*1 attorney fees and real estate commis- sion. applied insofar shall be
“3. The balance permit as follows:
as funds paid in already (if not
“a. float Check
full;) in- including accrued judgment
“b. The Noack; and costs due Walter
terest Baker’s Leonard sheep note of “c. 10th, September a balance
which had accrued $58,615.21together with
interest; Tracy balance, any, if
“d. The
North.”
The case
Affirmed.
All concur. Justices Iowa, Appellee,
STATE of Appellant. REDDING,
Curtis Lee
No. 53228.
Supreme Court of Iowa.
July 24, 1969. *2 gun, it
ant with a announced was entered money “stickup,” a demanded the drawer a left about of desk and with $100 possession; Heasley in his was two about feet identified defend- from robber and Negro a wear- person; ant as that he was beret; ing clothes and a French about dark to rec- days opportunity he had later an two police ognize from defendant at station him, of one about shown which was defendant. of county attorney’s day I. On the filed, defendant’s counsel information police a list of a for asking motion filed Waterloo, Rothschild, ap- for Walter W. and investigation in officers involved pellant. each, a the nature thereof conducted Turner, Gen., Larry Atty. C. Richard taken any written statements copy of Gen., appellee. Atty. Seckington, Asst. Heasley, and victim police from the money to a permitted examine be defendant in the minutes referred to sack GARFIELD, Chief Justice. attached to information. Redding Lee A Curtis found the court motion robbery arguments aggravation with viola- After guilty of in request and two others Code, 1966,in that he the first tion 711.2 denied of section two the last granted supra but Heasley approximately referred to Arnold robbed to furnish intent, the state requests required a gun, with with while armed $100 is not days. Heasley. two resisted, within maim From the material if kill or to complied with. ap- has was not defendant claimed order judgment on verdict is com- request the first only Denial pealed. plained of here. assigned. (1) Three errors alleged for a list request Refusal defendant’s we present case trial Since investigated the officers who Eads, extensively in State have dealt investigation nature of the crime and the Iowa, 773-775 166 N.W.2d what evidence Admitting in (2) each. assigned first presented in this “mug shot” of to a defendant refers long is too opinion the Eads error. While (3) taken arrest. it necessary, here, is that nor to review res Admitting in no abuse fully supports the view the victim gestae between a conversation defendant’s appears denying discretion eye description of an to the witness as request. first order them defendant. We consider stated. required the state trial court In Eads the with murder charged to furnish defendant guilt sufficiency of evidence of Since by all statements made copies of questioned, limited only is not reference witnesses, al- expected call as persons it point. necessary at this facts deemed reports copy inspect right so a concerning in- their Heasley filling station attendant named officers four alleged on the crime. robbery vestigation occurred Waterloo. The order, 4-5, the re- night or February 1968 about 1:30 certiorari of review Heasley to were quirements alone in station above referred held 1:40. when, testimony, according defena- abuse of discretion. to his opinion
This is (page from the Eads and was not an abuse of discretion for “However, N.W.2d): con- whether the court not to invoke 773.6 its section expeditions,’ demned fishing as ‘mere ‘at- own motion. file,’ tempts prosecutor’s to rifle the ‘re- We note that in permitting defendant to
quests product,’ the for the State’s work *3 money examine the sack referred to in min authority is overwhelming weight of testimony utes of attached the infor * * * against such disclosure. mation the trial complied court with the requiring pertinent part “We hold the order the Eads, State supra, of State v. filed produce copies police reports an nearly year was a ruling after the under dis here, approval that abuse of discretion and cussion (pages 771 of 166 N.W. unreasonably procedure such would and un- 2d).
necessarily impede investigatory proc- the II. receipt Regarding evidence of ess, thereby the a fair State of depriving what defendant “mug refers to as a shot” trial, (numerous citations)” him, Heasley objection testified without Kelly, also State v. Iowa he had opportunity
See an to recognize defend- 563-564, 1220-1222, ant again police N.W.2d at the station means of 224, 227-230, Tharp, State v. 258 Iowa 138 photographs days a few after alleged the 78, 80-81, robbery. N.W.2d and what con- point is said At this defendant’s counsel Eads, cerning supra. them in said he interpose objection would like to opinion says (pages Eads 769 of and to.be jury’s it in the heard on absence. N.W.2d) present purposes : “For we take hearing An extended held in the then that, jury’s argument established the in the brought absence. It was out by de- suppression absence of favor- perhaps evidence fendant’s counsel the state would defendant, able a days February states do not violate show one that to three after process by pre-trial Heasley due denying discovery, mug identified a shot of defend- (citations).” police ant and indicated the this was heman believed robbed him.
