State v. Bair

362 N.W.2d 509, 1985 Iowa Sup. LEXIS 967
CourtSupreme Court of Iowa
DecidedFebruary 13, 1985
Docket83-875, 83-943
StatusPublished
Cited by18 cases

This text of 362 N.W.2d 509 (State v. Bair) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bair, 362 N.W.2d 509, 1985 Iowa Sup. LEXIS 967 (iowa 1985).

Opinions

HARRIS, Justice.

The two defendants were jointly charged on identical two-count informations. They were then jointly tried and each convicted of two separate robberies that occurred on the same evening. They do not complain of being charged together. See State v. Snodgrass, 346 N.W.2d 472, 475 (Iowa 1984). Rather they complain that the two robberies should have been the subject of separate trials. We agree with their contentions, reverse their convictions, and remand for new trials.

Kruse and Bair, the defendants, patronized a number of Muscatine taverns on the night of February 2, 1983. Three of the taverns figure prominently in the two charges. Early in the evening they were in one known as Edward’s where Kruse played pool with Edwin McCallister. McCallister was the victim in the first robbery. Between 8:00 and 8:30 p.m. the three men, with three women they met there, left for Herky’s, another tavern.

They rode in a car furnished by Cynthia Davis, one of the three women. Soon after their arrival McCallister decided he preferred Edward’s to Herky’s and asked to return. His enthusiasm for Herky’s was considerably dulled because the free beer offered there that night had all been consumed. Davis loaned the car to Bair and Kruse so they could give McCallister a ride. The car stalled on the way to Edward’s.

Although the evidence is in dispute from this point we take it from the verdict that McCallister was then robbed by Kruse and Bair who hit him with their fists to get his money. McCallister did not report the robbery to the police.

After the men left the stalled car Kruse and Bair walked to a third tavern called the Southside. The second count involved the robbery of the Southside. Kruse said his father often patronized the Southside so they went there to see if his father could help them start the car. Only Kruse entered and he found the bartender was the only one there. He picked up a package of matches and left.

Although the two testified Kruse then went home and Bair went to a fourth tavern, the jury found otherwise. Thirty-five to forty minutes after their first visit there, [511]*511Bair returned and robbed the Southside. The bartender thought he had a gun. There was evidence which linked Kruse to the Southside robbery. Earlier, when Kruse picked up the matches, the bartender saw someone she thought was Bair looking in the window. When the tavern was robbed Bair entered from the rear entrance. A police investigator later found two sets of footprints leading away from a point near that entrance.

Later Bair and Kruse returned to Herky’s and met Cynthia Davis, the woman who had furnished the stalled car. They arranged transportation to the car and found it would start. The two then persuaded Davis to drive to Fort Madison.

On the trip she saw Bair take cash from his coat pocket, count it, and give some to Kruse. She asked the two if they had robbed McCallister, which they denied. Bair said they had robbed a tavern and described the details of that robbery to her.

I. Iowa rule of criminal procedure 6(1), providing for charging multiple offenses, has been recently amended. See Report of the Supreme Court, 1983 Iowa Acts Ch. 218. The amendment liberalizes and broadens charging practices so as to allow prosecutors more leeway in seeking to join multiple offenses for a single prosecution. The State argues the amendment to be a mere clarification of the intent of the older rule. We however think the rule has been substantially changed.

In its report to us, suggesting the change, our advisory committee on criminal rules stated their desire “to have rule 6 on charging multiple offenses more consistent with the approach of Federal Rule of Criminal Procedure 8.” The report then justified its recommendation by stating that “more liberal charging practices would lead to speedier indictments and judicial economy ... of time ... and paper_” We conclude that the recent amendment, effective after this joint trial was had, has no effect on the question presented.

We are bound by the wording of the rule prior to its amendment. The rule then stated:

Multiple Offenses. When the conduct of a defendant may establish the commission of more than one public offense arising out of the same transaction or occurrence, the defendant may be prosecuted for each of such offenses. Each of such offenses may be alleged and prosecuted as separate counts within a single complaint, information or indictment, unless for good cause shown, the trial court in its discretion determines otherwise.

Under this rule, distinct counts may be consolidated for trial where they arise “out of the same transaction or occurrence;” even so, the trial court, in its discretion, and for good cause shown, may order the counts to be tried separately. Id. The trial court is to order severance where the defendant shows his or her “interest in receiving a fair trial uninfluenced by the prejudicial effects which could result from a joint trial [are] outweighed [by] the State’s interest in judicial economy.” State v. Trudo, 253 N.W.2d 101, 104 (Iowa 1977).

We have not previously been called upon to interpret rule 6(1) but note that similar language in an Oregon statute has been considered by the Oregon court.

In State v. Fitzgerald, 267 Or. 266, 516 P.2d 1280 (1973) the defendant was charged in two counts with escape from custody and unauthorized use of a vehicle. Over his objection the counts were jointly tried and on appeal he claimed error because the counts were not severed. The Oregon court had to determine whether the two separate counts were embraced by its joinder statute which allowed consolidation of counts where they arose out of “the same act or transaction.” The court stated:

We hold that the two charges arise out of the same act or transaction if they are so clearly linked in time, place and circumstance that a complete account of one charge cannot be related without relating details of the other charge.

[512]*512Id., 516 P.2d at 1284. Cf. State v. Cunha, 193 N.W.2d 106, 112 (Iowa 1972). (Evidence of various crimes is admissible to show a common scheme “embracing the commission of two or more crimes so related to each other that proof of one tends to prove the other.”)

Later, in State v. Boyd, 271 Or. 558, 533 P.2d 795 (1975), the Oregon court expanded on the Fitzgerald language, stating:

In deciding whether multiple charges should be joined, the prosecutor and the trial judge may start, then, with the initial guideline that if a complete account of one charge necessarily includes details of the other charge, the charges must be joined to avoid a later double jeopardy defense to further prosecution. We construe this test of interrelated events as necessitating joinder only where the facts of each charge can be explained adequately only by drawing upon the facts of the other charge.

Id., 533 P.2d at 799.

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State v. Bair
362 N.W.2d 509 (Supreme Court of Iowa, 1985)

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Bluebook (online)
362 N.W.2d 509, 1985 Iowa Sup. LEXIS 967, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bair-iowa-1985.