State v. Holland

• Decision Date: 18 June 1986
• Docket Number: No. 85-1070,85-1070
• Citation: 389 N.W.2d 375
• Parties: STATE of Iowa, Appellee, v. Richard Lamont HOLLAND, Appellant.
• Court: Iowa Supreme Court

Page 375

389 N.W.2d 375

STATE of Iowa, Appellee, v. Richard Lamont HOLLAND, Appellant.

No. 85-1070.

Supreme Court of Iowa.

June 18, 1986.

Randy J. Hohenadel of Wells, McNally & Bowman, Davenport, for appellant.

Thomas J. Miller, Atty. Gen., Ann DiDonato, Asst. Atty. Gen., Gary L. Sissel, Asst. Co. Atty., for appellee.

Considered en banc.

McGIVERIN, Justice.

This is an appeal in a criminal action from a judgment entered on a jury verdict finding defendant Richard Holland guilty of two counts of burglary in the second degree. Iowa Code §§ 713.1 and 713.5 (1983). Upon consideration of the issues raised, we affirm.

On November 1, 1984, defendant Holland was arrested at the residence of his girlfriend, Donna Lam, pursuant to search and arrest warrants for him. The validity of these warrants is uncontested. Defendant was charged in connection with two separate burglaries which occurred in late October 1984. In one of these burglaries involving the Susan Murphy and Stacey Semenczuk apartment, a number of pieces of jewelry were stolen. In the other one, which occurred at the Darrell DeWitt residence, a Technics stereo cassette recorder, a small caliber revolver and other pieces of jewelry were taken.

Officers arrived at Donna Lam's apartment where defendant was believed to be staying. The apartment consisted of two stories and a basement. The officers knocked at the door, and a male voice answered. They then identified themselves as police officers, and a few moments later Donna Lam opened the door. When asked about Holland's location, Lam denied that he was on the premises. Three children, two of Lam's and one she was babysitting, were playing in the basement of the apartment, and Lam informed officers that her baby was sleeping upstairs.

After Lam's repeated denials that defendant was at the residence, she was placed under arrest for interference with official acts, Iowa Code section 719.1, and was taken out of the apartment to a police car. She was informed by the arresting officers that the Department of Human Services would be called to take charge of the children left in the apartment.

Soon after Lam's arrest, defendant came downstairs and surrendered to police. He then was placed under arrest. The officers heard noises coming from the second story of the apartment, so two of them made a brief check of the rest of the residence, which lasted approximately one minute, for security purposes. During this cursory search, a baby was found upstairs in a crib. No other persons were found upstairs. However, in the master bedroom, an officer saw in plain view a Technics cassette stereo recorder, like the one taken in the DeWitt burglary, which he reported to the officer in charge.

Thereafter, Lam was returned to the residence and "unarrested". Then, a request was made to search the premises. Lam signed a written consent to search which was explained to her by one of the officers. She also read the consent form before signing it. The officers then searched the premises. The serial number on the Technics stereo recorder matched the one taken in the DeWitt burglary. Jewelry taken during the two previous burglaries also was recovered during this second search.

After a trial information was filed and defendant was arraigned, he filed a motion to suppress the evidence found in Lam's apartment. The motion was denied by the district court after an evidentiary hearing.

The State listed Darrell DeWitt, the victim of one of the burglaries, as a witness in the minutes of testimony filed in the case. DeWitt had made plans to take a rescheduled pleasure trip to California during the time of defendant's trial. Apparently annoyed over a continuance granted in the case, DeWitt indicated to the prosecutor that he would not come back for the trial. The prosecutor, therefore, decided not to subpoena him, but to take a videotaped deposition instead during the week prior to the time trial actually occurred.

Both parties were aware of the purpose for taking the deposition. Defendant and his counsel attended the deposition but objected on the ground that the witness was not unavailable for trial. Cross-examination was permitted, and a thorough cross-examination was conducted. The main purpose of DeWitt's testimony was to identify two pieces of property, the stereo recorder and a tie-tack, which were seized at Lam's apartment at the time of defendant's arrest, as being owned by DeWitt.

At trial defendant moved to exclude the deposition on the grounds that DeWitt was not unavailable for trial under Iowa Rule of Evidence 804(a)(5), and, thus, his former testimony was hearsay. Iowa R. Evid. 804(b)(1). The motion was overruled. The State thus offered DeWitt's testimony in the form of a videotaped deposition, which was viewed and heard by the jury at trial.