Defendant that concedes under State v. appeared hearing also at the same that pretrial Kelly discovery may had in be Iowa Heasley defendant a only identified production specific for the docu- “lineup” day on March 1. Later a that ments which shown to be in existence. preliminary information was muni- His filed first demand was not of such nature. cipal accusing court defendant crime Kelly, Aside from only State v. de of which he was later Defend- convicted. cision defendant cites is Williams v. Dut object to ant’s counsel indicated he would ton, Cir.Ga, 797, 800-801, 400 F.2d which photograph (exhibit D) offer of the do contrary holding we find to our lineup principally evidence here. attorney ground present no defendant had county attorney at either time. The areWe also trial reminded the court brought out that defendant not been had considerable discretion under Code charge or confined on the arrested county attorney section 773.6 order he information was was convicted until the to furnish particulars defendant a bill of investigation and the had not reached filed sufficient offense to enable him to accusatory stage at the time defendant prepare his give defense or to him such identified information as he is entitled to under the lineup. constitution of this supplemental state and a or new bill it hearing when court deems At the conclusion of the above justice. interest of suggestion As to this court ruled the would say is sufficient to no re made received in evidence but as to evidence quest lineup information under this statute excluded. The con- would be court
TQI time, at February tendant 5 or admissions from the eluded gun he or wore investigation had not ever owned hearing the at accusatory stage until after French beret. reached Heasley photographs. viewed identity of Especially accused since room returned to court After the issue, important notwithstand was such an after the days Heasley two testified that ing Heasley’s identification of de in-court station to robbery went he him, it person who robbed fendant as the exhibit mug shots and at dozen look about entirely offer proper for state to of defendant about D was victim former time the re- exhibit was testified. The which he person. also as such identified defendant objec- defendant’s in evidence over ceived Indeed was received some evidence of this *4 immaterial, irrelevant, incompetent, tion of at outset objection, without as stated value probative prejudicial, without highly this and text Division II. Courts writ un- rights defendant’s in and violation recognized ers have that the earlier iden Amendments Fourteenth the Fifth and der greater probative than tification has value Constitution, presumably Federal to the the one made in the court-room. to due against rights self-incrimination People (Traynor, held J.) As in v. Gould law. process of 621, 865, Cal.Rptr. 54 354 P.2d 273, Cal.2d 7 D should here exhibit argues Defendant (1966): 866-867 because have admitted been extra-judicial “Evidence an identifi- he had impression therefrom get the would admissible, cation to corrobo- only is before been in trouble (ci- rate an made at the trial identification considering against him in prejudiced so be tation), but as evidence jndependent charged. the crime guilt or innocence of his identity. Unlike.other can- by not be con- proof prior corroborated rule that evidence general is sistent statements unless it is im- first de a crime which not receivable of peached an extra- (citations), evidence of trial, but on charged fendant judicial regard- is admitted identification exceptions to well-recognized there are less whether the testimonial identifica- such exception applies where rule. One impeached, tion is because the earlier iden- person identify as the him tends greater probative tification has value than charged. State crime who committed the an identification made the courtroom in 687, Vance, 685, 204 N.W. 119 Iowa 94 v. suggestions after the and the of others ; State point) another (later overruled on circumstances of the trial have in- 16, 8, N.W. 264 Johnson, 221 Iowa 14 — recognition tervened to create a fancied Dunne, 596, 91; 234 267 N.W. mind, (citations)” (emphasis witness’ 296, 1185, 1195-1196, 301- 15 N.W.2d Iowa added) citations; Gill, Iowa State v. 142, 145, 331, 143 N.W.2d Purnell, Ill.App., Am.Jur. 245 N.E.2d 2d, Evidence, 322. § (1969), points out: “A complainant accused from Identity of as the man who makes proper an identification is a means very an issue Heasley much robbed properly of identification and can ad- the trial. calls Defendant’s brief Maffioli, (People mitted into evidence. stated, Heasley As as wit- crucial issue. 406 Ill. N.E.2d 191.)” ness identified defendant the court-room person Childs, Defendant as the who robbed him. State v. 198 Kan. 422 P.2d fill- question as a witness denied he (1967) fully was ever 903-905 considers the except presented by assign- the rest ing defendant's second station occasion, the at- ment and prior robbed cites numerous decisions from room a on jurisdictions tra-judicial various for this conclusion: properly identification is re- adopted reasoning think the “We ceived. favoring the authorities admission into evi- Defendant contends the identifica- extra-judicial dence of the identification tion of him could not be made of a use ap- of an accused is sound and should be the local or tes- taken where,
