State v. Kappos

• Decision Date: 09 September 1971
• Docket Number: No. 54249,54249
• Citation: 189 N.W.2d 563
• Parties: STATE of Iowa, Appellee, v. Christopher KAPPOS, Appellant.
• Court: Iowa Supreme Court

Page 563

189 N.W.2d 563

STATE of Iowa, Appellee, v. Christopher KAPPOS, Appellant.

No. 54249.

Supreme Court of Iowa.

Sept. 9, 1971.

James A. Brewer, Ames, for appellant.

Richard C. Turner, Atty. Gen., and G. Douglas Essy, Asst. Atty. Gen., for appellee.

LeGRAND, Justice.

A municipal court jury convicted defendant of violating section 124.20(3). The Code, 1966, which directs that 'no person shall knowingly permit any minor to purchase or consume any alcoholic beverage or beer on the premises of a class 'B' * * * permit holder.' He was sentenced to pay a fine of $400.00 and appeals from that judgment. We affirm.

Defendant lists three errors upon which he relies for reversal. He asserts (1) that section 602.34, The Code, excluding all persons except residents of Ames from the municipal court jury lists is unconstitutional and deprived him of an impartial jury trial; (2) that the trial court erred in admitting rebuttal evidence; and (3) that the trial court erred in retaining on the jury panel persons who had earlier served on a case involving an alleged crime committed by a professional dancer while performing at defendant's place of business. We consider these assignments in the order set out above.

I. Defendant is alleged to have knowingly permitted minors to purchase or consume beer in his tavern in Cambridge, a small town in Story County. Pursuant to chapter 602, The Code, 1966, the jury which tried defendant came entirely from residents of Ames.

That chapter permits no other course. Section 602.1, authorizes any city having a population of 5000 or more to establish a municipal court. It further defines the municipal court district as being composed of 'all that part of each civil township within the corporate limits of such city.' Section 602.34 limits the selection of municipal court jurors to those whose names appear in the pollbooks of the last general election in the territory included in the municipal court district. This statute disqualifies from jury service all residents of the county except persons living in Ames, even though the territorial jurisdiction of the court is coextensive with the territorial limits of the county. (Section 602.16. The Code.)

Defendant objects to this exclusion. He says he resides outside the city of Ames and is accused of having committed a crime outside the city, but must nevertheless be tried by a jury composed entirely of residents of that municipality. He challenges the constitutionality of such a statute as being violative of the equal protection and due process provisions of both the federal and state constitutions. (Amendment 14, .s. c/onstitution and Article I, sections 9 and 10, Constitution of Iowa.)

There is no merit to defendant's contention. Under the due process and equal protection clauses of both the federal and state constitutions, there is no requirement that all shall invariably be treated alike, only that classifications made be reasonable and not invidiously discriminatory. Becker v. Board of Education (1965), 258 Iowa 277, 282, 138 N.W.2d 909, 912; Board of Directors of Independent School District of Waterloo v. Green (1967), 259 Iowa 1260, 1270, 147 N.W.2d 854, 860; Lee Enterprises, Inc. v. Iowa State Tax Commission (1968), 162 N.W.2d 730, 753.

Statutes and rules of court limiting the area from which jurors may be drawn are not unusual. They have been generally upheld as resting on reasonable and rational grounds, usually to minimize inconvenience to the jurors and expense to the government. Hoyt v. Florida, 368 U.S. 57, 7 L.Ed.2d 118, 121, 82 S.Ct. 159; Crawford v. State, Alaska 1965, 408 P.2d 1002, 1005, 1008; United States v. Gottfried, 2 Cir., 1948, 165 F.2d 360, 364, cert. den., 333 U.S. 860, 68 S.Ct. 738, 92 L.Ed. 1139; United States v. Titus, 2 Cir., 1954, 210 F.2d 210, 212.

The cases cited by defendant to support his argument are all patently discriminatory in purpose, frequently on racial grounds. They are easily distinguishable from the present case and afford defendant no help. We have been referred to no authority holding it unconstitutional to establish reasonable and rational geographical districts for the selection of jurors as our statute does here.

We approve this statute the only time we had occasion to review it. Kinsey v. Clark (1933), 215 Iowa 765, 767--768, 246 N.W. 840, 841.

We hold the selection of jurors as provided in section 602.34 did not violate defendant's constitutional rights nor deprive him of an impartial jury.

