State v. Jones

• Decision Date: 22 November 1978
• Docket Number: No. 60259,60259
• Citation: 271 N.W.2d 761
• Parties: STATE of Iowa, Appellee, v. Rubin Ellist JONES, a/k/a Rubin Oakley, Appellant.
• Court: Iowa Supreme Court

Page 761

271 N.W.2d 761

STATE of Iowa, Appellee, v. Rubin Ellist JONES, a/k/a Rubin Oakley, Appellant.

No. 60259.

Supreme Court of Iowa.

Nov. 22, 1978.

Alfredo G. Parrish, Des Moines, and Lawrence F. Scalise and Thomas J. Levis of Scalise, Scism, Gentry, Brick & Brick, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Faison T. Sessoms, Jr., Asst. Atty. Gen., and Terry Wright, Asst. County Atty., for appellee.

Considered by REYNOLDSON, C. J., and LeGRAND, REES, UHLENHOPP and HARRIS, JJ.

REYNOLDSON, Chief Justice.

July 8, 1976, Johnney White, Sr., was attacked on a Des Moines street and repeatedly knife-cut by Jimmy Wayne Wright. On the next day Wright was shot and killed as he ran from a friend's house. The grand jury indicted Johnney White, Jr., White's son, and Archie Ray Daniels and this defendant, White's stepsons, accusing them of Wright's murder.

Defendant pled not guilty and successfully moved for separate trial. He was convicted of first-degree murder and sentenced to life imprisonment. We now affirm the judgment entered by trial court.

On appeal defendant raises six grounds for reversal, treated in the divisions which follow.

I. Sufficiency of evidence.

Defendant contends trial court's failure to sustain his motions for directed verdict was error because there was insufficient evidence to sustain his conviction. Specifically, he claims there was no evidence that he knowingly participated in or encouraged Wright's murder.

The State proceeded on the theory that defendant was an aider and abettor in the murder. See § 688.1, the Code 1975; § 703.1, Supplement to the Code 1977. Aiding and abetting means to assent to or lend countenance or approval to a criminal act, either by active participation in it or by in some manner encouraging it. Of course, the State must prove defendant's participation or encouragement was done with knowledge of such act. State v. Lott, 255 N.W.2d 105, 107 (Iowa 1977); State v. Watson, 242 N.W.2d 702, 706 (Iowa 1976).

In reviewing these rulings we view the evidence in the light most favorable to the State, without regard to contradiction or inconsistencies and assisted by all reasonable inferences. If there is substantial support for the verdict in the record, the jury verdict is conclusive. State v. Overstreet, 243 N.W.2d 880, 883-84 (Iowa 1976).

The evidence in this case would permit the jury to find the following facts.

After the attack on White, Sr., Wright sought refuge at Gloria Richardson's home at 1126 Ninth Street, Des Moines. The next day defendant, accompanied by two unidentified women, came to the door. After some discussion they left, but subsequently returned with Daniels and White, Jr.

Defendant and others searched for Wright throughout the house. Apparently by this time Wright had left the home and was hiding in an adjoining alley. Daniels then asked Gloria's son, Michael, where Wright had gone. Michael responded he had gone "over to Oak Ridge." Defendant and his companions were getting into cars to go there when one of the women, looking down the alley, shouted, "(T)here he is." Defendant and his companions vacated the cars.

Several persons testified they saw defendant chase Wright. Fifteen-year-old Cornelia Richardson, who has one artificial eye and wears glasses, testified she saw defendant hit Wright on the head with a bottle. According to the medical examiner, a blow fractured Wright's skull and could have been the cause of death, absent the subsequent gunshot wounds. Clark, a neighbor, observed two men and a woman chase Wright into a neighboring yard. From his descriptions and other testimony the jury could find the two men were defendant and White, Jr.

There was no testimony relating to the actual shooting. Cornelia Richardson heard Wright plead for his life. Clark heard one of the three say, "Shoot, shoot him." Later Clark observed White, Jr., tuck what may have been a gun down the front of his pants.

Defendant assigns no weight to Cornelia's testimony. Although the State's failure to find the bottle she said defendant used weakens her words, they are not rendered incredible. Her testimony is corroborated by the medical examiner. Defendant also attacks Clark's testimony because a doctor testified he had just released defendant from the hospital and the latter was not capable of "a great deal of fast mobility." We do not believe this demolishes Clark's testimony.

The jury could have found defendant brought the triggerman to the scene, joined the search for Wright, participated in his pursuit, struck him with a bottle, stood by while he was shot three times, and then left in an automobile with his two male companions.

The evidence was sufficient. Trial court committed no error in overruling the motions for directed verdict.

