Summary
precluding a party from relying on tape recordings that "were at parts inaudible"
Summary of this case from State v. SimmonsOpinion
No. 60762.
May 17, 1978.
APPEAL FROM BLACK HAWK DISTRICT COURT, ROGER PETERSON, J.
ORDER ON PETITION FOR REHEARING
Defendant's petition for rehearing complains principally of a factual notation in our opinion: "On December 15, 1974 defendant from Las Vegas, told Meade to go to defendant's farm outside Cedar Rapids where the films were located." Defendant argues the record does not support such a finding.
In view of the agency relationship existing between defendant and Meade the finding complained of is perhaps of not controlling importance. In any event the evidence, taken in the light most favorable to the verdict, discloses the jury could have made such a finding. It is elementary the jury is at liberty to take and reject from the testimony of various witnesses as it chooses.
Meade testified that he "got" the location of the films when both a Mr. Karr and defendant told him to go there. Meade testified his belief the tape recording of the phone conversation would disclose this. (Transcript, pp. 196-197) Defendant cannot rely on the tapes to withdraw this testimony. The tapes were at parts inaudible. Moreover the jury could believe Meade was right in his testimony but wrong in his stated belief the conversation was recorded on the tape.
In division II defendant asks that we redraft our opinion to reflect what testimony or evidence we rely upon for our findings of facts. In division III defendant again asserts his belief a theory could not be considered because it is at variance with the position taken by the prosecution in trial court. This was a contention we considered and rejected on the submission of the appeal.
We have carefully considered each division of defendant's petition for rehearing. The petition is denied and overruled.