State v. Carter
161 N.W.2d 722
Iowa
1968
Check Treatment

*1 Iowa, Appellee, STATE of CARTER,

Larry Appellant.

No. 52701. of Iowa.

Oct.

Rehearing Denied Dec.

Allеn L. Donielson and Nolden Gentry, Moines, Des appellant. for Richard C. Turner, Atty. Gen., William Claerhout, A. Atty. Gen., Asst. Ray- Fenton, mond A. County Atty., Moines, appellee. MOORE, Justice.

On February 9, defendant, Larry Carter, was indicted in County Polk charged *2 related that she Mrs. Marasco drove with intent assault the crime with 690.6, her parking car into the south near the lot of sectiоn murder violation plea pharmacy rear entrance the she noticed a he entered Code, to which light parked angle a at colored car an the returned guilty. her next left which a colored man of the included guilty of finding him verdict a medium build and complexion standing to commit with intent of assault offense staring at walking her. Whilе toward the trial 10, 1967 April manslaughter. pharmacy’s the happened rear entrance ‍‌‌‌‌​‌‌‌​‌‌​​​‌‌‌​​​​‌‌‌‌​​​‌​​​​​‌​​​​​‌‌‌​​‌​​‍she in the be confined him to court sentenced glance and back over her shoulder ob- for a at Madison Penitentiary Fort served the pistol same man a pointing as au- years five period not to exceed her. About this time fired a shоt at 694.5, Code, 1966. section thorized under her luckily missed its mark. Mrs. affirm. appealed. We Defendant quickly ran pharmacy Marasco into the presented this questions pharmacist The a three where nearly found her in a probable (1) hysterical there was appeal are whether condition. a search issuance of warrant for

cause for Zug Mrs. Pam walking while phar- the automobile, (2) instruction defendant’s macy from her nearby apartment heard a prejudicial 13 on alibi was erroneous sharp loud noise and observed what she allowing (3) the trial erred described as a Dodge white Dart with found into taillight left reflector speed- broken out automobile. sеarch of defendant’s ing out parking lot. She then en- tered pharmacy and found Mrs. Marasco m., p. About 5:30 December crying and extremely upset. other Des Nicholls and Detective Nolan police police a Moines officers received Detective conducted an efficient Nicholls Company report Lоan radio Globe search of shooting the area near the Wright had been East Euclid Streets a found .32 wedged S & W lead bullet p. up. held m. while enroute to About 5:34 between the plate glass sill and aof re- heard the scene Nicholls another radio pharmacy window. concerning near the port shooting a Seneca Arthur Moinеs Police Lieutenant a Pharmacy located seven and half blocks in time to Ferguson on the scene W. arrived Immediately thereafter from Loan. Globe Dodge Zug hear Mrs. describe white police dispatcher broadcast a radio the de- immediately He broadcast Dart. description Loan robber a of the Globe shortly a scription thereafter received burlap jacket a with a wearing man hooded stating call that de- from fellow officer the corners face mask stuffed around fendant, Carter, Larry a vehicle fit- owned hood, dark wearing gloves and also ting description. Ferguson proceeded description of clоthing. Next came residence at East 17th defendant’s shooting as a colored man had done who sight. Street but car was product. Chrysler driving white male area for patrolling nearby After ten Ferguson twelve minutes returned Loan Detective arriving at Upon Globe light to find defendant his colored backing had the robber learned Nicholls Dodgе its rear re- Dart with broken left paper sack in manager a brown assistant driveway. Ferguson out of the flector As and had used money place the which to defendant, approached, to the man of went colored pistol. Thereafter Nicholls alighted complexion, medium build and and Seneca East 14th Pharmacy at Seneca from his Ferguson vehicle and asked him Ave., the victim of he talked to where Marasco, for his driver’s license. At time the attempted shooting, Mrs. Rose noted incident, paper officer a brown sack Mrs. stuffed to the also witness down in the seat front defendant’s auto- Zug. Pam burlap string Constitution; I, observed a mobile Article Fol- left ear. hanging behind defendant’s section Iowa Constitution. lowing request to defendant’s denial of challenge probable of want of Ferguson put search car is familiar us. have discussed at squad re- car and made a radio call length questions surrounding search *3 search questing and a warrant assistance probable warrants and cause in State v. for defendant’s car residence. Hall, 147, ‍‌‌‌‌​‌‌‌​‌‌​​​‌‌‌​​​​‌‌‌‌​​​‌​​​​​‌​​​​​‌‌‌​​‌​​‍151-153, 259 Iowa 143 N.W.2d the home Detective Nicholls then went to 321; 318, Lampson, State v. him municipal judge