II. Collateral estoppel.

After a jury trial White, Jr., was convicted of second-degree murder. Defendant asserts the State's failure to secure a first-degree murder conviction in White's trial precludes defendant's conviction for that crime, citing Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), and United States v. Casper, 541 F.2d 1275 (8th Cir. 1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1654, 52 L.Ed.2d 362 (1977). This issue was first raised on motion for new trial. By considering the merits of this complaint we do not intimate it was timely raised.

This court analyzed the Ashe rule in State v. Stergion, 248 N.W.2d 911, 913-14 (Iowa 1976), State v. Pospishel, 218 N.W.2d 602, 604 (Iowa 1974), State v. O'Kelly, 211 N.W.2d 589, 593-94 (Iowa 1973), cert. denied, 417 U.S. 936, 94 S.Ct. 2652, 41 L.Ed.2d 240 (1974), State v. Young, 211 N.W.2d 352, 354 (Iowa 1973), and State v. Gowins, 211 N.W.2d 302, 303-04 (Iowa 1973). We have found no indication the United States Supreme Court has retreated from its concept that collateral estoppel in a criminal case is a part of the fifth amendment's guarantee against double jeopardy and "means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated Between the same parties in any future lawsuit." Ashe, 397 U.S. at 443, 90 S.Ct. at 1194, 25 L.Ed.2d at 475 (emphasis supplied).

Defendant relies on Casper for the proposition that identity of parties is not necessarily a requirement of collateral estoppel in this case. The Casper court only noted a dictum in trial court's decision which advanced such a theory. Casper rejected a suggestion to extend collateral estoppel to questions of law. 541 F.2d at 1278-79.

With commendable candor defendant acknowledges our cases which hold:

(W)hen a defendant is charged with aiding and abetting a judgment in a separate trial acquitting the actual perpetrator is neither res judicata nor a bar to the prosecution of defendant. A judgment against one, whether of conviction or acquittal, has no bearing on the other.

State v. Cunha, 193 N.W.2d 106, 109 (Iowa 1971). See also Watson, 242 N.W.2d at 706; Young, 211 N.W.2d at 353; State v. Brown, 172 N.W.2d 152, 155 (Iowa 1969). This case law is now embodied in our statutory law. § 703.1, Supplement to the Code 1977 ("The guilt of a person who aids and abets the commission of a crime must be determined upon the facts which show the part he or she had in it, and does not depend upon the degree of another person's guilt."). This rule is consistent with the refusal elsewhere to relax the traditional identity of parties requirement. See, e. g., United States v. Brown, 547 F.2d 438, 444 (8th Cir.), cert. denied, 430 U.S. 937, 97 S.Ct. 1566, 51 L.Ed.2d 784 (1977). See generally Annot., 9 A.L.R.3d 203 at § 3 (1966).

We need not decide today whether to relax this rule where the relevant conduct of two separately tried defendants is identical. Defendant makes no showing of factual similarity. In Stergion we held a defendant relying on collateral estoppel must make an adequate record to show the verdict in the prior case necessarily foreclosed a factual issue essential to the subsequent prosecution. We held defendant did not meet this burden:

Defendant never offered the "pleadings, evidence or charge" in the manslaughter trial for the court's examination. He merely appended to his dismissal motion several of the jury instructions from the prior proceeding.

248 N.W.2d at 913, quoting Ashe, 397 U.S. at 444, 90 S.Ct. at 1194, 25 L.Ed.2d at 475-76. In the case before us, defendant failed to make this required record upon which trial court could have determined whether identical issues of ultimate fact were presented in both trials.

We hold trial court did not err in overruling defendant's motion on this ground.

III. Impeachment by prior conviction.

Before his 1976 trial, defendant filed a motion for an order prohibiting the State from using his 1968 perjury conviction for impeachment purposes upon cross-examination. Ruling was deferred until just before defendant took the stand. But see State v. Martin, 217 N.W.2d 536, 543 (Iowa 1974). After a hearing with the jury absent, trial court ruled the State could inquire into the nature of the conviction.

On defendant's direct examination, this exchange then took place:

Q. Have you ever been convicted of a felony? A. Yes, I have.

Q. And what was the felony? A. Perjury.

On cross-examination defendant was asked again:

Q. It is my understanding that you have been convicted of a felony crime of perjury, is that correct? A. Yes, it is.

Defendant contends trial court abused its discretion by its ruling on his motion. The State claims there was no abuse of discretion. It also asserts defendant waived any error by disclosing the conviction on his direct examination. We first examine the issue of waiver.

We have reached the merits of this impeachment issue on several occasions when the prior conviction was acknowledged by the witness on direct examination. See State v. Burt, 249 N.W.2d 651, 653 (Iowa 1977); State v. Miller, 229 N.W.2d 762, 769 (Iowa 1975); Martin, ...