State v. Mayes
| Decision Date | 19 December 1979 |
| Docket Number | No. 62620,62620 |
| Citation | 286 N.W.2d 387 |
| Parties | STATE of Iowa, Appellee, v. Phillip Jerome MAYES, Appellant. |
| Court | Iowa Supreme Court |
Alfredo G. Parrish, Des Moines, for appellant.
Thomas J. Miller, Atty. Gen., Selwyn Dallyn, Asst. Atty. Gen., and Donald F. Starr, Asst. Polk County Atty., for appellee.
Considered by LeGRAND, P. J., and REES, UHLENHOPP, HARRIS, and McGIVERIN, JJ.
There are five assignments of error in the defendant's appeal from his conviction of assault with intent to inflict serious injury in violation of sections 708.1 and 708.2(1), The Code, 1979, and carrying weapons in violation of section 724.4, The Code, 1979. We affirm the trial court.
Shooting cases are not known for logical factual backgrounds. By nature they tend to be absurd. Yet, even for a shooting case, the facts here are unusually bizarre.
Richard Baker, the victim, was in the company of two girlfriends at a Des Moines bar during the early morning hours of June 3, 1978. At about closing time Baker engaged in squirting the girlfriends with a toy water gun. This activity took place both inside and outside the bar. When Baker chased the girls to an adjacent parking lot he came near the defendant who warned Baker not to get him wet. Not surprisingly, though, a shot did strike the defendant. This produced an unfriendly remark, so Baker squirted him again. Baker turned to walk back toward the tavern whereupon the defendant hit Baker on the back of his trousers with a spray of beer. Baker became angry and, uttering an ugly and obscene threat, returned to slap the defendant in the face.
The defendant then made another remark after which Baker again undertook to leave. When he saw the defendant draw a gun, however, Baker issued a further challenge and began to walk back toward the defendant. Baker then stopped, this time because of the gun. While the two stood about ten to twelve feet apart the gun discharged. Baker was struck in the abdomen and fell to the ground. The defendant fled.
A passing police patrol was alerted when one of the officers heard the shot and saw Baker fall. Apparently he also saw another person with defendant who escaped. Other facts will be recited as they relate to the assignments of error.
I. Over defendant's objection two exhibits, a .25 caliber handgun and a gun handle, were admitted into evidence. Defendant argues that Iowa R.Crim.P. 13.5 was thereby violated inasmuch as he was not given advance notice of the exhibits. Rule 13.5 provides:
If, subsequent to compliance with an order issued pursuant to this rule, either party discovers additional evidence, or decides to use evidence which is additional to that originally intended for use, and such additional evidence is subject to discovery under this rule, the party shall promptly file written notice of the existence of the additional evidence to allow the other party to make an appropriate motion for additional discovery.
Prior to trial defendant moved for discovery under rule 13 so, unless excused, the State was required to file written notice of the evidence. No such notice was given but we nevertheless find no reversible error. The defendant had actual knowledge of the existence of the exhibits and of the State's intention to use them as evidence.
Defendant knew that the State had seized the gun from his apartment and had kept it. This knowledge is apparent because the defendant filed a pretrial motion to suppress the introduction of the pistol. In addition he was advised prior to trial that two state agents would testify that a .25 caliber pistol had been seized from his apartment and that the bullet which struck the victim was fired from it.
Iowa R.Crim.P. 13.6(c) deals with failures to comply with orders on discovery:
If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may upon timely application order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing any evidence not disclosed, Or it may enter such other order as it deems just under the circumstances. (Emphasis added.)
We hold that the order of the trial court admitting the exhibits was "just under the circumstances" under the foregoing rule. Accordingly the defendant's first assignment is without merit.
II. Defendant's second assignment of error is a wholly independent attack on the same exhibits. The exhibits were seized after a warrantless entry of the defendant's apartment. The State urges that the search can be justified on the basis of exigent circumstances. We listed the guidelines for exigency in State v. Jones, 274 N.W.2d 273, 275-76 (Iowa 1979):
(1) a grave offense is involved;
(2) the suspect is reasonably believed to be armed;
(3) there is probable cause to believe the suspect committed the crime;
(4) there is strong reason to believe he is on the premises;
(5) there is a strong likelihood of escape if not apprehended; and
(6) the entry, though not . . . consented to, is peaceable.