II. Defendant next complains because Steven Paul was improperly permitted to testify as a rebuttal witness. His objection is two-fold. First, he asserts the witness should not have been allowed to testify because his name was not endorsed on the minutes as required by section 772.3, The Code; and, second, he urges it was error to receive evidence of a specific incident to refute testimony of defendant's good character.

We believe the testimony objected to was proper rebuttal and therefore it was unnecessary that the witness' name be endorsed on the information. State v. Nelson, Iowa 1967, 153 N.W.2d 711, 714; State v. Johnston (1960), 252 Iowa 335, 340, 105 N.W.2d 700, 702.

We also hold against defendant's second contention assailing the admissibility of a specific instance of alleged bad conduct to refute evidence of good character. We do not reach the merits of this argument because we agree with the trial court that defendant's character was not put in issue. The five witnesses produced by defendant did not attest to his good character but rather attempted to establish his habit in dealing with minors who sought service at his bar. The State called Steven Paul in rebuttal to show defendant did not always follow the practice outlined by his witnesses.

Although habit is sometimes said to be closely related to character, (McCormick, Law of Evidence, section 162, page 343 and 2 Wigmore on Evidence, Third Ed., 1940, sections 375, 376, pages 304--306) they are not the same. We have no doubt that we are dealing here with evidence of habit, not character.

Since the State did not object, we do not decide whether it was proper in the first place to admit evidence of habit. All we hold is that the State was entitled to rebut this evidence, once it was in.

III. The remaining issue deals with permitting jurors who had served on a previous case involving defendant's place of business to serve on this jury. We relate the factual background before considering this assignment.

Prior to the selection of the jury, defendant's counsel orally objected to the presence on the panel of persons who one week earlier had served in the case of State v. Jubceck, in which Linda Jubceck was convicted of lewd and indecent conduct while employed as a go-go dancer in defendant's tavern. Defendant claims the presence of these jurors on this case was prejudicial and deprived him of a fair trial in violation of Amendment 14 to the Constitution of the United States and of Article I, sections 9 and 10, of the Constitution of Iowa.

We cannot agree that this deprived defendant of a fair trial nor that his constitutional rights were violated.

Defendant made a blanket objection, asking disqualification of all who had served on the Jubceck case. The trial court denied this request but suggested defendant could attempt to show prejudice on voir dire examination, at which time the court would rule on the Individual juror's qualifications to serve.

We believe the trial court was correct. The grounds for challenge are set out in section 779.5, The Code. We recently held in State v. Grove, Iowa 1969, 171 N.W.2d 519, 520, that the trial court has broad power in acting on challenges to avoid an unfair trial. But there must be some showing of prejudice. In Schoonover v. Fleming, 239 Iowa 539, 546, 547, 32 N.W.2d 99, 104, we held a juror was not disqualified simply because he had previously sat on a case involving similar issues.

Similarly in Snakenberg v. Minneapolis and St. Louis Railway Company, 194 Iowa 215, 220, 188 N.W. 935, 938, we said, '* * * We know of no rule prohibiting a juror's sitting on a case merely because he has been a juror on another case wherein the facts were the same, if he has not formed nor expressed an opinion as to the merits of the case. * * * The whole matter comes to the question of the juror's prejudice, and the effect of that prejudice on the verdict.' (Emphasis added.)

Defendant made no effort to show prejudice in fact, although that course was pointedly suggested by the trial court.

The judgment of the trial court is affirmed.

Affirmed.

All Justices concur except BECKER and RAWLINGS, JJ., who dissent and REYNOLDSON, J., who takes no part.

BECKER, Justice (dissenting).

I respectfully dissent.

The key question here involves the power of the legislature to delegate to municipalities the right to create a judicial forum which has jurisdiction over crimes (and civil controversies) committed outside the city boundaries. Its jurors are selected entirely from city residents.

One should perhaps start with the observation that municipal courts fill a vital role in city government. They are a necessity until and unless replaced by something better. Here we are talking only about their role in controversies which are confined to matters arising beyond their corporate limits.

DEFENDANT'S RIGHTS--JURY SELECTION

The appellant argues the selection of the jury from only a portion of the territorial jurisdiction of the court violated his constitutional rights of due process and the equal protection of the law under the Fourteenth Amendment and also his right to a jury trial. Article I, §§ 9, 10, Iowa Constitution.

One important requirement of due process is that the defendant be tried by a fair and impartial jury. See Note, Constitutional Law: State Jury Selection Procedure Held a Violation of the Fourteenth Amendment, 1967 Duke L.J. 346, 350 (1967).

The selection of a nonrepresentative jury may...