State v. Orozco

190 N.W.2d 830, 1971 Iowa Sup. LEXIS 784
CourtSupreme Court of Iowa
DecidedOctober 13, 1971
Docket54855
StatusPublished
Cited by7 cases

This text of 190 N.W.2d 830 (State v. Orozco) 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. Orozco, 190 N.W.2d 830, 1971 Iowa Sup. LEXIS 784 (iowa 1971).

Opinion

RAWLINGS, Justice.

Defendant, Anthony Allen Orozco, was convicted of robbery with aggravation, and conspiracy. From sentences accordingly entered he appeals. We affirm.

Charges against defendant stem from the robbery of Florence Vanasse at Flo’s Cafe in Alexander.

First to testify for the State was Mrs. Vanasse. This witness stated she operates a cafe in Alexander. December 15, 1969 at approximately 8:00 P.M. a young man entered her restaurant, armed with a rifle, and demanded all money in the cash register. Mrs. Vanasse complied. A patron, Mr. Larson, was also robbed. Before departing the assailant fired several shots, one at the phone. The two victims were also told to remain in the cafe for 30 minutes as he had a buddy across the street. At this point Richard John Carpenter, Jr. was brought into the courtroom and Mrs. Vanasse identified him as the man who robbed her the night in question.

Gary Jessen, called as a witness for the State, testified he operates a farm store directly across the street from Flo’s Cafe. Mr. Jessen said there were mercury streetlights in front of both business establishments. December 15, 1969, at about 8:00 P.M. a Mrs. Kern contacted him by phone. She reported someone had fired two shots at one of the streetlights and a man was standing by a car in the street.

At this point the State presented jury absent testimony relative to identification of defendant at a lineup conducted subsequent to the robbery charge. Craig Beek was the first witness at this hearing. His testimony discloses he, as a special agent for the Iowa Bureau of Criminal Investigation, conducted a police lineup January 8, 1970, in Charles City. The purpose was to ascertain whether witnesses could identify anyone connected with the Flo’s Cafe robbery. Defendant was one of six men in the lineup. Mr. and Mrs. Arthur Kern of Alexander were present. Mrs. Kern identified defendant as the man who shot out the streetlight. An attorney, representing defendant, was present at all stages of the lineup and stated he had no objection to the proceeding.

Following Agent Beek’s testimony defendant’s attorney objected to any evidence relative to such identification only because Richard Carpenter was not present in the lineup, and this constituted denial of due process. Defendant’s objection was overruled.

Trial testimony, in presence of the jury, was then resumed. Louise Kern, called as a witness for the State, testified she and her husband own a tavern in Alexander. December 15, 1969, they closed the place at about 7:30 P.M. and went upstairs to their apartment. This witness stated, at approximately 8:00 P.M. she looked out the window and saw an automobile in the middle of the street with the door open on the driver’s side. A man got out of the car and shot at the streetlight twice. Defendant was identified by her as the party she saw do the shooting. Absent objection she also stated her husband witnessed the incident and they had both identified defendant in the lineup.

Richard John Carpenter, Jr., also testified for the State. Carpenter stated, the morning of December 15, 1969, he and defendant went hunting. They first started drinking beer, but returned to defendant’s home about 1:00 in the afternoon and got something to eat. The two men then drove into the country again where they shot a cow, and broke into two farm houses. Carpenter stated he and defendant then went to a gas station in Fertile where Carpenter perpetrated a robbery while defendant waited in the car. They subsequently *832 committed the same offense at a restaurant in Alexander, and the Pine’s Motel in Hampton. That done they started for Mason City, stopping on the way to split their criminally obtained money. Carpenter also testified, over objection, regarding a December 19, 1969, robbery committed by him and defendant at Northwood.

The State then called various witnesses, victims of the robberies committed December IS and December 19, 1969, by Carpenter and defendant.

Thereupon the State rested and defense evidence was presented. Testifying in his own behalf defendant stated he and Carpenter spent the morning of December 15, 1969, drinking beer at defendant’s home in Mason City while the latter worked on an automobile. He further testified, Carpenter left his house about 2:30 that afternoon in defendant’s automobile, promising to be back that night. Defendant also said he went to his parent’s home in Mason City, remained there until about 7:00 in the evening, then left to pick up his wife at work. He denied being in Alexander or Hampton the night of December 15, 1969.

Stephanie Orozco, wife of defendant, testified she worked December 15, 1969, from 11:00 in the morning until 7:00 in the evening when defendant came to take her home. This witness further testified she and her husband watched television the rest of the evening, going to bed shortly after 10:00.

Cross-examination of Mrs. Orozco evoked a dispute, later considered as an issue raised on appeal.

When the defense rested several rebuttal witnesses were called by the State. Richard Porter, superintendent of the Mason City Odd Fellows’ Home, where Stephanie Orozco was employed, testified, according to records at the Home, Mrs. Orozco did not work December 15, 1969.

At close of all the testimony defendant moved for a directed verdict. In so doing he urged none of the errors asserted on appeal. The motion was overruled.

Following submission of the case, trial jury returned a verdict of guilty on both charges involved. June 23, 1970, defendant was sentenced to be confined in the Iowa State Reformatory at Anamosa on the robbery with aggravation and conspiracy convictions for concurrent terms of not to exceed 25 and three years, respectively.

Issues raised on appeal are, trial court erred in, (1) admitting evidence relative to extra-judicial identification of defendant; (2) admitting evidence regarding post-offense charged events; (3) overruling defendant’s objection to cross-examination of the witness Stephanie Orozco.

I. First to be considered is the lineup attendant identification. As previously disclosed an attorney representing the accused, other than counsel on appeal, was present at all stages of the aforesaid proceeding and waived any objection thereto.

Defendant does not contend there was no independent origin for the courtroom identification, or the lineup was unnecessarily suggestive and conducive to irreparable mistaken identification. See Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402; Biggers v. Tennessee, 390 U.S. 404, 88 S.Ct. 979, 19 L.Ed.2d 1267; Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247; United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L. Ed.2d 1149; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178.

As disclosed by Simmons and

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Related

State v. Love
302 N.W.2d 115 (Supreme Court of Iowa, 1981)
State v. Johnson
222 N.W.2d 483 (Supreme Court of Iowa, 1974)
State v. Orozco
202 N.W.2d 344 (Supreme Court of Iowa, 1972)

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Bluebook (online)
190 N.W.2d 830, 1971 Iowa Sup. LEXIS 784, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-orozco-iowa-1971.