State v. Schlater

• Decision Date: 05 September 1969
• Docket Number: No. 53144,53144
• Citation: 170 N.W.2d 601
• Parties: STATE of Iowa, Appellee, v. Ronald Leroy SCHLATER, Appellant.
• Court: Iowa Supreme Court

Page 601

170 N.W.2d 601

STATE of Iowa, Appellee, v. Ronald Leroy SCHLATER, Appellant.

No. 53144.

Supreme Court of Iowa.

Sept. 5, 1969.

Harold G. DeKay, Atlantic, for appellant.

Richard C. Turner, Atty. Gen., William A. Claerhout, Asst. Atty. Gen., and Robert D. Nelson, County Atty., Audubon, for appellee.

MASON, Justice.

The Audubon County grand jury returned an indictment charging Ronald Leroy Schlater with breaking and entering with intent to commit larceny contrary to section 708.8, Code, 1966, by aiding and abetting another in breaking and entering the Asberry Feed Store in Exira on or about October 21, 1967.

Following a plea of not guilty the matter proceeded to trial by jury which returned a verdict of guilty. Motion for new trial and to set aside the verdict was overruled and defendant was sentenced to imprisonment in the men's reformatory for a term not to exceed ten years.

We deem it advisable to set out the provisions of Code section 688.1:

'Distinction between principal and accessory. The distinction between an accessory before the fact and a principal is abrogated, and all persons concerned in the commission of a public offense, whether they directly commit the act constituting the offense, or aid and abet its commission, though not present, must hereafter be indicted, tried, and punished as principals.'

From this final judgment defendant appeals assigning as error refusal of trial court to order the county attorney to produce statements made by witnesses, if any, and under his control for examination by defendant after the direct testimony of the witness had been given, particularly regarding a lie detector test given the accomplice, Joseph Oppold; refusal to order county attorney to produce a sworn statement of Tom Green made before the grand jury to be offered into evidence by defendant on his behalf. It is contended there was insufficient corroboration of the accomplice's testimony and defendant was denied due process and fair trial by suppression of Green's statement made before the grand jury and the lie detector test.

I. Joseph Oppold, an inmate at the men's reformatory, testified as a State's witness that while he was living in an apartment in Atlantic, he, Tom Green and defendant planned a breakin of Asberry's Feed Store the night of October 20. He maintains defendant told them the best way to get in and where he would pick them up afterwards. The witness said the three left the apartment after midnight with defendant driving the get-away car, a 1963 dark blue Chevrolet belonging to a Steve Rasmussen.

They drove by the feed store in the west end of Exira to look the situation over, through the town to locate the police, then back in front of Asberry's and on west. All three returned to the store, drove clear around it, into the yard and then down to the sewer bridge road where witness and Green got out of the car. The two went behind the store about 150 feet from the car, broke a panel out of the back window and entered the store, taking money from a cash register and Coke machine, a large piggy bank and a pair of cowboy boots. They waited in a nearby cornfield for defendant to pick them up. When he did defendant turned onto sewer bridge road again where Oppold threw away the fillers from the boots. They arrived at Oppold's apartment in Atlantic about 12:30 or 12:45 a.m. After the loot was divided defendant and Green left for home about 1 a.m.

Robert Asberry testified that as he drove over the sewer bridge road on the way to work about 6:15 a.m. October 21 he noticed a filler from a Nocana brand boot which he stocks. When he arrived at the feed store he found the cash register and pop machine had been broken into, the piggy bank had disappeared. He immediately called the sheriff and Mrs. Asberry, told her not to let anyone cross the sewer bridge road so the tracks might be maintained. Asberry described tire tracks found in the store area, the broken window, the store interior and fillers used in the missing boots.

He said he pointed out the tire marks near the store and similar tracks on the sewer bridge road to the sheriff.

Asberry and the sheriff drove to defendant's home, checked the front and rear tires and tread pattern of the 1963 tudor Chevrolet Asberry had seen defendant driving prior to the night of the breakin. In his opinion this tread pattern matched his earlier description of the tracks near the store and on the bridge road.