plied case, as in the instant it, timony concerning some of which—as photographs.” is made from objection. without stated—was received (page 422 P.2d.) 904 of accepted under The contention cannot be Ed., Wigmore Third sec- we record have here. 1130, pages 210 contains these tion attempt show be- The state made no to' “Ordinarily, pertinent excerpts: when incidentally, jury, except perhaps fore the assailant, identify asked to witness is arrested, much less defendant had been * * * thief, the witness’ act of than that convicted, upon charge other person), pointing (or out the accused other He testified direct ex- considered. now court-room, then and there in is of counsel that on December amination his little After all that has testimonial force. on ex- “the date arrest shown intervened, happen that it would seldom traffic vio- D, for a hibit he was arrested would not have come to believe witness *5 However, the the exhibit lation.” back of identity. to person’s The failure in delinquency. The state charge lists the accused; recognize for the would tell defendant’s attempt contradict did not to might recognition affirmative mean traf- arrested for a he had been against little him. photo was taken nor fic when the violation “ * * * witness, To corroborate the disposition made was it shown what was of * * * entirely proper therefore, any charge growing out it. Defendant of time, prove sug- that at a when the also testified on direct examination with- former gestions of inter- others could not have previously been ar- dispute out he had not vened recognition to create fancied in He except rested for the traffic violation. mind, recognized however, witness’ he and de- say, did direct examina- also on present person. clared the tion, accused be the armed he been from the AWOL If, (as moreover sometimes is done) three services times. person placed among was then so others uniformity lack While there is some of probability that all suggestion of (by see- admissibility of in the decisions on ing handcuffed, him example) is still possession in of suspects removed, further the evidence becomes testimony concerning and them stronger. typical illustration that an ac- bearing identification of person of the identification of an accused the crime cused as the one committed who * * * at the time arrest: many charged, there are recent decisions simple “This ais dictate of common support the trial court’s admission sense, and was never doubted in orthodox D as this. of exhibit under such a record practice. That some modern Courts are on Commonwealth, Ky., 306 Colbert v. S.W. record for rejecting such is a tell- evidence 447-448, 2d 71 A.L.R.2d ing power illustration of the of a technical question. carefully consider Anno. rule of judicial paralyze thumb appears “It opinion: This the cited is from nerves of reasoning.” natural equally jurisdictions that about other out,
Wigmore
points
also
competency
as does
on the
divided
supra,
P.2d,
pre
Gould
page
testimony by
867 of 354
a witness as to his own
it is not necessary
accused,
to wait until
the witness vious identification of
making the
tendency
in-court
in the recent cases in
perhaps
identification is im-
peached
Annotation,
admissibility.
before evidence of an earlier ex-
See
favor of
argues
picture
being
‘rogues’
defendant’s
in such a
strongly
Wigmore
A.L.R. 910.
gallery’
on Evi
Wigmore
substance the admission of
admissibility.
favor of
another,
Ed.,
evidence
unrelated
dence,
Wharton
crime com-
sec. 1130.
Third
the evi mitted
the defendant.
that
Since we have
the view
also take
Underhill
held that the
on Criminal
evidence
Wharton
is admissible.
dence
of identification
181, 182;
Ed.,
Evidence,
competent,
Un
was otherwise
secs.
Twelfth
Ed.,
Evidence,
any suggestion
sec.
since
Fifth
this evidence
Criminal
derhill’s
from
sup
cases
and the
other
guilty
authorities
127. These
remote,
view,
be
crimes was incidental
distinction
we
make no
think
porting their
objectionable
was not
evidence
through
on the
photographs,
identification
tween
ground
possible
and identification
other
‘rogues’ gallery,’
inas
reference
However, they
Am.Jur., Evidence,
do
lineup.
crimes. See 20
sec.
through
311, p.
cf.
