State v. Houston, 54883

CourtUnited States State Supreme Court of Iowa
Citation206 N.W.2d 687
Docket NumberNo. 54883,54883
PartiesSTATE of Iowa, Appellee, v. Richard Wallace HOUSTON, Appellant.
Decision Date25 April 1973

Everett Meeker, of Livingston, Day, Kehoe, Meeker & Bates, Washington, for appellant.

Richard C. Turner, Atty. Gen., Fred M. Haskins, Asst. Atty. Gen., John Baldrige, County Atty., Washington, for appellee.

Heard before MOORE, C.J., and RAWLINGS, REES, REYNOLDSON and HARRIS, JJ.

RAWLINGS, Justice.

Defendant, Richard Wallace Houston (Houston), appeals from judgment on jury verdict finding him guilty of larceny in the nighttime. We affirm.

The offense charged stems from a September 23, 1970, theft of 306 tires from Arco Chemical Company (Arco) located near Ainsworth.

As best determinable from a prolix record this is the basic factual situation presented:

Glenn Bryant, a State's witness, testified he knew nothing of the planned offense but at Houston's request rented two trucks; later went with him to a truck stop, then to where one of the vehicles had 'broken down'; helped transfer tires from it to another truck; called in to report one of the rented vehicles had been stolen; first said he had been promised immunity from prosecution but later retracted that statement.

Another prosecution witness was Joseph James, admitted accomplice with Houston in stealing the tires from Arco. He drove the truck which became disabled and later helped transfer the tires from it to another vehicle.

Ralph Murphy also testified for the State. His testimony reveals he and a co-driver, operating a Georgia-Pacific rig the night of the theft, picked up two unknown men at a truck stop near Ainsworth; they rode with him to a place near Davenport where Murphy stopped for repairs; there met three other previously unknown men, including defendant; Murphy was asked to help with their 'broken-down' truck and he drove to where it was located; tires therein were then transferred to his Georgia-Pacific rig; he thereupon, by prearrangement and for an agreed price, drove to St. Louis supposedly to there meet the aforesaid five men but they failed to appear; Murphy then realized the tires were stolen; they were subsequently sold by him and his co-driver. This witness also testified he had been neither charged with the instant offense nor promised immunity in exchange for his testimony.

Other relevant facts will be later considered as they relate to issues presented.

In summary the multiple errors asserted by defendant in support of a reversal are, trial court erred in (1) overruling defendant's challenge for cause as to a prospective juror; (2) overruling defendant's motion to strike testimony of State's witnesses Murphy, Bryant and James because they were induced to testify by illegal and unconstitutional promises of immunity; (3) overruling defendant's motion to strike Murphy's pretrial photographic identification of Houston; (4) overruling defendant's motion to strike Murphy's testimony on the ground he was an accomplice; (5) failing to insruct the jury the burden was upon the State to prove Murphy was not an accomplice; and (6) failing to instruct the jury that Murphy and Bryant were accomplices as a matter of law.

Upon the same grounds it is also urged trial court erroneously overruled defense motions for a directed verdict and new trial.

I. First to be considered is Houston's contention to the effect his challenge

for cause regarding prospective juror Harold Morgan should have been sustained.

An examination of the record discloses defense counsel, by a series of suggestive and possibly confusing inquiries initially led Morgan into stating (1) it would be difficult for him to return a verdict of not guilty if Houston's picture was on file with the police, and (2) it was doubtful he could disregard the testimony of an accomplice even though not corroborated.

On the other hand this venireman later clearly demonstrated he could base his decision on the evidence presented and would follow instructions given by the court.

The foregoing affords no premise upon which to hold Morgan unquestionably entertained a disqualifying prejudice or preconceived opinion regarding defendant's guilt or innocence.

Additionally, this court has many times held, trial courts are vested with broad discretionary power in acting on challenges as to a juror for cause. See e.g., State v. Kappos, 189 N.W.2d 563, 565--566 (Iowa 1971); State v. Grove, 171 N.W.2d 519, 520 (Iowa 1969). See generally Irvin v. Dowd, 366 U.S. 717, 721--724, 81 S.Ct. 1639, 1642--1644, 6 L.Ed.2d 751 (1961); State v. Square, 257 La. 743, 244 So.2d 200, 225--231 (1971); 47 Am.Jur.2d, Jury, §§ 265--269; 50 C.J.S. Juries §§ 267--270.

We find no reversible abuse of discretion by trial court in overruling defendant's instant juror challenge for cause.

II. Houston's next broad assignment goes to the relationship of State's witnesses Murphy, James and Bryant with the offense here involved.

In that regard defendant initially claims it was incumbent upon the State to prove beyond a reasonable doubt these testifying parties were not accomplices in the stealing of tires from Arco. This contention is without merit.

