State v. Lyons

CourtUnited States State Supreme Court of Iowa
Citation210 N.W.2d 543
Docket NumberNo. 55630,55630
PartiesSTATE of Iowa, Appellee, v. Franklin Wayne LYONS, Appellant.
Decision Date19 September 1973

Page 543

210 N.W.2d 543
STATE of Iowa, Appellee,
Franklin Wayne LYONS, Appellant.
No. 55630.
Supreme Court of Iowa.
Sept. 19, 1973.

Page 544

Polk County-Des Moines Offender Advocate Office, Anthony M. Critelli, Chief Atty., Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Thomas D. McGrane, Asst. Atty. Gen., and Ray Fenton, Polk County Atty., for appellee.


REES, Justice.

Defendant was convicted of robbery with aggravation, was sentenced, and appeals. We affirm.

Mrs. Judith Thornton testified that on the morning of January 7, 1972, she received several phone calls, but that when she answered the telephone the caller hung up. At 9:30, shortly after the last phone call, she answered the doorbell at her home and had barely opened the door when an intruder forced it open and gained admittance.

Mrs. Thornton testified the intruder then pulled a gun from his belt, took off his hat and removed from it a nylon stocking which he pulled over his head, but that in attempting to do so the stocking ripped, leaving a five- or six-inch space on the right side of the intruder's face which permitted Mrs. Thornton to effectively observe his facial characteristics. The intruder then told Mrs. Thornton he wanted money and jewelry, and she gave him $10, a wedding and engagement ring soldered together, and a diamond pendent which he removed from its chain and put into his pocket. He then asked her about a ring she was wearing on her finger, but she told him it was a keepsake made from her grandfather's cufflinks and asked him to permit her to keep it, in which he acquiesced. The intruder then told Mrs. Thornton he wanted her to engage in sexual intercourse with him, but she was able to dissuade him from his intentions in this regard, whereupon he directed her to go to the downstairs of her home and as she passed him he grabbed her left breast. Mrs. Thornton further testified as to certain directions the robber then gave to her, and that he informed Mrs. Thornton her husband's life was in danger if she did not follow the instructions implicitly. He then left via the front door of the home, and after an interval of about ten minutes Mrs. Thornton contacted her husband and her mother-in-law. The police were then called, and an investigation ensued.

On the same date Mrs. Thornton spent most of the afternoon at the police station looking at photographs of potential suspects, but she was unable to identify the intruder in her home from any of the photos. Subsequently, on February 4, 1972, two detectives brought a collection of ten photographs to the Thornton home for inspection by Mrs. Thornton, and she immediately identified defendant from the second photograph which was offered to her for inspection.

Some days later Mrs. Thornton was asked to come to police headquarters for the purpose of viewing an audio-video tape which depicted several men, including the defendant; the tape having been made for the purpose of voice and visual identification. Once again Mrs. Thornton identified the defendant as one of the persons shown on the video tape. Later, at trial, defense

Page 545

counsel objected to the admission of the evidence of the video tape or any reference to it for the reason that the tape was not taken while defendant had counsel present, and had signed no waiver relative to a submission to any kind of a lineup.

Prior to trial, defendant's counsel filed a motion for discovery and production of evidence, requesting among other things: (a) a copy of the photograph or 'mugshot' which was exhibited to the witness Judith Thornton; (b) that defendant be afforded an opportunity to view and listen to the sound-on-film tape which was taken of the person and voice of defendant and two other individuals and which was exhibited to the witness Thornton; (c) a copy of the photograph or 'mugshot' of the two other persons whose voices and pictures were reproduced on the audio-visual film that was exhibited to the witness Thornton; and (d) a copy of any statement or statements given to members of the police department, or of the county attorney's staff by the witnesses Judith Thornton or Elizabeth Hermann.

Hearing was had on defendant's motion for discovery and production of evidence, and the court permitted discovery of the photographs and the audio-visual film, but overruled the motion insofar as it applied to any statement or statements given to the police department or county attorney's staff by Mrs. Thornton or Mrs. Hermann. In such ruling, the court found that there were no written statements by Mrs. Thornton which had been given to the police department or the county attorney's staff.

The cause proceeded to trial, resulting in a verdict of guilty, and defendant was sentenced. He filed a motion for new trial, which was overruled.

Defendant urges as grounds for reversal the following:

(1) Trial court erred in failing to limit or strike certain testimony as to certain remarks and conduct on the part of defendant which occurred during the course of the robbery.

(2) Trial court erred in refusing to allow discovery by the defendant of police investigatory reports containing the victim's description of the robber.

(3) That certain conduct of the prosecuting attorney and comments in his argument to the jury denied defendant a fair trial.

(4) That identification procedures employed by the police in video-taping defendant were so indecisive and suggestive of mistaken identity as to deny the defendant a fair trial and violate his constitutional right of due process.

I. In his first error assigned, defendant contends trial court erred in failing to exclude testimony having to do with statements made by him during the course of the robbery and his actions and conduct at the same time. Specifically, defendant contends the testimony of Mrs. Thornton, who testified that her assailant told her he had a wife and two children he had not seen in several years and the further reference by Mrs. Thornton of the fact defendant requested her to engage in sexual intercourse with him, was inadmissible. Defendant contends such testimony would only serve to arouse the passions of the jury, and that it is immaterial to the crime charged.

With reference particularly to defendant's statements concerning his wife and children, we perceive no error in the court's ruling permitting its admission. A general statement of the law in this regard is found at 22A C.J.S. Criminal Law § 669, p. 686:

'Statements and conduct of accused at the time of the commission of the offense are part of the transaction itself and may be admissible as Res gestae, although they may have a tendency to inflame the minds of the jury, * * *.'

Page 546

See also 29 Am.Jur.2d, Evidence, § 713, p. 775, at which we find:

'It is well settled that the term 'res gestae' includes all those acts and circumstances which are incidents of a particular litigated act * * *.'

The mere fact that some of the testimony is not directly relevant to the elements of the crime charged should not, and does not, render it inadmissible, for if nothing more it is beneficial to accurately describe what actually happened at the time of the commission of the claimed offense.

The Texas Court of Criminal Appeals, in Hagood v. State (1927), 106 Tex.Cr.R. 450, 292 S.W. 904, held that testimony of a prosecutrix in a rape case to the effect that just prior to the alleged rape she informed the defendant she did not want to engage in intercourse with him and that he then said, 'Oh, come on; I have been married and I know everything.' was clearly admissible. See 62 A.L.R.2d 1078, § 8. The Texas court went on to say that although the statement referred to the fact that the defendant had previously been married it was relevant as a part of the transaction. We feel that the court's ruling permitting Mrs. Thornton to testify as to statements made by defendant that he had been previously married was not error.

Nor do we feel the court's ruling on objections to the admission of evidence concerning defendant's request for sexual...

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    ...demands as being both too vague and too general. We hold the trial court's ruling was consistent with and justified by State v. Lyons, 210 N.W.2d 543, 547 (Iowa 1973); State v. Houston, 209 N.W.2d 42, 46 (Iowa 1973); Stte v. Aossey, 201 N.W.2d 731, 734 (Iowa 1973), Cert. denied 412 U.S. 906......
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