State v. Whitfield

• Decision Date: 14 November 1973
• Docket Number: No. 55487,55487
• Citation: 212 N.W.2d 402
• Parties: STATE of Iowa, Appellee, v. Odell WHITFIELD, Appellant.
• Court: Iowa Supreme Court

Page 402

212 N.W.2d 402

STATE of Iowa, Appellee, v. Odell WHITFIELD, Appellant.

No. 55487.

Supreme Court of Iowa.

Nov. 14, 1973.

Polk County-Des Moines Offender Advocate Office, Michael J. Laughlin, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Fred M. Haskins, Asst. Atty. Gen., and Ray A. Fenton, County Atty., for appellee.

Considered en banc.

REES, Justice.

Defendant was charged by county attorney's information with the crime of delivery of a Section 1 Controlled Substance in violation of Senate File 1, section 401, Sub. 1, amended by Senate File 468, Acts of the 64th General Assembly, 1st Session (now section 204.401, The Code, 1973). Specifically, he was charged with delivery of heroin. He was tried to a jury, convicted, and sentenced, and now appeals. We affirm.

The offense is alleged to have been committed on November 17, 1971. On that date two officers of the Des Moines police department, Reaney and McVey, met one Phillip Booker, an undercover agent, in a parking lot in Des Moines to arrange for a purchase of narcotics. The officers searched Booker and his automobile, and found no narcotics. Booker then left the officers and went to the apartment of one John Pargo, and upon learning Pargo was not at the apartment, Booker went to a pool hall, where he met one Gary Main and asked him whether or not he had any drugs to sell. Main replied he was not then in possession of any drugs, but he expected to have some delivered to him shortly. Booker then met Pargo and defendant in the pool hall, and both men indicated they wished to sell drugs to Booker. After some argument, Booker agreed to buy drugs from both Pargo and defendant.

Booker and Main entered Pargo's automobile and during a short drive Booker purchased one capsule from Pargo. After making the purchase from Pargo, Booker left the automobile and proceeded down the street and entered the car belonging to the defendant. Booker there purchased one capsule from defendant.

The officers, Reaney and McVey, had been following defendant in their automobile during all of the events described above. At the moment the purchase was claimed to have been made from the defendant, the officers were about a block and a half distant from defendant and Booker and could see both men in defendant's automobile. The officers were equipped with binoculars to aid their vision if desired. After the claimed purchase from the defendant was made, Booker entered his own automobile and drove to a cemetery, where he was searched by the officers and the two capsules were handed over to them. An analysis of the capsules later established they contained heroin.

All of the foregoing facts were testified to by Booker and corroborated by the two officers insofar as they were able to observe the occurrences from their removed vantage point. Defendant testified in his own behalf and denied having made the sale or delivery to Booker, and denied that he had ever used or sold heroin.

A rebuttal witness, one Anders, was called by the State for the purpose of impeaching defendant's credibility. Certain aspects of the testimony of Anders are under attack in this appeal, and his testimony will be commented upon hereinafter.

At the close of the evidence, counsel for defendant requested that the closing arguments of counsel to the jury be reported. The trial judge indicated he would not order the closing arguments to be reported, and the record shows he made the following observation:

'As a matter of fact, the Court will remain on the Bench during arguments so that I will have a real knowledge of what has been said in argument. If there are any objections to any argument, the Reporter will be called and record will be made.'

In the interests of brevity and clarity, we paraphrase from defendant's brief and argument the propositions upon which defendant relies for reversal as follows:

1. Trial court committed reversible error when it denied defendant's request that final arguments be reported in light of defendant's assignment of alleged misconduct by the prosecuting attorney during such arguments.

2. Trial court erred in overruling defendant's motion for mistrial on the grounds that defendant was effectively denied the right of cross-examination through the State's use of a rebuttal witness who asserted his Fifth Amendment privilege against self-incrimination. This assignment refers to the testimony of the witness Anders.

3. Trial court erred in overruling a motion to strike the testimony of the witness Anders on the ground that it tended to incriminate the witness who was without counsel at the time the statements were made.

4. Trial court erred in denying defendant's motion to strike Anders' testimony, said motion grounded upon lack of proper foundation for impeachment.

