State v. Holderness

• Decision Date: 18 June 1980
• Docket Number: No. 62689,62689
• Citation: 293 N.W.2d 226
• Parties: STATE of Iowa, Appellee, v. Lester Donald HOLDERNESS, Appellant.
• Court: Iowa Supreme Court

Page 226

293 N.W.2d 226

STATE of Iowa, Appellee, v. Lester Donald HOLDERNESS, Appellant.

No. 62689.

Supreme Court of Iowa.

June 18, 1980.

John M. Heckel of Klinger, Heckel & Robinson, Cedar Rapids, and White & Stone, Marion, for appellant.

Thomas J. Miller, Atty. Gen., Lona Hansen, Asst. Atty. Gen., and Eugene J. Kopecky, Linn County Atty., for appellee.

Considered by REES, P. J., and UHLENHOPP, McCORMICK, McGIVERIN and LARSON, JJ.

UHLENHOPP, Justice.

This burglary appeal involves a procedural question and two substantive questions: (1) whether in ruling on a motion for a directed verdict a court considers all the evidence in the record at the time the ruling is made or only the evidence in the record at the time the motion was originally made; (2) whether the foundation evidence here was sufficient for admission of a photograph into evidence; and if the foundation was sufficient, (3) whether the photograph was sufficient to sustain a finding that the defendant was the burglar.

Charles J. Corrigan has been an insurance adjuster for twenty-eight years, has used a camera in his work, has taken about three full rolls of pictures a week over that period, and has demonstrated familiarity with photography.

During the week which ended June 17, 1978, Corrigan took eight pictures with a company Instamatic camera, leaving four pictures to be taken on a twelve-exposure roll of film. The camera was equipped with flash for night pictures.

On the night of June 17, 1978, Corrigan's car was in his rented garage near his house, with the garage doors closed. In the car Corrigan had a CB unit and his black briefcase. In the briefcase he had company forms and drafts, a small flat black calculator, and the Instamatic camera containing the twelve-exposure film.

About 9:00 a. m. on June 18, 1978, Corrigan saw that his garage doors were open, although no one had permission to open them or to remove anything from the garage. He discovered that the CB and briefcase with contents had been stolen from the car by someone.

About two hours later a small boy in the neighborhood brought Corrigan a roll of film of the kind which he had in the camera.

In the ordinary course of his work, Corrigan sent the roll of film to the developer. This procedure had produced accurate pictures over the years. The developed prints with the negatives came back in the usual way. Corrigan recognized pictures one through eight from the roll as the ones he had taken in his employment. But the roll produced two more pictures, apparently taken with the flash. Number nine was a downward shot of the legs and feet of a standing person who appeared to be wearing cutoff trousers. This picture does not seem to be of significance to the case. But number ten (Exhibit 2) was a picture of a man on his knees looking sideways toward the camera and holding a black briefcase partially open and a small black flat object. In the background of the picture appeared a building with an open door, a trash-can rack, and a boat bearing license number IA 7086D. Corrigan did not recognize the man in picture ten. He did however positively identify the boat in the picture as his boat from its license number, and he also testified:

Q. Can you tell the jury where that photograph was taken as far as the scene? A. It was taken in my back yard, adjacent to the alley.

Q. How far from your garage? A. Oh, from the garage that was opened up it was about 30 feet.

He also identified the open garage door and the trash-can rack in the picture. He testified that the briefcase in the picture looked "exactly like" his briefcase which contained the camera. He testified the black object in the man's hand looked similar to his calculator.

Corrigan examined the negatives (Exhibit 3) containing the pictures in question, along with the prints, and stated that the negatives were exactly as reproduced in the prints. As to the strip containing the negatives he testified:

Q. Has it been modified, changed, altered in any way since (its return from the developer)? A. Not to my knowledge.

Q. It appears in the same condition and is the same as when you received it back in the ordinary course of your business? A. That's right.

Q. I would ask you to again examine the film in the State's Exhibit 3 carefully, and after examining it could you tell the jury if it has been altered or modified or touched in any way that you can determine? A. No, it hasn't not that I can determine.

Corrigan was asked:

Q. Examining, then, a very large quantity of prints that you have taken pictures of in your work, have you ever had a print come back that has been modified, altered, or changed? A. Never seen one come back altered or modified or changed.

