State v. WashingtonState v. Washington
- Reporters:
- ,
- Before:
- Larson, LeGrand, Uhlenhopp, Harris, McCormick
LARSON, Justice.
The defendant, Romaul Washington, was convicted of first-degree theft,
We view the evidence in the light most favorable to the guilty verdict. State v. Kern, 307 N.W.2d 22, 23 (Iowa 1981). That evidence showed that the victim was shopping within a grocery store when the defendant entered the store. An employee observed the defendаnt approach the victim‘s shopping cart, surreptitiously remove a small brown billfold from her purse in the child carrier section of the cart, and place it in the pocket of his overcoat. Although the victim had her hand on the shopping cart, she was viewing items in the store‘s dairy case and was unaware that her billfold had been taken. The defendant continued walking down the aisle and toward the only customer exit. He was arrested in the store‘s parking lot.
At trial the defendant moved for judgment of acquittal as to first-degree theft, asserting that while this act might be “theft” under
I. The scope of section 714.2(1). Two distinct approaches have been taken in interpreting statutes similar to
Here the property was in the possession and immediate presence—in the immediate charge and custody—of [the victim.] We think the taking, under the testimony, was away from, though not actually off, her person. She was at the mоment carrying it on the automobile seat beside her. The jury could find it was stolen from her person.
Id. at 1172-74, 47 N.W.2d at 170.
Subsequently, in State v. Marsan, 221 N.W.2d 278 (Iowa 1974), we adhered to the Kobylasz reasoning. In Marsan the accused sought to nullify her previous plea of guilty on the ground that it had no factual basis; the court, citing Kobylasz, responded:
If we assume the truth of her statement that the billfold was taken from the sidewalk at [the victim‘s] feet (after it mysteriously fell from his pocket) the charge [under
§ 709.6 , The Code 1973] would nonetheless lie. The property absent the thieves’ intervention, was in the possession and immediate presence, charge and custody of [the victim].
Id. at 280 (emphasis added).
The defendant asks us to reexamine the holding of these cases, espеcially in view of the wording change in the statute. Kobylasz and Marsan were decided under the old larceny-from-the-person statute,
We conclude the trial court properly submitted first-dеgree theft.
II. “The prior inconsistent statement.” During the trial one of the arresting officers testified on direct examination:
As we were handcuffing [the defendаnt a billfold] fell from the front part of his clothing, fell to the ground between his feet.
Q. Do you know where [the billfold] came from ...?
A. It came from his person, that‘s all I can say.
* * * * * *
It fell directly between his feet where he was ... standing when we handcuffed him.
On redirect examination the witness elaborated:
A. No, I just heard it. I was to the rear so I had no vision.
Counsel for the defendant continued this line of questiоning on recross-examination:
Q. [Y]our direct testimony was that you saw [the billfold] fall from his person. You didn‘t see it fall from the pеrson now. Which is it?
A. I heard it hit the ground.
* * * * * *
Q. But your direct testimony you said you saw it fall. That was incorrect; is that correct?
A. Right.
In light of this “conflict” in the witness’ testimony the defendant requested that the trial court instruct the jury on the witness’ “prior inconsistent statement.” See State v. Gilmore, 259 N.W.2d 846, 857 (Iowa 1977);
However, an instruction on a prior inconsistent statement is warranted only if the statement was made in advance of trial. See State v. Cuevas, 282 N.W.2d 74, 82 (Iowa 1979); State v. Thomas, 162 N.W.2d 724, 727 (Iowa 1958) (“impeachment is shоwing contradictory statements which have been made out of court and which are at variance with the testimony аt trial“); C. McCormick, Handbook of the Law of Evidence, § 34, at 67-68, § 251, at 601 (1972); J. Wigmore, Evidence § 1018, at 995 n.4, 996 (1970). In the present case each statement was made before the jury; any inconsistencies in thе witness’ testimony, and thus his credibility, could be evaluated by the jury under the trial court‘s general instruction on credibility of witnesses. It was not error to refuse the requested instruction on prior inconsistent statements.
III. Prosecutorial misconduct. After the State‘s closing argument the defendant moved, unsuccessfully, for mistrial, arguing that the prosecutor made an improper argument in two particulars: that he сommented “beyond the scope of rebuttal,” and that he “elicited a promise” from the jury. These grounds are reasserted on appeal.
The challenged argument was not reported, and the defendant made no attempt to make a record of it by a supplemental statement of the proceedings under
AFFIR