State v. Jones, 54365

• Decision Date: 14 January 1972
• Docket Number: No. 54365,54365
• Citation: 193 N.W.2d 509
• Parties: STATE of Iowa, Appellee, v. Donald Larry JONES, Appellant.
• Court: Iowa Supreme Court

Page 509

193 N.W.2d 509

STATE of Iowa, Appellee, v. Donald Larry JONES, Appellant.

No. 54365.

Supreme Court of Iowa.

Jan. 14, 1972.

Carl V. Nielsen, Altoona, for appellant.

Richard C. Turner, Atty. Gen., Allen J. Lukehart, Asst. Atty. Gen., and Ray Fenton, Polk County Atty., for appellee.

UHLENHOPP, Justice.

This appeal involves several problems which arose during the trial on an indictment charging defendant with robbery with aggravation.

French D. Payton, a newspaper employee and part-time bartender, was tending bar at Jackie's Tap in Des Moines, Iowa, on the evening of March 17, 1970. Two men entered the tavern. One of them turned to the wall and pulled a ski mask over his head. Neither Payton nor anyone else in the tavern was able to identify that man then or later. The other man, however, walked 10 or 12 feet from the door toward the bar before he started to put on his mask and was in Payton's sight during that time. This second man then started to pull part of a silk stocking over his head as he walked along the bar. He pulled the stocking down so that his head was uncovered from the middle of his nose upward.

The second man then pointed a gun at Payton, had him lie on the floor, kicked him, threatened to kill him, and robbed him of the contents of his pockets. This second man then had Payton get up and open the cash register; at that time those two individuals stood side by side. After taking the contents of the cash register and some juke-box money, the robbers knocked Payton and the customers to the floor and either kicked or stomped on them and robbed them. The robbers then fired a few shots into the ceiling and fled. Three individuals in the tavern were hospitalized with injuries.

A few days later at a lineup conducted by the police, Payton identified defendant as the robber who wore the silk stocking mask. At a hearing to suppress evidence of that lineup, Payton identified defendant in court. Payton testified at that time he based his in-court identification 'on the fact that he was standing right next to me out to the tap.' Also, 'Well, I base my identification on the fact that this individual was close to me as you would be standing to somebody, and my recollection of it at that time. That's the only one. I didn't see enough of the other individual to make a positive (identification), so I didn't.' The State claimed at such hearing that defendant was advised of his right to counsel before the lineup occurred and waived counsel, and that the lineup was fairly conducted. Defendant made several objections to the lineup procedure, one of which was that when he participated in the lineup he thought it was for a robbery at Smitty's Donut Shop rather than at Jackie's Tap. The court found that the State's claims were true and overruled the motion to suppress.

Prior to trial, defendant also made a motion for a lie detector test, which the State resisted. That motion was likewise overruled.

Defendant was indicted for aggravated robbery at Jackie's Tap. On the morning the trial began, juries were being selected in three other cases. The panel consisted of 86 jurors. Through inadvertence, the names of 15 jurors originally were not in the drum, the slips containing those names having been left in one of the other courtrooms the previous week. When the first several prospective jurors were drawn for the present case, those 15 names were not in the drum. The oversight was then discovered, and when the remaining names for the present case were drawn, those 15 names were in the drum.

At the trial itself, Payton described in detail the robber who wore the silk stocking mask. He again positively identified defendant in the courtroom as the robber he saw in Jackie's Tap on the evening in question. When Payton was asked on direct examination,

If you see that person in court that pointed that gun at you and came behind there, please point him out,

he answered,

Yes. It's that gentleman right there (indicating defendant).

When asked on redirect examination,

Mr. Payton, regarding the identification of the defendant in this case, is there any doubt in your mind as to the fact that this is the man who robbed you on the 17th of March, 1970?

Payton answered,

There is no doubt in my mind or my heart.

And when asked,

Why are you so sure in this particular case that this is the man who robbed you?

he responded,

I am sure in my own mind because I was right next to the gentleman. He was threatening me, my life, with a gun. This makes an impression on you. I was just scared.

At the conclusion of the evidence and arguments, the trial court gave the jury an instruction on alibi, among others. The jury found defendant guilty of aggravated robbery.

