State v. Johnson

• Decision Date: 30 June 1976
• Docket Number: No. 58730,58730
• Citation: 243 N.W.2d 598
• Parties: STATE of Iowa, Appellee, v. Terry Lee JOHNSON, Appellant.
• Court: Iowa Supreme Court

Page 598

243 N.W.2d 598

STATE of Iowa, Appellee, v. Terry Lee JOHNSON, Appellant.

No. 58730.

Supreme Court of Iowa.

June 30, 1976.

Bertram B. Metcalf, Davenport, for appellant.

Richard C. Turner, Atty. Gen., Nancy J. Shimanek, Asst. Atty. Gen., Gary L. Sissel, Asst. Scott County Atty., for appellee.

Heard before REYNOLDSON, Acting C.J., and MASON, RAWLINGS, REES, and HARRIS, JJ.

MASON, Justice.

Defendant Terry Lee Johnson was charged by county attorney's information with uttering a forged instrument in violation of section 718.2, The Code. At arraignment he entered a plea of not guilty and was later tried to a jury which returned a verdict finding him guilty of the crime charged. He appeals from judgment imposing sentence on that conviction.

The facts giving rise to this appeal transpired the evening of June 10, 1975, in Davenport. Between 5:30 and 6:00 p.m. on that date defendant asked acquaintance Edward Hemby if he possessed some sort of identification defendant could use to get into a bar and dance that evening, as he had lost his wallet. Hemby gave defendant a 'Missouri Liquor Control Commission' identification card bearing a photograph of Hemby.

About 7:00 p.m. defendant and a male companion entered the jewelry department of Ardan's Jewelers and Distributors in Davenport. Store clerks Barbara Hartman and Mrs. Emmalee Cusack were on duty at the time. Miss Hartman waited on defendant who requested to look at rings in the $50 to $75 price range. Defendant insisted on finding a ring which fit him rather than waiting several days for one to be sized. He finally chose an $89 diamond ring.

At this point, defendant inquired of Miss Hartman if he could pay for the ring with a federal income tax rebate check. This check was made out to Edward and Bonnie Hemby for the amount of $464.90. As identification, defendant produced the Missouri liquor control card, stating he did not have a driver's license. Miss Hartman's suspicions were aroused since, in her opinion, the picture on it did not resemble defendant.

As the check had already been indorsed, defendant signed it again in the presence of the two clerks and Mr. Tandy Fitzgerald, Ardan's floor manager. Miss Hartman testified this signature was not totally legible, but that the last name appeared to be spelled H-e-n-'d'-or-'b-y.' Defendant claimed he was having trouble writing a clear signature because he was standing up and the pen was faulty.

When Mr. Fitzgerald noticed the signatures did not match up, he 'followed through' by first telling defendant he had to go to the rear of the store for money to cash the check. He then proceeded to the radio department and asked John Frerichs to stay where he was. Fitzgerald next went to his office where he called the Hembys and then the police.

During this time defendant purchased cigarettes from a vending machine on the premises and his companion had left the scene after gazing at some watches. Upon Fitzgerald's return to the jewelry department, he signalled defendant into the diamond showroom and asked him why he was cashing a check that was not his. As Fitzgerald was pointing out the fact the signatures were not the same, Davenport Police Captain John Westerhof arrived on the scene. Defendant then stated the check was for rent Mr. and Mrs. Hemby owed him, an obvious change of story.

At the arrival of Lieutenant John Gano, defendant ran from the diamond showroom and in the process he almost knocked over a large display case from which fell an expensive clock. A silver arrangement was also run into and its contents scattered. It was, however, defendant's misfortune the front door opened inward. His slamming into it apparently delayed flight long enough for Captain Westerhof and John Frerichs to subdue him.

Officers Swanson and Chambers transported defendant to the county jail. On the way they picked up the second subject who had been in the store and was later found in the yard of the residence of another Davenport police officer about 300 yards from Ardan's.

Two witnesses testified to this fact before the trial court sustained defense counsel's objections and struck the evidence from the record.

At trial, both Mr. and Mrs. Hemby stated they had never seen the refund check before June 10 although they had been expecting to receive it. They testified the indorsements were not in their handwriting. Finally, it was pointed out the Hembys paid their rent to the apartment owner's daughter and son-in-law, Donny and Kathy Rickols. Defendant is a 'brother-in-law by marriage' to the Rickols.

