State v. Caldwell, 93-1744

• Decision Date: 29 March 1995
• Docket Number: No. 93-1744,93-1744
• Citation: 529 N.W.2d 282
• Parties: STATE of Iowa, Appellee, v. Phillip Glenn CALDWELL, Jr., Appellant.
• Court: Iowa Supreme Court

Page 282

529 N.W.2d 282

STATE of Iowa, Appellee, v. Phillip Glenn CALDWELL, Jr., Appellant.

No. 93-1744.

Supreme Court of Iowa.

March 29, 1995.

Linda Del Gallo, State Appellate Defender, and Patricia Reynolds Lapointe and Shari Barron, Asst. State Appellate Defenders, for appellant.

Thomas J. Miller, Atty. Gen., Martha E. Boesen, Asst. Atty. Gen., Thomas J. Ferguson, County Atty., and Shawn Wehde, Asst. County Atty., for appellee.

Considered by McGIVERIN, C.J., and HARRIS, LAVORATO, ANDREASEN, and TERNUS, JJ.

McGIVERIN, Chief Justice.

This case involves the interpretation of one of the foundational requirements for the admission of reputation testimony under the Iowa rules of evidence and Iowa case law--the requirement that the testimony be derived from comments made by "a general cross-section of the community." More specifically, we must determine whether this representativeness requirement is concerned with the variety of the nature of the comments made or with the variety of the sources of the comments made.

Focusing on the nature of the comments, the district court concluded that negative comments about a police officer, a witness for the State, are comments from a limited class. As a result, the district court refused to admit before the jury any of defendant's three character witnesses' proposed testimony concerning the police officer.

Upon defendant's appeal, we conclude that the district court erred by focusing on the nature of the comments and abused its discretion in excluding the offered reputation testimony of one of defendant's character witnesses, whose testimony was derived from a variety of sources in the officer's work community. Because we also conclude that the defendant was prejudiced by the exclusion of this testimony, we reverse the district court's judgment in part and affirm in part, and remand for a new trial.

I. Background facts and proceedings. On October 2, 1992, Waterloo police officers Jeffrey Harrington and Mark Meyer were on duty, in uniform, and on patrol in their marked car.

After receiving a telephone message tip, the officers decided to locate the defendant, Phillip Glenn Caldwell, Jr. Both officers being familiar with the defendant and his vehicle, they spotted him driving his vehicle within fifteen minutes of beginning their search. They observed the defendant pull into and park in the parking lot of Fast Eddie's convenience store where the defendant was reporting to work. The officers then followed the defendant into the parking lot and parked in the spot to the left of and adjacent to the one occupied by the defendant. Officer Harrington was in the passenger side of the vehicle and therefore closest to the defendant.

Officer Harrington and the defendant got out of their vehicles and exchanged a brief greeting. Officer Harrington then grabbed the defendant's lower left arm and asked him to place his hands on the side of the defendant's vehicle. Complying with officer Harrington's request, the defendant turned toward his vehicle and placed his left arm upon the vehicle. Officer Harrington observed nothing in the defendant's left hand but could not see the defendant's right hand.

Suddenly, the defendant broke away and ran toward the rear of the vehicles and away from the convenience store. Officer Meyer chased after him and yelled back to officer Harrington to stay with the vehicles.

The chase continued through the convenience store parking lot and across the street into a railroad yard. According to officer Meyer, while he was chasing the defendant he observed a white object cupped in the defendant's right hand. Officer Meyer testified that he never lost sight of the defendant during the chase.

While in the railroad yard, the defendant stumbled a couple of times, and officer Meyer caught him. Officer Meyer testified that after he caught the defendant, the defendant threw an object which landed in an area of dirt, grass and weeds close to a fence.

Other officers arrived at the scene shortly after eight o'clock, and the defendant was taken into custody and placed inside a patrol car. Because it was dark, officer Meyer could not see the object that he said the defendant had previously thrown but estimated that the defendant had thrown the object about ten feet.

Officer Meyer and two other officers, officer Krogh and sergeant Ann Meyer, the spouse of officer Mark Meyer, searched the area for the object. Sergeant Ann Meyer located an object and pointed it out. Officer Mark Meyer picked up the object, a plastic baggie filled with an off-white substance, and put it in his pocket.

Shortly thereafter, officer Mark Meyer located the defendant's car keys on the ground next to the vehicles in the convenience store parking lot.