When defendant came before the court for sentence, the trial court had before it the circumstances of this crime and also defendant's record of two previous felony convictions. Defendant was sentenced to not exceeding 25 years, as the statute provides, and a bench parole was not granted. Defendant appealed.

The appeal presents four principal issues. Should the judgment of conviction be reversed because of (1) erroneous lineup identification procedure, (2) refusal to grant a lie detector test, (3) absence of 15 panel members' names when the first prospective jurors' names were drawn, or (4) erroneous alibi instruction?

I. Lineup. Regarding lineup, the controlling decisions are United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.

We have examined the testimony regarding the lineup and, like the district court, find nothing unfair or suggestive about it. We prefer to rest our decision in this phase of the case, however, on another ground.

This court stated in State v. Wisniewski, 171 N.W.2d 882, 884 (Iowa):

It should be noted that an illegal out-of-court identification procedure does not necessarily bar identification testimony by that witness at trial. It merely precludes the use of the 'tainted' identification and requires clear and convincing proof that any identification made at trial had an independent origin and does not depend for its validity upon the illegal lineup procedure.

We followed that principle in State v. Essary, 176 N.W.2d 854, 858 (Iowa). We there said:

The in-court identification of defendant by Stiff has an independent origin and does not depend for its validity upon the alleged illegal viewing of defendant in the municipal courtroom. Under the record we do not reach the question of whether that viewing was a 'tainted' identification.

See also Evans v. Rosenberger, 181 N.W.2d 152, 157 (Iowa) ('His testimony plainly shows his identification was based on his observation of plaintiff at the scene of the crime.'); State v. Smith, 182 N.W.2d 409 (Iowa).

The witness, Payton, saw the second robber approaching the bar for several feet with no mask. He saw that robber putting on the mask, and he stood beside him at the cash register. The robber's face and head were uncovered from the middle of the nose upward. Payton was able to give a detailed description of the robber's physical characteristics. At both the hearing on the motion to suppress and at the trial, Payton positively identified defendant in court on the basis of his observations on the night of the crime. We hold the basis of Payton's identification of defendant at trial had an origin independent of the lineup, and that defendant's first contention is without merit.

II. Lie Detector Test. Since the State did not stipulate for a test of defendant by polygraph or sodium pentothal, but on the contrary resisted, the district court refused to order such a test. No evidentiary or other showing was made which would cause us to depart from the previous holding of this court that lie detector tests have not yet attained such scientific acceptance as to be admissible in evidence over the objection of a party. Hence, such tests are not to be ordered over the State's objection. State v. Freeland, 255 Iowa 1334, 125 N.W.2d 825. See also State v. McNamara, 252 Iowa 19, 104 N.W.2d 568 (admissible by agreement).

III. Jury Selection. Rule 187 of the Rules of Civil Procedure is applicable to criminal cases, insofar as the jury panel is concerned, by virtue of § 779.3, Code, 1971. That rule provides in part, 'Before drawing (of the trial jury) begins, either party may require that the names of all jurors be called, and have an attachment for those absent who are not engaged in other trials; but the court may wait for its return or not, in its discretion.' This court has held that a party who fails to make such demand for call of the panel waives his objection. State v. McClain, 191 Iowa 750, 183 N.W. 305. Had defendant in this case demanded a call before the jury selection commenced, the problem he now raises might well have been obviated. Since he failed to do so, we doubt that he can now complain.

But we believe the assignment of error cannot be sustained for another reason. A litigant is not entitled to any particular jurors; he is only entitled to a fair and impartial jury, and no showing is made that the 26 jurors who were called and examined were not proper jurors. Part of them were called before the mistake was discovered that 15 names had been left in another courtroom, and part were called after those 15 names were placed in the drum. None of the jurors called were challenged for cause by defendant, and indeed defendant waived one of his peremptory challenges. See State v. McHenry, 207 Iowa 760, 765, 223 N.W. 535, 538 ('As suggested in one of the above cases, all that the defendant is entitled to is a fair and impartial jury of 12 men.'); State v. Sweetman, 220 Iowa 847, 849, 263 N.W. 518, 519 ('All the defendant is entitled to is a fair and impartial trial by a jury of twelve.'). We think that litigants ordinarily are entitled to have the...