State v. LaMar

• Decision Date: 06 June 1967
• Docket Number: No. 52241,52241
• Citation: 260 Iowa 957,151 N.W.2d 496
• Parties: STATE of Iowa, Appellee, v. Jack Irwin LaMAR, Appellant.
• Court: Iowa Supreme Court

Page 496

151 N.W.2d 496

260 Iowa 957

STATE of Iowa, Appellee, v. Jack Irwin LaMAR, Appellant.

No. 52241.

Supreme Court of Iowa.

June 6, 1967.

Morris & Morris, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Stephen C. Robinson, Asst. Atty. Gen., and Ray Fenton, County Attorney, Des Moines, for appellee.

MASON, Justice.

The Polk County grand jury returned an indictment charging Jack Irwin LaMar with breaking and entering with intent to commit larceny contrary to section 708.8, Code 1966. Following a plea of not guilty the matter proceeded to trial by jury which returned a verdict of guilty. Defendant was sentenced to imprisonment in the state penitentiary for a term not to exceed ten years.

From this final judgment defendant appeals.

His assignments of error may be summarized: (1) allowing a demonstration in the jury's presence of the manner in which certain tools in evidence might be used in opening a safe, (2) instructing on defense of alibi, (3) violating his constitutional right against self-incrimination and (4) misconduct of assistant county attorney in final argument.

I. During the early morning hours of September 5, 1965, Richard Kail, a Des Moines police officer, and James J. Riccio, then a civil defense auxiliary officer, were patrolling in the neighborhood of 5722 Hickman Road, Des Moines. About 3:30 a.m. they drove to the Chili King Restaurant No. 2 and proceeded to examine the doors and windows. In checking Kail looked through a small window in the north wall of the building and saw two men, one he claims to have recognized as Jack LaMar. After kicking in the front door, Kail apprehended one man but saw only the legs and feet of the other going through a ventilating hatch opening. A search of the scene was conducted by numerous Des Moines police officers.

George Karaidos, the restaurant owner, went to the restaurant in response to a police call, found the front door opened and the window pried open. He noticed there were tools on the floor and that the safe had been pulled away from the wall.

Defendant, arrested some days later, claimed he was several miles from the scene at his mother-in-law's home at the time the crime was alleged to have been committed. His alibi was corroborated by his mother-in-law who testified he had been at her home between 2 a.m. and 8 a.m. September 5.

At the trial Kail identified certain tools found at the scene including vise grips, punch, sledge hammer, pry bars and a pair of cotton gloves which he described as safe burglar tools. Over defendant's objection he testified, 'These are the exact tools you would need to get into a safe * * * the sawed-off sledge hammer to knock off the dial, * * * the vise grips that hold the punch to knock the tumblers out of the lock.' When asked to physically demonstrate his testimony to the jury, Kail proceeded to show the manner in which the various tools could be used. He testified he later observed pry marks around an open window next to the door.

George Kachelhoffer, another police officer participating in the search, testified these pry marks on the window could have been made by one of the pry bars found at the scene. On his second trip to the restaurant he took the pry bar or crowbar and it matched the pry marks. He identified the tools found lying by the safe in the restaurant and over defendant's objection demonstrated the manner in which they could be used in peeling a safe and removing the dial and tumblers.

Jim Alexander, restaurant manager, testified he closed the restaurant about 2 a.m. September 5. There was a safe in the rear of the building containing approximately $1000 he placed there before leaving at 2:30, the doors and windows were locked and none of the various tools in evidence were in the restaurant at that time. He returned to the restaurant at noon and did not recall seeing the tools. Although the safe had been removed from its usual position, it had not been opened nor did it appear to have been otherwise tampered with. In identifying a photograph of the scene offered in evidence Alexander testified the safe appeared to have been moved away from the wall and was in that position when he observed it Sunday noon.

II. Defendant does not question the admissibility of the tools found at the scene nor Kachelhoffer's testimony that the window had been jimmied by a bar with a split bit similar to the pry bar admitted into evidence. However, he argues the court's failure to strike or stop Kail's demonstration was damaging to him in that it allowed the jury to speculate and guess with regard to matters which were not a part of the record; to allow the witness to engage in prejudicial and inflammatory speculation was improper and deprived him of a fair trial. He bases this argument on the contention the witness had never used the tools in the manner described by him, the officer's knowledge was based on hearsay, according to what someone else had told him and the witness was not an expert to whom a hypothetical question could be addressed; that the safe had not been damaged, opened or tampered with and the tools had not actually been used in the manner described by the witness.

