State v. Gray

239 N.W.2d 584, 1976 Iowa Sup. LEXIS 1144
CourtSupreme Court of Iowa
DecidedMarch 17, 1976
Docket57676
StatusPublished
Cited by3 cases

This text of 239 N.W.2d 584 (State v. Gray) 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. Gray, 239 N.W.2d 584, 1976 Iowa Sup. LEXIS 1144 (iowa 1976).

Opinions

HARRIS, Justice.

This appeal is from a conviction of shoplifting property valued at over $20 in violation of § 709.20, The Code. The assignments of error challenge the admissibility of evidence. We affirm the trial court.

On February 2, 1974 a customer in a Des Moines store noticed a man later identified as Kenneth Gray (defendant) walking down a store aisle. The customer, who regularly shops at the store, noted a black and silver radio under defendant’s arm. The customer’s suspicions were aroused because the radio was not boxed in accordance with what she thought to be store practice. It appeared defendant was looking to see if anyone was watching him as he walked out of the door. The customer noted defendant did not stop to pay for the radio. The customer’s husband, a former store detective, made substantially the same observations.

The store owner testified two customers told him a man had walked out with a radio. A description of the radio prompted the owner and his store manager (Bob) to determine the only “Electro K 38” radio which had been set out earlier that day was missing. The box for the radio, which it would have been packed in if sold, was still in the display area.

For some reason defendant returned to the store whereupon the owner confronted him and asked about the radio. Defendant denied taking it. Police, who had been summoned by other store personnel, arrived at this time. The owner informed them of his belief the radio was in a car parked adjacent to the store in which defendant had been observed.

A police officer went to the car and asked for the radio. A woman in the car reached under papers placed under the driver’s seat and picked up a radio which she handed to the officer. The officer téstified State’s Exhibit 1 was the radio handed him by the woman. The officer identified the woman who [586]*586had given him the radio as defendant’s wife. The car belonged to defendant’s brother. The customer testified Exhibit 1 was just like the radio she had seen being carried by Gray under his arm. The store owner identified Exhibit 1 as a K 38, the same model as was missing from his store. He valued the radio at $88. He noted that items such as this radio are not checked out by cashiers but would be sold only by Bob or by himself.

I. No witness testified with certainty that State’s Exhibit 1 was the same radio missing from the store. It was explained the radio had no exterior serial number or identifying mark. However the customer testified State’s Exhibit 1 was just like the radio defendant was carrying in the store. In addition the owner testified the missing radio and State’s Exhibit 1 were the same model.

Defendant objected that “there is no identification whatsoever to mark that radio as the one that actually did leave the store.” Reception of State’s Exhibit 1 into evidence is defendant’s first assignment of error. We rejected the contention in State v. Davis, 229 N.W.2d 249, 251-252 (Iowa 1975). We said:

“ ‘ * * * Properly identified articles found at the scene of the crime which tend to show its commission or the manner thereof, or explain some related matter in issue, are admissible in evidence for jury inspection. (Authority).’ State v. LaMar, 260 Iowa 957, 962, 151 N.W.2d 496, 499.

“[It is not] fatal to the State’s case that the goods were not positively identified as the actual ones taken from the store. * *. It is well settled ‘ * * * [t]he possession of goods of the same kind as the general class of goods from which the taking was done is receivable, even though the specific quantity or any quantity of the general mass cannot be identified or discovered or shown to be missing. * * *.’ (Emphasis in original). I Wigmore on Evidence (Third Ed.), § 152, page 598, 599. * *

Defendant’s first assignment is without merit.

II. Defendant’s second assignment is addressed to what he claims was hearsay testimony elicited during his cross-examination of a State witness. The cross-examination included the following:

“Q. And do you know of your own personal knowledge whether or not Mr. Gray [defendant] or whoever took that radio paid for it? A. Definitely. I made certain of that before I even approached him.

[The foregoing question and answer will be later referred to as the initial question and answer.]

“Q. Is that because of what [the first customer] told you? A. Pardon me?

“Q. Is that what [the first customer] told you? A. Well, when I determined— when Bob and I determined that the police radio* we thought it was the police radio, was missing, then I proceeded to ask the two girls if they—

“Q. Wait. We don’t want to hear what they said. A. No. I proceeded to ask them if they had checked out. Of course, they don’t do that. Bob and I write all the sales.

“Q. Could a person buy that through the checkout counter? A. Oh, yeah, if Bob and I sold it to him. The girls check out. They don’t check out stuff like this.

“Q. They just check out groceries? A. Yes.

“Q. Bob could have sold that? A. He could have, right.

“Q. Other than what Bob told you, do you know of your own personal knowledge whether he did in fact sell it? Did you see him sell it? A. No. Bob didn’t sell it, no.

“Q. Is that what he told you? A. Oh, of course.

“MR. SHEPHERD [defendant’s counsel]: Your Honor, I would ask to strike that last answer on the objection it is hearsay and [587]*587non-responsive. I didn’t , have a chance to enter an objection.

“THE COURT: Which part?

“MR. SHEPHERD: That Bob did not sell that radio.

“THE COURT: Just a minute. Read that interrogation back, please. [The preceding two questions and their answers were at this time read.]

“MR. SHEPHERD: Your Honor, I object to that as being hearsay as to what Bob told him.

“THE COURT: You asked for it.

“MR. SHEPHERD: I asked for other than what Bob told and that is not responsive to what I asked him.

“THE COURT: Overruled.”

Defendant contends the witness’s testimony was hearsay and its admission was erroneous and must be presumed prejudicial because the contrary was not affirmatively established. He relies on State v. Branch, 222 N.W.2d 423 (Iowa 1974) and State v. Mattingly, 220 N.W.2d 865 (Iowa 1974).

We think the objection was properly overruled. We first must consider whether the testimony was hearsay. Hearsay is to be distinguished from the rule requiring firsthand knowledge on the park of a witness.

“There is a rule, more ancient than the hearsay rule, and having some kinship in policy, which is to be distinguished from it. This is the rule that a witness is qualified to testify to a fact susceptible of observation, only if it appears that he had a reasonable opportunity to observe the fact.

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Related

State v. Ash
244 N.W.2d 812 (Supreme Court of Iowa, 1976)
Local Bd. of Health, Boone County v. Wood
243 N.W.2d 862 (Supreme Court of Iowa, 1976)
State v. Gray
239 N.W.2d 584 (Supreme Court of Iowa, 1976)

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Bluebook (online)
239 N.W.2d 584, 1976 Iowa Sup. LEXIS 1144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gray-iowa-1976.