were jointly tried to a jury. In this opinion we are concerned only with Gary Harvey's appeal from the judgment imposing sentence on his conviction by the jury of the crime charged.

He contends the trial court erred: (1) in refusing on relevancy grounds to allow his attorney to cross-examine the robbery victim regarding the victim's present and past physical and mental health as bearing on his competency as a witness to testify; (2) in failing to suppress all testimony relative to what Des Moines police officers found and testified to as a result of a search of Harvey; and (3) in failing to sustain defendant's motion for a directed verdict based on the insufficiency of evidence.

The record discloses that Daniel Barrows of Omaha, Nebraska, had traveled to Ames to attend a wrestling tournament. Unable to find overnight lodging in Ames, he drove to Des Moines and registered at the Holiday Inn Central about 11:00 p.m. March 14, 1974. After drinking a Coke in the lounge Barrows proceeded to his room. About 1:00 a.m. (March 15) he realized he had forgotten his shaving kit in his car, so he went to the motel parking lot to retrieve it.

Upon reaching the parking lot, Barrows was approached by two people who requested the location of Walnut Street. When Barrows replied he did not know, one of the men showed him a 'tow bar' (exhibit 1) and demanded money. Before the victim could finish stating he needed his money to pay for the motel room, he was struck on the head. Barrows fell to the ground, but remained sufficiently conscious to hand the robbers his billfold and observe them flee to a 'red-orange' Gremlin and drive away Barrows, whose lasses had apparently been knocked off in the fracas, could not decipher the license number.

Barrows retrieved his glasses, went back into the motel and told a police officer there present what had occurred. The assailants were described as two black youths, one of whom was missing a tooth. Barrows also described the 'instrument' used and, presumably, the fact a red Gremlin was used in the getaway. It was brought out at trial the billfold contained a traveler's check, draft card, driver's license, bank card and about fifty dollars. Barrows, however, had told the police officer he did not know the exact amount of money.

In response to a radio transmission dispatched from the Des Moines police department at 1:37 a.m. March 15 that an armed robbery had just been committed at the Holiday Inn Central by two black males who had made their escape in a red Gremlin police officer William Groves drove directly from his position on Sixth Avenue and Keo to the area located around Robert's Lounge on Eleventh and University Avenue. At this point the police officer observed a red two-door Gremlin leaving the rear parking lot of Robert's Lounge go north on Eleventh Street. As Groves fell in behind the car and followed it he radioed the police dispatcher he was behind the red Gremilin going north on Eleventh Street. The officer stopped the Gremlin at the 1400 block of Tenth Street at 1:41 a.m.

There were three blacks in the car, driver Gary Forrester, Gary Harvey and Miss Marva Edwards. As the three exited the car, Forrester approached the officer but Edwards and Harvey stopped at the rear of the auto, whereupon Groves observed Harvey take what appeared to be folding money from his pocket and place it in Miss Edwards' purse. As several other squad cars arrived on the scene, Groves removed 46 dollars in cash from the purse. He also observed a tow bar on the right-hand floor of the front seat.

Officer Robert Wallace had arrived and searched Forrester who was advised of his rights. Lieutenant Charles F. Backstrom searched the Gremlin, observing a tow bar on the right floorboard. It was after this an ambulance containing Mr. Barrows arrived. Barrows got out under his own power and identified Forrester who was sitting in the back seat of a squad car and Harvey who was still standing next to the lieutenant. The evidence conflicted as to whether Barrows was wearing his glasses and, likewise, as to the extent of lighting at the scene. Also in conflict was the distance Barrows was from Forrester when someone shined a flashlight on his face. Officer Wallace stated it was two or three feet, whereas Forrester testified, 'he was so far away I know he couldn't see me.'