aof submitted to 806, 149 118, N.W.2d 116, application and stated search warrant Oliveri, Iowa, 688, 156 690, 691, him, the facts as known and related to in each of quote which we this from including report. Ferguson’s United Ventresca, 102, v. 380 U.S. 107, 108, 741, 746, 85 S.Ct. L. 13 Dart, Dоdge In searching defendant’s Ed.2d 689: “While a warrant authorized the search warrant issued may only upon issue finding ‘prob- municipal judge, the officers found able cause,’ this Court has held that long unspent .32 in S & W caliber bullet * * * ‘the “probable term cause” means seat. front less than evidence justify which would condemnation.’ States, Locke v. United filed a mоtion Before trial defendant 7 Cranch L.Ed. 3 (367), 364 seeking suppress and a limine motion in finding may inquiry concerning ‘probable cause’ bar the from all State legally rest evidence which unspent is not caliber bullet. .32 S & W competent in a Draper criminal trial. hearing these v. motions Officers States, 307, 311, Ferguson United 358 Nicholls and testified to the facts U.S. S.Ct. 79 329, 332, 3 L.Ed.2d (331). as sеt out also testified 327 As the above. Nicholls States, the Court stated robbery Brinegar in v. United considered both the 160, 173, 338 person U.S. assault were the same 69 S.Ct. committed 93 L.Ed. (1889). large and that crime ‘There information on one would is a difference things between the logically applied be to the other. two to be proved (guilt probable cause), as well Both were motions overruled as between the which determine tribunals ‍‌‌‌‌​‌‌‌​‌‌​​​‌‌‌​​​​‌‌‌‌​​​‌​​​​​‌​​​​​‌‌‌​​‌​​‍in trial court and the bullet found defend- them, and therefore a like difference in car in ant’s was identified and admitted quanta proof required and modes of expert evidence on A testi- trial. ballistics to establish hearsay may them.’ Thus be phar- fied it and found the basis issuance warrant ‘so macy were same Defendant of the caliber. ** * long as (is) there a substantial testified he had a box such bullets or basis for crediting hearsay.’ v. Jones at shells He denied he still home. States, supra, 362 (257), U.S. at gun they could owned be used 272, 80 S.Ct. (725), (4 at 736 L.Ed.2d 697 day on the of the at And, 78 A.L.R.2d 233). Aguilar we recognized that may ‘an affidavit be assigned I. is Defendant’s first error hearsay based on information and need probable limited his claim there not reflect personal direct observa- cause for the search and there- warrant affiant,’ tions of the long magis- so as the regarding fore the trate is ‘informed of some the under- bullet should suppressed have been and not lying supporting circumstances’ the affi- admitted in evidence. ant’s conclusions his belief that warrant, course, A search cannot informant involved identity ‘whose need not ** * upon probable sup be issued unless be disclosed was “credible” or ’ ported by oath or affirmation. Amendment his information Aguilar “reliable.” (108), Texas, supra, 378 U.S. are in the abstraсt structions to the (1509), (12 at 1514 L.Ed. 84 S.Ct. except of the instruction 13. record 729). 2d have clerk’s however reviewed them from a transcript. recognition reflect the “These decisions “ * * * \nds, Amendment’s comn. the Fourth Instruction states: are requirements, all, only all constitutional convicted, like can if be convicted at teach- If the practicаl open and not abstract. be fol- trial, cases are to ings of Court's and in rules accordance with the served, policy and the constitutional lowed of law as laid down these instructions.” warrants, as the such affidavits for search “The defendant Instruction states: here, and in- he tested one involved must offense' be innocent prеsumed to courts in terpreted by magistrates and upon the State charged, and the burden They fashion. *4 and realistic commonsense establish presumption and this to overcome by nonlawyers in normally drafted are doubt. beyond a reasonable guilt his thereof investiga- a criminal the midst and haste of » * ** requirements of elaborate Tеchnical tion. law specificity once exacted under common on element instruction Instruction proper place in this pleadings have manslaughter, assault with intent to by negative or attitude grudging area. A beyond a rea- prove required the will tend reviewing warrants courts toward did doubt “that sonable discourage police officers