State v. King

• Citation: 256 N.W.2d 1
• Decision Date: 29 June 1977
• Docket Number: No. 59140,59140
• Parties: STATE of Iowa, Appellee, v. Marion Archer KING, Appellant.
• Court: United States State Supreme Court of Iowa

Page 1

256 N.W.2d 1

STATE of Iowa, Appellee, v. Marion Archer KING, Appellant.

No. 59140.

Supreme Court of Iowa.

June 29, 1977.

Lawrence F. Scalise, of Scalise, Scism, Gentry, Brick & Brick, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Jim P. Robbins, Asst. Atty. Gen., Ray A. Fenton, County Atty., Donald F. Starr, Asst. County Atty., for appellee.

En banc.

RAWLINGS, Justice.

Defendant, Marion Archer King, appeals from judgment on jury verdict finding him guilty of first degree murder in violation of Section 690.2, The Code 1975. We affirm.

September 8, 1975, this cause came on for joint trial with State v. Billy Joe Armento Houston in Polk District Court.

Prior to commencement of trial King (defendant) moved to suppress all evidence seized from his New Mexico residence pursuant to a search warrant issued in that state. He also filed a pretrial motion to disqualify Assistant County Attorney Donald Starr. These motions were overruled and trial ensued.

During trial, and again at close of all evidence, defendant's directed verdict motions were overruled. In addition, his mistrial motion made after Robert Laden had testified was denied.

Following return of the verdict, defendant unsuccessfully moved for a new trial. Upon being sentenced to the penitentiary for life defendant initiated this appeal.

In course of trial the State produced testimony showing Billy Joe Armento Houston (Armento) and Lawrence Paul Kocher (Kocher) flew to Des Moines March 4, 1975, rented a red Vega from Dollar-A-Day Rent-A-Car Company, and checked into room 124 at the Midtown Motor Inn. While in Des Moines, Kocher used the name Larry Myestas.

According to Kocher, defendant came to the motel March 11 to discuss a plan for murdering his wife. Kocher testified defendant directed them to park their car on North Valley Drive in Des Moines the next evening and flag down his car; defendant would stop to help; Armento was to then kill Mrs. King and shoot defendant in the leg. Kocher testified the plan was executed March 12 as directed.

In support of Kocher's testimony, the State produced witnesses who verified the fact Armento had rented a red Vega and checked into the Midtown Motor Inn March 4, accompanied by Lawrence Kocher. The red Vega was returned to the rental agency March 12 at 7:29 p. m., less than one hour after occurrence of the alleged killing.

The State also introduced evidence disclosing at least two phone calls had been made from Armento's motel room to the Hotel Plaza in Albuquerque, New Mexico, King's place of employment. Defendant's secretary testified she received two phone calls between March 5 and March 17 from a man who identified himself as Larry Myestas and wanted to speak with Mr. King.

Additionally, the State adduced testimony revealing King had withdrawn a total of about $3500 from various savings accounts since January 27, 1975. A Des Moines policeman who investigated the crime further testified defendant told him he had withdrawn $400 from a bank in Des Moines on March 12.

John Andrews, Mrs. King's brother, a State's witness, said he had lunch with King March 12, and during their conversation defendant mentioned he had estate tax problems "beat" because he and his wife both had insurance on each other. Andrews noted, however, defendant did not initiate the conversation about taxes.

Lieutenant Clarence Jobe of the Des Moines Police Department, also a prosecution witness, identified State's Exhibit 60 as an insurance policy in defendant's name covering Mrs. King. The policy, originally providing $100,000 coverage, had been increased in 1974 to a total of $200,000. Defendant objected to the admission of this evidence.

King testified in his own behalf. He stated he was taking his wife to the Pier Restaurant for dinner the evening of March 12, when flagged down by two men apparently stranded on North Valley Drive. Defendant said he and his wife decided he should try to help the two men start their car. While checking under the hood of the car, defendant yelled to his wife for a screwdriver. One of the men went to defendant's car, ostensibly to obtain the screwdriver, while defendant remained at the other vehicle working on the engine. Defendant testified he then heard what was first thought to be a car backfiring, but soon realized it was gun fire. King said he started running back to his car, "wondering about the $400 I had placed under the floor mat", and was thereupon confronted by the alleged assailant who "pushed me violently in the chest" then "shot me in the leg". Defendant said he returned to his car and drove Mrs. King back to her sister's home for aid.

