State v. Parker

Decision Date06 June 1967
Docket NumberNo. 51940,51940
Citation151 N.W.2d 505,261 Iowa 88
PartiesSTATE of Iowa, Appellee, v. William PARKER, a/k/a William Alexander, Appellant.
CourtIowa Supreme Court

William C. Ball, Waterloo, for appellant.

Richard C. Turner, Atty. Gen., and Stephen C. Robinson, Asst. Atty. Gen., for appellee.

STUART, Justice.

A Blackhawk County jury convicted defendant of second degree murder in violation of section 690.1, Code of Iowa. He and Herbert Roby had quarrelled at a teenage party in Waterloo. They confronted each other outside the home after the party. Roby was shot in the abdomen and chest with a .22 calibre pistol. The chest wound was fatal. Defendant admitted the shooting but claimed it was in self-defense. He testified he knew deceased had, on prior occasions, carried a razor and thought he was reaching for a razor when he shot him. He appealed from the judgment on the jury verdict and has assigned 6 errors.

I. Parker claims the trial court erred in admitting into evidence certain exhibits purporting to be some of the items of clothing worn by deceased at the time of the shooting and certain personal effects removed from the body at the autopsy. His objection was directed toward the foundation testimony relating to the identification and condition of the exhibits and was primarily based on an alleged failure to prove proper chain of custody.

'* * * it must appear that a continuous chain of control was exercised over any such exhibit which is offered into evidence, and that the exhibit was in substantially the same condition when offered as when seized. If there is sufficient proof that the exhibits offered were the same as those taken, and their contents were in the same condition when analyzed and introduced as when taken, they are admissible. The preliminary proof in this respect is for the court. (Citing cases)' State v. Perry, 246 Iowa 861, 869--870, 69 N.W.2d 412, 417.

The exhibits in question are exhibit 6, a polo shirt; exhibit 7, a 'T' shirt; exhibit 11, man's boxer shorts; exhibit 12, trousers; exhibit 15, two black sox; exhibit 16, a billfold; and exhibit 17, a hairbrush and a medallion on a chain. There is evidence the deceased was wearing a black banlon polo shirt, a white 'T' shirt and dark trousers at the time he was shot. A nurse who was present when deceased was brought to the hospital testified he was wearing a jacket (exhibit 5, not involved here), a short sleeved polo shirt type of sweater with a 'T' shirt underneath. She identified exhibit 7 as the 'T' shirt they cut away from deceased's injury. The supervising nurse testified no items of clothing other than shoes and a jacket were removed from deceased's body in her presence.

Deceased died in the hospital between 11:20 and 11:30. Dr. Paul O'Keefe, Blackhawk County medical examiner arrived about 12:10. He found the body clothed in a dark blue heavy sport shirt, white undershirt, printed shorts and dark trousers. 'The only items of personel property found on the body were a purse or billfold and a driver's license. * * * The clothing at that time was left on the body and the witness directed that the body be placed in the morgue of the hospital. At approximately 8:30 on the morning of the 7th of March, 1967, an autopsy was performed on the body and the clothing removed' under the supervision of the witness and given to the police. He identified the dark trousers by the penetrating hole in them. He did not attempt to identify any of the other exhibits further.

Officer Dirksen testified he was present at the autopsy. He took charge of the clothing and personal effects as the doctors removed them from the body, initialled each item and sealed it in an airtight bag. He saw the medallion around the neck of the deceased in the autopsy room. It was removed in his presence. He first saw the hairbrush on a small table in the autopsy room with the objects of clothing he was wrapping up. He identified each exhibit as the item received by him from one or the other of the two doctors conducting the autopsy and testified they were in substantially the same condition at the trial as when he received them.

There does not appear to be any question raised about the chain of control after these exhibits came into the hands of the police. The break in the chain of custody about which defendant complains occurred between the time the medical examiner observed the body shortly after midnight and the time of the autopsy at 8:30 in the morning.

