State v. Loney

• Decision Date: 10 December 1968
• Docket Number: No. 52913,52913
• Citation: 163 N.W.2d 378
• Parties: STATE of Iowa, Appellee, v. Robert Edd LONEY, Appellant.
• Court: Iowa Supreme Court

Page 378

163 N.W.2d 378

STATE of Iowa, Appellee, v. Robert Edd LONEY, Appellant.

No. 52913.

Supreme Court of Iowa.

Dec. 10, 1968.

Morton A. Teitle, Davenport, for appellant.

Richard C. Turner, Atty. Gen., James C. Sell, Asst. Atty. Gen., and Edward N. Wehr, County Atty., for appellee.

BECKER, Justice.

Early in the morning of May 23, 1967 Henry Klindt, bartender at Griffin's Tavern in Davenport, was killed in the tavern during the course of a robbery. By information dated June 1, 1967 defendant, Robert Edd Loney, was charged with the first degree murder of Klindt. The case went to trial on August 21, 1967. The jury returned a verdict of guilty of first degree murder and defendant was sentenced to life imprisonment. He appeals, citing as errors failure to grant a new trial because the verdict is contrary to the evidence, failure to quash the county attorney's information and failure to grant a change of venue.

I. We first consider failure to grant a new trial because the verdict is contrary to the evidence. For this purpose the evidence is viewed in the light most favorable to the State. State v. Wimbush, 260 Iowa 1262, 150 N.W.2d 653, 654.

When Klindt was shot there were five patrons in Griffin's Tavern. The bandit was masked or hooded. One of these eyewitnesses, Otto Schreiber, testified to the robbery as follows: 'I heard the door opened. I looked in that direction, and saw a man coming in who seemed to have some kind of a hood pulled over his head. I thought immediately, this looks like it's going to be stick-up. I kind of stood up from my chair and this man walked in about--oh, there was a door on the left side as he came in. He looked at the door, stopped at the door, looked in the back room, there was a door open, and then slowly turned around, with a gun coming up, and said--I think he said, 'I want your money,' and he was aiming it right at Heinie's head, although he was quite a distance away from him. Well, then Heinie started to move away from the cash register. I had seen Heinie--had noticed him, too, as I looked. He pulled his head way up like that and still had his hand in the cash register. And he looked at him and then he started to walk across to the--the cash register being on the back bar, he walked to the bar, which was only about two steps, and he put his hands under the Bar. Of course he was between me and the hooded man, and he came up with something, what I thought was a rifle. At that moment there was only one thing I thought, but I didn't say it, and that's 'Heinie, don't be foolish.' But before he could get any further, why, I heard the shooting start, and there were a number of shots fired and I see him fall down, and that was it.'

Mr. Schreiber, John Cameron and Steven Daniels all gave somewhat similar testimony. None could positively identify defendant. Mr. Daniels, at a distance of 5 or 6 feet 'noticed that he had tattoos on each hand below the knuckle on each finger.' These tattoos were also noted by Leo Underwood who was with Daniels and Cameron in the tavern. Underwood, the only witness who positively identified defendant, was recalled and testified that because of fear of reprisal he had intentionally misidentified defendant at a police lineup a few days after the murder. He said he had a change of heart and rectified his error by talking to the county attorney.

The evidence connected a specific gun to the murder and defendant to the gun. Harold Roy Martin testified he was the owner of a 32 automatic pistol which he loaned to defendant on the evening of May 22, 1967. The gun was not returned to its owner by defendant and was not introduced into evidence. Martin had test-fired the pistol in August of 1966. He had saved the bullets and casings. Larry Koepke, age 9, the son of a friend of Martin, had also obtained and saved some casings from Martin's pistol. Custody of these bullets and casings was traced. They were properly admitted in evidence.

Four bullets were removed from decedent's body. Five spent cartridge casings were found in the tavern and one was found in a catch basin outside near the scene.

Courtlandt Cunningham, a special agent for the Federal Bureau of Investigation, was qualified as an expert. He testified the test-fired bullet from Martin's 32 pistol and the bullets extracted from Klindt's corpse were fired from the same weapon 'to the exclusion of all other weapons.' He also state that in his opinion the cartridge cases found in the tavern and those kept by Martin and young Koepke were fired by the same weapon.

