State v. Redding, No. 53228

• Court: United States State Supreme Court of Iowa
• Writing for the Court: GARFIELD; BECKER; Fontron; RAWLINGS
• Citation: 169 N.W.2d 788
• Parties: STATE of Iowa, Appellee, v. Curtis Lee REDDING, Appellant.
• Decision Date: 24 July 1969
• Docket Number: No. 53228

Page 788

169 N.W.2d 788 STATE of Iowa, Appellee,
v.
Curtis Lee REDDING, Appellant. No. 53228. Supreme Court of Iowa. July 24, 1969.

Page 789

Walter W. Rothschild, Waterloo, for appellant.

Richard C. Turner, Atty. Gen., and Larry Seckington, Asst. Atty. Gen., for appellee.

GARFIELD, Chief Justice.

A jury found Curtis Lee Redding guilty of robbery with aggravation in violation of section 711.2 Code, 1966, in that he robbed Arnold Heasley of approximately $100 while armed with a gun, with intent, if resisted, to kill or maim Heasley. From judgment on the verdict defendant has appealed.

Three alleged errors are assigned. (1) Refusal of defendant's request for a list of police officers who investigated the crime and the nature of the investigation of each. (2) Admitting in evidence what defendant refers to as a 'mug shot' of defendant taken at a prior arrest. (3) Admitting in evidence as part of the res gestae a conversation between the victim and an eye witness as to the description of defendant. We consider them in the order stated.

Since sufficiency of the evidence of guilt is not questioned, only limited reference to the facts is deemed necessary at this point.

Heasley was a filling station attendant in Waterloo. The robbery occurred on the night of February 4--5, 1968 about 1:30 or 1:40. Heasley was alone in the station when, according to his testimony, defendant entered with a gun, announced it was a 'stickup,' demanded the money in the drawer of a desk and left with about $100 in his possession; Heasley was about two feet from the robber and identified defendant as that person; he was a Negro wearing dark clothes and a French beret; about two days later he had an opportunity to recognize defendant at the police station from about 12 photographs shown him, one of which was of defendant.

I. On the day the county attorney's information was filed, defendant's counsel filed a motion asking for a list of police officers involved in the investigation and the nature thereof conducted by each, a copy of any written statements taken by the police from the victim Heasley, and that defendant be permitted to examine a money sack referred to in the minutes of testimony attached to the information.

After arguments on the motion the court denied the first request and two others not referred to supra but granted the last two requests and required the state to furnish the material within two days. It is not claimed the order was not complied with. Denial of only the first request is complained of here.

Since trial of the present case we have dealt extensively in State v. Eads, Iowa, 166 N.W.2d 766, 773--775 with the question presented in this first assigned error. While the Eads opinion is too long to review here, nor is that necessary, it fully supports the view that no abuse of discretion appears in denying defendant's first request.

In Eads the trial court required the state to furnish a defendant charged with murder copies of statements made to police by all persons it expected to call as witnesses, also a right to inspect and copy the reports by four named officers concerning their investigation in to the alleged crime. In a review by certiorari of the order, the requirements above referred to were held to be an abuse of discretion.

Page 790

This is from the Eads opinion (page 774 of 166 N.W.2d): 'However, whether condemned as 'mere fishing expeditions,' 'attempts to rifle the prosecutor's file,' or 'requests for the State's work product,' the overwhelming weight of authority is against such disclosure. * * *

'We hold the order requiring the State to produce copies of police reports was an abuse of discretion and that approval of such procedure would unreasonably and unnecessarily impede the investigatory process, thereby depriving the State of a fair trial. (numerous citations)'

See also State v. Kelly, 249 Iowa 1219, 1220--1222, 91 N.W.2d 562, 563--564, and State v. Tharp, 258 Iowa 224, 227--230, 138 N.W.2d 78, 80--81, and what is said concerning them in State v. Eads, supra. The Eads opinion says (pages 768, 769 of 166 N.W.2d): 'For present purposes we take as established the argument that, in the absence of suppression of evidence favorable to a defendant, states do not violate due process by denying pre-trial discovery. (citations).'

Defendant concedes that under State v. Kelly pretrial discovery may be had in Iowa only for the production of specific documents which are shown to be in existence. His first demand was not of such nature.

