State v. O'Kelly, 55895

• Decision Date: 17 October 1973
• Docket Number: No. 55895,55895
• Citation: 211 N.W.2d 589
• Parties: STATE of Iowa, Appellee, v. William R. O'KELLY, Appellant.
• Court: Iowa Supreme Court

Page 589

211 N.W.2d 589

STATE of Iowa, Appellee, v. William R. O'KELLY, Appellant.

No. 55895.

Supreme Court of Iowa.

Oct. 17, 1973.

Rehearing Denied Dec. 13, 1973.

Paul E. Watts, Omaha, Neb., and Noran Davis, Council Bluffs, for appellant.

Richard C. Turner, Atty. Gen., Thomas D. McGrane, Asst. Atty. Gen., and Lyle A. Rodenburg, County Atty., for appellee.

Heard before MOORE, C.J., and MASON, RAWLINGS, LeGRAND, and UHLENHOPP, JJ.

UHLENHOPP, Justice.

This appeal involves questions which arose in a prosecution for receiving stolen goods under § 712.1, Code 1973.

On the night of September 1, 1969, someone stole a large safe from the office of Delight Wholesale Company in Omaha, Nebraska. Money bags in the safe contained $2,614.83. Later that night an Omaha police officer spied a pickup truck hauling a safe. The occupants of the truck fled, but the officer seized the truck and safe and placed them in the Omaha police garage. Still later that night, someone stole the pickup and safe from the police garage.

That same night a farmer in Pottawattamie County, Iowa, was disturbed by a noise. The next morning, as he was mending fence, he observed vehicle tracks running down to the fence. He discovered a safe, covered with weeds, just over the fence in his field. He notified the Pottawattamie County sheriff's department, which called in the Omaha police. After ascertaining that the safe was from Delight Wholesale, Omaha police officers and a Pottawattamie County deputy sheriff set up surveillance at the site of the safe. They placed an electronic listening device near the safe and listened and watched throughout the day and evening of September 2.

About 10:30 p.m. on September 2 a car drove up and two individuals alighted. Shortly the officers heard mumbling of voices and beating on the safe. The mumbling stopped, and the two individuals carried objects to the road. The officers closed in. One of the two individuals--defendant William R. O'Kelly--tried to move back into the brush but halted when an officer fired a gun into the air. The objects which the two individuals had carried to the road were the safe door, the Delight Wholesale money bags containing the proper amount, sledge hammers, bars, and other devices for breaking open a safe.

The deputy sheriff took the two individuals into custody. Omaha authorities charged defendant in Nebraska with burglary of the Delight Wholesale establishment and sought extradition. Defendant waived extradition, because, he claims, a judge of Council Bluffs Municipal Court and an assistant county attorney of Pottawattamie County promised no charges would be preferred against him in Iowa. Defendant was tried for burglary in Omaha, but the jury could not agree. The case was not retried for three terms, whereupon it was dismissed pursuant to Nebraska law.

The county attorney of Pottawattamie County then charged defendant with receiving stolen property and extradited him to Iowa. Trial began on that charge, but a mistrial was declared during the course of the proceedings. Defendant was then tried again--the present trial.

During the present trial a number of pictures were introduced into evidence. At one point the following events occurred regarding a picture which had been marked as an exhibit:

WITNESS CHRISTIAN (Delight Wholesale employee): This is the morning that the Omaha police department brought the money back to us for recounting. We laid it on the floor, the picture, so he could get it. This is the same money we counted.

MR. WATTS (defense counsel): Well, I will object then on foundation until I can question him as to the identity, how he ascertained identity.

THE COURT: You haven't asked him; he didn't say that photograph was a fair representation.

WITNESS: It is a fair representation of what was shown and delivered to me in the office of the Delight Wholesale Company on or about September 3, 1969.

Defendant filed an affidavit that this, as well as the trial court's facial expressions, rulings, and voice inflections during trial, prevented defendant from having a fair trial. The affidavit was not supported by affidavits of others.

Also during the trial, defense counsel brought out on cross-examination of the farmer that hunters and others came on the farm occasionally. The arguments to the jury were not reported, but during the prosecutor's closing argument the following was taken down:

MR. WATTS: Your Honor, at this time the defendant moves the court for a mistrial, for the reason that the prosecutor has just told the jury in the middle of his closing argument that if there were hunters, as I recall the testimony, why didn't the defendant produce them so the jury could hear that they were out there hunting, and I move for a mistrial on the ground that the defendant is not required to produce any evidence whatsoever to prove his innocence in the course of the trial.

