State v. Houston, 55494

• Decision Date: 03 July 1973
• Docket Number: No. 55494,55494
• Parties: STATE of Iowa, Appellee, v. Richard Wallace HOUSTON, Appellant.
• Court: Iowa Supreme Court

Page 42

209 N.W.2d 42

STATE of Iowa, Appellee, v. Richard Wallace HOUSTON, Appellant.

No. 55494.

Supreme Court of Iowa.

July 3, 1973.

David P. Miller, Davenport, for appellant.

Richard C. Turner, Atty. Gen., Fred M. Haskins, Asst. Atty. Gen., Edward N. Wehr, County Atty., Davenport, and Thomas G. Schebler, Asst. County Atty., Davenport, for appellee.

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

REYNOLDSON, Justice.

Defendant was convicted in district court of burglary without aggravation, and sentenced as an habitual criminal under the provisions of § 747.5, The Code. He appeals and we affirm.

Defendant asserts trial court erred in permitting a witness to make an in-court identification based on a suggestive identification at a police station, in overruling his new trial motion grounded on jury misconduct, and in denying him due process and a fair trial.

I. Issue of identification. State's witness Kerns was a visitor in a house adjoining the burglarized home in Davenport, Iowa. About 11:30 P.M., December 13, 1971, he saw two men carrying a stereo set toward a white van truck parked in the street. Those two men escaped when he dashed toward the van. Observing a third man hiding in the truck, Kerns attempted to open the passenger-side door. The occupant reached over, locked the door from the inside and told Kerns '* * * to go away and leave him alone, he wasn't bothering anybody.' Kerns later testified he was then 30 to 48 inches from the occupant who was illuminated by an outdoor gas light and a street light.

There ensued a wild chase through Davenport in which Kerns pursued the white van in his automobile. After the van stopped near a hotel Kerns again observed the driver, at a distance of less than 100 feet. Within a short time police found defendant, record owner of the van, at a tavern five or six blocks away. Kerns was called to the police station at about 2:00 A.M. and in a one-man show-up identified defendant as the man he chased. At some prior time one photograph of defendant was shown to him by the police.

December 29, 1971, defendant's then counsel filed a motion to suppress any in-court identification of defendant by Kerns, on the ground it would necessarily be based on an illegal and unnecessarily suggestive police station line-up. January 21, 1972, trial court by order held the motion premature and preserved defendant's right to voir dire the witness prior to any in-court identification. After jury selection on February 28, 1972, defense trial counsel conducted a voir dire examination of Kerns, who unequivocably testified he could then identify defendant solely from his observations on the night of the burglary, disregarding any of the incidents at the police station. The motion to suppress was overruled.

The next morning, before the State presented its evidence, defendant by oral motion in limine requested trial court to instruct the county attorney to ask no questions of Kerns or any other witness relating to the police station identification procedures participated in by Kerns. This motion was sustained as to direct examination but not as to re-direct if the defense opened up the subject on cross-examination.

The subsequent in-court identification of defendant by the witness Kerns, on the basis of his observation of him on the night of the burglary, came in without objection. It is questionable whether the alleged error was preserved for review. Compare United States v. Mills, 434 F.2d 266 (8 Cir. 1970), cert. denied, 401 U.S. 925, 91 S.Ct. 908, 27 L.Ed.2d 828 (1971) and State v. Hinsey, 200 N.W.2d 810 (Iowa 1972) with State v. Evans, 193 N.W.2d 515 (Iowa 1972) and Lessenhop v. Norton, 261 Iowa 44, 153 N.W.2d 107 (1967).

We need not turn this case on that technical ground, however, because a more basic rule applies. Assuming there was an illegal identification procedure used prior to trial, the in-court identification testimony is admissible if the State proves by clear and convincing evidence the in-court identification had an independent origin. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); State v. Jones, 193 N.W.2d 509 (Iowa 1972); State v. Essary, 176 N.W.2d 854 (Iowa 1970); State v. Wisniewski, 171 N.W.2d 882 (Iowa 1969); see Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972).

On this record trial court could have concluded there was clear and convincing proof the in-court identification of defendant by Kerns had an untainted origin in Kerns' observations made prior to any police station identification. We find no merit in this assignment of error.