In any event, another officer, Larry Smiley, informed Harvey he was suspected of armed robbery, advised him of his rights and made a body search. Smiley 'felt a large, bulky substance' in Harvey's right front pocket which turned out to be a billfold (exhibit 3B) containing the name Daniel Barrows. Also discovered was a traveler's check (exhibit 3A). This property was either placed in the squad car by Smiley after he showed it to his partner, Officer Patch, or was given to Officer Patch at the scene who retained possession of it until turning it over to officers at the police station. While foundation was an issue at trial, no argument is made on appeal concerning chain of possession.

Officer Smiley also testified several items were recovered from Forrester, including two rings (exhibit 7) and a book of matches (exhibit 6). Forrester denied having the matches in his possession that evening. It was adduced during cross-examination of Forrester the matchbook bore the words 'Holiday Inn.'

Harvey and Forrester gave a different story of the events of that night. Harvey testified he and Forrester played cards at a girlfriend's home from about 9:30 p.m. until they left for Robert's Lounge around 10:00 in a red Gremlin belonging to Harvey's sister. While at the tavern, Harvey loaned the car to a man named 'Slick,' whom he had seen a week before at Robert's Lounge. (In this regard, Officer Clarence Jobe, who had interviewed Harvey March 15, testified Harvey stated he loaned the car to someone he had never seen before). Slick returned the Gremlin at about 1:30 a.m., at which time Harvey, Forrester and Miss Edwards left the bar. Upon reaching the car, Harvey noticed a billfold on the front seat, the money from which he put in his pocket. Harvey thought the wallet belonged to Slick.

Shortly thereafter, with Forrester driving, the police stopped the car. After disembarking, Harvey gave Miss Edwards the folded bills because he 'wanted her to have the money.'

Forrester's testimony did not differ greatly except for the fact he knew nothing of Harvey's loan of the car. Significantly, Forrester stated he wears a dental plate because of two missing teeth. He was wearing the plate March 15, but by the time he was taken to the police station the plate was out. Forrester stated, 'I take them out when I get to drinking.'

Several other witnesses testified on behalf of the defense, including Harvey's sister and brother-in-law, who stated they knew a man named Slick. Furthermore, Robert Edmonds, owner of Robert's Lounge, testified Forrester was at the tavern from 10:00 p.m. until closing time around 2:00 a.m. When he turned up the lights at 1:45 a.m., Forrester was still there. Edmonds did not know if Harvey had been in the bar.

Defendant's motion for new trial was overruled and he was sentenced pursuant to section 711.2, The Code, to a term not to exceed 25 years at the Men's Reformatory in Anamosa.

I. The first contention defendant presents for review concerns the trial court's denial of a request to have certain in-chambers testimony of the prosecuting witness read to the jury. It was initially disclosed in the jury's presence Brrows had been treated earlier for a blood-calcium problem. Barrows later testified in chambers he had received psychiatric treatment for a nervous disorder after being arrested on charges of drunken driving and resisting arrest. While this treatment occurred some time before the robbery, Barrows was unable to recall the exact time, although 'it might have been' as late as February of 1974 (the robbery took place in March).

Forrester's attorney, Mr. Glenn, requested that the questions and answers given in chambers be read to the jury because they were 'material.' Agreeing with the prosecutor, the trial court held this line of testimony was 'irrelevant to any of the material issues.' Nothing further transpired until the close of State's evidence when Forrester's counsel stated the testimony should be read to the jury as 'it goes to the Credibility of Mr. Barrows' testimony.' The trial court reserved ruling 'until such time as there is some evidence offered on the part of the defendants, and then we'll take the matter up again outside the presence of the jury at your request.'

At the close of all evidence the court inquired of counsel if there were 'anything further on the part of the defendants.' Both defense counsel (counsel for Forrester and counsel for defendant) answered in the negative. Later, out of the jury's presence, defense counsel objected to the court's failure to allow Barrows' testimony to be read to the jury. Mr. Glenn renewed motions made at the close of State's evidence and referred to 'the exclusion in testimony specifically of Mr. Barrows' psychiatric evaluation examination, whatever that was.' Defendant's counsel, Mr. Laughlin, stated the record showed he had joined in the objections made by Glenn, renewed the same and then stated:

'I...