State v. Nelson

• Decision Date: 15 October 1975
• Docket Number: No. 57311,57311
• Citation: 234 N.W.2d 368
• Parties: STATE of Iowa, Appellee, v. Gary Dale NELSON, Appellant.
• Court: Iowa Supreme Court

Page 368

234 N.W.2d 368

STATE of Iowa, Appellee, v. Gary Dale NELSON, Appellant.

No. 57311.

Supreme Court of Iowa.

Oct. 15, 1975.

Carlin & Darbyshire, Davenport, for appellant.

Richard C. Turner, Atty. Gen., Thomas Mann, Jr., Asst. Atty. Gen., and Edward N. Wehr, County Atty., for appellee.

Heard by MOORE, C.J., and REES, UHLENHOPP, REYNOLDSON and McCORMICK, JJ.

REYNOLDSON, Justice.

Defendant was convicted on a charge of receiving Or aiding in concealing stolen property, § 712.1, The Code. He was sentenced as an habitual criminal to imprisonment for a term not exceeding 25 years pursuant to § 747.5, The Code. A prior trial involving the same facts on a charge of receiving And aiding in concealing stolen property resulted in a mistrial following trial judge's determination the jury was deadlocked. We reverse and remand for new trial.

No issue is raised concerning the sufficiency of evidence. The jury could have found that defendant, at his Davenport, Iowa home, received a truck load of meat stolen from an Iowa City locker plant and, knowing it was stolen, helped dispose of it. Only the few facts bearing on alleged errors are significant, and will be noted in the divisions which follow.

For reversal defendant relies on five alleged trial court errors: 1) overruling defendant's mistrial motion based on prosecutorial misconduct in jury argument, 2) overruling his motion and objections to testimony that defense counsel appeared at defendant's home when the search was in progress, 3) failing to sustain his motion to suppress evidence, based on an allegedly defective search warrant, 4) failing to sustain his motion to strike the amended information on the ground he was placed in double jeopardy, and 5) overruling his objections to a prior felony conviction record which failed to disclose whether he was represented by counsel.

I. Prosecutorial misconduct.

Defendant's neighbor testified she had seen a truck (also stolen at Iowa City) back into defendant's drive at 5:45 A.M. on July 29, 1973. Two men were in it. Defendant raised his garage door and came out. All three unloaded the truck's contents into the garage.

Defendant did not take the stand. All arguments were reported and are before us.

The prosecutor argued,

'He (defense counsel) said the meat truck wasn't loaded and there wasn't any evidence of this. Well, by golly, folks, there was 4,045 pounds of meat taken and the only people that would know * * * how much meat was on that truck were the three guys that unloaded it, and we don't have the two, the driver and the passenger, at our disposal, so we just can't introduce evidence on that. * * * He says there is no direct evidence that Mr. Nelson knew the meat was stolen, and that would be like, 'Yes, I told him.' Well, that's true, too, because the only two guys that, again, could testify to that, we don't know who they are and never have found out, and we don't have their testimony and they would be the ones that would say, 'Yes, I told him we stole it in Iowa City.' And, of course, the two sets of ears--or the one set of ears that would hear that--we don't know.

MR. CARLIN: Your Honor, I think that's an improper comment and I would object to it and ask that the jury be admonished to disregard it.

THE COURT: You may proceed.

MR. BERGER: Now, he challenged me. He did say, 'what other evidence?' I'll tell you what other evidence: We have evidence--uncontroverted evidence in this record, uncontroverted by any testimony of the defendant, and they certainly had every opportunity to call witnesses * * * that the neighbor had seen the passenger in that truck before at the Nelson residence and was introduced to him.

I don't know about this phone call. We have no evidence of what the phone call was in the morning; the phone calls between the two--or one of the men and the defendant. We have no evidence of that. Had some evidence of a friend of his that works over in a bar in Rock Island, which there's nothing wrong with that, but he's a friend for 15 years. We have got his testimony and we have got Mrs. Nelson's testimony. We don't have any testimony, though, of what that actual phone call was--

MR. CARLIN: Your Honor, I'm going to object again to this type of argument. Wholly improper.

THE COURT: Objection is overruled.'

Following arguments defense counsel promptly moved for mistrial because the State's argument 'was predicated upon or drew inferences from the accused's failure to testify in his own behalf,' citing instances and the holding in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). The motion was overruled.

Where closing arguments are reported, certified and made a part of the record, objections to remarks of counsel during final jury argument are timely if urged at close of argument and in a motion for mistrial made before submission to the jury. State v. White, 225 N.W.2d 104, 105 (Iowa 1975); Andrews v. Struble, 178 N.W.2d 391, 401--402 (Iowa 1970).

