State v. Puffinbarger, 94-1498

• Decision Date: 22 September 1995
• Docket Number: No. 94-1498,94-1498
• Citation: 540 N.W.2d 452
• Parties: STATE of Iowa, Appellee, v. Jason Allen PUFFINBARGER, Appellant.
• Court: Iowa Court of Appeals

Page 452

540 N.W.2d 452

STATE of Iowa, Appellee, v. Jason Allen PUFFINBARGER, Appellant.

No. 94-1498.

Court of Appeals of Iowa.

Sept. 22, 1995.

John A. Pabst of the Pabst Law Firm, Albia, for appellant.

Thomas J. Miller, Attorney General, Robert P. Ewald, Assistant Attorney General, and Charles A. Stream, County Attorney, for appellee.

Considered by DONIELSON, C.J., and HAYDEN and CADY, JJ.

HAYDEN, Judge.

Shortly before 1 a.m. on December 12, 1993, four shotgun slugs penetrated the home of Jerry McLandsborough in rural Cedar, Iowa. Jenevieve McLandsborough heard the gunshots and looked out the front window. She saw the tail lights of a slow moving vehicle which then suddenly sped away. Jenevieve noted it was a full-sized car with a loud muffler. The McLandsboroughs placed a 911 call.

Shortly after the police received the 911 call, Officer Nord, driving northbound towards the Eddyville High School, met a car traveling southbound with a loud muffler. He turned around and followed the car to an Amoco gas station. Three men, Jeremy Nichols, Ronald Eakins, and Jason Puffinbarger, were occupants of the vehicle. Eakins was the driver. They gave Officer Nord and another officer permission to search the vehicle. The officers found a twelve-gauge shotgun, a sawed off twenty-gauge shotgun, and a regular twenty-gauge shotgun. They also found large quantities of ammunition. The twelve-gauge shotgun was loaded with four shells and was still warm as though it had recently been fired.

After the search, Nichols, Eakins, and Puffinbarger each gave statements to the police. Nichols made statements Puffinbarger shot the gun. Later at trial he testified his original statements were lies. Puffinbarger provided a written statement, claiming he got into Eakins' car in Kirkville and drove to Eddyville, where they were stopped by Officer Nord. Puffinbarger maintained at no time was a gun discharged from the car while he was a passenger. Eakins gave two written statements. In his first statement, Eakins claimed Puffinbarger stated he wanted to shoot at the McLandsboroughs and pressured Nichols into shooting one of the guns. In his second statement, Eakins indicated Puffinbarger and Nichols were the individuals who shot at the McLandsborough home. Both of Eakins' statements tend to exonerate him from any wrongdoing. He stated he told Nichols and Puffinbarger not to shoot the guns.

All three men were charged by trial information with terrorism and possession of an offensive weapon. Nichols, who was sixteen years of age, entered a plea bargain with the State whereby he was placed on probation in exchange for his testimony. At trial, Nichols testified he had been riding around with Eakins on the nights of December 11, 1993, drinking beer and shooting at traffic signs. He claimed later in the evening they picked up Puffinbarger, who sat in the back seat. While they were driving from Fremont toward Eddyville, the three men had a discussion about shooting the McLandsborough home. Puffinbarger objected to this testimony, claiming it was hearsay. The objection was overruled on the basis a conspiracy was proven placing the statements under the 801(d)(2)(E) exception to hearsay.

The State also attempted to introduce Eakins' written statements to police even though Eakins was not going to testify. Puffinbarger objected to admission of the written statements on the grounds they were cross-accusatory statements based on hearsay. Additionally, Puffinbarger argued admission of Eakins' statements violated his Sixth-Amendment right to confront a witness because Eakins did not take the witness stand. The objections were overruled, and the written statements were introduced into evidence.

Following the close of the State's evidence Puffinbarger moved for a directed verdict and renewed an earlier motion to sever his trial from Eakins'. He also reasserted denial of his right to confront Eakins. Alternatively, he requested a limiting instruction stating the jury could only consider Eakins' statements in reference to Eakins' guilt or innocence. After the close of all evidence, the district court provided instructions to the jury. Puffinbarger requested instructions on lesser-included offenses. Lastly, he motioned for acquittal and a mistrial. All these motions were denied. The jury found Puffinbarger guilty as charged. The district court sentenced Puffinbarger as a forcible felon and imposed the mandatory minimum on each count. Puffinbarger appealed.

