State v. Orozco

Decision Date13 October 1971
Docket NumberNo. 54855,54855
PartiesSTATE of Iowa, Appellee, v. Anthony Allen OROZCO, Appellant.
CourtIowa Supreme Court

Raymond P. Drew, Hampton, for appellant.

Richard C. Turner, Atty. Gen., Michael J., Laughlin, Asst. Atty. Gen., Lee B. Blum, County Atty., Hampton, for appellee.

RAWLINGS, Justice.

Defendant, Anthony Allen Orozco, was convicted of robbery with aggravation, and conspiracy. From sentences accordingly entered he appeals. We affirm.

Charges against defendant stem from the robbery of Florence Vanasse at Flo's Cafe in Alexander.

First to testify for the State was Mrs. Vanasse. This witness stated she operates a cafe in Alexander. December 15, 1969 at approximately 8:00 P.M. a young man entered her restaurant, armed with a rifle, and demanded all money in the cash register. Mrs. Vanasse complied. A patron, Mr. Larson, was also robbed. Before departing the assailant fired several shots, one at the phone. The two victims were also told to remain in the cafe for 30 minutes as he had a buddy across the street. At this point Richard John Carpenter, Jr. was brought into the courtroom and Mrs. Vanasse identified him as the man who robbed her the night in question.

Gary Jessen, called as a witness for the State, testified he operates a farm store directly across the street from Flo's Cafe. Mr. Jessen said there were mercury streetlights in front of both business establishments. December 15, 1969, at about 8:00 P.M. a Mrs. Kern contacted him by phone. She reported someone had fired two shots at one of the streetlights and a man was standing by a car in the street.

At this point the State presented jury absent testimony relative to identification of defendant at a lineup conducted subsequent to the robbery charge. Craig Beek was the first witness at this hearing. His testimony discloses he, as a special agent for the Iowa Bureau of Criminal Investigation, conducted a police lineup January 8, 1970, in Charles City. The purpose was to ascertain whether witnesses could identify anyone connected with the Flo's Cafe robbery. Defendant was one of six men in the lineup. Mr. and Mrs. Arthur Kern of Alexander were present. Mrs. Kern identified defendant as the man who shot out the streetlight. At attorney, representing defendant, was present at all stages of the lineup and stated he had no objection to the proceeding.

Following Agent Beek's testimony defendant's attorney objected to any evidence relative to such identification only because Richard Carpenter was not present in the lineup, and this constituted denial of due process. Defendant's objection was overruled.

Trial testimony, in presence of the jury, was then resumed. Louise Kern, called as a witness for the State, testified she and her husband own a tavern in Alexander. December 15, 1969, they closed by place at about 7:30 P.M., and went upstairs to their apartment. This witness stated, at approximately 8:00 P.M. she looked out the window and saw an automobile in the middle of the street with the door open on the driver's side. A man got out of the car and shot at the streetlight twice. Defendant was identified by her as the party she saw do the shooting. Absent objection she also stated her husdband witnessed the incident and they had both identified defendant in the lineup.

Richard John Carpenter, Jr., also testified for the State. Carpenter stated, the morning of December 15, 1969, he and defendant went hunting. They first started drinking beer, but returned to defendant's home about 1:00 in the afternoon and got something to eat. The two men then drove into the country again where they shot a cow, and broke into two farm houses. Carpenter stated he and defendant then went to a gas station in Fertile where Carpenter perpetrated a robbery while defendant waited in the car. They subsequently committed the same offense at a restaurant in Alexander, and the Pine's Motel in Hampton. That done they started for Mason City, stopping on the way to split their criminally obtained money. Carpenter also testified, over objection, regarding a December 19, 1969, robbery committed by him and defendant at Northwood.

The State then called various witnesses, victims of the robberies committed December 15 and December 19, 1969, by Carpenter and defendant.

Thereupon the State rested and defense evidence was presented. Testifying in his own behalf defendant stated he and Carpenter spent the morning of December 15, 1969, drinking beet at defendant's home in Mason City while the latter worked on an automobile. He further testified, Carpenter left his house about 2:30 that afternoon in defendant's automobile, promising to be back that night. Defendant also said he went to his parent's home in Mason City, remained there until about 7:00 in the evening, then left to pick up his wife at work. He denied being in Alexander or Hampton the night of December 15, 1969.

Stephanie Orozco, wife of defendant, testified she worked December 15, 1969, from 11:00 in the morning until 7:00 in the evening when defendant came to take her home. This witness further testified she and her husband watched television the rest of the evening, going to bed shortly after 10:00.

Cross-examination of Mrs. Orozco evoked a dispute, later considered as an issue raised on appeal.

