State v. Turner

• Decision Date: 30 November 1983
• Docket Number: No. 66365,66365
• Parties: STATE of Iowa, Plaintiff-Appellee, v. Carl C. TURNER, Defendant-Appellant. Carl C. TURNER, Petitioner-Appellant, v. STATE of Iowa, Respondent-Appellee.
• Court: Iowa Court of Appeals

Page 552

345 N.W.2d 552

STATE of Iowa, Plaintiff-Appellee, v. Carl C. TURNER, Defendant-Appellant.

Carl C. TURNER, Petitioner-Appellant, v. STATE of Iowa, Respondent-Appellee.

No. 66365.

Court of Appeals of Iowa.

Nov. 30, 1983.

John J. Piazza of the Offender Advocate Office, and R. Wayne Saubert, Des Moines, for defendant-appellant.

Charles L. Harrington, Appellate Defender, and Patrick R. Grady, Asst. Appellate Defender, for defendant-petitioner-appellant.

Thomas J. Miller, Atty. Gen., and Roxann M. Ryan, Asst. Atty. Gen., for plaintiff-respondent-appellee.

Heard by OXBERGER, C.J., and DONIELSON, SNELL, SCHLEGEL, and HAYDEN, JJ.

SCHLEGEL, Judge.

In these consolidated cases, defendant-petitioner appeals his conviction of first-degree robbery in violation of Iowa Code sections 711.1 and 711.2 (1979) and the subsequent denial of his application for postconviction relief. On direct appeal defendant-petitioner asserts that: (1) the evidence was insufficient to support a jury verdict that defendant aided and abetted the robbery; and (2) trial court erred by refusing to take judicial notice of the minutes of testimony of a missing State's witness who allegedly would have presented exculpatory testimony and further erred by refusing to allow defendant to present as a witness the assistant county attorney who drafted the minutes.

In the postconviction appeal, defendant-petitioner asserts that: (1) his constitutional right to confrontation of witnesses was violated by the admission into evidence of deposition testimony which was taken out of his presence and without his knowledge; and (2) he was denied effective assistance of counsel due to counsel's alleged failure to inform defendant-petitioner of, or secure his presence at, a deposition of a witness and counsel's subsequent decision to allow the deposition to be admitted into evidence, allegedly without obtaining from defendant-petitioner a waiver of his right to confrontation.

Defendant and his brother-in-law were jointly charged by information with first-degree robbery, arising out of the armed robbery of a Des Moines convenience store. After defendant's motion to sever was granted, his case was tried to a jury. The jury subsequently found him guilty as charged and found that a firearm had been used in commission of the offense. Defendant was sentenced to an indeterminate twenty-five year term of imprisonment, with a five-year minimum sentence for use of the firearm.

By stipulation of the parties, a deposition of the convenience store clerk was read into evidence at the trial. In the deposition the clerk stated that at 5:00 a.m. on February 2, 1980, a black male wearing a ski mask and carrying a handgun entered the store, took money from the cash register, and left in a Chevrolet Monza automobile driven by another person. The clerk immediately called the police and gave them a description of the robber and the car, including its license number. Two police officers testified that they stopped the car a short time later, apprehended defendant and his brother-in-law, and recovered a handgun, ski mask and money. The suspects were returned to the convenience store, where the clerk identified defendant's brother-in-law as the armed robber.

Defendant testified in his own defense that he drove his brother-in-law to defendant's mother's house and then to the convenience store to buy some beer. However, defendant further testified that they had no prior discussion about a robbery; that he did not see the gun, ski mask or money until after being stopped by the police; and that he knew nothing of the robbery until he was questioned by the police.

A minute of testimony indicated that a customer in the store at the time of the robbery would testify that, inter alia, when the robber entered the store he "had just pulled a ski mask over his face." The State did not call this witness at trial. At the close of the State's case, defendant noted that the minutes had been entered into evidence in the companion case by stipulation of the parties, and requested that the court take judicial notice of those minutes on grounds that they tended to impeach the prior testimony of a deputy sheriff and were exculpatory to defendant. Trial court refused to admit the minutes. Defendant then requested to call the assistant county attorney who prepared the minutes to testify about its content. The trial court refused this request also.