Jackson,
and circum
that the
Commonwealth v.
point
conditions
out
Ky.,
fact,
the identification
865,
Purnell,
People
The
(1966);
866-867
v.
decisions in Maffioli and Purnell
supra,
appear
Ill.App.,
(1969);
Several cases between It no here. well be defendant desired graphs prison, obviously taken in thus such instruction. felony convictions, showing and those tak- police. See, g., en local United States e. 647; Robinson, Ill., III. find merit defend supra,
v.
406 F.2d
We
no
7 Cir.
admission,
315,
People
Maffioli, supra,
assigned
Ill.
94 ant’s third
error
406
v.
191,
Purnell,
195;
objection
hearsay, of
supra,
N.E.2d
over his
as
Westphal
in rebuttal
to his con-
Ill.App.,
as
795 objection objection hearsay. as No other very minutes Heasley few versation interposed. was robbery. after objection he without Westphal testified principal argument in support this the oil station driving past was assigned error is that the statements testi- February 5 when 1:40 1:30 and between fied spontaneity to did not have the suspect leaving the Negro he noticed qualify géstate. as res We are told Clark miles station; to five down slowed witness Vleck, 194, 197-198, v. Van 135 112 Iowa hour; wearing dark suspect was 648, (1907) states gestae N.W. the res rule length beret, pants and dark colored in this state. find nothing ¾ We to criti- per- as the coat; he identified defendant cize what is opinion said there. The saw; and ran person turned he son recognizes that the fact the declarations houses; “figured” witness between two inquiries are in response made since station wrong was something “self-serving” always controlling. is not against motionless standing attendant was It is also said “And as a rule general wall; around the drove its witness inside the admissibility of such evidence lies down crouched suspect block and saw largely within the discretion the trial duplex; big gray porch of a the front up- court.” Exclusion of the was sus- applied his brakes when witness held the cited case. street; when pect off” across “took ei- fired years shot was car a In the 62 since witness backed his Clark v. Van Vleck air; he looked when at him or in was decided we have held times ther several running suspect between up generally recognized and it he saw the right extend, and turn trend the street decisions is to rather houses across rush- narrow, again; gestae witness than suspect he doctrine. Rou did not see res 993, attendant if the Dixon, ed to see shar v. Iowa into the station N.W.2d 662; with 660, Stafford, all a conversation right State v. Iowa with- 780, 785, 835; received All of the above N.W.2d Bass him. Muenchow, 1010, 1015, 146 N.W. Iowa objection. out 923, 926; Wilmeth, Iowa, 157 2d Gibbs said, attendant 98-99; what the Am.Jur.2d, Asked N.W.2d prosecutor hearsay and the objected page section 31A Evidence C.J.S. part gestae. of the res stated he felt was page 984. 403(1), § mo- its own jury on The court excused admissibility is axiomatic alleged tion, conversation heard what part gestae is statements res and ruled it admissible as largely within the trial the discretion of gestae. res Wilmeth, supra, and cita court. Gibbs then testified before tions; Iowa, The witness Johnson, State v. N.W. right, had Heasley all said he was citations; 2d 31A Evi C.J.S. *8 the police and act called 403(1), page and Iowa cases dence 983 § robbery; report the calling boss to his rulings on the cited n. 48. The trial court’s wore; suspect wit- two discussed what af question usually, always, are but and wearing if beret Muenchow, asked he was ness appeal. on firmed Bass v. Heasley “yes”; if he was wear- 1010, 1014, asked supra, said Iowa 146 259 N.W.2d coat, Heasley said length a dark trial ing 923, In 926 and citations. Bass the ¾ Heasley al- “yes”, and and dark trousers? excluding the state court was reversed de- agreed aon “yes”; said the two so ments. if suspect; asked witness
scription fact or held several times the eleven We have five feet probably about he was response ques- to statements are made they that. This agreed and six feet tall not render them inadmissible defendant’s tions does over received is the evidence 796 they
as gestae spon the res if We find no assigned reversible error and argued under the excitement taneous and made and further find defendant was the principal transaction. Gibbs v. a fair Wil accorded trial.