There is no testimony explaining how the body reached the morgue or what security measures were taken to prevent anyone from molesting it in the 8 hour interval. However, under all the circumstances here, we are not prepared to say this fact rendered the evidence inadmissible. The clothing removed from the body answered the description and condition of that observed on the deceased the night before. The bullet holes corresponded with the wounds on the body. It would be highly unlikely that any one would have the desire or opportunity to come into the hospital morgue and change the clothing on the corpse. It would be hypertechnical to exclude the exhibits offered here under these circumstances. The body remained in the control of the hospital and would not have been readily accessible to outside personnel.

Defendant contends the introduction of the billfold, hairbrush and medallion tends to prove deceased was not carrying a razor at the time of the shooting. No razor was ever found. While the defendant could argue it would have been possible for someone to remove the razor from the deceased's body during this 8 hour period, we do not believe this amounts to such lack of control or custody as to make the exhibits inadmissible. Possession of the body, clothing and personal effects thereon 'was sufficiently accounted for by witnesses testifying on the trial to negative any reasonble claim that they had been changed or tampered with'. State v. Whitbeck, 145 Iowa 29, 35, 123 N.W. 982, 984. The following cases are not factually similar, but in each instance we held there was a sufficient showing of a chain of custody and control. State v. Jones, 233 Iowa 843, 849, 10 N.W.2d 526; State v. Hodge, 252 Iowa 449, 463, 105 N.W.2d 613; State v. Drosos, 253 Iowa 1152, 1161, 114 N.W.2d 526; State v. Post, 255 Iowa 573, 581, 123 N.W.2d 11; State v. Perry, 246 Iowa 861, 869--870, 69 N.W.2d 412.

In State v. Hossack, 116 Iowa 194, 202, 89 N.W. 1077, and State v. Weltha, 228 Iowa 519, 524, 292 N.W. 148, the chain of custody was not sufficiently established. They are also factually dissimilar. See also 22A C.J.S. Criminal Law § 709, p. 946 et seq.

II. Defendant claims his written statement exhibit 1 should not have been received in evidence because it was 'unreliable, untrustworthy and not the true, accurate and complete substance of defendant's statements to Detectives Kane and Murray'. He challenged the statement by a motion to suppress, objections to its admissibility and exceptions to instructions.

We do not understand he claims the statement was involuntary or that he was not adequately advised of his constitutional rights. The record would not support such claim. Defendant signed a 'waiver' which informed him in writing of his rights and in which he acknowledged having been so advised orally. Officers Kane and Murray interviewed him for about one hour and forty-five minutes. His mother was present during the interview except for a brief period when she left the room after becoming ill. Murray took notes in long hand from which he typed the statement. It was intended to include: '* * * the basic facts of what happened, as to what the defendant said had happened, his version of what happened, is--actually in short form, is not our entire conversation. This is what he said to be true, what we took to be true from him.' Before the statement was signed copies were given defendant and his mother. It was read to him and he had the opportunity to read it himself.

Parker claims exhibit 1 does not contain material statements favorable to him which he made during the interview. Two instances are called to our attention relating to circumstances supporting his claim of self-defense.

Exhibit 1 contained the statement that prior to the shooting deceased started walking toward defendant with his right hand in his pocket and 'although Roby had his hand in his pocket, I never did see him with a gun or knife or any other weapon'.

On direct examination Murray testified Parker first told them: 'deceased had a razor in his hand and after talking to him about the razor the defendant then said the deceased did not have a razor and did not see him with a weapon of any kind although the defendant did state that he had known the deceased to carry a razor.'

On cross-examination Murray testified: 'At no time during the evening did he ask the defendant whether he thought the deceased had a razor nor did he ask the defendant whether he thought the deceased had a razor because of the deceased's actions. * * * The witness did not ask the defendant whether he was suffering under the apprehension that the deceased had a razor that evening.'

Officer Kane's testimony was substantially the same. Parker testified: 'The police did not ask him why he shot the deceased. He told the police that he had known the deceased to carry a knife or razor. They ask him if he had seen a knife or razor that night and he told them, no, he had seen no weapon. He did tell them about the deceased putting his right hand in his pocket. The police did not ask him what he was thinking about or why he pulled the gun. * * * He actually told the police he had seen the deceased with a razor before but did not see him with a weapon on that night. The police did not ask him whether or where he had seen the deceased with a weapon before.'

There is little dispute in the foregoing testimony. Defendant does not claim he told the officers he...

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