When the defense rested several rebuttal witnesses were called by the State. Richard Porter, superintendent of the Mason City Odd Fellows' Home, where Stephanie Orozco was employed, testified, according to records at the Home, Mrs. Orozco did not work December 15, 1969.

At close of all the testimony defendant moved for a directed verdict. In so doing he urged none of the errors asserted on appeal. The motion was overruled.

Following submission of the case, trial jury returned a verdict of guilty on both charges involved. June 23, 1970, defendant was sentenced to be confined in the Iowa State Reformatory at Anamosa on the robbery with aggravation and conspiracy convictions for concurrent terms of not to exceed 25 and three years, respectively.

Issues raised on appeal are, trial court erred in, (1) admitting evidence relative to extra-judicial identification of defendant; (2) admitting evidence regarding post-offense charged events; (3) overruling defendant's objection to cross-examination of the witness Stephanie Orozco.

I. First to be considered is the lineup attendant identification. As previously disclosed an attorney representing the accused, other than counsel on appeal, was present at all stages of the aforesaid proceeding and waived any objection thereto.

Defendant does not contend there was no independent origin for the courtroom identification, or the lineup was unnecessarily suggestive and conducive to irreparable mistaken identification. See Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402; Biggers v. Tennessee, 390 U.S. 404, 88 S.Ct. 979, 19 L.Ed.2d 1267; Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247; United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178.

As disclosed by Simmons and Stovall, both Supra, each case involving claimed invasion of constitutional rights regarding pretrial identification must be evaluated in light of all attendant circumstances. See also State v. Essary, 176 N.W.2d 854, 855 (Iowa).

Instantly defendant asserts nothing other than that a robbery related lineup for identification purposes, absent one or more in custody persons admittedly involved in the offense, is Per se a denial of due process. This approach may be new and novel, but without support in any authority cited or found, and is not here persuasive. We now hold, the controverted lineup proceeding, considered in light of the totality of circumstances, discloses no semblance of vitiating suggestiveness, irregularity, or denial of due process.

II. It is also contended by defendant, trial court erroneously permitted Carpenter to testify regarding a December 19, 1970, Northwood robbery. This occurred four days after commission of the charged Flo's Cafe offense. In overruling a defense objection to this line of testimony trial court, citing 16 Am.Jur.2d, Conspiracy, § 35 and 15A C.J.S. Conspiracy § 35(2), held evidence of the post-offense charged crime was admissible in connection with the alleged conspiracy.

We deal here not with hearsay declarations of a co-conspirator but rather with acts and conduct. In that area, where conspiracy is charged, trial courts are allowed wide latitude in determining admissibility in evidence of other offenses. See State v. Theodore, 260 Iowa 1038, 1043--1045, 150 N.W.2d 612, 615--616; 3 Underhill's Criminal Evidence, § 860 (5th ed.).

And it is not error to admit relevant evidence in proof of a conspiracy even if the act or acts occurred after the conspiracy has ended. See Lutwak v. United States, 344 U.S. 604, 617--618, 73 S.Ct. 481, 489, 97...

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4 cases
  • State v. Johnson
    • United States
    • Iowa Supreme Court
    • 18 Diciembre 1974
    ...of a conspiracy to which defendant belonged or was an overt act later ratified by defendant. See State v. Hopkins, supra; State v. Orozco, 190 N.W.2d 830 (Iowa 1971); 3 Underhill's Criminal Evidence, § 862 (Fifth Ed. 1957). Since defendant's participation in the incident was not shown, it c......
  • State v. Love
    • United States
    • Iowa Supreme Court
    • 18 Febrero 1981
    ...like that in no tavern." We cannot say the trial court's allowance was an abuse of discretion calling for a reversal. State v. Orozco, 190 N.W.2d 830, 834 (Iowa 1971). In the first place the witness's answer was negative. Moreover, the question was not flagrantly improper. See State v. John......
  • State v. Orozco
    • United States
    • Iowa Supreme Court
    • 15 Noviembre 1972
    ...The charges against defendant originated in the robbery trial and conviction of her husband, Anthony Allen Orozco. See State v. Orozco, 190 N.W.2d 830 (Iowa 1971). Testifying as an alibi witness for her spouse, the accused stated she was employed, worked a regular shift the day of the afore......
  • State v. Johnson, 56585
    • United States
    • Iowa Supreme Court
    • 16 Octubre 1974
    ...205 (Iowa 1971) cert. denied 414 U.S. 857, 94 S.Ct. 163, 38 L.Ed.2d 108; see State v. Hopkins, 192 N.W.2d 747 (Iowa 1971); State v. Orozco, 190 N.W.2d 830 (Iowa 1971). No such proof was presented in this We also note trial court did not follow our frequent admonition that, 'Careful procedur......

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