State v. Jensen, 53999

Citation189 N.W.2d 919
Decision Date09 September 1971
Docket NumberNo. 53999,53999
PartiesSTATE of Iowa, Appellee, v. Charles JENSEN, Appellant.
CourtUnited States State Supreme Court of Iowa

Maurer & Jones, Ames, for appellant.

Richard C. Turner, Atty. Gen., and Richard N. Winders, Asst. Atty. Gen., and Charles E. Vanderbur, County Atty., Ames, for appellee.

UHLENHOPP, Justice.

This appeal presents several legal problems which arose in a prosecution of charges relating to gambling.

The factual situation is this. One Wacker owned a house consisting of one story and basement at 217 Hilltop Road in Ames, Iowa. At the time of the events in question, the main floor was rented and occupied by four single girls, and some or all of the basement--an issue in dispute--was rented and occupied by defendant Jensen and another individual as an apartment. The first room of the basement, which is entered from the outside, contains some tables and chairs as well as storage space and utilities. Beyond that is a living room and bedrooms.

The jury could find from the evidence that poker games were regularly played by university students and others in the first room of the basement, that defendant got up the games, and that he was in possession of that room and of the tables. This last matter--whether defendant was in control of the room and tables--was the fighting issue on the facts.

Darryl E. Green, a some-time university student, was a rather regular participant in the poker sessions. His performance at poker was not at all inspiring. First he lost all his own money; then he lost some or all of the money he raised by passing bogus checks. His story (not a new one) was that the dealer cheated. The truth may be that the games were rigged so that university students were separated from their money by professional gamblers, as the prosecutor thinks, but the evidence shows only that poker was regularly played for money.

Green's bad checks brought him in confrontation with the county attorney. By this time Green had decided that playing at games for money is, in truth, a vice, and ought not to permitted. Besides, he felt cheated. He therefore decided to divulge to the county attorney what was going on at defendant's place, and did so. The county attorney thereupon provided Green with funds to gamble some more so that a raid could be set up. With characteristic ineptness, Green proceeded to lose the county attorney's money at the tables.

Meanwhile, the county attorney put defendant's place under surveillance. The county attorney himself once actually peered in the windows, although the time that he did so is unclear.

On the evening of May 13, 1969, Green went to defendant's place. A poker game was in progress. Green got word to the county attorney that he was inside defendant's place and a poker game was going on, and he named the individuals who were there. The county attorney thereupon presented a sworn information for a search warrant to a magistrate, Honorable John L. McKinney. Judge McKinney placed the county attorney under oath and took his testimony. The county attorney testified he had personal knowledge that gambling regularly took place at defendant's residence, that Green furnished him information about the gambling (the magistrate knew Green), that Green had supplied information which proved reliable on previous occasions (Green later testified he had not given information except on gambling at the place in question), that the county attorney had received information from Green that Green was then inside defendant's place and a poker game was in fact in progress, that the county attorney had placed defendant's establishment under surveillance, had seen people going in, and had looked in the windows, that the county attorney had furnished Green with money with which to gamble, and that certain named individuals, including one Grady whom the magistrate knew, were participating in this particular game. The magistrate issued a search warrant.

Later the same night, the county attorney led officers of the Iowa Bureau of Criminal Investigation and the Ames Police Department in a raid of defendant's place. When this law enforcement personnel entered the first room of the basement, several individuals were seated around a cloth-covered table and other individuals were standing around the table. Green was present. In the center of the table was the sum of $21 in money, and additional sums of money were lying in front of the seated individuals--about $200 in all. Cards were on the table. The county attorney read the search warrant aloud, and the officers seized the tables, cloth cover, money, and cards and arrested the individuals.

Defendant was later charged with both keeping a gambling house and possessing gambling devices. He pleaded not guilty. The two charges were tried together to a jury, which found defendant guilty of both of them. Defendant was sentenced accordingly, and appealed from both sentences. We consider the two cases together.

Defendant makes several contentions here which require consideration. First, he contends the trial court made erroneous evidentiary rulings with respect to the scope of cross-examination, relevancy, and hearsay. Second, probable cause was not shown for issuance of the search warrant and the warrant was improperly executed. Third, substantial evidence was not introduced that defendant was in control of the place where the gambling occurred or of the gambling devices.

I. Evidentiary Rulings. Three rulings on evidence are involved.

(a) The defense was that defendant was not in control of the room the officers entered or of the devices seized. Defendant took the stand on his own behalf. His direct testimony was carefully limited to a description of the first room in the basement and of the adjoining rooms, and closed with this: 'On the evening of the arrest, the area, exclusive of the apartment, is where the events were occurring, and that this portion was not leased by the witness (defendant).'

