State v. Losee

• Decision Date: 22 August 1984
• Docket Number: No. 83-623,83-623
• Citation: 354 N.W.2d 239
• Parties: STATE of Iowa, Appellee, v. Jack Leroy LOSEE, Jr., Appellant.
• Court: Iowa Supreme Court

Page 239

354 N.W.2d 239

STATE of Iowa, Appellee, v. Jack Leroy LOSEE, Jr., Appellant.

No. 83-623.

Supreme Court of Iowa.

Aug. 22, 1984.

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

Thomas J. Miller, Atty. Gen., Marcia Mason, Asst. Atty. Gen., and James Smith, Asst. County Atty., for appellee.

Considered by REYNOLDSON, C.J., and UHLENHOPP, HARRIS, LARSON and SCHULTZ, JJ.

SCHULTZ, Justice.

Defendant, Jack Leroy Losee, Jr., appeals from his conviction and sentence on two counts of first degree murder in violation of Iowa Code sections 707.1-.2. Defendant contends: (1) the trial court infringed his constitutional right of confrontation by refusing to allow defendant to impeach the State's primary witness with evidence of the results of a polygraph examination; (2) the trial court erred by requiring the jury to determine whether the prosecution's star witness was an accomplice rather than deciding the issue as a matter of law; and (3) he received ineffective assistance of counsel. We do not agree with defendant's contentions and affirm the trial court.

Defendant was convicted of killing Edwin Rains and Betty Thompson, both residents of Des Moines. Rains and Thompson shared an apartment with another woman who apparently moved out on the evening before the murders occurred. These three individuals worked for a local janitorial service. Defendant also was employed briefly by this firm; Rains was his immediate supervisor.

The execution-style murders allegedly occurred in the early morning hours of March 30, 1982. Thompson's body was discovered at 4:15 a.m. on March 30 in the middle of a road in southeast Des Moines. She died from a single gunshot wound to the head. Rains' body was not discovered until his car was recovered from the Des Moines river on July 26, 1982. He too died from gunshot wounds to the head and back.

Little physical evidence connected defendant to the crimes. Although both victims were shot with .38 caliber bullets and the markings on each bullet were similar, the ballistics expert was unable to determine whether the bullets had been fired from the same gun. Additionally, the murder weapon was never recovered, and two guns owned by defendant definitely were excluded as the instrument of death. A set of tire tracks at the scene of Thompson's murder did not match the tire tracks of the car defendant allegedly was driving on the night of Thompson's death, and the wheel base of the tracks did not match the wheel base of defendant's car. Contra, no direct evidence indicated that these tire tracks originated before or after Thompson's death or were in any way associated with it.

Defendant's connection to the murders rested on the testimony of three witnesses who were granted immunity from prosecution for testifying. Two witnesses, Jack Whitney and Dawn Fetters, testified against defendant for the dismissal of unrelated charges. Both testified that defendant told them he had killed Rains and Thompson. The State's star witness was a fifteen-year-old boy, Billy Rickabaugh, who claimed to have been present at both murders. Billy testified he was present when Losee shot Rains and pushed his car in the Des Moines River. He was also present when Losee returned to the victims' apartment, escorted Betty Thompson into his car, and subsequently shot her on a lonely road in southeast Des Moines.

The only evidence defendant could produce refuting Rickabaugh's version was the testimony of the taxi driver who allegedly picked up defendant and the boy in downtown Des Moines where they had walked after dumping Rains' car in the river and drove them back to the area of the victims' apartment. The taxi driver admitted picking up two individuals on the morning of the murder, but claimed he did not recognize one of them as the defendant, whom he had known for several years. Conversely, he acknowledged that he was not certain the individual in the backseat of his cab had not been defendant.

I. Right to confront witnesses. Defendant urges that the trial court committed error when it refused to permit defendant to impeach a State's witness by presenting evidence that the State had administered a polygraph test to the witness. During the trial defense counsel informed the court out of the presence of the jury that he intended to call Michael Leeper, a police polygraph operator, to testify concerning the results of a polygraph test given to the fifteen-year-old witness, Billy Rickabaugh. Defendant's counsel made an offer of proof which indicated Leeper would testify that Rickabaugh's test results were inconclusive: the witness gave the same answer to certain repeated questions, but his reactions, as measured by the machine, were different. Over the State's objection the court allowed defendant to present the examiner as a witness, but prohibited mention of the polygraph test. The examiner testified that Rickabaugh attributed his difficulty in giving a complete statement to his drinking, smoking "pot" and using "acid." He further testified that Rickabaugh expressed uncertainty on some details and recalled Betty Thompson's death like a picture in his mind--having heard, but not seen, the shooting.

