State v. Powell, 85-1744
| Decision Date | 18 February 1987 |
| Docket Number | No. 85-1744,85-1744 |
| Citation | 400 N.W.2d 562 |
| Parties | STATE of Iowa, Appellee, v. Wayne (NMN) POWELL, Appellant. |
| Court | Iowa Supreme Court |
Charles L. Harrington, Appellate Defender, and Raymond E. Rogers, Asst. Appellate Defender, for appellant.
Thomas J. Miller, Atty. Gen., Christie J. Scase, Asst. Atty. Gen., William E. Davis, Co. Atty., and James D. Hoffman, Asst. Co. Atty., for appellee.
Considered by HARRIS, P.J., and McGIVERIN, LARSON, SCHULTZ, and WOLLE, JJ.
Wayne Powell appeals from his conviction of burglary in the second degree, Iowa Code §§ 713.1, 713.5 (1985), and his sentence as an habitual offender under section 902.8 (1985). We affirm.
In April 1985, Davenport police officers observed broken glass in the door of a beverage store. Because the glass was still falling, they concluded that a break-in had just occurred. A few minutes later, a car drove away from a convenience store across the street and was stopped by the police. The car was driven by Shawn Durrah, and the defendant, Wayne Powell, was a passenger. While checking Durrah's driver's license, an officer noted a pair of gloves and a flashlight in the car, and the two men were then detained. Durrah told the police that Powell had broken into the beverage store and had hidden cigarettes and other items from the store in the alley behind the store. The police arrested Powell, and he was charged with the burglary.
At trial, Durrah testified against Powell, and his testimony was corroborated by a criminalist who concluded that glass removed from Powell's coat was consistent with that in the broken store door.
During a lunch break in the jury's deliberations, two jurors went to a public library and examined sections in the Iowa Code defining the crimes of burglary and criminal trespass.
The jury found Powell guilty of burglary. The trial court overruled the defendant's motion in arrest of judgment, which challenged the sufficiency of the evidence, and his motion for a new trial based on the jurors' unauthorized examination of the Code.
On appeal, Powell argues that (1) Shawn Durrah was an accomplice as a matter of law, and his testimony was not sufficiently corroborated; (2) the trial court erred in refusing to grant him a new trial on the ground of jury misconduct; (3) he was denied effective assistance of counsel; and (4) the court failed to state sufficient reasons for the sentence imposed.
Powell argues that Shawn Durrah was an accomplice as a matter of law and that his testimony was not corroborated as required by Iowa Rule of Criminal Procedure 20(3).
The question of whether a person is an accomplice is one of law only when the facts are not disputed or susceptible to different inferences; when the facts are disputed, the question is one of fact for the jury. State v. Doss, 355 N.W.2d 874, 879 (Iowa 1984). In this case, the court submitted the accomplice issue to the jury. We agree that there was evidence which was susceptible to different inferences on the question, and it was therefore proper to submit it to the jury.
In any event, even if Durrah were held to be an accomplice as a matter of law, there was sufficient corroborating evidence to sustain the conviction. While the fragments of glass found on Powell could not be shown with certainty to have come from the beverage store door, they were at least consistent with it; and other evidence, including a rock used to break the glass and two boxes of cigarettes found in the alley, added substance to Durrah's account of the incident. The rule is that corroborating evidence need not be strong so long as it connects the accused with the crime and supports the credibility of the accomplice. See State v. Berney, 378 N.W.2d 915, 918 (Iowa 1985).
Powell argues that the misconduct of two jurors who researched the law so prejudiced his trial that the verdict must be set aside. He cites Iowa Rule of Criminal Procedure 23(2)(b)(2), which provides that a court may grant a new trial "[w]hen the jury has received any evidence, paper or document out of court not authorized by the court."
Granting of a new trial in such cases, however, is not automatic. The rule says the court may grant it in such a case. Our cases require that three tests be met:
(1) [E]vidence from the jurors must consist only of objective facts as to what actually occurred in or out of the jury room bearing on misconduct; (2) the acts or statements complained of must exceed tolerable bounds of jury deliberation; and (3) it must appear the misconduct was calculated to, and with reasonable probability did, influence the verdict.
State v. Cullen, 357 N.W.2d 24, 27 (Iowa 1984).
Powell has successfully met the first of these requirements, that an objective showing be made as to what occurred; it appears without question that the two jurors went to the library during a lunch break and read the Code's definition of burglary and criminal trespass. One of the jurors testified that they read the Code because they were confused about the distinction between second-degree burglary and criminal trespass. According to her, however, they "didn't find out a whole lot, just that the difference was the intent and how they entered."
Powell complains, however, that the jurors became privy to statements of law which were outside the court's instructions, and this was sufficient to require a new trial. He specifically points to the fact the jurors could have learned that burglary and criminal trespass may be committed by several different means, some of which were not supported by the evidence in the present case or included in the court's instructions. He also argues that these jurors discovered from the Code that burglary is a felony while criminal trespass is only a simple misdemeanor and that this might have influenced the verdict. See State v. Kirk, 168 Iowa 244, 261-62, 150 N.W. 91, 96 (1914). According to the testimony of the "researching" jurors, they did not learn what the difference in penalties was.
A person claiming prejudicial misconduct has the burden of proving it by competent evidence. State v. Harrington, 349 N.W.2d 758, 762 (Iowa 1984). Here, the only evidence presented by Powell on the question was in the form of statements by defense counsel. The State resisted the motion with the testimony of one of the two jurors involved and affidavits from eight others, tending to show that no information was passed on to the other jurors.
This court has examined in at least two cases the question of whether an examination of the Code by jurors constitutes grounds for a new trial. In the first case, State v. Whalen, 98 Iowa 662, 68 N.W. 554 (1896), one of the jurors read to the rest of the jury the Code provisions dealing with seduction. We held the district court was within its discretion in denying the motion for new trial saying:
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