See State v. Johnson, 232 N.W.2d 477, 479-80 (Iowa 1975).
The circumstances giving rise to the entry into the defendant's apartment involved a separate crime. We adopt the trial court's findings in overruling the defendant's motion to suppress:
On June 27, 1978, a liquor store located at 409 5th Street, Des Moines, Iowa, was robbed sometime between 5:00 p. m. and 6:00 p. m. The victim of the robbery described the suspect as a black male wearing a white visor, a white nylon jacket, blue jeans, and a white handkerchief over his face. The suspect took money in the form of currency and change and placed it in a blue Bankers Trust bank bag and fled.
A Mrs. Bernice Bedwell was parked on Fourth Street between Grand and Locust at approximately the same time. She observed a dark vinyl over blue Buick parked at the Savery Hotel on the west side of Fourth Street containing three black male adults. One subject got out of the vehicle on the passenger side and walked west through the alley toward the liquor store. Approximately ten minutes later the same person was seen coming out the Hotel Savery carrying a blue bank bag. This person was dressed in a white visor hat, a white nylon jacket, and blue jeans. After coming out of the Savery, he got into the blue Buick and drove away. Another witness provided the police with the license plate number for the blue Buick which was 77-FIE601. Approximately twenty minutes after the robbery officers located the blue Buick, license plate number 77-FIE601, at 1600 Oakland, the address of the defendant, Phillip Mayes.
This information was relayed to a magistrate and a search warrant was obtained to search the defendant's apartment at 1600 Oakland, Apartment 4, for "one bank bag having a rectangle shape, blue in color with a zipper, one small blue steel automatic hand gun, one dark blue/light blue 1973 Buick Electra four door bearing Iowa '78 plates 77-FIE601, and one blue 1970 Dodge bearing 85-GLC353."
An officer not then involved in the investigation of the liquor store robbery recognized the license plate number that was broadcast over the police radio channel as belonging to the defendant. He advised the officers involved in the case as to the name of the individual to whom the car belonged and gave them the defendant's current address. Several officers proceeded to the defendant's apartment at 1600 Oakland, Des Moines, Iowa, where they observed the blue Buick, license plate number 77-FIE601, sitting in the parking lot. One officer testified that he was at the defendant's apartment within minutes after receiving the defendant's license plate number. Another officer testified that he was at the defendant's apartment within 15-20 minutes after the robbery occurred, and when he arrived there were already several officers at the apartment. The hood of the car was warm, and inside the car in plain view was a white visor hat. Two officers remained outside of the apartment building while several others went inside. The apartment manager let the officers in the building and gave them a key to the defendant's apartment. The officers went to apartment number four where the defendant lived, heard noises coming from inside the apartment, knocked on the door, identified themselves as police officers, and demanded that the door be opened.
Meanwhile, an officer on the outside had spotted two black male hands pushing against a screen window. The hands were carrying paper money. When he instructed the individual to halt, the individual withdrew and closed the curtains. This information was relayed to the officers on the inside of the building. The officers on the inside of the building used the manager's key in the defendant's door but could not get it open. The door was then kicked several times before being opened from the inside.
Once inside, the police officers observed three black males and three black females. A pat-down search of the three males disclosed no weapons. The officers checked the other rooms for additional people but none were found.
After the apartment had been secured, a clerk from the liquor store was brought to the apartment, and she identified one of the males as being the robber. The defendant and the other male were not identified by the clerk, but all three were arrested.
Sometime after the entry into the apartment and the three suspects were arrested, an officer arrived with a search warrant and a full-blown search was conducted. During the search the officers discovered and seized one blue bank bag with a Bankers Trust label on it, one .25 caliber automatic handgun, one white visor hat, one police-style pouch containing .25 caliber bullets, and assorted paper currency and rolls of coins.
We agree that exigent circumstances were shown. In considering the first of the six criteria w...
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