Aside from State v. Kelly, the only decision defendant cites is Williams v. Dutton, 5 Cir.Ga., 400 F.2d 797, 800--801, which we do not find contrary to our holding here.

We are also reminded the trial court had considerable discretion under Code section 773.6 to order the county attorney to furnish defendant a bill of particulars of the offense sufficient to enable him to prepare his defense or to give him such information as he is entitled to under the constitution of this state and a supplemental or new bill when the court deems it in the interest of justice. As to this suggestion it is sufficient to say defendant made no request for information under this statute and it was not an abuse of discretion for the court not to invoke section 773.6 on its own motion.

We note that in permitting defendant to examine the money sack referred to in minutes of testimony attached to the information the trial court complied with the pertinent part of State v. Eads, supra, filed nearly a year after the ruling under discussion here. (pages 769, 771 of 166 N.W.2d).

II. Regarding receipt in evidence of what defendant refers to as a 'mug shot' of him, Heasley testified without objection he had an opportunity to recognize defendant again at the police station by means of photographs a few days after the alleged robbery. At this point defendant's counsel said he would like to interpose an objection and to be heard on it in the jury's absence. An extended hearing was then held in the jury's absence. It was brought out by defendant's counsel the state perhaps would show that one to three days after February 5 Heasley identified a mug shot of defendant and indicated to the police this was the man he believed robbed him.

It also appeared at the same hearing that Heasley identified defendant in a police 'lineup' on March 1. Later that day a preliminary information was filed in municipal court accusing defendant of the crime of which he was later convicted. Defendant's counsel indicated he would object to offer of the photograph (exhibit D) and evidence of the lineup principally on the ground defendant had no attorney present at either time. The county attorney brought out that defendant had not been arrested or confined on the charge of which he was convicted until the information was filed and the investigation had not reached the accusatory stage at the time defendant was identified by the photographs or in the lineup.

At the conclusion of the above hearing the court ruled the photograph would be received in evidence but evidence as to the lineup would be excluded. The court concluded

Page 791

from the testimony and admissions at the hearing the investigation had not reached the accusatory stage until after Heasley viewed the photographs.

After the jury returned to the court room Heasley testified that two days after the robbery he went to the police station to look at about a dozen mug shots and exhibit D was the photograph of defendant about which he testified. The exhibit was received in evidence over defendant's objection of incompetent, irrelevant, immaterial, highly prejudicial, without probative value and in violation of defendant's rights under the Fifth and Fourteenth Amendments to the Federal Constitution, presumably rights against self-incrimination and to due process of law.

Defendant argues here exhibit D should not have been admitted because the jury would get the impression therefrom he had been in trouble with the police before and so be prejudiced against him in considering his guilt or innocence of the crime charged.

It is the general rule that evidence is not receivable of a crime for which defendant is not charged and on trial, but there are well-recognized exceptions to the rule. One exception applies where such evidence tends to identify him as the person who committed the crime charged. State v. Vance, 119 Iowa 685, 687, 94 N.W. 204 (later overruled on another point); State v. Johnson, 221 Iowa 8, 14--16, 264 N.W. 596, 267 N.W. 91; State v. Dunne, 234 Iowa 1185, 1195--1196, 15 N.W.2d 296, 301--302 and citations; State v. Gill, 259 Iowa 142, 145, 143 N.W.2d 331, 333; 29 Am.Jur.2d, Evidence, § 322.

Identity of defendant as the man who robbed Heasley was very much an issue at the trial. Defendant's brief calls it the crucial issue. As stated, Heasley as a witness identified defendant in the court-room as the person who robbed him. Defendant as a witness denied he was ever in the filling station in question except the rest room on a prior occasion, robbed the attendant on February 5 or at any time, and that he ever owned a gun or wore a French beret.

Especially since identity of accused was such an important issue, notwithstanding Heasley's in-court identification of defendant as the person who robbed him, it was entirely proper for the state to offer evidence that at a former time the victim also identified defendant as such person. Indeed some evidence of this was received without objection, as stated at the outset of this Division II. Courts and text writers have recognized that the earlier identification has greater probative value than the one made in the court-room.

As held in People v. Gould (Traynor, J.) 54 Cal.2d 621, 7 Cal.Rptr. 273, 354 P.2d 865, 866--867 (1966):

'Evidence of an extra-judicial identification is admissible, not only to corroborate an identification made at the trial (citation), But as independent evidence of...