State v. Johnson

• Decision Date: 19 January 1971
• Docket Number: No. 54030,54030
• Citation: 183 N.W.2d 194
• Parties: STATE of Iowa, Appellee, v. Dennis Wayne JOHNSON, Appellant.
• Court: Iowa Supreme Court

Page 194

183 N.W.2d 194

STATE of Iowa, Appellee, v. Dennis Wayne JOHNSON, Appellant.

No. 54030.

Supreme Court of Iowa.

Jan. 19, 1971.

William W. Hardin, Knoxville, for appellant.

Richard C. Turner, Atty. Gen., Michael J. Laughlin, Asst. Atty. Gen., and Pat Myers, County Atty., for appellee.

MOORE, Chief Justice.

On this appeal following his conviction and sentence for larceny of property valued at more than $20 defendant, Dennis Wayne Johnson, asserts the trial court erred in sustaining the State's motion in limine and overruling his motions for mistrial and new trial. We affirm.

Defendant was charged by county attorney's information with stealing cash of over $20 from Fred Vander Ecken in Marion County, Iowa on or about June 17, 1968. He entered a plea of not guilty and in the morning before trial the State filed a motion in limine.

The motion requested the trial court to order defendant and his counsel not to question any juror or to make any reference in opening statement or to elicit or attempt to elicit any testimony which would disclose that any restitution had been made by defendant to Vander Ecken for thefts taking place before the date of the alleged crime.

Defendant filed or stated in the record no resistance to the motion in limine. It was submitted on counsel's arguments off the record. This of course results in an incomplete and unsatisfactory record on appeal.

Following arguments of counsel the trial court referred to an instrument dated February 23, 1969 signed by Vander Ecken and wife agreeing to accept $400 as restitution and not press further charges. The court ruled this instrument or any evidence pertaining to it would be immaterial and prejudicial to a fair trial. The court observed the question was whether defendant had committed larceny on June 17, 1968 as charged and evidence of prior thefts and restitution was not material in the case at bar. The State's motion in limine was sustained. The court directed both counsel not to refer to prior thefts or restitution. His order included, 'but he (Vander Ecken) may be asked about how he arranged the cash register and what happened there, testify as to what he saw and observed'. Defense counsel noted an exception.

As the State's first witness Vander Ecken told of his ownership and operation of a grocery store and gasoline station at Melcher and identified several photographs of the premises. He testified defendant came into the store about 11:50 a.m. June 17, 1968 and asked for gas. No other customer was then in the store. Vander Ecken was asked 'Now, you stated he asked you to have some gas. Did you go--What did you then do?' He answered, 'Well, first thing I did was shut the drawer, and I had sort of a trap set for there because I had been missing money twice before.'

Defense counsel stated: 'I object to this, Your Honor. Incompetent, irrelevant and immaterial.'

The court ruled: 'The jury will disregard the latter remark in regard to missing money once or twice before, and the objection is sustained to that extent.'

Out of the jury's presence this record was made:

'MR. HARDIN: Your Honor, I ask that a mistrial be called at this time, that the State has already violated the ruling of the Court in connection with the Defendant's motion in limine this morning, that the Defendant has very carefully avoided any mention of any of the matters and the--or, the State's main witness having been on the stand about two minutes, deliberately violated the ruling of the Court and ask that a mistrial be called. I do not feel that the Court's cautioning the jury adequately protects the Defendant here, nor does it in any way abide by the ruling of the Court on the motion this morning.

'MR. MYERS: I might add, the State did admonish its witnesses. This was not--it's in response to a question that--

'MR. HARDIN: It's still clearly in violation of the Court's ruling on what the witnesses would be allowed to testify to.

'THE COURT: Well, the Court is going to overrule the motion. I think the statement was a voluntary one on the part of the witness and I believe the admonition is sufficient to correct any prejudice that might have come out of it. There was no attempt to connect any prior thefts with this Defendant by the testimony and the mere fact that a trap was set going to the jury, they probably would infer from that, I suppose, some money had been lost before. I don't believe that this remark is sufficiently prejudicial, as long as the State doesn't go into the matter any further, as far as any prior losses might be involved. Therefore, the Court is overruling your motion for a mistrial.' No motion in limine by defendant is found in the printed record or trial transcript.

Vander Ecken testified he had a string from his cash drawer to a sign hanging in his store window, while he was putting gas ind defendant's car, the sign moved and he rushed back into the store where he observed defendant back of the counter near the cash drawer. Defendant ran to the end of the counter to near an ice cream cooler where he was seized by Vander Ecken. Defendant was restrained until another customer entered the door and the sheriff was called. A short time later Sheriff Shives arrested defendant. None of Vander Ecken's money was found on defendant's person. After defendant was taken away, Vander Ecken checked his cash drawer and found a shortage of $460.

Vander Ecken further testified the sheriff returned to the store that evening and told him to look behind his ice cream cooler for his money. Vander Ecken did so and there found and recovered 23 twenty dollar bills.

Sheriff Shives testified he advised defendant of his constitutional rights upon their arrival at the court house and thereafter defendant admitted taking money from Vander Ecken's cash drawer. Defendant stated he had hidden the money back of the ice cream cooler. The sheriff related how he had returned to the store and directed Vander Ecken to his money.

Defendant offered no evidence but renewed his motion for mistrial which was denied. The jury found defendant guilty as charged and fixed the value of the property stolen at $460.

Defendant's motion for new trial alleged the court erred in sustaining the State's motion in limine and for the first time asserted the restitution agreement 'should have been allowed to go before the jury on the matter of the...