Q. They have always accurately represented the picture, the subject that you took the picture of? A. Yes.

Regarding the particular Instamatic, Corrigan testified:

Q. Have you ever had any problems with it as far as not taking accurate pictures? A. No, it was a good camera.

He also stated the camera had no distortions he was aware of.

Corrigan testified he could identify the boat and the briefcase and that the crucial picture, Exhibit 2, accurately represents those two items. He was then asked:

Q. There does not appear to be any distortion or change or modification of them in the photo, does there? A. None.

Then to the question, "If part of the photograph is accurate, you have had the experience that the whole photograph was accurate?" he replied, "Right."

Exhibit 2, the picture of the man, was enlarged from the negative, as Exhibit 4. The prosecutor asked Corrigan:

Q. Did that enlargement accurately and fairly represent the picture that was shown in the negative? A. Yes, it did.

Numbers eleven and twelve on the roll of film were not exposed.

Also introduced in evidence was a photograph, Exhibit 5, which was established to be a picture of defendant Lester Donald Holderness; it was taken in booking him, and consists of side and front views. The side view is from an angle similar to Exhibit 2. The jury could find that Exhibits 2 and 5 are pictures of the same individual. They are of a young, pale male with very curly hair, wearing glasses. The facial features and glasses appear to be the same in the two exhibits. Defendant testified he had previously had his hair curled.

Throughout the proceedings defendant denied that he was at the Corrigan property or stole the items involved. His testimony was weakened somewhat by contradictions on cross-examination, but he did not admit the burglary. In addition, he testified on cross-examination regarding the picture of the individual in Exhibit 2:

Q. It has got your facial features and cheekbone? A. Yeah.

Q. It has got your Afro hair. A. Uh-huh.

Q. It has got your glasses, wire rims with the frames coming in right below the top. A. Yes.

In addition:

Q. It looks like you, doesn't it? A. Yes.

The county attorney charged defendant with second-degree burglary, and at trial defendant objected to the offer in evidence of Exhibit 2 on the ground among others of insufficient foundation proof in specified particulars. The trial court overruled the objection. Defendant also moved for a directed verdict on the ground among others of insufficient evidence that he is the person who committed the burglary. The court overruled the motion. The jury found defendant guilty, and he appealed after sentence.

I. Evidence to be considered. Defendant made a motion for directed verdict at the end of the State's evidence and again at the end of all the evidence. Under prior law this was the required practice; if a defendant made his motion at the end of the State's case, the court overruled it, and the defendant introduced evidence, the motion was waived. To preserve error the defendant had to make another motion at the end of all the evidence, and the court then considered all the evidence. State v. Tibbits, 207 Iowa 1033, 1035, 222 N.W. 423, 424 (1928).

Present rule 18(8)(a ) of the Rules of Criminal Procedure states, however:

The court on motion of a defendant or on its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses. If a defendant's motion for judgment of acquittal at the close of the evidence offered by the prosecuting attorney is not granted, the defendant may offer evidence without having waived his or her right to rely on such motion.

Under this rule, when the defendant moves for a directed verdict at the end of the State's evidence, the court must grant the motion if the evidence is insufficient to sustain a conviction. But if the court overrules the motion and the defendant introduces evidence, two questions arise: (1) must the defendant renew the motion at the end of the evidence as under prior law? and if not, (2) what evidence does the appellate court (and trial court) consider in determining whether the evidence is sufficient to convict the defendant the evidence in the record when the State originally rested or when both parties rested?

As to the first question, rule 18(8)(a ) clearly states that the defendant does not waive the motion by introducing evidence. Hence we will no longer have cases in which a defendant fails on appeal because he overlooked renewing his motion at the end of all the evidence. See State v. Evans, 248 N.W.2d 521, 522 (Iowa 1976). Thus he may rely on his unrenewed motion in posttrial motions and on appeal. As to the second question, however, we would have an artificial situation if a court had to close its eyes to part of the evidence which was in fact introduced. Although we recognize that some courts hold the other way, we adhere to the rule that a court considers all the evidence which is in the record. State v. Robinson, 288 N.W.2d 337, 340 (Iowa 1980). See State v. Olson, 161 N.W.2d 858, 859-60 (S.D.1968) ("...