State v. Jones

• Decision Date: 06 February 1962
• Docket Number: No. 50311,50311
• Citation: 113 N.W.2d 303,253 Iowa 829
• Parties: STATE of Iowa, Appellee, v. Phyllis L. J. JONES, Appellant.
• Court: Iowa Supreme Court

Page 303

113 N.W.2d 303

253 Iowa 829

STATE of Iowa, Appellee, v. Phyllis L. J. JONES, Appellant.

No. 50311.

Supreme Court of Iowa.

Feb. 6, 1962.

Rehearing Denied April 2, 1962.

E. F. McEniry, Creston, for appellant.

Evan L. Hultman, Atty. Gen., William J. Yost, Asst. Atty. Gen., and Marshall F. Camp, Union County Attorney, Creston, for appellee.

THORNTON, Justice.

Defendant, a young, divorced mother, about 20 years old, was charged with robbery contrary to section 711.3, Code of Iowa, 1958, I.C.A., and convicted of the included offense, larceny from the person, section 709.6, Code of Iowa, 1958, I.C.A. She appeals, urging insufficiency of the evidence and the confession Exhibit No. 2, was inadmissible.

I. The undisputed facts are, defendant was drinking in the afternoon of October 26, 1960, with her ex-husband, John Jones. Defendant called Reed Donovan, the victim of the larceny, between six and seven p. m. to take her home. He picked her up. They stopped to buy cigarettes. He asked her to drive. She drove up Cottonwood Street (Creston, Iowa). She stopped the car saying she had smoke in her eyes. In a short time two men came out of the weeds. Donovan was severely beaten by them and robbed of some $1500, $1100 in fifty dollar bills. His right hand was broken in three places and 53 stitches were taken in his head. Donovan recognized John Jones, but not the other man. Donovan testified defendant was passed out immediately after the beating, and, 'Maybe she was drunk or something.' at the time she stopped the car. Defendant testified she was intoxicated at the time she got into the car, and that she saw two shadowy figures come toward the car, 'and I don't remember what happened after that.' At the point where defendant stopped at a stop sign before driving onto Cottonwood Street, defendant says she started to turn toward town when Reed (Donovan) said to go the other way (onto Cottonwood Street). Donovan testified he didn't remember who mentioned driving up Cottonwood Street. The above are all of the pertinent facts not based on defendant's oral statement given about 9:30 p. m. on the same day and a written confession, Exhibit No. 2, given about 1:00 a. m. the following morning. Another undisputed fact is that $1150 of the stolen money was found in the automobile of Martin Ellis in Cheyenne, Wyoming. The information leading to this recovery of the money came from defendant's confession. There is no other evidence introduced at the trial connecting Ellis with the crime.

It is apparent the foregoing evidence is insufficient to sustain a conviction beyond a reasonable doubt. The facts and inferences in defendant's oral statement and written confession are necessary to sustain a conviction.

Defendant's oral statement, as testified to by the sheriff, is as follows:

'She said that two weeks before, she had talked to her ex-husband about Reed Donovan. She said they planned to roll Reed Donovan, and she was to get one-third; she told us that about 9:30, and we got her to sign the statement about three hours later.'

Defendant's alleged confession, Exhibit No. 2, is as follows:

'I, Phyllis Jones, Having been warned that what I say may be used against me, voluntarily state:

'About two weeks ago, my former husband, John William Jones, was at my apartment at Little Hollywood, Creston, Iowa and I mentioned that Reed carried a lot of money and flashed it around.

'He said it would be a good thing to roll him, and that if they got any money from him he would give me a third of it.

'Today, October 26, John and Monte Ellis came to my apartment about 12 o'clock. I had just gotten through feeding my son, Mike who is 3 years old.

'I asked Monte later when we were at Hazel's Tavern if he could do such a thing as roll Reed and he did not answer. * * * [Then there are statements about taking her son to her parents, going to the liquor store, and being in three taverns.]

'John asked if I was going out with Reed tonight. I said I might, but that Reed was probably mad at me. John said 'Why don't you call him.' John asked me where we would go. I said we usually drive around by the lake and he asked what lake. I told him we go by McKinley lake, and through to Highway 25 and that sometimes we would park by the Graceland cemetery on Cherry Street.

'I think it was about 6 o'clock when I called Reed from Kelley's. He told me he would meet me at Wallace's store and I walked up to Wallace's from Kelleys leaving John and Monte there.

'I got in the car with Reed and we drove over to the South side to get some cigarettes at a station (Colonial) and must have given John and Monte time to drive out to the lake and hide their car. I did not know where they would put it or where they might see us.