At the threshold defendant, not the State, at all times insisted Murphy, James and Bryant aided and abetted Huston in stealing the tires from Arco. Resultantly the burden was upon him to so prove by a preponderance of the evidence. See State v. True, 190 N.W.2d 405, 407 (Iowa 1971); 7 Wigmore on Evidence, § 2060(e) at 341 (3d ed. 1940); 1 Underhill's Criminal Evidence, § 175 at 335 (5th ed., Herrick, 1956).

An examination of the record discloses, however, trial court instructed the jury it was incumbent upon the State to prove beyond a reasonable doubt Murphy and Bryant were not accomplices. In light of the foregoing this instruction was improper but inured to defendant's benefit so he is not now in a position to effectively complain.

The record also discloses, trial court properly held and advised the jury that James was an accomplice as a matter of law. See State v. Jennings, 195 N.W.2d 351, 357 (Iowa 1972); State v. Schreck, 258 Iowa 218, 222, 137 N.W.2d 914 (1965); 1 Underhill's Criminal Evidence, § 175 at 335 (5th ed., Herrick, 1956).

III. Furthermore, by appropriate instructions, the jury was duly permitted to determine whether Murphy and Bryant were in fact accomplices. See State v. Schreck, supra; State v. Jensen, 289 Minn. 444, 184 N.W.2d 813, 815 (1971); 7 Wigmore on Evidence, § 2060(e) at 341--342 (3d ed. 1940); 1 Underhill's Criminal Evidence, § 175 at 335 (5th ed., Herrick, 1956).

And in response to interrogatories accordingly propounded the jury found these two witnesses did not stand in that position. See generally State v. Barnes, 204 N.W.2d 827, 828--829 (Iowa 1972); State v. Jennings, 195 N.W.2d at 356; State v. Jones, 115 Iowa 113, 115--119, 88 N.W. 196 (1901); 1 Underhill's Criminal Evidence, § 175, n. 8 at 330 (5th ed., Herrick, 1956); 21 Am.Jur.2d, Criminal Law, § 126; 23 C.J.S. Criminal Law § 792.

It therefore follows defendant's assertion that Murphy and Bryant were accomplices is without substance. Thus corroboration as to these witnesses was not required. See State v. Armstrong, 203 N.W.2d 269, 273 (Iowa 1972).

This is turn means testimony by Murphy and Bryant legitimately tended to corroborate that of accomplice James. See State v. Jennings, 195 N.W.2d at 356--357; State v. Bell, 258 Iowa 779, 781--783, 140 N.W.2d 375 (1966). See generally 1 Underhill's Criminal Evidence, §§ 182--185 (5th ed., Herrick, 1956).

IV. Houston next asserts Murphy, Bryant and James were illegally promised 'immunity' by the county attorney and this served to disqualify them as witnesses. More specifically defendant contends the county attorney improperly purchased the testimony of these prospective witnesses by promising they would not be prosecuted.

For reasons later disclosed it is unnecessary to here determine the power or authority of a prosecutor, in this jurisdiction, to so bind the State. See generally the Code 1966, Sections 622.14--622.16, 741.4; 1 Underhill's Criminal Evidence, § 180 (5th ed., Herrick, 1956); 21 Am.Jur.2d, Criminal Law, §§ 150--152; Annot., 13 A.L.R.2d 1439. See also 21 Drake L.Rev. 331 (1972).

The aforesaid 'purchase of evidence' theory, though novel, is not persuasive. It would more aptly appear that by promise of 'immunity', if any, the county attorney merely removed a possible barrier to a willing response on the testimonial call of these three witnesses. See generally 8 Wigmore on Evidence, §§ 2280--2284 (McNaughton Rev.1961). See also Murphy v. Waterfront Com'n of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964); cf. Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972); Zicarelli v. New Jersey State Com'n of Investigation, 406 U.S. 472, 92 S.Ct. 1670, 32 L.Ed.2d 234 (1972).

In any event such did not disqualify them from testifying or negate their testimony. See generally Code §§ 622.1--622.3; 2 Wigmore on Evidence, § 580 at 707--708 (3d ed. 1940); 1 Underhill's Criminal Evidence, § 178 (5th ed., Herrick, 1956); Annot., 120 A.L.R. 751.

Furthermore it is clearly established an assurance of prosecutorial abstinence, regardless of its effectiveness, goes only to credibility of the promisees. See State v. O'Meara, 190 Iowa 613, 624, 177 N.W. 563 (1920); Burkhalter v. State, 493 S.W.2d 214 (Tex.Cr.App., 1973); 1 Underhill's Criminal Evidence, § 181 (5th ed., Herrick, 1956). See also 21 Drake L.Rev. at 335--337.

Significantly the record unquestionably reveals Murphy was given no assurance of 'immunity'. Also the defense was permitted to thoroughly cross-examine Murphy, Bryant and James as to any such promises which may have been made to them. See State v. Bell, 258 Iowa at 781--783, 140 N.W.2d at 377--378. Thus nondisclosure of evidence is not here involved.

Moreover the jury was given this pertinent instruction:

'It...

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