The fourteenth amendment to the United States Constitution makes the confrontation clause of the sixth amendment applicable to the states. Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 1069, 13 L.Ed.2d 923, 928 (1965). Consequently, in a criminal case a state court defendant has a right to confront witnesses who testify against him with evidence that discredits their testimony. Espousing confrontation rights, Losee claims that the State chose to give its own witness a polygraph test, that witness did not pass the test, and the State nevertheless presented the witness to the jury. He maintains that fundamental fairness requires that the results of the test be placed before the jury.

Defendant urges this court to apply the ruling found in United States v. Hart, 344 F.Supp. 522 (E.D.N.Y.1971). The Hart court allowed the defendant to present evidence to show that the government's key witness had failed a polygraph test reasoning that the State must disclose all material exculpatory evidence to the defense and may not knowingly present false evidence. Id. at 523-24. We do not agree that Rickabaugh failed the polygraph test; the evidence shows that it was inconclusive. Not only is Hart distinguishable on its facts, but we also agree with another court that the decision concerning the admissibility of the polygraph test is "unpersuasive." United States v. Earley, 505 F.Supp. 117, 119-20 (S.D.Iowa 1981) (citing United States v. Alexander, 526 F.2d 161 (8th Cir.1975)), aff'd, 657 F.2d 195 (8th Cir.1981).

We also do not agree that fundamental fairness requires the admission of the witness's contradictory reactions to the polygraph test. The fact that the test results tend to be exculpatory does not remove the taint that renders such evidence inadmissible. We have consistently held that the results of a polygraph test may be admitted into evidence only by stipulation of the parties. State v. Marti, 290 N.W.2d 570, 586 (Iowa 1980); State v. Conner, 241 N.W.2d 447, 457 (Iowa 1976); see also Matter of Fairbanks, 287 N.W.2d 579, 582 (Iowa 1980). These holdings are premised on the ground that "[i]t has not been demonstrated that this field has been subjected to the standards, policing and discipline which are necessary in a science involving such pretentious and awesome subject matter." Conner, 241 N.W.2d at 459. A defendant's due process right to present evidence in a criminal action does not prevent the court from following evidentiary rules that are designed to assure both fairness and reliability in the ascertainment of guilt and innocence. Id. at 458 (quoting Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297, 313 (1973)). We have indicated in Conner that "[t]o sustain defendant's constitutional attack on the trial court's ruling excluding defendant's proffered polygraph evidence, it would be necessary for us to determine that the rule excluding unstipulated polygraph evidence does not rest on considerations of fairness and reliability." 241 N.W.2d at 458.

We continue to adhere to our rule allowing admission of polygraph evidence only by stipulation of the parties. The trial court did not err in excluding this evidence.

II. Accomplice instruction. In its jury instructions the trial court did not state that Rickabaugh was an accomplice as a matter of law. An instruction defined the term "accomplice" and informed the jury that the testimony of an accomplice must be corroborated pursuant to Iowa Rule of Criminal Procedure 20(3). Defendant makes no objection to the definition or the statement of law. He claims the jury should not have been allowed to determine the issue, but should have been instructed as a matter of law that Rickabaugh was an accomplice whose testimony required corroboration.

We defined accomplice in State v. Jennings, 195 N.W.2d 351, 356-57 (Iowa 1972):

An accomplice is a person who willfully unites in, or is in some way concerned in the commission of a crime. The general rule for determining whether a witness is an accomplice is if he could be charged with and convicted of the specific offense for which an accused is on trial.

But something more than mere knowledge that a crime is contemplated, or mere personal presence at the time and place where committed, must be shown in order to make one an accomplice. And it must be established by a preponderance of the evidence that a witness was in fact an accomplice.

(citations omitted). When the facts concerning a witness's culpability are not disputed or susceptible of different inferences, the court must decide whether the witness is an accomplice as a matter of law; when these facts are disputed or susceptible of different inferences, the jury must...