State v. Knudtson, 54120

• Decision Date: 16 March 1972
• Docket Number: No. 54120,54120
• Citation: 195 N.W.2d 698
• Parties: STATE of Iowa, Appellee, v. Gene Allen KNUDTSON, Appellant.
• Court: Iowa Supreme Court

Page 698

195 N.W.2d 698

STATE of Iowa, Appellee, v. Gene Allen KNUDTSON, Appellant.

No. 54120.

Supreme Court of Iowa.

March 16, 1972.

Paul H. Kinion, Cedar Rapids, for appellant.

Richard C. Turner, Atty. Gen., Allen J. Lukehart, Asst. Atty. Gen., and William G. Faches, County Atty. of Cedar Rapids, for appellee.

REES, Justice.

Defendant, charged by county attorney's true information with the crime of attempting to break and enter in violation of section 708.10, Code 1966, was tried to a jury, convicted, sentenced and now appeals. We affirm.

At approximately 3 o'clock, a.m., on the morning of July 26, 1969 the proprietors of the Steak & Stein Tavern in Cedar Rapids were cleaning the tavern when they heard a pounding at the boarded-up, unused door at the rear of the building. They summoned police, who conducted a search in the area at the rear of the tavern and observed the defendant standing behind a truck. When one of the officers threw the beam of his flashlight upon the defendant, he attempted to hide behind the truck and to dispose of a pair of gray vinyl gloves he was wearing by throwing them under the truck.

A further search of the area by police officers netted a flashlight in some nearby bushes, a pry bar near the rear door of the tavern, and a pair of channel lock pliers about five feet from where the defendant was initially observed. A subsequent search of defendant's automobile, parked about 30--35 feet from the rear door of the tavern, uncovered a quantity of tools, a partially filled bottle of whiskey, and two money bags with the name of a local bank imprinted upon them. The search of the automobile was pursuant to a warrant, and neither the search nor the regularity of the issuance of the warrant is challenged here.

Upon trial of the case, several police officers testified the tools found at the scene and in defendant's auto were similar to tools found at other breakings and enterings and were similar to the type of tools which would, or could, be used as burglar tools for the purpose of accomplishing a breaking and entering.

Defendant assigns two errors as bases for reversal, asserting: (1) trial court erred in overruling defendant's objections to testimony offered by the State on the grounds there was insufficient foundation in the record for the police officers to testify as experts on the subject as to whether the tools found were burglar tools, and (2) that the questions by which the State sought to elicit the opinions of the police witnesses were not proper in form or substance.

I. Defendant's first question is whether the tools found at the scene and in defendant's car were properly characterized as burglar tools and whether the characterization of them as such should have been the subject of opinion evidence.

In State v. Mayhew (Iowa 1969), 170 N.W.2d 608, 619, this court said:

'* * * (T)he receipt of opinion evidence, whether lay or expert, rests largely in the trial court's discretion and we are loathe to interfere with the exercise thereof unless it has been manifestly abused to the prejudice of the complaining party. (citations).'

In the matter before us the subject of the opinion testimony was whether certain tools would or could be used as burglar tools.

In Grismore v. Consolidated Products Co., 232 Iowa 328, 343--344, 5 N.W.2d 646, 655, this court said:

'There are many matters of scientific investigation and specialized knowledge in the fields of the professions, trades, business, industry, art, and other endeavors where the minds of those not learned therein necessarily grope but blindly. Expert opinion in such cases is indispensable to aid the jurors in reaching a correct conclusion, and the fact that the matter inquired about is a vital and controlling fact in the trial, or is even the ultimate fact, which the jury are to pass upon and determine, is no reason why the opinion should not be received.'

The foregoing excerpt from Grismore was quoted with approval by this court in State v. Jiles, 258 Iowa 1324, 1331, 142 N.W.2d 451, 455. See also 31 Am.Jur.2d, Expert and Opinion Evidence, § 18, pp. 513--514; 32 C.J.S Evidence § 546(65), pp. 272--274; 7 Wigmore on Evidence, Third Ed., § 1923, pp. 21--22.

Tools used to accomplish breakings and enterings are commonly called burglar tools, and consist of tools which may also have a perfectly legitimate use, such as hammers, screwdrivers, punches, pliers, and prybars. See State v. LaMar, 260 Iowa 957, 962, 151 N.W.2d 496, 499; Mahar v. Lainson, 247 Iowa 297, 299--300, 72 N.W.2d 516, 518; 13 Am.Jur.2d, Burglary, § 74, p. 368.

Tools found at the scene of a crime may properly be described as burglar's tools. State v. LaMar, Supra, 260 Iowa at 962, 151 N.W.2d at 499; State v. Harless, 249 Iowa 530, 534, 86 N.W.2d 210, 213.

The fact the tools introduced in evidence in this case may also have legitimate uses makes it difficult to determine whether they are indeed bruglar tools. We conclude it was proper to permit opinion testimony of properly qualified witnesses as to whether the tools found at the scene of the attempted breaking and...