King also stated he first described the two assailants as white males, but later realized one "had Negroid features and appeared to be darker than I remembered". King also testified Lawrence Kocher was the other man on North Valley Drive that night.

Defendant further related he had understood the $200,000 insurance policy on his wife was payable only for accidents. He stated her coverage was increased because she would receive 55 per cent of his Air Force pension at his death.

With regard to recent withdrawals from savings accounts, defendant said he took out $1000 in early 1975 to apply on a mortgage outstanding on his Albuquerque home. He said $2500 had been removed from a New Mexico account to pay off gambling debts; $400 was withdrawn the day of the murder, apparently to cover expenses incurred during his trip to Des Moines.

Finally, defendant testified he received no phone calls from Billy Armento, Lawrence Kocher, or Larry Myestas. King denied having ever met any of these people or that he had planned to have his wife killed.

Other facts will be considered as they relate to our consideration of the issues here raised.

In support of a reversal defendant asserts trial court erred in:

(1) Denying his motion for a new trial due to judicial misconduct;

(2) Denying his motion to suppress evidence seized from his New Mexico home pursuant to a search warrant there issued;

(3) Failing to submit for jury consideration his requested accomplice-corroboration instruction;

(4) Sustaining the State's motion under Section 780.11, The Code 1975, to allow testimony by additional witnesses on behalf of the State;

(5) Depriving defendant of his right to a fair trial by precluding introduction of evidence regarding Lawrence Kocher's State-induced testimony.

These assigned errors will not be entertained in the order presented.

I. At the outset, King maintains trial court erroneously overruled a motion to suppress evidence seized from his home in New Mexico pursuant to a search warrant there issued. Defendant asserts evidence obtained under a prior allegedly defective Iowa search warrant was utilized in order to secure the New Mexico warrant. He argues the subsequent warrant was invalid because remaining allegations in the supportive affidavit were purportedly insufficient to constitute probable cause.

Admittedly, defendant's trial court brief alludes to New Mexico law in the search and seizure field, more particularly probable cause for issuance of a warrant. But this falls far short of requisite pleading and proof as to such foreign law. Therefore, the judicial notice precept does not come into play. Rather, absent requisite pleading and proof, it will be presumed relevant New Mexico law is the same as that which obtains in this jurisdiction. Matter of Estate of Allen, 239 N.W.2d 163, 168-169 (Iowa 1976); Farmers Insurance Group v. Merryweather, 214 N.W.2d 184, 189 (Iowa 1974).

In keeping therewith we initially note our summarization in State v. Sheridan, 247 N.W.2d 232, 234-235 (Iowa 1976):

"This court in State v. Spier, Iowa, 173 N.W.2d 854, discussed and analyzed at length the duty of a magistrate in considering and determining probable cause for issuance of a search warrant. The pertinent quotations from pages 858-859 of Spier are:

" 'Amendment 4 of the United States Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. " (Emphasis supplied).

" 'To the same effect is section 8, Article I, of the Iowa Constitution.

" 'It therefore follows a search warrant may issue only upon an adequate showing, under oath or affirmation, of probable cause.

" 'Touching on that subject the court said in Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879: "In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved."

" 'This was later repeated, with approval, in Beck v. State of Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 226, 13 L.Ed.2d 142.

" 'Unquestionably a warrant-issuing magistrate, in determining the matter of probable cause, must judge for himself the persuasiveness of facts relied on by an applicant, mere conclusions being totally inadequate. Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503.

" 'Thus, a magistrate is required to make an objective determination of the factual situation presented to him on oath or affirmation, mere subjective findings or conclusions of an applicant-officer being insufficient and of no probative value. See Beck v. Ohio, supra, at 379 U.S. 97, 85 S.Ct. 229.'

"More recently in State v. Boer, Iowa, 224 N.W.2d 217, 219, 220, we said:

" 'Probable cause for issuance of a search warrant exists only when the facts and circumstances presented to the judicial officer are sufficient in themselves to...