meth, supra, 93, 157 99 and N.W.2d cita Affirmed. tions; Johnson, supra, N.W. All except concur BECKER and Justices 2d and citations. See also Cos RAWLINGS, JJ., who dissent. Lepp, sette 38 Wis.2d N.W.2d 629, 631; d, 31A Evidence § C.J.S. BECKER, (dissenting). Justice page 1036 and citations n. 56. respectfully I dissent. It gestae ap- is settled res doctrine The considered Division II is plies in both civil and criminal cases. 29 extra-judicial not whether evidence of 769; Am.Jur.2d, Evidence, page section excep- identification is admissible as an 31A 403(1), page Evidence 985. § C.J.S. tion to rule against corroborating party’s majority own witness. The opin- persuaded We are not the trial court strongly ion amply demonstrates such abused its discretion under circum- evidence is admissible and defendant does stances in admitting here this conversa- point. question is; contest The Westphal tion between and the victim of State, can the in showing such extra-ju- According testimony crime. his to chief, dicial identification in its case in latter gunpoint had been robbed of at $100 long violate our barring established rules less; within five minutes or he just had character, bad or defendant’s notified notify- and was in the act of reputation, convictions, prior or or ing his Westphal boss when rushed into the Brown, in its main arrests case? State v. station if to see the attendant was all 277; Eaton, Iowa State v. right; N.W. Westphal just witnessed the 195; 190 Iowa 180 N.W. State v. suspect Un- escape from the and gun- station derwood, 248 Iowa 80 N.W.2d shot had fired at been him or into Wharton’s Criminal air; Twelfth properly trial court could find Ed., 232, page majority section 492.1 The Heasley Westphal both were still act- prohibition apply notes this does where ing continuing under excitement of the rob- the purpose of the evidence is show bery and there was insufficient time for applied identification we have not this the former fabricate upon or deliberate exception type we have here. case questions answers to the few the latter put him; generally the answers cor- might well to first view the evi previously roborated each had Through dence itself. inadvertence some given objection descrip- without as photograph actually at trial has used tion identity suspect. picture legend been lost. reverse side has been certified to this Westphal We note was cross-ex- attorneys an dupli court trial exact amined at length. some obvious cate, back, exhibit front and D. The effort to weaken his identification de- to bring effectiveness of the exhibit home fendant brought it was out the witness fact that defendant least made through photographs no identification record, record, felony had a if anot lineups. needs no elaboration.2 appellant implicitly distinguished arrests, 1. Defendant concedes 2. Evidence exception always extra-judicial prior convictions, has been from *9 poses recognized excep additional fewer above There are held inadmissible. problem: exceptions “The thus to be an tions this rule than there against swered whether evidence of crimes convictions. to th rule identity prove Brown, can be established to in such 100 Iowa Cf . State v. 50, 54, a manner done the instant ease.” N.W. 277. (Emphasis added): many dealing gen- proper Of cases with this gleaned rule is from two Ca- subject, eral good short Dean, (1942), statement nadian cases. Rex v. problem together suggestion 706, 706, with a Reports, On- Dominion Law *10 Appeal: argued police “It was among
tario is for the Court records. So far as appellant prevented possible him ought the Crown not to be disclosed to the part by introducing jury, a fair trial as having appre if to any and there is reason in chief evidence that the jury may prejudiced of its case this hend the against be formerly of an by had been convicted the accused reason of some disclosure accused imprisoned. It is and had been of the fact that police photo offence the have his may records, that whatever graph answered for the Crown for their it would be well exhibit, in filing this Judge said about the the against be trial to warn the appellant by it as the end no harm came of allowing their be minds to influenced defence, and in his own that knowledge, prejudice became witness to examination-in-chief, his in the course of Cr.App. accused. R. (1914), (10 v. Palmer * * counsel whether being asked his own R. 77). * convicted, he previously said he had been requires “It constant watchfulness on twice, once in Cali- had been convicted part Judges trial Magistrates, It is said in Manitoba. fornia and once well, of Crown counsel as see to that noth- on cross-examination appellant further that done, ing unfair person to an accused is to con- properly as these asked evidence, or is stated in in connection with with re- details gave some victions photographs purposes use of for re- counsel spect Appellant’s them. limits, proper identification. Within appellant was forced plies that the to this photographs use of only helpful is by the evidence of witness box into the justice, administration of is but often improperly admitted conviction indispensable.” the Crown’s case. against part him as
