State v. Post

• Decision Date: 16 July 1963
• Docket Number: No. 50824,50824
• Citation: 255 Iowa 573,123 N.W.2d 11
• Parties: STATE of Iowa, Appellee, v. Raymond Louis POST, Appellant.
• Court: Iowa Supreme Court

Page 11

123 N.W.2d 11

255 Iowa 573

STATE of Iowa, Appellee, v. Raymond Louis POST, Appellant.

No. 50824.

Supreme Court of Iowa.

July 16, 1963.

Rehearing Denied Sept. 17, 1963.

Joseph Z. Marks, Des Moines, for appellant.

Evan A. Hultman, Atty. Gen., John H. Allen, Asst. Atty. Gen., Martin D. Lair, County Atty., and Edward N. Wehr, Asst. County Atty., for appellee.

LARSON, Justice.

On April 30, 1962, the defendant Raymond Louis Post was charged with the crime of robbery with aggravation in violation of section 711.2, Code of Iowa, 1962, I.C.A., and with being an habitual criminal in violation of section 747.5, Code of Iowa, 1962, I.C.A., was tried and convicted by jury on May 24, 1962, and on June 4, 1962, judgment was entered and he was sentenced to imprisonment at the State Penitentiary for a term not to exceed twenty-five years. His appeal to us was perfected on June 25, 1962.

It is contended the court erred in permitting certain clothing and evidence connected therewith to be considered by the jury, that it erred in failing to properly instruct with regard to circumstantial evidence, and that it erred in submitting an instruction regarding the defense of alibi. We find no reversible error.

The State's evidence showed that on the 23rd day of February, 1962, at approximately 2:30 P.M., a man armed with a revolver walked into Bert's Tavern at 1238 West Fourth Street in Davenport, Iowa, ordered a patron to bolt the door to an adjoining restaurant, and informed everyone at the bar that it was a holdup. This man, who looked to be about 37 years of age, wore a blue cap with ear flaps, dark glasses, a blue denim jacket, appeared to be about 5'7"'' tall, and weighed about 165 pounds. He ordered all the patrons to face the wall with their hands behind them, went to the center of the bar and forced the proprietor Alberta Larsen to aid him in placing the cash register money and the check cashing money from another box into a paper sack. Approximately $1,500.00 in all was taken by the bandit. After ordering everyone, except the owner, to lie on the floor, he left by the back entrance. Police were called about 2:35 P.M. and, as their patrol car neared the tavern, they found a shirt and jacket in the street. In the pocket of the jacket was a pair of dark sunglasses and a plain white book of matches. These items were taken to the tavern, where they were identified by the patrons as those worn by the bandit. Their description of the gunman was put out over the air, together with a communication from the desk sergeant that Raymond Louis Post, the defendant, was the man wanted. At approximately 3:40 P.M. two policeman observed defendant leaving another west end tavern with two other men, and he and his companions were followed, arrested, and taken to the police headquarters. Within the hour the defendant was placed in a lineup with four other men of approximately the same height and weight, and each was required to read phrases made up of words used by the bandit in the tavern robbery. In that and two later lineups, the defendant and four other men were viewed by the tavern owner and the patrons individually. In the first one, viewed by the owner and six patrons, the defendant was allowed to wear his own clothing. When all of them identified the appellant as to stature and voice, and one positively identified him as the robber, he was booked. On request, he voluntarily surrendered his clothing and other personal belongings, including a plain white book of matches, and was provided a white coverall suit which he wore at the successive lineups. Other patrons identified him thereafter as to stature and voice with 'no dissimilarities'.

Appellant was charged with the crime of robbery with aggravation and by telephone obtained an Illinois counsel, who appeared with him when he was taken before a magistrate the morning following the robbery. The magistrate advised them of the charge against defendant and also advised the accused of his constitutional rights. A formal hearing was set for February 28, 1962, and held on that date.

Defendant denied he voluntarily surrendered his clothing and personal effects or agreed to the taking of samples of his hair, and denied he held up Bert's Tavern as charged. He testified he was at that time a patron in Debbie's Tap, a considerable distance from the scene of the crime.

Defendant's clothing and a book of matches, together with the items found on the street near the scene of the crime, were sent to the laboratories of the Federal Bureau of Investigation in Washington, D. C., where tests were conducted thereon.