II. Issue of jury misconduct. Defendant's motion for new trial, grounded solely on jury misconduct, was overruled by trial court. As developed by three jurors' affidavits attached to the motion, during evening deliberations the jury on several occasions turned off the lights and made an effort to determine nighttime visibility while looking through window glass. This activity related to testimony of the witness Kerns. The jury verdict was returned in approximately six and one-half hours, which included a dinner hour. Upon being polled, each juror acknowledged the verdict.

Trial court has broad discretion in determining whether evidence of claimed jury misconduct justifies a new trial. State v. Jackson, 195 N.W.2d 687 (Iowa 1972); Rancho Grande, Inc. v. Iowa State Highway Com'n, 261 Iowa 861, 156 N.W.2d 293 (1968). Trial court's holding will not be set aside on appeal except upon showing an abuse of such discretion. State v. Little, 164 N.W.2d 81 (Iowa 1969); 58 Am.Jur.2d, New Trial § 79, p. 270; 66 C.J.S. New Trial § 201(b)(2), pp. 491--494.

To justify a new trial for jury misconduct it must appear (independently of what jurors might later say) the misconduct was calculated to, and probably did, influence the verdict. Fischer, Inc. v. Standard Brands, Inc., 204 N.W.2d 579 (Iowa 1973); Townsend v. Mid-America Pipeline Company, 168 N.W.2d 30 (Iowa 1969). Historically, we have considered such situations with a bemused but limited tolerance for the ingenuity of jurors and the realization a rigid approach would result in interminable litigation. See State v. Jackson, supra (discussion of defendant's prior conviction for murder); Townsend v. Mid-America Pipeline Company, supra (three jurors drove past condemnee's farm); State v. Little, supra (several jurors unofficially visited scene of defendant's arrest); Fordyce v. Cappel, 257 Iowa 763, 133 N.W.2d 664 (1965) (jurors discussed existence of auto insurance); Fagen Elevator v. Pfiester, 244 Iowa 633, 56 N.W.2d 577 (1953) (jurors read aloud from 'The Iowa Drivers' Guide'); State v. Phillips, 212 Iowa 1332, 236 N.W. 104 (1931) (jurors tasted liquors introduced into evidence in a liquor nuisance case); State v. Smith, 196 Iowa 1003, 193 N.W. 418 (1923) (juror furnished magnifying glass to examine exhibits).

One issue in State v. Smith, supra, was the identification of writing on disputed exhibits. During deliberations several jurors produced from their pockets checks and letters to illustrate their arguments or views upon the value of the evidence which had been admitted. What this court said, 196 Iowa at 1012, 193 N.W. at 422--423, is pertinent here:

'It cannot be fairly said that this violates the rule to which we have referred against the introduction into the jury room of additional or other evidence not produced on the trial. A juror is not forbidden to consider and pass upon the evidence in the light of common experience and common observation. Discussion and deliberation in the jury room would be idle form if jurors were bound to refrain from illustrating or emphasizing their views by reference to any matter or thing which they have found to be true or false in their individual experience, and if verdicts were to be held vitiated thereby the jury system would better be abandoned altogether.'

In the case Sub judice trial court found there was no reasonable probability the jurors' alleged misconduct influenced the verdict or prevented defendant from having a fair trial. It does not clearly appear this was an abuse of discretion. We hold this assigned error to be without merit.

III. Issue of due process and fair trial. Lastly, in a dragnet type assignment of error, defendant claims he was denied due process and a fair trial. We have examined the several specific complaints upon which this assignment is grounded and have found most to be of no substance or already firmly settled by our prior decisions.

On direct examination State's witness Kerns testified when he telephoned the police after the chase he described defendant as a tall, slender man with a protruding face and greased black hair, wearing a dark jacket and slim pants. He gave them the license number of the van and its location. Before cross- examination defense counsel asked the county attorney if he had a statement from Kerns. According to the record, 'The County Attorney said he did not, but it was obvious that in any police investigation the police officers did ask questions and the substance of this was contained in a police report.'

Defense counsel requested trial court's permission to examine the 'reports given by Mr. Kerns to the Davenport Police Department * * *.' Trial court examined the police report in camera and found 'nothing * * * (to) indicate Kerns gave a written statement of any kind or a statement * * * inconsistent with the testimony already given * * *.' He denied defendant's request. Trial court stated the defense could subpoena anything it needed, but whether it could be used would be subject to rulings made at that time.

In State v. White, 260 Iowa 1000, 151 N.W.2d 552 (1967) we said a defendant is not entitled to unrestricted examination of police records. We are not confronted here with the situation in State v. Eads, 166 N.W.2d 766 (Io...