Defendant Turner subsequently filed an application for postconviction relief. At the postconviction hearing Turner's trial counsel testified that he agreed to depose the convenience store clerk to perpetuate his testimony because the clerk was in the military and would not be available for trial; that although it was his normal practice to do so, he could not recollect whether he had informed Turner in advance about the deposition or discussed the use of the deposition with Turner prior to trial; and that he agreed to admit the deposition into testimony because he thought the clerk would be an excellent witness whose presence at trial could be detrimental to Turner. Turner testified that he was not contacted by his trial counsel about the deposition and that he did not know the clerk would testify by deposition until it occurred. The postconviction court concluded that Turner failed to prove ineffective assistance and, regardless, had failed to prove prejudice.

Turner's direct appeal was stayed pending resolution of the postconviction action, and the direct appeal and postconviction appeals were subsequently consolidated. Turner's notice of appeal from the denial of his application for postconviction relief was untimely, but this court granted Turner's request for a delayed appeal by order filed on March 28, 1983.

1. Direct Appeal

A. Sufficiency of the Evidence

In our scope of review of a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State. State v. Robinson, 288 N.W.2d 337, 338 (Iowa 1980). All legitimate inferences which may fairly and reasonably be deducted therefrom will be accepted. State v. Schrier, 300 N.W.2d 305, 306 (Iowa 1981). It is necessary to consider all the evidence when determining evidential sufficiency. Id. at 306. The relevant question is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Robinson at 339.

Turner contends the evidence was insufficient for a jury to find beyond a reasonable doubt that he aided and abetted one Zizzi Howard in armed robbery of a Kwik Shop store on February 2, 1980. Aiding and abetting means to assent to or lend countenance or approval to a criminal act, either by active participation in it or in some manner encouraging it. State v. Jones, 271 N.W.2d 761, 763 (Iowa 1978). The State must prove that Turner's participation or encouragement was done with knowledge of such act. Id. at 763. Aiding and abetting need not be shown by direct proof as it may be inferred from circumstantial evidence including presence, companionship and conduct before and after the offense is committed. Fryer v. State, 325 N.W.2d 400, 406 (Iowa 1982). The evidence in this case indicates the following set of events. At about 4:00 to 4:30 a.m. on February 2, 1980, Carl Turner and Zizzi Howard went to the home of Turner's mother allegedly to pick up Turner's keys to his apartment. Upon leaving his mother's home, Turner drove Howard to a Des Moines convenience store. While Howard was inside the store, Turner was parked facing away from the store in an undesignated parking spot with the car engine running. Howard then returned to the car; Turner drove away, ran a stop sign, and proceeded southbound exceeding the speed limit. When police officers stopped the car, they found an excessive amount of small change on the passenger's seat and floor. Also recovered were a gun, holster, and stocking cap. The gun that was seized after the robbery was registered to Turner's deceased father.

Turner testified he knew nothing of the robbery. He stated he had not seen the gun prior to the robbery, nor did he see the gun, the money, or the stocking cap after the robbery. Turner indicated that he believed the police were stopping him for running the stop sign almost three miles back.

We believe the foregoing evidence makes out a jury question on Turner's guilt. The jury could have found that Turner took Howard to his mother's house, they acquired the gun there, proceeded to the Kwik Shop where Howard robbed the attendant while Turner waited in the "getaway" car. They could have found that the robbery was committed with Turner's knowledge and encouragement. As such, we find the evidence was sufficient for the jury to find beyond a reasonable doubt that Turner aided and abetted Howard in the armed robbery on February 2, 1980.

B. Minutes of Testimony

Turner alleges that the trial court erred in refusing to admit a minute of Eric Lindstrom's testimony for the purpose of impeaching Lieutenant Long's testimony. Turner makes this argument by virtue of a stipulation in a previous judicial proceeding where the same minutes were received into evidence. As a general rule, courts will not take judicial notice of the proceedings or record in another cause, whether such cause was tried in the same court or in another court. See 29 Am.Jur.2d, Evidence § 58 (1967). Absent an agreement of the parties at bar, judicial notice is generally improper. See Troester v. Sisters of Mercy Health Corporation, 328 N.W.2d 308, 311 (Iowa 1982). There was no stipulation in this case and no special circumstances warranting judicial notice. See Johnson v. Johnson, 188 N.W.2d 288, 292-3 (Iowa 1971). Furthermore, Turner had the opportunity and did depose Eric Lindstrom. The State agreed to allow that deposition into evidence, but Turner refused. We agree with the trial court that Turner has shown no basis for the court to take judicial notice of the minutes,...