State v. Miller, 57203

• Decision Date: 21 May 1975
• Docket Number: No. 57203,57203
• Citation: 229 N.W.2d 762
• Parties: STATE of Iowa, Appellee, v. Wayne Edward MILLER, Appellant.
• Court: Iowa Supreme Court

Page 762

229 N.W.2d 762

STATE of Iowa, Appellee, v. Wayne Edward MILLER, Appellant.

No. 57203.

Supreme Court of Iowa.

May 21, 1975.

Klockau, McCarthy, Lousberg, Ellison & Rinden, Rock Island, Ill., for appellant.

Richard C. Turner, Atty. Gen., Raymond Sullins, Jim P. Robbins, Asst. Attys. Gen., Edward N. Wehr, County Atty., for appellee.

Heard before MOORE, C.J., and MASON, LeGRAND, REYNOLDSON and HARRIS, JJ.

MASON, Justice.

Wayne Edward Miller was charged January 22, 1974, by county attorney's information with the crime of shoplifting property valued at over twenty dollars in violation of section 709.20, The Code. February 4, 1974, Miller was found guilty and was sentenced to a term of five years in the Iowa State Penitentiary at Fort Madison. He appeals from judgment imposing such sentence.

September 13, 1973, at approximately 6:00 p.m. Miller was seen loading cartons of cigarettes into a grocery cart at the National Tea food store in Davenport. Manager Robert White called the Davenport Police and then observed defendant leave the store without first paying for the cigarettes.

White followed defendant outside and asked him for a receipt, to which defendant replied he did not have one. Sometime later defendant produced a receipt for 33 cents, dated September 4, 1973, from the grocery sack. During trial, a second receipt dated September 14 was produced which showed ten items with identical prices to the ten cartons of cigarettes found in the grocery bag.

White admitted it was possible a person could get a receipt dated for a following day, but explained the store's cash registers were checked out after 6:30 p.m. each evening, thus making it impossible for defendant to have received such a slip as he had already been apprehended by the police at this time. On rebuttal, Mary Grogan, cashier at the National Tea Store, testified over objection as to the cash register checkout procedure.

Mr. White accompanied defendant to the police station. While in the squad car, White asked defendant if he had paid for the cigarettes and defendant answered he had not.

Nixon Sabin of the Davenport Police Department, the arresting officer, took defendant to the police station, searched him and put the grocery sack and ten cartons of cigarettes in the evidence locker. Sabin testified, over objection, he had asked defendant if he had taken the items. Miller answered, 'I guess so.'

Defendant himself took the stand, admitted to four separate prior felony convictions and to being in the National Tea Store September 13, 1973, but stated he purchased the cigarettes. After making the purchase, defendant claimed he came back inside to get some 'cardboard flats.' When he left again, he was apprehended by Mr. White and subsequently arrested. Upon returning home later that evening, defendant discovered the second sales slip in an article of his clothing.

Defendant further stated his purpose for being in the store was to purchase cigarettes for the Veterans Hospital in Iowa City. After resting his case, defendant moved to reopen and for a continuance in order to call as a witness Mrs. Ryan, a nurse at the hospital, to corroborate the contention defendant had delivered two cases of cigarettes to the hospital October 4, 1973. The necessity of presenting this testimony had somehow taken counsel by surprise. The trial court held such evidence immaterial and denied the motion.

Other facts will be narrated as they bear upon the issues discussed herein.

Defendant in seeking reversal asserts the trial court erred: (1) in giving instruction 5 which permitted the jury to consider a lack or failure of evidence on the part of defendant; (2) in allowing evidence of defendant's past felony record when such record did not involve truth and veracity and was over ten years old; (3) in allowing Mary Grogan to testify as a rebuttal witness as to facts first brought out by the State; (4) in allowing Nixon Sabin to testify, beyond the minutes of his testimony, that defendant had confessed to the crime; and (5) in overruling defendant's motion to reopen and for a continuance to secure a witness. These contentions give rise to the issues presented for review.

I. Defendant insists instruction 5 bearing upon reasonable doubt was erroneous. The challenged instruction is identical to the instruction held to be defective in State v. Boyken, 217 N.W.2d 218 (Iowa 1974).

Boyken was based on an earlier case where the court stated: '* * * For the benefit of the bench and bar we note the instruction on reasonable doubt should limit its reference to the lack or failure of evidence to such a lack or failure or (sic 'of') evidence Produced by the state. State v. Stout, 247 Iowa 453, 74 N.W.2d 208.' (Emphasis in the original) State v. McGranahan, 206 N.W.2d 88, 92 (Iowa 1973).