The quoted Canadian cases are because help they put problem in focus and arguable that when “It is not suggest approach. a reasonable Our own prisoner person who is whether the is federal courts reach the same conclusion charged, evidence committed the crime very reasoning. similar and that the that he is a former convict gallery police photograph his in their have Cir., Reed, United States v. 376 F.2d prejudicial prisoner. Not (1967), photos is a case where were only credibility a wit- his does affect not admitted in were referred ness, if he become wit- but even does not ‘mug during testimony shots’ concern- will, every probabil- knowledge ness the ing extra-judicial identification. The fed- ity, against him. It weighed be in the scales eral courts said: hold that testi- “We presumption of innocence to weakens the mony respect ‘mug to the shot’ of the benefit of he is entitled.” prison taken in right Reed his vitiated presumed This case followed Rex Watson be proven innocent until guilty (1944), (Ontario): 2 D.L.R. prejudicial Repeated error. “ * ** objections pointed As counsel sustained, out testimony to this were Crown, their have in for but the testimony remained. This testi- possession mony other than those made the difference between the persons, and mere mention trial a man convicted presumptively innocent of per- of the fact that criminal wrongdoing and the trial trial son on was in the hands of the known right convict. His not to take assuming is no warrant that he stand in his own defense was substan- tially a criminal made destroyed. record. Reference be past His record could Kingsland Cr.App.R. R. 8. have (1919), directly been prosecu- shown improper for counsel for tion as of its prove would case to bad char- point Crown to to make a acter endeavour since Reed’s character was not in fact that the of the accused issue. indirectly. this did
7QQ 728, 608, page stating as the general rule: photographs of the characterization “The " 'Photographs are admissible in evidence prison same had the taken in shots’ 'mug as upon principles on in criminal cases the same notations penitentiary effect as testimony and rules their in civil governing admission descriptive photographs and However, photographs in cases. taken from prejudicial to be them held concerning photo of Harman, “rogues’ gallery” collection F.2d 349 United States graphs, new or the files of taken for a remanding 1965). In (4th Cir. prison, in generally inadmissible when trial, doubted Harman said in the court they their as said on face are identifiable such might have judge anything the that pictures’ page at created ”2. 349 F.2d prejudice (loc. cit. could have removed 322.) not that he had pictures noted by at Id. his instructions. them in
mentioned State, Vaughn Ind. 215 19 N.E.2d page 228.) at cit. F.2d (loc. 320.” a is case the material (1939), where April Cir., (5 States In United Castillo photograph on card was blocked 762, 764, prob- same 1969). 409 F.2d out and prison picture or was “ * * picture from which lem arose. The then used. The court observed: *. referred made was identification Pictures showing a criminals front and depicting shots” group “mug a as profile view, displayed with a number reversing the court users”. “known breast, are common and familiar. If the characterizations “In addition said: the evidence had been offered for the unnecessary no wholly and served were good-faith purpose of that showing testimony purpose. The earlier legitimate identify witness could a photograph of the the tes- had how demonstrated of Bustos defendant, pictures might these have been handled, prejudice timony be without could apart and that portion cut where num- pur- legitimate to achieve the appellant, displayed away. ber is cut But it is ob- pose seller coupling presented they vious thus would have Appellant’s character person. same relevancy no more probative or than force proof from chain of in issue. The was not picture kodak taken the court room by the wit- of the seller visual observation may defendant’s home. well picture aof ness, the witness selection jurors be doubted whether the remained undisputed seller, as one depicting ignorance photo- the fact that the depicted another of graphs and had card to do with some crimi- particular person who image as nal record of the defendant. It was not arrested, depended at all was then proper prove that the defendant had or character of source record, criminal and what not be visual observation upon the witnesses’ directly may done done indirec- undisputed ascertain- plus of it Hambreck’s subterfuge. tion or the photographs If picture they selected was ment that the any probative substantial force and appellant.” furnished further evidence of the identity person who committed the just cited deal cases The two federal testimony crime than furnished only. There with testimonial him, of the witness who identified and it concerning the admis good deal law impossible separate photo- “mug distin sibility shots” of such matter, graphs prejudicial from the a dif- concerning guished from mere presented. ferent would be Since Harman, F.2d them. United States proof improperly another crime ad- a case. (4th 1965), is such Cir. always mitted prejudicial section treated as Am.Jur., court er- cites 20 split authority 785, 787, does show a on the 2. Am.Jur.2d §§ problem. rule, possibly carry because the same A.L.R.2d cited annotation cases problem here, ror, and, Supreme said that this the Kansas since it cannot be Court it was said: exhibit the manner *12 to sufficient cause
presented was not
procedural
“Notwithstanding the
short-
to at least
juror
intelligence
of average
normally
preclude
which
comings
would
suspect that the defendant
strongly
court,
review
this
we have examined
say
history,
cannot
that
the
criminal
we
opinion the
the record and are of the
preju-
of the exhibit was
admission
‘mug
reference to
shots’
did
result
dicial.”
prejudicial
error under
the circum-
herein,
stances narrated. Nothing said
holding
police
use of
cases
Other
however,
placing
is to
construed
be
our
prejudicial
photographs
shot”
“mug
stamp
type
approval
this
of testi-
of
Boyd, Terry 370,
are
error
State v.