THE COURT: Motion is overruled. I might suggest to counsel, you had better stay well within the rules or you are getting on dangerous ground.

Subsequently this also was taken down:

MR. WATTS: I make the same objection. Now he referred to why I did not subpoena on Mr. O'Kelly's behalf further evidence. He is pointing to pictures and gathering them in his hands, if I wanted more, and I again move for a mistrial that that is inferring to the jury that the defendant has to prove his innocence.

THE COURT: Motion is overruled.

In its instructions, the trial court told the jury, among other things, that defendant was presumed innocent and that the burden of proof rested on the State to prove defendant guilty by the evidence beyond a reasonable doubt. The trial judge also instructed that nothing he did or said during the trial constituted any intimation of what the verdict should be.

The jury found defendant guilty, and, after overruling defendant's motion for new trial, the trial court sentenced him. He appealed.

Defendant presses these contentions here: (1) the present prosecution is barred by double jeopardy, (2) the safe and other articles were illegally seized and evidence of them is therefore inadmissible, (3) defendant was promised immunity in Iowa and therefore Iowa cannot prosecute him, (4) the State did not introduce substantial evidence in support of the information, and (5) the trial court and the prosecutor committed misconduct.

I. Double Jeopardy. Defendant's assertion of double jeopardy involves several assumptions which we accept arguendo only, such as that the doctrine applies between two states. The double jeopardy clauses are found in Article I, § 12, of the Iowa Constitution and in Amendment 5 to the United States Constitution. This part of Amendment 5 was held applicable to the states in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707.

Defendant makes three assertions regarding double jeopardy relying largely on federal decisions interpreting Amendment 5. He first asserts what amounts to episodic immunity; that is, a defendant once tried cannot be tried on another charge growing out of the same episode. He contends that this episode began with the Delight Wholesale burglary one night and ended with the removal of the contents of the safe in the farmer's field the next night. He says that having been tried on a charge of burglary, he cannot be tried on a charge of receiving stolen property in connection with that episode.

Assuming without deciding that the events on the nights of September 1 and 2 constituted one episode, the difficulty with defendant's contention is that the concept of episodic immunity has not been adopted. See e.g. State v. Garcia, 198 Iowa 744, 200 N.W. 201. While three members of the United States Supreme Court have espoused it, the other members of the Court have not accepted it. Compare opinions of Justices Stewart and Brennan in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469. See also Annots., 25 L.Ed.2d 968, 51 A.L.R.3d 693; Comment, 58 Iowa L.Rev. 1000. We therefore reject this contention by defendant.

Defendant next asserts double jeopardy in its classic form--that he was tried in Iowa for the 'same offense' as in Nebraska. But the present facts do not at all fit under that form of double jeopardy. Under that form the rule is that 'where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.' Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309. See also State v. Cook, 261 Iowa 1341, 158 N.W.2d 26. The two charges involved here have entirely different elements. This court has expressly held that an accused is not placed in jeopardy when tried for receiving stolen property after having been acquitted of larceny of the property from a building in the nighttime. State v. Smith, 219 Iowa 168, 256 N.W. 651. See United States v. Jones, 418 F.2d 818, 827 n. 12 (8 Cir.) (acquittal of armed robbery of bank, subsequent charge of possession of stolen money--'The statute of limitations has not barred such prosecution (possession of stolen money), nor is such charge subject to the defense of double jeopardy.'); Poffenbarger v. United States, 20 F.2d 42 (8 Cir.) (theft of mail bags, subsequent charge of abstracting their contents--not double jeopardy); 22 C.J.S. Criminal Law § 290 at 760. We reject this contention also which defendant makes.

Finally on double jeopardy, defendant asserts that the dismissal of the Nebraska burglary prosecution necessarily adjudicated in his favor an essential element of the charge of receiving stolen property in Iowa. This assertion involves double jeopardy in the form of res judicata, a form which the United States Supreme Court held applicable to the states in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, followed in Simpson v. Florida, 403 U.S. 384, ...