Defendant objected to instruction 5 for the reason, '* * * reasonable doubt is a self-defining term, and for the Court to attempt to instruct on reasonable doubt would just confuse the jury.' Defendant admits this is a different ground from that urged on appeal. And, in this regard '(o)bjections to instructions must be sufficiently specific to alert trial court to any alleged error to be corrected.' State v. Bell, 223 N.W.2d 181, 185 (Iowa 1974), citing as authority State v. Boyken, supra, 217 N.W.2d at 219 and State v. Hraha, 193 N.W.2d 484, 486 (Iowa 1972).

Defendant contends this court should decide the case on the merits under section 793.18, The Code, notwithstanding his failure to properly object. This section provides:

'Decision of (the) supreme court. If the appeal is taken by the defendant, the supreme court must examine the record, without regard to technical errors or defects which do not affect the substantial rights of the parties, and render such judgment on the record as the law demands; it may affirm, reverse, or modify the judgment, or render such judgment as the district court should have done, or order a new trial, or reduce the punishment, but cannot increase it.'

This statement from State v. Wisher, 217 N.W.2d 618, 620 (Iowa 1974), is relevant to defendant's contention:

'In regard to preservation of erro and review under section 793.18, State v. Galvan, 181 N.W.2d 147, 149 (Iowa 1970), has this statement: '* * * However, the statutory duty of the Supreme Court under section 793.18 of the Code to review the record in a criminal case without regard to technical errors or defects does not apply where proper or timely objections were not made.'

'The same principle is repeated in somewhat different words in State v. Thomas, 190 N.W.2d 463, 465 (Iowa 1971), in this manner: 'Our statutory duty to review the record without regard to technical errors or defects which do not affect substantial rights of parties (§ 793.18, Code, 1971) does not mandate a reversal where errors asserted below are not raised on appeal or where proper objections were not made below to errors assigned in this court. * * * (citing authorities).' See also State v. Slater, 261 Iowa 554, 559, 153 N.W.2d 702, 705, where several of our decisions announcing this principle are cited.'

In State v. Bell, 223 N.W.2d at 185, this court dealt with a defendant's failure to urge an adequate objection to an identical reasonable doubt instruction and refused to reverse because defendant's objection failed to alert the trial court to the purported defect which he asserted on appeal to this court. See State v. Baskin, 220 N.W.2d 882, 886 (Iowa 1974). The court declined to consider the contention under section 793.18.

In view of the statement quoted earlier in this division from State v. McGranahan defendant's failure to specifically object to the instruction cannot be considered a technical error.

The contention presents nothing for review in this court.

II. It is argued reversible error was committed when the trial court allowed evidence of defendant's prior felony convictions to the admitted when those convictions did not involve truth and veracity and three of the four were over ten years old.

While the record is somewhat confusing on this point, it appears defendant pleaded guilty to three crimes in 1963--twice to larceny in the nighttime and once to larceny of property valued in excess of twenty dollars. Again, in 1971, a guilty plea was entered for the crime of shoplifting larceny of property valued at over twenty dollars.

The opening statements to the jury were taken and a transcript of those statements is included in the trial transcript certified to this court. It discloses that in the course of his opening statement defense counsel said, '* * * I want to point out one thing also, by the way, that my client is a convicted felon, he had been convicted of a felony. He has paid his debt to society.' After the State introduced its evidence in chief and rested, defendant moved for a directed verdict or in the alternative for a mistrial. After the motion was overruled and before introducing any evidence for the defense, defense counsel made a motion in limine regarding the right of the State to cross-examine defendant concerning prior felony convictions.

The pertinent portion of the record on those proceedings follows:

'MR. WALLACE: Judge, at this time I wish to advise the Court that my client wishes to take the stand and testify in his behalf; is that correct?

'DEFENDANT: Right, your Honor.

'MR. WALLACE: And in regard to this, I am going to make a motion in limiting (sic) relative to what the State can ask the defendant as to prior convictions. One, for the record, I would submit that the State should only be allowed to ask if he has a felony record, period.

'THE COURT: No, they can go one step further, can ask how many felonies he has been convicted of, that is Supreme Court, that is all he can ask him.

'MR. WALLACE: On that point, then I would further request that for the State to ask now many felony convictions would be a denial of my client's constitutional rights under the due process...