'After Reed drove us near the park, I asked him if I could drive and he let me drive. I drove around the lake and then went west and turned up Cottonwood street. When we had gone some distance up Cottonwood I had smoke in my eyes and stopped. We talked a little bit and were over on the right hand side of the car together. Two shadows appeared at the right front window and windshield. I am certain that they were John and Monte.

'I think I may have passed out as I do not remember the beating, but when I came to, Bud Morrow was pulling my dress. I had blood on my arms and on one leg.

'The men were gone and we did not see their car.

'Bud took us to the hospital in his car, and I stayed in the car while they went into the hospital.

'IN WITNESS whereof I have hereunto set my hand to this and the preceding page at 12:30 A.M., October 27, 1960. * * *.'

The defendant signed the confession and the sheriff and assistant chief of police signed as witnesses.

From the undisputed facts, the oral statement, and Exhibit No. 2 the jury could find beyond a reasonable doubt defendant planned with her ex-husband and Ellis for her to arrange to have the victim at a certain place at a certain time. The two men would rob Donovan and divide the money with defendant. The knowledge Reed Donovan carried large amounts of cash could have been given by defendant innocently, and it is also true she could have given the information of where Mr. Donovan and she would stop innocently. But from her statement that they planned to roll Reed Donovan the jury could properly find she took part in the arrangement. An inconsistent incident is, defendant being asked to drive and suggesting they drive toward town. However, if the jury believed she planned the robbery as she stated it would not be improper for the jury to draw the conclusion defendant knew Mr. Donovan's habits and desires sufficiently well to know he would suggest the usual route or parking place, and her suggestion was merely to mislead Mr. Donovan and protect herself.

Defendant does not cite authority bearing on the insufficiency of the evidence. Her argument is that she too was an innocent victim of the two men. This of course would have been a permissible inference for the jury to draw, but it is certainly not the only one. There is conflicting testimony and different inferences may be drawn therefrom, the verdict is binding on us. State v. Register, (No. 50381, filed January 9, 1962), Iowa, 112 N.W.2d 648; and State v. Poffenbarger, 247 Iowa 552, 74 N.W.2d 585.

II. Defendant's contention the confession, Exhibit No. 2, is inadmissible was in no manner presented to the trial court. Her argument here apparently is a conviction cannot be based on an alleged involuntary confession whether or not the admissibility is raised in the trial court, that the due process clause is violated. This is not in accord with our previous holdings. Failure to object to the admissibility of evidence in the trial court waives any error therein and its admissibility is not reviewable here. State v. Walters, 244 Iowa 1253, 1261, 58 N.W.2d 4; 346 U.S. 940, 74 S.Ct. 380, 98 L.Ed. 427; State v. Mauch, 236 Iowa 217, 17 N.W.2d 536; and State v. Ostby, 203 Iowa 333, 210 N.W. 934, 212 N.W. 550. Constitutional questions cannot be raised for the first time on appeal. State v. Walters, 244 Iowa 1253, 58 N.W.2d 4; 346 U.S. 940, 74 S.Ct. 380, 98 L.Ed. 427; and State ex rel. Seeburger v. Johnson, 204 Iowa 150, 214 N.W. 594.

III. We have recently commented on the failure to properly present claimed errors to the trial court. State v. Pullen Iowa, 110 N.W.2d 328; and State v. Kramer, Iowa, 109 N.W.2d 18. We there point out rules of procedure are not merely technical, they lay down an orderly process for trials, necessary to avoid interminable confusion. In the two cited cases we did examine the assigned errors and gave the warning such would not be our practice. In those cases we were requested to examine the record and assigned error pursuant to section 793.18, Code of Iowa, 1958, I.C.A., here we are not so requested.

Section 793.18 does require us to examine the record without regard to technical errors or defects which do not affect the substantial rights of the parties. But we have held this statute inapplicable where objections to evidence have been waived. State v. Ostby, 203 Iowa 333, 342, 210 N.W. 934, 212 N.W. 550.

IV. It has long been the Iowa practice to afford the defendant as a matter of right, on the question of the admissibility of a confession, either oral or written, a hearing in the first instance before the trial court out of the presence of the jury. It is the duty of the trial court to receive preliminary evidence, including cross-examination of the state's witnesses and evidence on behalf of the accused upon the competency of the confession, and determine the question of admissibility. State v. Fidment, 35 Iowa 541, 542; State v. Hofer, 238 Iowa 820, 28 N.W.2d 475; and State v. Case, 247 Iowa 1019, 75 N.W.2d 233. The test is whether or not the confession is voluntary. State v. Archer, 244 Iowa 1045, 58 N.W.2d 44; and State v. Case, supra. The confession, like any admission, is presumed to be voluntary. The...