State v. Dickerson

• Decision Date: 23 December 1981
• Docket Number: Nos. 66331,66347,s. 66331
• Citation: 313 N.W.2d 526
• Court: Iowa Supreme Court
• Parties: STATE of Iowa, Appellee, v. Daniel M. DICKERSON and Douglas S. Siebrecht, Appellants.

Page 526

313 N.W.2d 526

27 A.L.R.4th 523

STATE of Iowa, Appellee, v. Daniel M. DICKERSON and Douglas S. Siebrecht, Appellants.

Nos. 66331, 66347.

Supreme Court of Iowa.

Dec. 23, 1981.

Thomas H. Treinen, Battle Creek, for appellant.

Thomas J. Miller, Atty. Gen., John P. Messina, Asst. Atty. Gen., and Corwin R. Ritchie, Buena Vista County Atty., for appellee.

Considered by REYNOLDSON, C.J., and McCORMICK, McGIVERIN, LARSON, and SCHULTZ, JJ.

McCORMICK, Justice.

Defendants Daniel M. Dickerson and Douglas S. Siebrecht were convicted by jury and sentenced for two offenses of second-degree burglary in violation of sections 713.1 and 713.3, The Code. Defendants were jointly tried for the offenses in two separate cases. No. 66331 involves the alleged burglary of the Sulpher Springs Feed and Grain, Inc. on May 6, 1979. No. 66347 involves the alleged burglary of a machine shed on the Demers farm in Buena Vista County. For convenience we will refer to them as the Sulpher Springs and Demers cases. We consolidated defendants' appeals for submission purposes. Each appeal involves issues concerning speedy indictment, speedy trial and corroboration of accomplice testimony. In addition, the Demers appeal involves a search and seizure question. We affirm both convictions in the Sulpher Springs case. We affirm Siebrecht's conviction and reverse Dickerson's conviction in the Demers case.

I. The speedy indictment issue. Siebrecht was arrested for both offenses on December 7, 1979, and Dickerson was arrested for both of them the next day. Trial informations were filed on the charges on February 6, 1980. Defendants filed motions to dismiss in which they alleged the State violated Iowa R.Crim.P. 27(2)(a) by failing to indict or inform against them within 45 days. The trial court overruled their motions on the ground that the State met its burden to show good cause for the delay. Defendants contend this ruling was erroneous.

The record shows that almost all of the delay was caused by defense counsel's desire to put off a decision relating to possible waiver of preliminary hearing. Plea discussions were also being conducted during this period.

Our standard of review is delineated in State v. Brandt, 253 N.W.2d 253, 256 (Iowa 1977). The good cause inquiry focuses on the reason for the delay. See State v. Petersen, 288 N.W.2d 332, 335 (Iowa 1980). In the present cases, the delay was largely attributable to the State's effort to accommodate defense counsel's wish to postpone a decision concerning preliminary hearings and to the parties' common interest in plea negotiations. Cf. State v. LaMar, 224 N.W.2d 252, 254 (Iowa 1974) (plea negotiations can constitute good cause for delay in trial).

In these circumstances, the trial court did not abuse its discretion in finding the State met its burden to establish good cause. The court did not err in overruling defendants' motions to dismiss.

II. The speedy trial issue. Defendants contend the trial court also erred in overruling their motions to dismiss based on the State's alleged failure to bring the cases to trial within one year of initial arraignment as required by Iowa R.Crim.P. 27(2)(c). This contention rests on interpreting "initial arraignment" in the rule to mean the defendants' initial appearance before a magistrate after their arrest. We resolved this issue contrary to defendants' contention in State v. Hempton, 310 N.W.2d 206, 207-08 (Iowa 1981). Initial arraignment means the arraignment in district court after indictment or filing of a trial information. Id. Defendants were tried within one year of that date.

The trial court did not err in overruling defendants' motions to dismiss based on rule 27(2)(c).

III. The corroboration issue. Under Iowa R. Crim.P. 20(3), "(a) conviction cannot be had upon the testimony of an accomplice or a solicited person unless corroborated by other evidence which shall tend to connect the defendant with the commission of the offense ..." Defendants contend they were convicted in each case on the uncorroborated testimony of accomplices.

We do not reach the merits of this contention in the Sulpher Springs case because defendants did not urge it in the trial court. A party cannot effectively challenge the sufficiency of the evidence for the first time on appeal. State v. Leonard, 243 N.W.2d 887, 893 (Iowa 1976). This situation is not affected by the trial court's right under Iowa R. Crim.P. 18(10) to order acquittal on its own motion. Cf. State v. Rouse, 290 N.W.2d 911, 914 (Iowa 1980) (duty of court to instruct on lesser included offenses does not relieve counsel of responsibility to preserve error). We do not intimate what our view on the merits would be if defendants had preserved error.