91 mony, regardless whether the reference
of
471;
States,
A.2d
v.
Barnes
United
was intentional or inadvertent.
spe-
We
U.S.App.D.C.
pellant objection, voices an on another Childs, supra, ground, State v. to identi- to the refers concerning iden- photo- fication “police defendant from tification of the picture among defendant’s graphs” “photographs a group pictures furnished shown victim police.” at “mug objection is, term shots” was not station. The used Objec- until the that knowledge officers testified. since it is (or common immediately tion was made least belief) officer that the ‘rogues’ galleries’ later responded using without the term maintained at stations are com- “mug posed shots”. portion criminals, As this of known case, really begins approach the admission our of evidence as to the de-
«01
pre-
‘rogues’
the lack
such
being
bility, partly
in such
because
picture
fendant’s
enough
caution
plainly
detracts from
admission
gallery’ was in substance
testimony,
partly
because
another,
crime com value of
unrelated
evidence of
usually
many
have
witness has
had so
we
defendant. Since
mitted
by opportunities
private
that
verification
evidence of
held
competent,
public
and such a
test
a false
give
would often
otherwise
photograph was
appearance
spontaneous
this evidence
and unaided se-
suggestion from
since
of other
guilty
lection.
the defendant
remote,
we think
was incidental
crimes
*13
the
"Distinguish
police photo-
here
use of
on the
objectionable
not
the evidence was
trial;
at the
in that case
graphs
the fact
possible
to other
ground of
reference
from,
the
came
the ‘rougues’
that
Evidence,
Am.Jur.,
section
crimes. See 20
gallery’,
by
picture
shown marks on
v.
311, p.
cf. Commonwealth
Jack
amounts to evidence
record of
of
fact,
is
son,
In
there
Ky., 281
891.
S.W.2d
crime,
might
be inadmissible on
authority
proposition that evidence
for the
principles
193-194a,
(Em-
ante.”
§§
it is
where
is
crimes
admissible
other
phasis added.)
20
purpose of identification. See
for the
312,
Evidence,
p.
(loc.
292.”
sec.
Wigmore,
1
deal
194(a)
Am.Jur.
sections 193 to
828, 71 A.L.R.2d
page
cit. 306 S.W.2d
Particular Acts
Defend-
Show
448.)
pages 447 and
ant’s Character and
evidence is
notes such
inadmissible
primary
evidence of defend-
readily apparent:
(1)
factors are
Two
guilt.
Wigmore’s
submitted that
ant’s
is
were not referred to as
photographs
support
does
treatise
not
result reached
(de-
gallery shots”
“mug
“rogues’
shots” or
on
here
this case but rather is
facts
rely
knowledge
on
fendant
common
contra.
to the inci-
alone), and
the reference
(2)
comes
suggestion
dental and remote
The annotation found at
«03 admirably analyzed has Fontron Justice Minor, length in State v. matter at this quite suc matter put the whole
supra. He in State
cinctly in his short dissent The
Childs, 422 P.2d 906. 198 Kan. appear “For reasons reads:
entire dissent dissenting opinion my
ing in 242, I am un
Minor, P.2d Kan. opinion. majority agree with the
able over the admission concerned am still
“I ‘mug shots’ relating to
of evidence ac- trial at the has not been his character
cused where
placed in issue. nec- my judgment, practice, in
“Such pro-
essarily impugns fairness of be tolerated.”
ceedings and should before us. matter had this have not
We allows now opinion written majority to, mug of, reference use unrestricted against the policy public despite our
shots *15 I such evidence. implication of
necessary reverse.
would
RAWLINGS, J., concurs. Appellant, SMITH,
Iris Iona LIQUOR COM CONTROL
The IOWA Appellees. al., et MISSION
No. 53462.
Supremo of Iowa. Court
July 1969. Sept.
Rehearing 1969. Denied