State v. Hutchison, 68819

• Decision Date: 23 November 1983
• Docket Number: No. 68819,68819
• Parties: STATE of Iowa, Appellee, v. Robert F. HUTCHISON, Appellant.
• Court: Iowa Supreme Court

Page 33

341 N.W.2d 33

STATE of Iowa, Appellee, v. Robert F. HUTCHISON, Appellant.

No. 68819.

Supreme Court of Iowa.

Nov. 23, 1983.

Charles L. Harrington, Appellate Defender, and Raymond E. Rogers, Asst. Appellate Defender, Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., Shirley Ann Steffe, Asst. Atty. Gen., and David E. Richter, County Atty., for appellee.

Considered by UHLENHOPP, P.J., and HARRIS, McCORMICK, LARSON, and SCHULTZ, JJ.

SCHULTZ, Justice.

Defendant, Robert F. Hutchison, appeals from his conviction for burglary in the second degree in violation of Iowa Code sections 713.1 and 713.3 (1981) and the determination under section 902.8 that he is an habitual offender. On appeal, he advances several arguments. Specifically, he asserts that (1) the trial court erred in admitting a pair of gloves into evidence because a proper chain of custody was lacking; (2) his motion for a directed verdict should have been sustained since the testimony of an accomplice was not adequately corroborated by independent evidence; and (3) in the facts of this case the "clear constitutional error" doctrine should be applied to excuse the failure of the defendant, acting pro se, to preserve error when his Fifth Amendment rights were violated. Defendant also claims he should be granted a new trial because he was denied effective assistance of counsel.

This case arises from a burglary and theft involving eight quarters of beef taken from a refrigerated semitrailer. At approximately midnight on March 12, 1982, an alert longtime resident of South Ninth Street in Council Bluffs was watching television when she heard her dog start barking. Curious about the disturbance, she looked out her window and saw a small U-Haul truck, without its headlights on, driving down the street in front of her house. She saw the vehicle stop and then begin to back across the curb and sidewalk onto the property across the street. Eventually, the truck stopped next to a side door of the house. Three men opened the truck, unloaded something, and then entered the darkened house. Because her suspicions were aroused, she called the police and reported the unusual activities. She then resumed her watch and finally observed the vehicle, occupied by three men, reenter the street and proceed about a block and a half before it was stopped by the police.

When the officers stopped the truck, they noticed the three occupants reeked of beef. The stolen meat subsequently was recovered from the basement of the house, observed and described by the alert citizen.

The defendant was arrested and charged, and a public defender was appointed to represent him. After his first trial ended in a mistrial, he was retried and convicted. This appeal arises from the second trial.

I. Chain of custody. At trial, an accomplice identified and claimed ownership of a pair of gloves received into evidence over the defendant's objection. In particular, he testified that he had loaned the gloves to the defendant on the night of the burglary. While he did not specifically describe any distinguishing characteristics of the gloves, he stated they were clean when he loaned them and now they were dirty and smelled like beef fat.

Although the defendant's objection to this evidence was not a model of clarity, we will assume he preserved error on his claim that large gaps existed in the chain of custody, making tampering or substitution reasonably probable. Essentially, defendant contends the admission of the gloves was error since the State failed to establish a proper chain of custody.

In State v. Lamp, 322 N.W.2d 48, 57 (Iowa 1982), we recently detailed the foundational requirements for establishing a proper chain of custody whenever physical objects are offered into evidence. Although we will not reiterate those principles here, we note that the sufficiency of the foundation depends on the susceptibility of the article to alteration or substitution. Id. Where exhibits consist of solid objects, not readily susceptible to undetected tampering, we ordinarily hold that a break in the chain of custody goes to the weight of the evidence rather than its admissibility. State v. Limerick, 169 N.W.2d 538, 541 (Iowa 1969). Admissibility is a matter committed to the sound discretion of the trial court, and reversal is warranted only when there has been a clear abuse. See Lamp, 322 N.W.2d at 59-60 (court did not abuse its discretion when it admitted clothes found near the scene of the homicide four days after the incident since it was proper to presume that a ranger, as an agent of the State, would not tamper with the clothes).