Officer Mark Meyer testified that he thought the defendant had the plastic baggie in his pants pocket before he put it in his hand, but the defendant testified he was wearing sweat pants and a tee-shirt, neither of which had any pockets, at the time he was taken into custody. Further, the defendant testified that he did not have anything in his hands throughout the incident, except his car keys. He explicitly denied having possession of any crack cocaine or throwing any object away from himself.

On the day of his arrest, the defendant was driving a 1989 Chevy Blazer which he and his father had recently purchased. The Blazer did not have insurance on it and needed minor repairs. For these reasons, the defendant's father, Phillip Glenn Caldwell, Sr., had instructed his son not to drive it. In his testimony, the defendant explained that this admonition from his father was what had caused him to panic and run from the police officers.

A state laboratory report subsequently indicated that the off-white rock-like substance in the plastic baggie, found by sergeant Ann Meyer, contained cocaine base and weighed 23.23 grams. No drug tax stamps were found with the baggie. A state analysis of the plastic baggie failed to recover any fingerprints. An identification technician testified that placing an object in a pocket could be detrimental to preserving possible fingerprints.

A trial information was filed charging the defendant with: (1) possession of a controlled substance, five or more grams of a mixture or substance containing cocaine base, with intent to deliver in violation of Iowa Code section 204.401(1)(b) (1991) ¹, a class "B" felony; and (2) failure to affix a drug tax stamp in violation of Iowa Code section 421A.12 ², a class "D" felony.

A jury trial was held. The defendant called three witnesses to testify concerning officer Mark Meyer's alleged reputation for untruthfulness, but the district court refused to admit each of the witnesses' proposed reputation testimony before the jury.

The jury returned verdicts of guilty on both charges. The court entered judgment of conviction and sentenced the defendant to concurrent prison terms on the possession charge and the drug tax stamp charge.

Defendant appealed, contending that the district court abused its discretion by refusing to allow three of defendant's witnesses to testify concerning officer Mark Meyer's alleged reputation for untruthfulness.

II. Scope of review. Our review is for errors at law. Iowa R.App.P. 4.

The admissibility of reputation evidence falls within the trial court's sound discretion. State v. Buckner, 214 N.W.2d 164, 169 (Iowa 1974). When a trial court has exercised its discretion to exclude reputation testimony, we will reverse only if we find an abuse of that discretion and prejudice. See State v. Myers, 382 N.W.2d 91, 93 (Iowa 1986).

An abuse of discretion occurs when the trial court's ruling is based on untenable grounds, id., or its action is clearly unreasonable, Galloway v. Zuckert, 447 N.W.2d 553, 555-56 (Iowa App.1989) (citing Blakely v. Bates, 394 N.W.2d 320, 322 (Iowa 1986)), cert. denied, 494 U.S. 1057, 110 S.Ct. 1526, 108 L.Ed.2d 765 (1990).

If we find such an abuse of discretion, we must also determine whether that abuse was prejudicial. See Myers, 382 N.W.2d at 93. The test of prejudice is whether it sufficiently appears from the record that the rights of the complaining party have been injuriously affected or that the party has suffered a miscarriage of justice. State v. Massey, 275 N.W.2d 436, 439 (Iowa 1979) (citing State v. Trudo, 253 N.W.2d 101, 107 (Iowa), cert. denied, 434 U.S. 903, 98 S.Ct. 299, 54 L.Ed.2d 189 (1977)).

III. Admissibility of reputation evidence. At trial the defendant offered three witnesses' testimony regarding officer Mark Meyer's alleged reputation for untruthfulness in an effort to impeach his credibility pursuant to Iowa Rule of Evidence 608(a). ³ Defendant apparently sought to challenge the credibility of officer Mark Meyer's testimony that defendant threw the baggie containing cocaine base against the fence during the chase. The State timely objected to each witnesses' testimony, generally arguing that the defendant had not laid the proper foundation for reputation testimony. The defendant then made an offer of proof by a voir dire of each witness outside the presence of the jury.

After hearing the testimony, the court sustained the State's objections, primarily on the basis that each of the witnesses' testimony was based on comments made by persons who had had an adverse contact with officer Mark Meyer in connection with his police duties and thus failed to satisfy the foundational requirement that reputation testimony be based upon the comments of a general cross-section of the community. We conclude that the district court erred by focusing on the nature of the comments rather than the source of the comments and abused its discretion by disallowing the testimony of one of defendant's reputation witnesses, Ray Dial.

A. Foundational requirements for reputation testimony. In order to properly introduce reputation testimony bearing on the credibility of a witness, strict foundational requirements must be met....