5. Trial court erred in overruling defendant's opinion and conclusion objection to the question as to whether Anders had ever seen heroin in defendant's possession, and in overruling defendant's motion for mistrial made on the ground the witness Anders was not competent to state whether or not it was heroin he had seen in defendant's possession.

I. We consider first the contention of defendant that trial court committed reversible error when it denied defendant's request that final arguments of counsel to the jury be reported.

Section 624.9, The Code, provides:

'In all appealable actions triable by ordinary or equitable proceedings, any party thereto shall be entitled to have reported the whole proceedings upon the trial or hearing, and the court shall direct the reporter to make such report in writing or shorthand, which shall contain * * * The portions of arguments objected to, when so ordered by the court, all objections thereto with the rulings thereon * * *.' (emphasis added).

Section 624.11, The Code, provides:

'On a trial before a jury it shall not be necessary to take down arguments of counsel or statements of the court, except his rulings, when not made in the presence of the jury.'

We interpret section 624.11 to mean that a record need not be made of arguments of counsel. Said section requires only rulings of the court not made in the presence of the jury to be reported.

It is undoubtedly true counsel for defendant, prior to closing arguments in this case, requested that a record of arguments be made. The trial court refused the same and indicated he would remain on the bench during all of arguments and that if any party desired to make a record on any portion of the arguments objected to, the reporter would be called and that portion of the argument reported. There is nothing in the record to disclose that objections to any portion of the arguments were made at the time of argument. Defendant now claims here, and asserted in his motion for new trial, that he was denied a fair trial by the prosecuting attorney's reliance on facts outside the record in final argument. Defendant concedes the county attorney is permitted wide latitude during closing arguments in drawing deductions from and inferences upon the evidence. We have repeatedly spoken to this point. See State v. Wesson, 260 Iowa 331, 340, 149 N.W.2d 190, 196; and State v. Harless, 249 Iowa 530, 535, 86 N.W.2d 210, 213.

Defendant had the duty to object at the time of argument to offensive or improper remarks made by the county attorney in his closing arguments, and unless such objection was made he waived his right to complain of such offensive or improper remarks in a motion for new trial or on appeal here. See State v. Horsey, 180 N.W.2d 459, 460 (Iowa 1970); State v. LaMar, 260 Iowa 957, 967, 151 N.W.2d 496, 502; State v. Wesson, Supra; and State v. Allison, 260 Iowa 176, 183, 147 N.W.2d 910, 914.

This assignment of error by defendant, an indigent, is bottomed upon the equal protection argument which finds support in Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891. In Griffin, the United States Supreme Court held that '(d)estitute defendants must be afforded an adequate appellate review as defendants who have money enough to buy transcripts.' See 76 S.Ct. 591. Such holding rested on the constitutional guaranties of due process and equal protection, both of which call for procedures in criminal trials which allow no invidious discriminations between persons or different groups of persons.

In Mayer v. City of Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 (decided Dec. 13, 1971), the Supreme Court said, at page 414 of 92 S.Ct.:

'A 'record of sufficient completeness' does not translate automatically into a complete verbatim transcript. We said in Griffin that a State 'may find other means (than providing stenographic transcripts for) affording adequate and effective appellate review to indigent defendants.' 351 U.S., at 20, 76 S.Ct., at 591. We considered this more fully in Draper v. Washington Supra, 372 U.S. (487) at 495--496, 83 S.Ct. (774), at 779 (9 L.Ed.2d 899):

"Alternative methods of reporting trial proceedings are permissible if they place before the appellate court an equivalent report of the events at trial from which the appellant's contentions arise. A statement of facts agreed to by both sides, a full narrative statement based perhaps on the trial judge's minutes taken during trial or on the court reporter's untranscribed notes, Or a bystander's bill of exceptions might all be adequate substitutes, equally as good as a transcript. Moreover, part or all of the stenographic transcript in certain cases will not be germane to consideration of the appeal, and a State will not be required to expend its funds unnecessarily in such circumstances. If, for instance, the points urged relate only to the validity of the statute or the sufficiency of the indictment upon which conviction was predicated, the transcript is irrelevant and need not be provided. If the assignments of error go only to rulings on evidence or to its sufficiency, the transcript provided might well be limited to the portions...