State v. Hinsey

• Decision Date: 19 September 1972
• Docket Number: No. 54851,54851
• Citation: 200 N.W.2d 810
• Parties: STATE of Iowa, Appellee, v. Thomas HINSEY, Appellant.
• Court: Iowa Supreme Court

Page 810

200 N.W.2d 810

STATE of Iowa, Appellee, v. Thomas HINSEY, Appellant.

No. 54851.

Supreme Court of Iowa.

Sept. 19, 1972.

Eldon J. Winkel, Algona, for appellant.

Richard C. Turner, Atty. Gen., and Richard N. Winders, Asst. Atty. Gen., and Joseph J. Straub, Kossuth County Atty., for appellee.

LeGRAND, Justice.

On June 12, 1969, defendant and three others escaped from a county jail in Minnesota and made their way in a stolen car to Iowa, where a three-day crime spree terminated in the armed robbery of the Fareway Store at Algona, Iowa, during which one of the employees, Melvin Bay, was fatally shot.

This is the third appeal arising out of these events. The convictions of two of defendant's alleged confederates based on substantially the same evidence have been sustained. See State v. Cunha, 193 N.W.2d 106 (Iowa 1972) and State v. Gilroy, 199 N.W.2d 63 (Iowa 1972).

In the present case defendant was convicted of murder in the perpetration of a robbery. He was also convicted of robbery with aggravation. He appeals from judgment sentencing him to life imprisonment on the first offense and 25 years in the penitentiary on the second. We affirm the trial court.

Defendant sets out 11 separate errors as grounds for reversal. We forego a detailed recitation of the general facts since they are adequately set forth in State v. Cunha, supra. We will refer to specific facts as they become important in our consideration of the alleged errors.

Several of the issues raised by defendant are controlled by our decisions in the Cunha and Gilroy cases. We dispose of these matters first in Divisions I and II.

I. Defendant claims he was improperly restricted from examining the jury panel on voir dire concerning their knowledge of the result of the trial of Ronald Kelsey, who escaped from the Minnesota jail along with Cunha, Gilroy, and the defendant. Kelsey was acquitted on the charge of murder and convicted of armed robbery. According to the record, this strange verdict was reached because the jury misunderstood the forms of verdict submitted to them. Understandably defendant was hopeful that the knowledge of Kelsey's acquittal on the murder charge could be brought to the attention of the jury which was to determine his fate.

The State filed a motion asking that the jury examination be restricted in this regard, and the trial court entered an order directing that no mention be made of the result of the Kelsey trial in the examination of the prospective jurors. We considered this identical complaint in State v. Cunha, where the matter was resolved against that defendant. We reiterate what was said in the Cunha opinion (193 N.W.2d at page 110), which we believe to be controlling on this appeal.

In Cunha we placed considerable reliance on the fact voir dire examination was not reported and we were therefore without a record upon which a finding of prejudice could be made. Here the jury examination was reported but, by stipulation, was not made part of the printed record--nor even part of the trial transcript. From this we must assume the voir dire developed nothing which would be helpful to defendant.

We hold defendant is not entitled to relief on this issue.

II. Defendant next argues his motion for a directed verdict should have been sustained because his conviction on both counts rests squarely on a determination by the jury that a robbery had been committed. Defendant argues elsewhere there is insufficient evidence to show he was a party to the robbery, but in his motion for directed verdict his claim is directed principally to the proposition there is no evidence that a robbery was committed by anyone. If this is true, defendant was entitled to a favorable ruling on his motion, since his conviction in each instance is sustainable only upon proof of the commission of a robbery.

This same argument was made in State v. Gilroy, supra, where the nature of the evidence supporting the commission of a robbery is discussed. It is true much of the evidence is circumstantial, and much of it depends upon admissions made by the various defendants in conversations subsequent to the robbery. However, what we said in State v. Gilroy is equally applicable here. The evidence considered in its light most favorable to the State--as it must be considered in ruling on a motion for directed verdict--presents a jury question on this issue. Our ruling in State v. Gilroy, supra, is decisive against defendant's contention. See also State v. Cunha, supra, 193 N.W.2d, pages 108--109.