During defendant's trial, testimony of two of the arresting officers was admitted. They testified over defendant's relevancy objection that defendant offered to kill anyone of the officers' choosing in return for his release. Previously, a motion in limine, requested by defendant to exclude this evidence from admission at trial, had been overruled.

The jury found defendant guilty on both counts. The court then sentenced defendant to incarceration.

Defendant appealed, contending that the district court erred in admitting: 1) videotaped deposition testimony by the witness, Darrell DeWitt, in violation of the confrontation clause of the sixth amendment to the United States Constitution and the hearsay rule; 2) evidence seized in the two separate searches in violation of the fourth amendment to the United States Constitution; and 3) testimony by the police officers about certain statements made by defendant which defendant claims were irrelevant.

I. Videotaped deposition evidence. On appeal, defendant invoked the sixth amendment right to confrontation to challenge the use of the videotaped deposition testimony of prosecution witness Darrell DeWitt at his criminal trial. Defendant also claims that the videotaped deposition was hearsay and, thus, was inadmissible.

There is some question whether error was preserved on the sixth amendment claim because defendant did not make this specific contention in the trial court. We nevertheless consider the sixth amendment claim because it is arguably linked with the hearsay contention. See Iowa R.Evid. 804(b)(1) and 804(a)(5) (deposition testimony admissible if witness is "unavailable" for trial). Because a constitutional right is implicated, our review of the record is de novo. State v. Dean, 332 N.W.2d 336, 338 (Iowa 1983).

The sixth amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI; see Iowa Const. art. 1, § 10. The right of confrontation, which is secured for defendants in state as well as federal criminal proceedings, Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1067, 13 L.Ed.2d 923, 926 (1965), is primarily "to secure for the opponent the opportunity of cross-examination." Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347, 353 (1974). We have approved this interpretation of the primary purpose of the confrontation clause. State v. Davis, 269 N.W.2d 434, 438 (Iowa 1978). A secondary purpose of the confrontation clause is to allow the tribunal the opportunity to adequately observe the demeanor of the witness while testifying. State v. Strable, 313 N.W.2d 497, 500 (Iowa 1981).

Defendant recognizes there is an exception which would permit the deposition testimony to be admitted without violating the confrontation clause requirement, when the witness is unavailable for trial. State v. Kellogg, 385 N.W.2d 558, 560 (Iowa 1986) ("A witness who has exercised fifth amendment privilege is 'unavailable' for purposes of the confrontation clause."); State v. Castillo, 315 N.W.2d 63, 65-67 (Iowa 1982) (deposition testimony used at trial satisfied confrontation clause requirements and was properly admitted when defendant "opened the door" by introducing excerpts of it or when witness was "unavailable" for trial). However, a witness is not unavailable for confrontation clause purposes "unless the prosecutorial authorities have made a good faith effort to obtain his presence at trial." Barber v. Page, 390 U.S. 719, 724-25, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255, 260 (1968). The Court added that "the possibility of refusal is not the equivalent of asking and receiving a rebuff." Id., 88 S.Ct. at 1322, 20 L.Ed.2d at 260. The prosecution bears the burden of establishing this predicate for admissibility. Ohio v. Roberts, 448 U.S. 56, 74-75, 100 S.Ct. 2531, 2543, 65 L.Ed.2d 597, 613 (1980).

Here, the State failed to meet its burden of establishing unavailability of the witness. The prosecutor should have subpoenaed the witness again for trial. The district court erred in allowing the videotaped deposition of DeWitt to be admitted into evidence. However, we conclude the error under this record was harmless beyond a reasonable doubt under the standard in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 711 (1967). See Strable, 313 N.W.2d at 501 (error, if any occurred, was harmless when screen was placed at trial between alleged sex abuse victim and defendant while victim testified because purposes of confrontation clause were served).

This case is distinguishable from Dean where we held reversible error occurred when a discovery deposition of a witness was admitted into evidence at trial in lieu of his live testimony without a sufficient showing of witness unavailability. There, the deposition was taken for discovery purposes by a co-defendant and although defendant's counsel received notice, he did not attend. Thus, no cross-examination by defendant occurred. Further, a different medium was involved in Dean. There, only a written court reporter's transcript of the witness'...