from submit- Iowa, about County, or Polk ting their a officer judicial evidence to up- December, 1966, an assault day of make * * acting.” before Marasco on Rose com- which defendant issuance of a Instruction 13 of Probable cause for of error assignment plains the facts and exists where his second search warrant the defendant “It the claim of knowl states: is within the affiant’s circumstances shooting trust referred reasonably has that at the he time of edge, and of which his home he was at mother’s information, in them to herein are sufficient worthy Moines, Iowa, 17th Des a reasonable 909 East Street to warrant man of selves consequently not have being that he could has or is an offense been to believe Iowa, charged or Oliveri, herein supra, committed offense committed. He seeks the included offenses. either of and citations. or by a witness to establish this claim established Applying now well these herein testified witnesses who have them, we review principles the fаcts as defense by testimony. his This own assignment first conclude defendant’s we commonlyknown as an alibi. is The trial court without merit. error is es- the burden “The defendant has mo overruling defendant’s correct in was weight greater tablishing this defense limine. suppress his motion tion it, upon and be- bearing required by section you acquit as the defendant reason II. Defendant fore can 777.18, Code, 1966, he would you filed notice find that he defense must of this by preponderance greater or rely on an alibi. established it weight bearing it. of the evidence trial, defendant, his mother weight greater he If has established testimony from which gave brother he at his mother’s of the evidence that was East he was at 909 have found could Moines, Des at 909 East 17th Street in home Iowa, Street, Moines, his mother’s Des 17th Iowa, at distance from Seneca such a home, shooting occurred. when offense Pharmacy he have committed that could not charged you the crime herein should return record is printed abstract of Defendant’s guilty. in- a verdict of not The -trial incomplete. court’s rather “If the defendant has failed to establish clerk’s Examination the district court by greater transcript this of the evi- weight prop- shows defendant did within defense you exceptions to dence still consider the evidence time after the file should er verdict exception which has introduced in there- taken suf- been of, if, considering after case ficient on which defendant’s second to base evidence, whole, including assignment made as a error that it was error you put prove entertain reasonable doubt burden on defendant to charged having the offense alibi evidence. committed herein, excep- you ruling by either of the included offenses No the trial court on the the defend- finding should return a verdict tion instruction 13 shown guilty. records from the before us but ant court’s denial of defendant’s motion for a new “You will understand that the burden apparent disagreed it is the trial with proof paragraph referred to in this rests defendant’s More careful contеntion. only proof that the defendant as to the complete preparation the abstract rec- East at his mother’s home at 909 helpful timesaving would have been ord Iowa, Moines, 17th Street in to this court. shooting time the occurred and such Hamilton, In State v. Pharmacy distance from Seneca (1881), this court said: N.W. who did person he could have been “The defendant claimed he was at By reason of this *5 place another robbery when the was com him, resting re- upon he is not or bound mitted. The court instructed that the quired as to the prove his innocence to the proof burden of was on the defendant case, proof the burden rests whole of pres to establish the that he fact was not upon the a whole ‍‌‌‌‌​‌‌‌​‌‌​​​‌‌‌​​​​‌‌‌‌​​​‌​​​​​‌​​​​​‌‌‌​​‌​​‍to case as State ent, by preponderance of evidence. This beyond prove guilty to the defendant instruction was correct and is the set now guilty reasonable doubt before a verdict of tled Vincent, law of the state. State v. 24 charges on of herein can included 570; Henry, Iowa State Hardin 46 v. & against be returned him. 623; Red, 69, Iowa State v. 53 4 N. Iowa ‘preponderance 831; Kline, “The evidence’ 183, terms of W. State 6 54 v. Iowa evidence,’ as used ‘greater weight 184; and Northrup, of N.W. State 48 v. Iowa 583.” instruction, in