Because we find no basis for reversal in any of defendants' contentions in the Sulpher Springs case, we affirm the judgment of the trial court in that case.

Defendants did preserve error on the corroboration issue in the Demers case. At the conclusion of the evidence, they moved for judgment of acquittal alleging the absence of corroboration of accomplice testimony. We must therefore decide whether the trial court erred in overruling the motion on that ground.

Four witnesses testified in the Demers trial. John Demers testified to the theft of tools from a machine shed on his farm and his identification of tools recovered by sheriff's deputies. Two deputies testified to their recovery of the tools from a farm residence rented by defendant Siebrecht. Dennis West testified that he lived in the premises with Siebrecht at the time of the burglary. He said that he and defendants committed the offense. Because he was an accomplice, it was necessary that his testimony be corroborated.

We have repeatedly held that corroborative evidence need not be strong and need not be entirely inconsistent with innocence. The existence of corroborative evidence is a legal issue. See, e. g., State v. Horn, 282 N.W.2d 717, (Iowa 1979); State v. Cuevas, 281 N.W.2d 627, 629 (Iowa 1979).

A defendant's possession of property stolen in the alleged offense is corroborative evidence. See State v. Gray, 199 N.W.2d 57 (Iowa 1972); State v. Gates, 246 Iowa 344, 67 N.W.2d 579 (1954); State v. Bohall, 207 Iowa 219, 222 N.W. 389 (1928). Contrary to an assertion by defendants, the possession need not be exclusive. Defendants' reliance on State v. Tilton, 63 Iowa 117, 18 N.W. 716 (1884), is misplaced. That case concerned the sufficiency of evidence to convict rather than to corroborate.

Under these principles, West's testimony against Siebrecht was corroborated by Siebrecht's possession of the stolen property. Therefore the trial court did not err in overruling Siebrecht's motion for judgment of acquittal.

The situation concerning Dickerson is different. No testimony at trial except that of accomplice West linked him to the offense, to the Siebrecht residence, or to the stolen property. The State concedes West's testimony against Dickerson was not corroborated. It argues, however, that in a joint trial an accomplice's testimony need be corroborated against only one defendant. The State reasons that the purpose of the corroboration rule is to ensure the credibility of the accomplice and that this purpose is satisfied when other evidence links only one of the defendants to the offense. The flaw in this argument is that the terms and intent of the rule require the accomplice's reliability to be independently established as to each defendant. The issue is not whether the testimony is credible against one defendant; it is whether other evidence has been adduced "which shall tend to connect" a particular defendant with the commission of the offense. See State v. Cuevas, 281 N.W.2d at 629. The accomplice's testimony against each defendant must be corroborated. The mere fact of a joint trial does not relieve the State of its burden.

Courts in other jurisdictions have reached the same conclusion in analogous cases. See Commonwealth v. Holmes, 127 Mass. 424 (1879); People v. Mullens, 292 N.Y. 408, 52 N.E.2d 479 (1944), rehearing denied, 293 N.Y. 768, 57 N.E.2d 845 (1944); Shemwell v. State, 214 Tenn. 24, 377 S.W.2d 906 (1961). Under the State's theory, the fortuity of a joint trial would allow a defendant to be convicted on testimony of an accomplice without corroboration of the accomplice's testimony against that defendant. Our rule aligns us with the courts that believe this would create too great a possibility of convicting an innocent person.

Therefore we hold that the trial court erred in overruling Dickerson's motion for acquittal in the Demers case. We reverse the Dickerson conviction in that trial. Under double jeopardy principles we do not remand. See Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981).

IV. The search and seizure issue. The remaining issue affects only Siebrecht's conviction in the Demers case. He contends the trial court erred in overruling his pretrial motion to suppress evidence of the stolen tools that were seized from his farm home under a search warrant. He alleges the search warrant was invalid because it was based on information gathered through a prior illegal search.

Because a constitutional issue is involved, we view the relevant evidence from the suppression hearing de novo.

Buena Vista County sheriff's deputies photographed tire tracks left at the scene of the Demers burglary. They learned the tracks were made by Goodyear tires like some sold to Glenn Siebrecht of Alta. When the tires were not found on Glenn Siebrecht's vehicles, the deputies sought to look at the tires on vehicles of Glenn's son, defendant Douglas Siebrecht.

Two sheriff's deputies went to the Douglas Siebrecht farm residence at approximately 12:30 p. m. on December 4, 1979. The house was located one-fourth mile off the highway. A gravel lane led to the house. The east side of the house was visible from the highway. The officers went to one of the east doors and...