Other evidence concerning a red car and defendant's presence in or near the scene of the crime was introduced but need not be examined in detail here.

After the State rested defendant made a motion for directed verdict while was overruled. The defense then rested without introducing any evidence. The court instructed on first degree murder, felony murder and second degree murder. The jury returned a verdict of guilty of murder in the first degree.

Criminal cases should be submitted to the jury if there is substantial evidence reasonably tending to support the charge. State v. Estrella, 257 Iowa 462, 465, 133 N.W.2d 97 and State v. Wimbush, supra.

The jury could find from the ballistic evidence and the witnesses' statements defendant killed Klindt either with premeditation or in the process of committing a felony. The direct testimony, coupled with expert and circumstantial evidence linking the defendant to the weapon and the weapon to the crime, generated a jury question. The jury's finding of guilt is binding on us unless we are satisfied it is without substantial support in the evidence or is clearly against the weight thereof. State v. Wimbush, supra.

II. Another assigned error concerns failure to quash the county attorney's information. The murder was committed on May 23. Defendant was arrested as a parole violator on May 24. The parol officer, Paul Miller, had received information defendant was in possession of a gun. Miller, with the help of two Davenport detectives, made the arrest. Defendant was held on the parole violation charge until June 1 when he was charged with murder. His parole was revoked on June 8.

Defendant asserts this procedure was in violation of section 758.1 of the Code and the State and Federal Constitutions because he was not taken before a magistrate 'without unnecessary delay.' He cites Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479; McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819; State v. Triplett, 248 Iowa 339, 79 N.W.2d 391. Those cases concern the admission of in-custody statements obtained between the time of arrest and when a suspect was to be taken before a magistrate. No such statement is in issue here.

Detention of defendant as a parole violator from May 24 to June 1 did not violate his constitutional rights under the circumstances, State v. Rath, 258 Iowa 568, 139 N.W.2d 468. Such detention could not be used successfully as a basis for motion to quash the indictment. Evidentiary matters such as were considered in the McNabb, Mallory and Triplett cases, all supra, are not before us. The motion was properly overruled.

III. Defendant filed a verified petition for change of venue in which he alleged he could not receive a fair and impartial trial in Scott County due to the excitement and prejudice against him arising out of certain inflammatory newspaper, radio and television publicity in the area. The application was supported by three affidavits in general terms by disinterested residents of the county, all as required by chapter 778, Code of Iowa, 1966.

No counter affidavits were filed by the State. A hearing was held on the petition at which time five newspaper articles appeared dated May 23, May 25, May 29, June 2 and June 2 all in 1967. Subsequent jury trial commenced August 21, 1967. Two of the three affiants were orally examined by the State at a hearing on the motion. The third affiant was unavailable. Neither side complains of this omission nor the use of direct testimony. Cf. section 778.7, Code, 1966. The body of each affidavit reads: 'I am familiar with the case of State of Iowa vs. Robert Edd Loney and have read various newspaper articles and have heard the case broadcasted on television or radio and have heard various persons speak in reference to this case.

'I further state that it is my opinion and belief that from what I have read, seen and heard in reference to the case of State of Iowa vs. Robert Edd Loney, it is impossible for the Defendant to get a fair and impartial trial in Scott County, Iowa due to the excitement and prejudice against him in said County.'

After hearing the affidavits and examining the newspaper accounts the trial court held there was insufficient showing of excitement and prejudice against defendant such as would prevent a fair trial. We agree. Miss Clay had talked to 25 or 30 people. Only one had expressed a specific belief defendant was guilty. The witness laid particular strees on the wide acquaintance of deceased and the impact of the newspaper publicity. Mr. Carpenter had talked to 4 or 5 people in the last few days. His opinions were also based on the impact of the news media publicity given to the case. Neither witness showed the type of community excitement usually associated with change of venue. See State v. Mauch, 236 Iowa 217, 17 N.W.2d 536; State v. Hodges, 198 Iowa 1208, 199 N.W. 297.

Reference was made to television and radio releases but no record of the content of these releases was made. Factual data for review of the trial court's judgment is wholly lacking in this area.

The newspaper clippings received in evidence extend from the day of the murder for about 10 days. The original pre-arrest release makes no reference at all to defendant but recounts the essential details of the crime, including the evidence that the gunman had tattoos on each of four fingers of his left hand between the...