practically are terms of consistently Since Hamilton we have meaning, the same and when it is said followed the rule it therein announced and rests the defendant burden recognized doctrine this court. of by alibi establish his Some of cases in it has been fol- evidence, it is meant greater weight or of Rowland, 327, lowed are State v. 72 Iowa introduced the evidence offered and 328, 137, Worthen, 33 138; N.W. State v. in thereof to the defendant entitle 408, 413, 332; 124 330, Iowa 100 N.W. fairly acquittal, fully should when Johnson, 8, 20, State v. Iowa 221 264 N.W. impression stronger produce considered 596, 602, 91; 267 State Stump, N.W. v. convincing be mind more 1181, 1192, 1193, 210, 119 against intro- weighed when 217, certiorari 853, denied 375 U.S. 84 S. opposition duced in thereto.” 113, 80; Post, Ct. 11 L.Ed.2d v. 573, 585, The abstract record does dis- Iowa 123 N.W.2d State v. exception, any, LaMar, Iowa, taken close what if was 151 N.W.2d 504. In rеsearch instruction 13 defendant. Hamilton and Our our recent more cases some reporter’s transcript reveals court members of the court have dissented ground take right ex- such an reserved alibi instruction shifts the ceptions proof after the instructions until ver- thereby destroys dict. fundamental presumption innocence. fully dis- the сrime and the property the dissenters had position seized The es- been ‘as a means Our or Stump used one of case dissent. cussed committing however, not been means’ or rule, accomplishing has tablished felony”. of a other commission In words changed. defendant relies on what come to be has re- approved аlibi Our known as the mere evidence rule. the attention cently come Circuit, Appeals, Eighth Court of States spe The mere rule (1967) Bennett, 386 F.2d 677 v. Johnson cifically rejected by this Bennett, (1968). F.2d 111 Stump v. Raymond, Iowa 142 N.W.2d ap- corpus proceeding Each is a habeas subsequently by the abandoned Su District United States pealed from the preme in Warden, Maryland Court Peni Iowa District Southern Court for the tentiary Hayden, v. 387 U.S. 87 S.Ct. sought denied a writ the trial court where 1642, 18 As result L.Ed.2d eviden- af- prisoner conviction we had whose seized, tiary bullet, matter in this case a firmed. longer need no fruit instrumentality be the crime or to be contraband admissi the ruling Bennett In v. Johnson ble, but need be relevant only and material Stump v. affirmed. In trial court was the inquiry. Cer- was reversed. Bennett trial court the United granted by tiorari has been otherwise properly Evidence seized is no Johnson, 390 U.S. Supreme Court longer subject to exclusion simply because L.Ed.2d 102 88 S.Ct. it falls within the mere evidence classifi- Stump. con- requested in has been Collins, Iowa, cation. State v. 152 N.W.2d be questiоn will doubt raised stitutional All cases defend- cited near decided ant prior Warden, Mary- were decided future. Hayden, supra, land Penitentiary *6 defendant was presumption There proposi- hence are not authoritative for the time of at his mother’s home tion claimed. instructions do as whole The judgment case at bar when considered of trial court is deprive ‍‌‌‌‌​‌‌‌​‌‌​​​‌‌‌​​​​‌‌‌‌​​​‌​​​​​‌​​​​​‌‌‌​​‌​​‍defendant benefit Affirmed. therefore presumption innocence. We rule long our to overrule established decline sug- this time. do however on alibi at GARFIELD, J., C. LARSON, question be- pending

gest in view of STUART, SNELL and JJ., concur the trial Supreme fore the Court the alibi courts omit from

part puts RAWLINGS, MASON, BECKER and proving an alibi LeGRAND, JJ., dissent. evidence. RAWLINGS, Justice, did (dissenting). We hold instruc giving error reversible I am agree unable to with the conclu- tion 13. sion reached Division II majori- opinion ty the trial court relative giving Defendant asserts in- III. struction on In .32 WS & alibi. allowing hereof see erred seizure “the dissent LaMar, because in State v. into evidence illegal seizure 504. See the bullet itself was Thomas ‘instrumentality’ States, v. United (9 Cir.), it not an 32- in that was F.2d F. States, (8 Cir.), v. United Glover 430-433; Iowa L.Rev. 590. and 49 I for new would remand reverse and

trial.

MASON, LeGRAND, BECKER and join

JJT., in this dissent. Iowa, Appellee,

STATE of Mary

Christine COOPER Francis Appellants. Gordon,

Nos. of Iowa.

Oct.