Puffinbarger argues: (1) the district court erred in admitting the cross-accusatory statements of Eakins because they are hearsay and also violated his Sixth Amendment right to confront a witness against him; (2) in the alternative, if the cross-accusatory statements were admissible, the district court should have granted his request for a limiting instruction regarding Eakins' statements; (3) the district court erred in admitting the statements of Jeremy Nichols because those statements were hearsay; (4) the district court should have given the jury an instruction on assault as a lesser-included offense to terrorism; (5) the district court should have granted his motion for judgment of acquittal; and, (6) the district court erred in sentencing him as forcible felon.

I. Standard of Review.

Our review of Puffinbarger's Sixth Amendment claim is de novo. When constitutional safeguards are involved, the court is obliged to make its own evaluation of the totality of the circumstances. State v. Baccam, 476 N.W.2d 884, 885 (Iowa App.1991). With respect to all other issues, our review is for the correction of errors of law. Iowa R.App.P. 4. On evidentiary issues, we review for an abuse of discretion. State v. Halstead, 362 N.W.2d 504, 506 (Iowa 1985). In order to show an abuse of discretion, one generally must show the court exercised its discretion " 'on grounds or for reasons clearly untenable or to an extent clearly unreasonable.' " State v. Blackwell, 238 N.W.2d 131, 138 (Iowa 1976) (quoting Weeks v. Burnor, 132 Vt. 603, 326 A.2d 138, 140 (1974)).

II. Cross-Accusatory Statements by Eakins.

The district court admitted into evidence the two written statements of Puffinbarger's codefendant, Ron Eakins, implicating Puffinbarger in the shooting and referring to statements allegedly made by Puffinbarger. Eakins, however, did not take the witness stand and, consequently, was not subject to cross examination concerning the written statements. Puffinbarger asserts the written statements are inadmissible hearsay. He also argues the admission of the statements violated his Sixth Amendment right to confront witnesses against him because Eakins never took the witness stand. Puffinbarger argues the written statements should not have been admitted into evidence. Alternatively, he argues, if the statements were admissible, a limiting instruction should have been given instructing the jury to use the written statements only in determining Eakins' guilt or innocence.

Hearsay. When analyzed in accordance with the dictates of Iowa Rule of Evidence 801, Puffinbarger's contention Eakins' written statements are hearsay is correct, and the district court erred in admitting them. These written statements contained other statements allegedly made by Puffinbarger in Eakins' car on the night of the shooting. Such situations can be referred to as double hearsay or hearsay within hearsay. Where a hearsay statement includes a further hearsay statement, both statements must conform to a hearsay exception for the statement to be admissible. Iowa R.Evid. 805. See State v. Williams, 427 N.W.2d 469 (Iowa 1988). Consequently, in order for these written statements to be admissible, a hearsay exception must apply to the statements Puffinbarger made to Eakins in the car and to the written statements made by Eakins to police officers.

In this case, the first leg in the hearsay chain contains statements allegedly made by Puffinbarger to Eakins. These out of court statements were admitted to prove the truth of the matter asserted and, as such, are hearsay. The statements, however, fit under exception 801(d)(2)(A) as an admission by a party opponent. Puffinbarger made statements to Eakins implicating himself in the shooting.

The second leg of the hearsay chain is the written statements made by Eakins to police officers. The relevance of these written statements depends on the truth of the matters asserted and, as such, they are hearsay. This leg does not fit an exception to the hearsay rule because, despite the State's arguments, the statements (1) are not statements by a co-conspirator under 801(d)(2)(E) and, (2) are not admissions by a party opponent under 801(d)(2)(A).

Under 801(d)(2)(E), a statement is not hearsay if it is offered against a party opponent, and is a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. Iowa R. Evid. 801(d)(2)(E). To admit a statement under this rule, the State must establish by a preponderance of the evidence: (1) a conspiracy existed; (2) the defendant and declarant were part of the conspiracy; and, (3) the declaration was made during the course and in furtherance of the conspiracy. United States v. Escobar, 50 F.3d 1414, 1423 (8th Cir.1995). The burden is on Puffinbarger to show the conspiracy terminated before Eakins made the inculpatory statements. State v. Beckett, 383 N.W.2d 66, 68 (Iowa App.1985). Although we do not determine whether the first two requirements were met, we are certain the third was not met.

Eakins' written statements were not made during the course or in furtherance of a conspiracy. Although Iowa courts have held the conspiracy may continue into a concealment phase, id., such is not the case here. A conspiracy ends where the central criminal purposes have been attained. Id. "A conspiracy is deemed to have ended when the last objective sought is achieved ..." or "when all co-conspirator have been arrested." Id. (quoting United...