State v. Bedwell, 86-1878

• Decision Date: 23 December 1987
• Docket Number: No. 86-1878,86-1878
• Citation: 417 N.W.2d 66
• Parties: STATE of Iowa, Appellee, v. Randall Joseph BEDWELL, Appellant.
• Court: Iowa Supreme Court

Page 66

417 N.W.2d 66

STATE of Iowa, Appellee, v. Randall Joseph BEDWELL, Appellant.

No. 86-1878.

Supreme Court of Iowa.

Dec. 23, 1987.

Charles A. Coppola, Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., David L. Dorff, Asst. Atty. Gen., James Smith, Co. Atty., and Harlan Lemon, Asst. Co. Atty., for appellee.

Considered by McGIVERIN, C.J., and HARRIS, CARTER, LAVORATO, and NEUMAN, JJ.

CARTER, Justice.

Defendant, Randall Joseph Bedwell, appeals from his convictions of second-degree burglary in violation of Iowa Code section 713.5 (1985) and willfully eluding a pursuing law enforcement vehicle in violation of Iowa Code section 321.279 (1985). He assigns several errors upon which he seeks to obtain a reversal of these judgments. Upon carefully considering each claim in light of the evidence produced at trial, we affirm the judgment of conviction with respect to both crimes.

On June 15, 1986, Ron and Chad Bagby observed a strange automobile parked in a neighbor's driveway in Des Moines. They observed one man emerge from the neighbor's residence with a television set in his arms while another man waited in the passenger's seat of the automobile. When the Bagbys approached, the man holding the television set abandoned it, entered the automobile and drove away.

The Bagbys telephoned Des Moines police who made radio contact with a patrol officer in the area. That officer pursued the fleeing automobile for approximately .6 of a mile. At that point, the driver of the pursued vehicle abandoned it and fled into a wooded area. Later in the evening, a male subject walked into the residence of Gary Murphy in the general vicinity of that wooded area and asked permission to use Murphy's telephone.

The Bagbys later identified defendant as the party they had observed removing the television set and driving away in the automobile. This identification was made from a photographic array shown to them by Des Moines police. Murphy also identified defendant as the party who had asked to use his telephone.

Defendant testified at trial and indicated that it was his companion and not he who had entered the residence of the Bagbys' neighbor and removed the television set. He indicated that he gave no cooperation to that venture except by hastily driving his companion away from the scene of the break-in and by attempting to elude the pursuing police officer. Defendant admitted at trial that he was the party using Murphy's telephone.

Defendant assigns errors concerning: (1) refusal to suppress an impermissibly suggestive identification from the photographic array, (2) refusal to permit him to call a witness who had previously indicated that he would assert his fifth amendment privilege against self-incrimination, (3) allowing the State to present a substitute witness to testify to matters that were listed as the testimony of a different witness, (4) in permitting speculative footprint evidence, (5) in not directing a verdict on the claim of willfully eluding a pursuing law enforcement vehicle, and (6) in failing to permit an offer of proof concerning evidence that charges against defendant's accomplice had been dismissed by the State. We consider each of these issues.

I. Claim of Impermissibly Suggestive Identification.

Defendant urges that he was the victim of an impermissibly suggestive identification both with respect to the Bagbys' identification and that made by Gary Murphy. Any error with regard to Murphy's identification would be harmless in light of the fact that defendant concedes that he was the man observed by Murphy using his telephone. Accordingly, we consider only those issues involving Bagbys' identification.

Defendant was identified prior to trial and in the courtroom by Ron Bagby and Chad Bagby as the man they saw walking out of their neighbor's house carrying a television set in his arms. The photographic array shown to these witnesses following the crime contained a photograph of defendant's face and upper torso along with photographs of five other persons. Defendant claims that the photographic array was impermissibly suggestive because the size of his head in the photograph is larger than the heads and faces of the other five subjects. He also claims the photographs improperly showed a tattoo on his upper torso containing the name "Randy."

In analyzing defendant's claim, we apply a two-part test: (1) Did the photographic array present defendant in an impermissibly suggestive posture, and (2) if so, under the totality of circumstances, did the procedure give rise to a substantial likelihood of misidentification? See State v. Rawlings, 402 N.W.2d 406, 407 (Iowa 1987); State v. Neal, 353 N.W.2d 83, 87 (Iowa 1984); State v. Mark, 286 N.W.2d 396, 404 (Iowa 1979).

Although there are differences between Bedwell and the other subjects shown in the photographic array, it does not appear that the display was impermissibly suggestive. Defendant's features are not more clearly discernible in the photographic array than those of the other subjects as a result of the differences in the size of photographic reproduction. There is no indication that the Bagbys were aware that the subject they observed at the scene of the crime was named Randy.

In addition, there is strong evidence suggesting that the Bagbys' opportunity for observing the defendant was good and that their perception was reasonably fresh at the time they viewed the photographic array. The description which they gave to police officers at the time they reported the crime sufficiently depicted defendant's physical characteristics to be corroborative of their later identification. Under the totality of circumstances, we conclude that the identification testimony was properly admitted into evidence to be considered by the jury.

II. Refusal to Permit Calling of Witness Who Indicated That Fifth Amendment Privilege Would Be Invoked.

The trial court refused to permit defendant to call as a witness his companion at the scene of the burglary. This determination was based on the fact that this witness had indicated, through counsel, an intention to claim his fifth amendment privilege against self-incrimination. The defendant argues that restrictions against calling witnesses before the jury who have indicated an intention to invoke their fifth amendment privileges only preclude the State from calling such witnesses. He asserts that there is no similar restriction against a defendant calling a witness who has predetermined to invoke the privilege. In advancing this argument, defendant relies on the rationale of the Michigan Court of Appeals in People v. Dyer, 140 Mich.App. 343, 347, 364 N.W.2d 330, 333 (1985).

The Dyer case was subsequently reversed by the Michigan Supreme Court in People v. Dyer, 425 Mich. 572, 390 N.W.2d 645 (1986) (neither prosecutor nor defendant should call a witness who intends to invoke fifth amendment privilege). The latter court adopted the views expressed in Bowles v. United States, 439 F.2d 536 (D.C.Cir.1970), cert. denied, 401 U.S. 995, 91 S.Ct. 1240, 28 L.Ed.2d 533 (1971). The court in Bowles declined to permit a defendant to call a witness predetermined to invoke his fifth amendment privilege stating that "the jury is not entitled to draw any inferences from the decision of a witness to exercise his constitutional privilege whether those inferences be favorable to the prosecution or the defense." Id. at 541 (emphasis added). We agree with that conclusion. The district court was correct in refusing to permit defendant to call the witness.

III. Allowing the State to Present a Substitute Witness.

Defendant challenges the trial court's denial of his motion to suppress the testimony of Jane Sims, one of the owners of...