Jack Hilsabeck, Audubon County sheriff, said he drove to Asberry Feed Store in Exira October 21 in response to a telephone call. He observed a broken window, inspected the store interior and observed tire tracks in the yard and in front of the feed store. He and Asberry then went to the bridge on the sewer road where Asberry pointed out tire tracks. They then drove to the home of defendant's father, observed a 1963 dark blue Chevrolet which the sheriff had seen defendant driving at various times during the summer. Hilsabeck testified without objection that, based on his inspection of these tires, the tire pattern was similar to that of the tracks around the store and on the road by the bridge.

Francis Chantry, an Atlantic policeman, and Lloyd Wolfe, Exira marshall, both acquainted with defendant, testified that while parked and talking they saw defendant driving a 1963 dark blue Chevrolet in Atlantic between 1 and 3 a.m. October 21, 1967. He was accompanied by another person. Chantry remarked to Wolfe, 'There goes Schlater.' Wolfe replied, 'Yeah that's him.' The point where the two officers saw defendant is about 13 miles from the feed store. Neither was then aware there had been a breakin at Asberry's store. When Wolfe returned to Exira about 4:30 a.m. he noticed there weren't any lights in the feed store.

II. Defendant challenges the court's ruling in submitting to the jury as a fact question the sufficiency of the evidence to corroborate the testimony of Oppold, an accomplice.

Code section 782.5 provides:

'Corroboration of accomplice. A conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence which shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof.'

In State v. Neely, Iowa, 156 N.W.2d 840, 844, we summarized the general principles applicable to this section based on authorities reviewed in State v. Weaver, 259 Iowa 1369, 1373, 147 N.W.2d 47, 49--50, and State v. Gill, Iowa, 154 N.W.2d 722, 725:

'Whether there is corroborative evidence is a question of law, but its sufficiency is for the jury.

'The corroborating evidence may be either circumstantial or direct and need not be of every material fact testified to by the accomplice.

'The evidence adduced to corroborate an accomplice need not be strong, and any evidence legitimately tending to connect the accused with the commission of the crime and thereby lend support to the credibility of the accomplice is sufficient.

'There may be a combination of circumstances which entitle the jury to reach the conclusion they corroborate the accomplice's testimony.

'When considering the sufficiency of the evidence to meet the requirements of section 782.5 each case must be judged on its own facts.'

With these rules in mind we turn to the evidence.

Oppold described the planning and commission of the crime, the route taken by the three participants after leaving Atlantic until their return to his apartment, the items taken from Asberry's and specified the time Green and defendant left for home. Asberry testified as to his finding the boot filler, the tire marks in the vicinity of the store and on sewer bridge road, an area in which Oppold said they traveled. Asberry inspected the tire tread on the blue Chevrolet he had seen defendant driving earlier in the summer. This was the same car Oppold said defendant drove the early morning of October 21. In his description of the store interior Asberry gave an account of the items missing which corresponded with the items Oppold admitted taking.

The sheriff's testimony relating to his examining the tire marks around the feed store and on the sewer bridge road, inspecting the Chevrolet tires and noticing defendant driving this particular automobile on many earlier occasions legitimately tended to connect defendant with the commission of the crime.

Chantry and Wolfe both said they saw defendant in Atlantic sometime between 1 and 3 a.m. October 21, 1967, driving a blue Chevrolet which corresponded with that described by Oppold, Asberry and the sheriff. Their testimony was further corroboration of Oppold's version of the time defendant and Green left his apartment and defendant's possession of the Chevrolet on October 21, and lent support to his credibility.

The court did not err in submitting to the jury as a fact question the sufficiency of this evidence to meet the statutory requirement.

III. Defendant asserts in his third assignment the trial court erred in overruling his motion to set aside the jury verdict and dismiss the case. To the extent this motion is based on the contention the corroborating evidence was insufficient to raise a jury question it is without merit.

IV. In another assignment defendant contends the court erred in refusing to order the county attorney to produce Tom Green's sworn and signed statement made before the Audubon County grand jury so it might be offered in evidence by defendant. He argues the State thus suppressed evidence favorable to him resulting in denial of a fair trial and due process.

The record shows that Tom Green was subpoenaed before the grand jury which returned the indictment against defendant. Green's name was not listed as a witness examined by the grand jury when the indictment was returned and the minutes attached thereto did not reflect his statement. Green was out of the state and did not testify at trial.

Defen...