After the defendant and two other individuals were arrested in the early morning hours, the vehicle they occupied was seized by the police, impounded and searched. No gloves were found during this time. Later that morning, the owner picked up the van at the police impound lot. While cleaning the van, one of the owner's employees discovered the gloves lying on the floor and turned them over to the police. At trial he identified the gloves as the ones found in the van.

The trial court did not abuse its discretion in admitting the gloves into evidence. We reach this conclusion for two reasons. First, the gloves were a solid object, and they were properly identified by both the owner-accomplice and the employee. Secondly, there was no material change or alteration in the condition of the gloves. The fact that the gloves were not discovered in the initial police search does not necessarily suggest substitution. Questions concerning the characteristics or condition of the gloves and the time gap between the initial search of the vehicle and discovery of the gloves are matters that go to the weight of the evidence rather than its admissibility. The chain of custody evidence provided an adequate foundation for the admission of the gloves.

II. Corroboration of accomplice's testimony. The defendant contends the trial court should have granted his motion for a directed verdict because the State did not present sufficient evidence to corroborate the testimony of the accomplice. An inherent supposition in the defendant's claim is that without the accomplice's testimony, the remaining evidence is insufficient to generate a fact question on the defendant's participation in the crime. Without addressing this supposition, we turn to the issue of corroboration.

In denying the motion, the trial court determined corroboration was provided by several items, including some of the clothing, the gloves and the defendant's physical presence in the van. Under Iowa Rule of Criminal Procedure 20(3), "[a] conviction cannot be had upon the testimony of an accomplice or solicited person unless corroborated by other evidence which shall tend to connect the defendant with the commission of the offense...." The existence of corroborative evidence is a question of law that must be determined by the court while the sufficiency of such evidence is normally a question of fact determined by the jury. State v. Graham, 291 N.W.2d 345, 350 (Iowa 1980). The corroboration of an accomplice's testimony need not be strong nor must it confirm every material fact testified to by an accomplice. State v. Aldape, 307 N.W.2d 32, 41 (Iowa 1981). All that is required is that the accomplice's testimony be supported in some material fact tending to connect the defendant with the offense. Id.

Here, the accomplice testified that the defendant was an active participant in the burglary, theft, and transportation and concealment of the beef. He stated that each person handled the beef, wore gloves and got chunks of fat and grease on his clothing. After the meat was hidden, he indicated the defendant drove the van until it was stopped by the police.

Other evidence supported material elements of the accomplice's testimony and tended to connect the defendant with the crime. For instance, the citizen, who reported her suspicions to the police, testified about her observations concerning the unusual activity of the vehicle and its occupants. She described the truck's route to the house, its subsequent unloading and return to the street where it was eventually stopped by the police. She also described the movement of the three occupants until they were apprehended. The police testified that defendant was driving the truck and his clothing reeked of meat. This testimony clearly placed the defendant in company of the accomplice and in the vehicle used to transport the stolen meat. It also connected him with the quarters of beef later recovered from the basement of the neighboring house. In summary, substantial evidence corroborated the accomplice's testimony, and the trial court did not error in overruling defendant's motion for a directed verdict.

III. Reference to defendant's election not to testify. The defendant contends the prosecutor directly and indirectly commented on his election not to testify. Specifically, he claims these comments violated the self-incrimination clause of the Fifth Amendment as interpreted by the United States Supreme Court in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). Although no objections to the remarks or requests for a mistrial were made at the time, defendant urges us to adopt the "clear constitutional error" standard discussed in State v. Johnson, 272 N.W.2d 480, 484 (Iowa 1978). The State claims the prosecutor's statements were not impermissible references to defendant's silence and no extraordinary circumstances require us to abandon our normal preservation of error requirements.

In Griffin, the court held that prosecutorial comments concerning an accused's silence are constitutionally forbidden. We have adhered to this pronouncement and interpreted it to mean that the accused's silence may not be used directly or indirectly to aid the prosecution. State v. Nelson, 234 N.W.2d 368, 371 (Iowa 1975); State v. Osborne, 258 Iowa 390, 393, 139 N.W.2d...