In Griffin, supra, the United States Supreme Court held prosecution comment concerning the accused's silence, or court instructions that such silence is evidence of guilt, are forbidden. Following Griffin in State v. Johnson, 257 Iowa 1052, 1055, 135 N.W.2d 518, 520--521 (1965), we held comment by counsel or court in a criminal trial concerning the accused's failure to testify violates the self-incrimination clause of Amendment 5, United States Constitution, made applicable to the states by Amendment 14.

In State v. Osborne, 258 Iowa 390, 393, 139 N.W.2d 177, 179 (1965) we interpreted Griffin and Johnson, supra, to mean the silence of an accused may not be used directly or indirectly to aid the prosecution. And in State v. Kimball, 176 N.W.2d 864, 869 (Iowa 1970) we displayed a marked sensitivity to this right of an accused, holding it would be reversible error, in absence of a defense request, even to give an instruction that no inference might be drawn from defendant's failure to testify. We reasoned such an instruction might inadvertently cause jurors to consider adverse inferences which would not otherwise occur to them.

We can only interpret the remarks of the prosecution as an indirect effort to focus the jury's attention on defendant's failure to testify. An overt statement is not required. See United States v. Flannery, 451 F.2d 880, 882 (1st Cir. 1971) (statement that testimony as to private conversations between defendant and another was 'uncontradicted'); Tanner v. United States, 401 F.2d 281, 289 (8th Cir. 1968), cert. denied, 393 U.S. 1109, 89 S.Ct. 922, 21 L.Ed.2d 806 (1969) (statements that '(t)his evidence has not been disputed,' where the only person who could contradict it was defendant); Commonwealth v. Davis, 452 Pa. 171, 305 A.2d 715 (1973) (repeated references, over objection, to evidence against defendant being 'uncontroverted,' where defendant did not testify or offer other defense). See Annotations, 24 A.L.R.3d 1093 (1969), 18 A.L.R.3d 1335 (1968).

On appeal the State hardly argues prosecutor's statements did not draw the jurors' attention to defendant's failure to take the stand. It asserts these statements were proper response to defense argument, citing State v. White, supra; State v. O'Kelly, 211 N.W.2d 589 (Iowa 1973), cert. denied, 417 U.S. 936, 94 S.Ct. 2652, 41 L.Ed.2d 240 (1974); State v. Horsey, 180 N.W.2d 459 (Iowa 1970); and State v. Sage, 162 N.W.2d 502 (Iowa 1968).

We have examined defendant's reported and transcribed argument. We cannot find defense statements which would logically invite the State's comments above set out.

Any argument the State's evidence is uncontroverted may be subject to some misinterpretation. A plea of not guilty controverts and puts in issue every material allegation of the indictment. State v. Hephner, 161 N.W.2d 714, 720 (Iowa 1968); State v. Baker, 246 Iowa 215, 227, 66 N.W.2d 303, 310 (1954); see DeCecco v. United States, 338 F.2d 797 (1st Cir. 1964). Although the point is not raised here, arguments and counter-arguments relating to lack of evidence or failure to produce witnesses, together with the cases the State relies on, must ultimately be re-examined in light of our recent decisions holding trial court's reasonable doubt instruction must limit the jury's consideration of lack of evidence to lack or failure on the part of the State, not the defendant. State v. Hansen, 225 N.W.2d 343, 346 (Iowa 1975); State v. Boyken, 217 N.W.2d 218, 219 (Iowa 1974).

Finally, the State argues misconduct of counsel is ground for reversal only if it deprives defendant of a fair trial, citing State v. Horsey, supra. But where, as here, there is a violation of defendant's fundamental rights under the United States Constitution, we can hold error harmless only when we can declare a belief it was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); State v. Sloan, 203 N.W.2d 225, 227 (Iowa 1972); see State v. Peterson, 189 N.W.2d 891, 896--897 (Iowa 1971).

We can make no such declaration on this record. The issues were so close one jury failed to reach a decision. We hold reversible error was committed.

II. Presence of counsel at execution of search warrant.

The record indicates while a warrant search of defendant's home was in progress two attorneys arrived, one being counsel who represented defendant at trial.

Defendant made a 'motion in limine' which was actually a motion to suppress evidence of the attorneys' presence and all questions relating thereto, on grounds it would serve no relevant, material or legitimate purpose and would 'cast aspersions upon the request for counsel at that time.'

Resisting, the prosecutor argued, Inter alia, 'the arrival of two attorneys on the scene while the search warrant was in progress is indicative of some awareness on the part of the defendant that what he had in his possession was stolen property.' Defense counsel responded it should not be the law of Iowa that...