Defendant's position cannot be sustained. Although he had objected to the offer in evidence of the various tools found at the scene, as stated he does not question their admissibility on appeal. Properly identified articles found at the scene of the crime which tend to show its commission or the manner thereof, or explain some related matter in issue, are admissible in evidence for jury inspection. State v. Drosos, 253 Iowa 1152, 1159--1160, 114 N.W.2d 526, 530--531. The determination of relevancy and explanatory value of demonstrative evidence is primarily within the discretion of the trial court. Kunzman v. Cherokee Silo Company, 253 Iowa 885, 892, 114 N.W.2d 534, 538, 95 A.L.R.2d 673, and citations; State v. Harless, 249 Iowa 530, 535, 86 N.W.2d 210, 213, and citations.

'The question of what constitutes 'burglar's tools' is and has been a question of some difficulty, but generally speaking it has always been held to refer to tools and implements which when assembled in combinations have such character as those commonly used to commit the crime of burglary. The fact that each tool or implement, or combinations of them, may be also used for an honest and legal purpose is held to be immaterial.' Mahar v. Lainson, 247 Iowa 297, 299--300, 72 N.W.2d 516, 518, and citations, including a quotation from 9 Am.Jur., Burglary, section 86, now 13 Am.Jur.2d, Burglary, section 74.

The tools found at the scene may properly be called burglar's tools. State v. Harless, supra, 249 Iowa, at 534, 86 N.W.2d, at 213. They were so described by Kail and Kachelhoffer.

It was a necessary part of the State's case to prove beyond a reasonable doubt that defendant had broken into the restaurant with the intent to commit larceny. Intent to commit a public offense is vital under Code section 708.8. State v. Burns, 190 Iowa 6, 8, 179 N.W. 843, 844; 12 C.J.S. Burglary § 2. The availability to the accused of tools or instruments of a type that could be used as a means of committing larceny or as showing preparation for the commission thereof, found at the scene, properly identified, was admissible as bearing on that intent. As tending to support this statement see State v. Harless, supra.

Although the tools were described as 'the exact tools you would need to get into a safe,' it must be admitted they could also be used for a lawful and honest purpose. It was material and proper for the court to permit the witnesses to illustrate the manner in which they might also be used to commit larceny. The fact defendant's activities were interrupted by the police before he had time to put the tools into actual use does not affect their relevancy on the issue of intent.

It is within the discretion of the trial judge to permit a witness to illustrate or explain his testimony by the use of maps, diagrams, pictures and physical objects. 98 C.J.S. Witnesses § 327. In a footnote cited as supporting this statement appears the following statement from McKee v. Chase, 73 Idaho 491, 253 P.2d 787, 792--793:

'Photographs, maps, and other drawings, are recognized as proper evidence to supplement the testimony of witnesses where the subject matter of the testimony is difficult to portray without such aids, or where the jury can be given a better understanding of the physical facts with which they are concerned. Their admission is proper to illustrate the testimony. They are also regarded as a proper means of expressing the witness' testimony. That is, a witness may be unable, by means of words or gestures alone, to convey to the jury an accurate understanding or picture of the relative position of the physical objects or their physical characteristics, without the assistance of photographs or drawings. So, he may make a drawing or a photograph, or identify and adopt such drawing or photograph, made by another, as a means of portraying to the jury facts which are within his knowledge, and which he is not as well able to portray without such help (citing cases).'

'It is the rule that a trial court may, in its discretion, permit a witness to illustrate his testimony by the use of a physical object to the jury.' Edwards v. State, 171 Tex.Cr.R. 70, 344 S.W.2d 687, 690. Defendant's argument here was rejected in Berry v. Harmon, 329 S.W.2d 784, 793 (Mo.). In Kennedy v. Oleson, 251 Iowa 418, 425, 100 N.W.2d 894, 898, we held a scale drawing made by the witness from field notes of a deceased surveyor was admissible as illustrative of the testimony.

Defendant's objection that the witness never actually opened a safe by using similar tools in the manner demonstrated by him is without merit.

With a safe containing a large sum of money pulled from its normal position and a collection of tools that could be used to enter it in the manner described by the officers,...