On cross-examination the State immediately took up the portion of defendant's answer as to 'where the events were occurring.' The prosecutor wanted to know what events were occurring. He asked, 'Was poker or card-playing for money being played that evening?' Defendant objected that the question was beyond the scope of direct examination. The trial court stated that defendant had been asked in substance on direct, 'Is that where this game or whatever it was (was) going on that night,' and ruled, 'I think that opens it up.' We believe the trial court was correct.

But then the prosecutor ranged farther in his questions. To establish that defendant kept a gambling house, the State desired to show a course of gambling over a period of time. The prosecutor went beyond the night in question and asked if gambling had taken place there before. Defendant's objection, 'beyond the scope of direct examination,' was overruled. The same objection was overruled to a question as to how many times poker had been played at this place.

The latter objections squarely bring into focus § 781.13, Code, 1971:

When the defendant testifies in his own behalf, he shall be subject to cross-examination as an ordinary witness, but the state shall be strictly confined therein to the matters testified to in the examination in chief.

We may put aside as not involved here the cross-examination of a defendant as to credibility. As to that he is, in the language of the statute, 'subject to cross-examination as an ordinary witness'. State v. Kelley, 161 N.W.2d 123 (Iowa). Our problem relates to defendant's testimony regarding the facts of the charges. Defendant insists the State was restricted to 'the matters testified to in the examination in chief,' citing the statute, while the State claims that when defendant testified in chief on a matter relating to the offenses, he opened up the whole subject of his guilt or innocence, citing State v. Shepard, 247 Iowa 258, 73 N.W.2d 69.

We are not concerned, of course, with the policy of the statute. As to that, see 8 Wigmore, Evidence, § 2276(d) at 448 (3rd ed.); Note, 24 Iowa L.Rev. 564. Our duty is to observe the statute faithfully. State v. Johnson, 261 Iowa 661, 155 N.W.2d 512. We think the present case is an appropriate one in which to reexamine the Shepard decision.

Shepard was charged with fourth-offense driving while intoxicated, and testified on his own behalf solely about the principal incident on trial. On cross-examination he was asked about the three prior offenses. His attorney objected, but not on the ground that the question went beyond the scope of direct. The objection was overruled by the trial court. State v. Shepard, supra, 247 Iowa at 264, 73 N.W.2d at 73 ('Over an objection containing numerous grounds, none of which, however, was that of improper cross-examination, the defendant was required to answer.'). The affirming decision of this court, however, was not placed on the inadequate objection but on the broader basis, favored by Wigmore, that the proper scope of cross-examination when the defendant takes the stand is the whole fact of guilt or innocence.

We now think the Shepard interpretation unduly extends the statute. True, a defendant may testify so broadly on direct that he opens up the whole matter of his guilt or innocence, and he may do so very briefly. Cases of that sort are State v. Hathaway, 224 Iowa 478, 276 N.W. 207, and State v. Ragona, 232 Iowa 700, 5 N.W.2d 907. In Hathaway the defendant was charged with operating a house of ill fame during the spring and summer of 1935. Her counsel asked her only two questions on direct examination--one, her identity, and the other, this:

'Q. Mrs. Hathaway, did you operate during the spring and summer of 1935 a house of ill fame at 634 Walnut Street in Waterloo? A. No, sir.'

This court approved cross-examination on the whole matter of the defendant's guilt or innocence, saying, 'It will be noted that the question and answer propounded to the accused by her...

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28 cases
  • Webb v. State, 3 Div. 329
    • United States
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    ...of the State's proof at sentencing. See State v. Shepard, 247 Iowa 258, 73 N.W.2d 69 (1955), overruled on other grounds, State v. Jensen, 189 N.W.2d 919, 923 (Iowa 1971) (where prior convictions were alleged in the indictment, defendant's admission on cross-examination relieved the State of......
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    ...of "we recommend" or "we advise." Id. Campbell did not announce that the ABA approach was mandatory. See, e.g. , State v. Jensen , 189 N.W.2d 919, 924 (Iowa 1971) ("We realize that the present decision changes a rule of evidence for criminal trials. The new rule will not be applied retrospe......
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    ...opinion, or (b) may be appealed after the filing of this opinion. See State v. Gorham, 206 N.W.2d 908, 913 (Iowa 1973); State v. Jensen, 189 N.W.2d 919, 924 (Iowa 1971). VIII. Dealing further with the above standard is this guiding pronouncement in Gordon v. United States, 383 F.2d at 'A sp......
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