On the trial F.B.I agents testified that identical fabric fibers and like dyed rabbit hairs were found on the clothing taken from appellant and on the item of clothing found near the scene of the crime, that matching paint particles such as used on juke boxes and other such fixtures were found on the clothing worn by the defendant and the clothing identified as articles worn by the bandit. They testified the matchbook found in the robber's clothing and the book found in defendant's pocket were stapled on the same machine, and both were manufactured by the same party.

I. A person duly accused of a crime is rightfully entitled to one, but only one, fair trial. Failure of defendant to reasonably exercise his procedural rights in his trial necessarily limits the grounds the appellate court will consider in a claim that he failed to receive a fair trial. Section 780.4, Code of Iowa, 1962, I.C.A.

When the defendant, for whatever reason, fails to preserve his alleged errors in proceedings before the district court, it must sufficiently appear from the whole record that he failed to receive a fair trial, had incompetent counsel, or that in the interest of justice he should be granted a new trial. The burden to so show is upon him. His present counsel, the third in this matter, admits, as he must, that errors relating to the instructions of which he now complains were not at any time called to the attention of the trial court, and that the grounds for the rejection of certain evidence urged below are not those urged here. No exceptions to the instructions were taken at the time of the trial. No complaint as to them appears in his motion for a new trial.

Counsel does not deny that in matters of procedure he is and should be bound by the discretions and judgment exercised by his predecessors in the former trial. However, he now asks us to review the whole record, to consider the errors assigned, timely or not, and grant defendant a new trial in the interest of fairness to the accused. We are well aware of the provisions of section 793.18 of the Code, I.C.A., and in such cases as this we generally do examine the whole record without regard to technical errors or defects which do not affect the substantial rights of the parties. After a careful examination of the submitted transcript, as well as the record, we are not convinced they disclose any substantial or reversible error.

The extent of our duty in this regard and the meaning of section 793.18 we fully discussed in the recent cases of State v. Kramer, 252 Iowa 916, 918, 109 N.W.2d 18, and State v. Pullen, 252 Iowa 1324, 1327, 110 N.W.2d 328, where we were also asked to consider errors assigned 'in the interest of fairness to the accused.' Although mindful of the provisions of section 780.4, Code of Iowa 1962, I.C.A., which provides that the provisions relating to the manner of trial of civil actions also applies to the trial of criminal actions (State v. Miller, Iowa, 117 N.W.2d 447, 456), it is true we have stated that if upon an examination of the record under section 793.18 we are convinced it shows that a fair trial was not had, we will not hesitate to reverse. State v. Cusick, 248 Iowa 1168, 1170, 84 N.W.2d 554, 555; State v. Martin, 243 Iowa 1323, 1327, 55 N.W.2d 258, 260, 34 A.L.R.2d 904. That is a good and sound rule, but it does not mean every departure from a perfectly tried case will justify such appellate action.

It must be noted that those cases we have reversed on such a plea were extreme cases, and the records therein clearly and amply showed a failure to receive a fair trial.

In State v. Kramer, supra, 252 Iowa 916, 919, 109 N.W.2d 18, 19, we succinctly said that 'orderly processes of court procedure, as established by many years of trial and error or by legislative enactment, must be substantially observed or the rights of the contesting parties may be lost in a welter of confusion.' There we carefully pointed out that when firmly-fixed right to the services of counsel is exercised, it will not do to say that the accused is immune from compliance with the rules by which established procedure requires trials be conducted. Under such circumstances we made it clear that the trial court and the State are entitled to know what the defendant claims, to what he objects; in short, in what respects he contends he is not receiving a fair trial. If, being represented by counsel not incompetent, he fails to make his position clear, so that the trial court may know his complaints and take care to remedy those which may be well founded, he will likely not be in a strong position to urge error in the appellant court.

Defendant, as it appears in this record, had often had the need for counsel in criminal actions, and when dissatisfied with their endeavors had not hesitated to change them. He can gain no advantage in this manner, for the mere fact that counsel's endeavor does not bring the result hoped for does not indicate incompetency or lack of diligence, but may indicate his well-laid trial plan or strategy did not work out. This is not a showing sufficient to entitle the accused to a new trial with new counsel, or to justify our conclusion that in the interest of justice the accused should be granted a new trial. Each case, of course, needs to be considered upon its own facts and circumstances as disclosed by the...