III. Defendant urges error in the court's instruction relating to verbal declarations. The instruction given is similar to the one approved by the Iowa State Bar Association Uniform Instructions #1.13. Defendant made no objection to this instruction at any time in the trial court. Under these circumstances there is nothing before us for review. State v. Schmidt, 259 Iowa 972, 980, 145 N.W.2d 631, 636 (1966).

We have, however, considered this complaint in our examination of defendant's argument that he was denied a fair trial. We find no error in the instruction as given.

IV. Another objection questions the evidence of Robert L. Cramer, manager of the Fareway store, who testified concerning the amount of money missing immediately after the alleged robbery. This, too, is discussed at length in State v. Gilroy, supra.

However, in the present case defendant raises the issue somewhat differently. He insists Cramer's evidence was hearsay and not the best evidence because the cash register tapes and records were not produced. If there was any merit to this argument, it was later cured by the production of these records, which were made available to defendant for cross-examination and which supported the witness' testimony in every detail.

V. Defendant claims one of the witnesses, Patricia Ann Johnson, belatedly identified him at trial when she had previously been unable to do so. Certainly this witness' identification was questionable; but this raises a question of credibility, not admissibility. Defendant's counsel subjected the witness to a vigorous and searching cross-examination but was unsuccessful in his attempt to discredit her testimony. Having heard all the circumstances, the jury determined the factual issue against defendant. There is no basis for us to interfere on this ground.

Defendant cites Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) and United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) as supporting his argument. We find nothing there to help him under the circumstances disclosed by this record.

VI. Defendant challenges the admission of a conversation held between several of his alleged accomplices and two girls they had picked up in Waterloo. The conversation, according to the State, was held in defendant's presence and included statements connecting him to both the robbery and the murder for which he was later convicted.

We are satisfied the conversation was properly admitted under the circumstances existing here. Although not precisely in point on this issue, State v. Cunha and State v. Gilroy, to which we have already referred several times, also contain discussions dealing with this same conversation. In each instance it was held admissible against the particular defendant involved.

However, the questions raised on the present appeal are somewhat different. It is claimed the conversation should have been excluded unless defendant's silence or failure to deny the statements can be considered as an admission of their truth.

Defendant argues the circumstances do not justify such a conclusion for several reasons. He says that there is no showing he heard the conversation; that the witness who related it does not pretend to have heard the whole conversation and therefore none of it may be used; and that the statements cannot, in any event, be considered as admissions against him since the use of the pronoun 'they', by which the comments made are connected to him, is ambiguous and may have referred only to the two parties who actually participated in it.

We have no quarrel with defendant's thesis, nor with the authorities admitted to support it. We agree that before silence may be considered as an admission against the party, in both civil and criminal cases, the statement must be made in his presence. Under circumstances which would ordinarily call for a denial. 29 Am.Jur.2d, Evidence, section 638, page 691, section 642, page 695; Jones on Evidence, Fifth Ed., sections 388--389, pages 722-726; 31 C.J.S., Evidence, section 294, page 1057; Doherty v. Edwards, 227 Iowa 1264, 1272, 290 N.W. 672, 676 (1940); State v. Cotton 240 Iowa 609, 637, 33 N.W.2d 880, 896 (1948); Klever v. Elliott, 212 Or. 490, 320 P.2d 263, 265, 70 A.L.R.2d 1094 (1958); Annot. 80 A.L.R. 1235 (1932); Annot. 115 A.L.R. 1510 (1938).

However, defendant completely disregards the facts when urging this matter upon us. The record does not pose a question resulting from silence, as he would have us believe; rather it discloses his specific admission of the damaging material.

Paula Campbell testified she was with defendant when the disputed conversation took place just outside the automobile in which they were seated. He was closer to those outside than she. She related she heard either Cunha or Gilroy tell the girls they had held up a grocery store and shot a man. She then testified she asked defendant if it was true that 'they had robbed a grocery store and shot a man.' He replied that it was.

Not only does this testimony make defendant's argument about silence inapplicable, it also disproves his claim he did not hear the statements.

The other two objections--that All the conversation is not shown to have been heard and that the reference to 'they' was ambiguous and did not necessarily include defendant--were clearly matters for jury determination. These matters undoubtedly were argued to the jury and it was for the...