At the end of the State's evidence defendant moved for a directed verdict which was overruled. He presented no evidence in defense and did not renew his motion for directed verdict. At the hearing on his motion for new trial defense counsel asked for permission to reopen the case since he neglected to renew his motion for directed verdict. Permission was granted to reopen. Defendant's motion was renewed and overruled. In this regard we call attention to State v. Valde, 225 N.W.2d 313, 317, decided January 22, 1975, where this court announced that, 'where a defendant's motion to direct a verdict, made at the close of state's evidence is denied, and no further evidence is submitted it is not necessary for defendant to renew such motion in order to preserve any alleged error for review in this Court. * * * (citing authorities).'

Further factual and procedural matters will be discussed as they become relevant to resolution of the issues presented by this appeal.

I. Defendant contends he was denied a due process right to be tried by an impartial judge by reason of certain inchambers remarks which occurred during a colloquy between the court and the defendant.

The trial transcript discloses that during the morning session of the second day of trial defendant failed to return following a recess. The trial court ordered that a bench warrant issue and recessed until 2 p.m.

When defendant could not be found by 2 p.m. defense counsel and the prosecutor were heard in chambers on the question of trial proceeding in defendant's absence. The defense moved for a continuance and for a mistrial. At the conclusion of arguments by counsel the court continued the case until the following morning in order to make absolutely certain defendnat had voluntarily absented himself. Before dismissing the jury for the day the court questioned whether any of the jurors had heard or seen anything through the news media regarding the case. All answered in the negative and were admonished to refrain from reading or listening to the news before the next session.

The following morning defendant was voluntarily present again and ready to proceed with the case. At this point counsel renewed his motion for mistrial ('or, as I am calling it today, a retrial') on the grounds the jury would be apt to realize the continuance resulted from defendant's unexplained absence from trial and would be prejudiced against defendant because of these circumstances.

The motion was denied. The court indicated the possibility he would instruct on the flight.

Before proceeding with trial the following colloquy took place between the trial court and defendant out of the jury's presence:

'MR. METCALF: May my client make a statement, Your Honor, as to the reason for his absence yesterday?

'THE COURT: Yes, he may.

'THE DEFENDANT: Well, Your Honor, sir, right before I left yesterday Mr. Metcalf remembers I stopped out there and talked to him. I said, 'There is one witness that, if I could just get ahold of him, it's the only one I can find.'

'THE COURT: You took off after you talked to Mr. Hemby and discovered that the games you were playing weren't going to go.

'THE DEFENDANT: Sir--Mr. Metcalf, would I come by you and say it right after I talked to him?

'THE COURT: You went and talked to Hemby, that witness, which is all right, but they played games of trying to avoid process. I don't know if you knew about that or not.

'THE DEFENDANT: No, sir. I didn't know where this guy lived at.

'THE COURT: Where is this witness you need? All the resources of the State of Iowa are at your beck and call. You tell Mr. Metcalf who the witness is, and he knows how to do it. I don't believe you.

'THE DEFENDANT: Your Honor, sir, I drove about three hundred miles last night and I come back about three hundred just to try and find him.

'THE COURT: I don't believe you. You are a liar, Mr. Defendant, and you are an absconder. See, I can't believe you.

'THE DEFENDANT: It's not true.

'THE COURT: You have no right to expect anybody in authority to believe you. If the jury believes you, that's their problem.

'THE DEFENDANT: How can I prove myself innocent?

'THE COURT: Well, perhaps you are not innocent, I don't know. I don't know what Mr. and Mrs. Hemby are going to testify to.

'THE DEFENDANT: I do, that I am guilty, and I am not.

'THE COURT: Well, you can testify to that fact, but you are not going to run any more. It wasn't wise. I don't know how to--I don't know whether I am going to instruct on the flight or not.'

No objection was raised during trial or in the motion for a new trial questioning the judge's impartiality; rather, the matter is raised here for the first time. And it is significant the defense did not feel the remarks were sufficiently prejudicial to object at any time to the trial judge. Furthermore, the fact should be stressed the judge's remarks were not made before the jury.

It has been stated '* * * courts are acutely aware of defendant's right to a fair trial and it is essential for trial courts to be impartial and circumspect in the treatment of defendant, his counsel and witnesses. * * * (citing authority). 'It is vastly more important that the attitude of the trial judge should be impartial than that any particular defendant, however guilty he may be, should be convicted.' * * * (citing authority).' State v. Kimball, 176 N.W.2d 864, 867 (Iowa 1970).

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