State v. Ubben

• Decision Date: 05 May 1971
• Docket Number: No. 54381,54381
• Parties: The STATE of Iowa, Appellee, v. Michael Dean UBBEN, Appellant.
• Court: Iowa Supreme Court

Page 625

186 N.W.2d 625

The STATE of Iowa, Appellee, v. Michael Dean UBBEN, Appellant.

No. 54381.

Supreme Court of Iowa.

May 5, 1971.

McCarthy & Hart, Davenport, for appellant.

Richard C. Turner, Atty. Gen., Max A. Gors, Asst. Atty. Gen., and Edward N. Wehr, County Atty., for appellee.

RAWLINGS, Justice.

Charged with the crime of murder, defendant entered a not guilty plea. Trial jury found him guilty in the second degree. From sentence accordingly entered he appeals, challenging admission in evidence of three real or demonstrative exhibits. We affirm.

By information the State alleged Michael Dean Ubben, on January 20, 1970, shot and killed his wife Sandra. Defendant admitted the shooting, but claimed it was accidental.

In course of trial Exhibits 9, 10 and 13, being respectively the victim's coat, culottes and a spent bullet removed from her body, were introduced in evidence over defendant's objection.

The sole error relied on for reversal is, in substance, trial court erred in allowing evidential use of the aforesaid exhibits because the State failed to establish a foundational unbroken chain of possession.

This compels an examination of the factual situation.

Exhibits 9, 10 and 13 were sent to the Federal Bureau of Investigation Laboratory in Washington, D.C., for analysis. Up to that point they were totally unaltered and their chain of possession is not questioned. These exhibits were received by F.B.I. Agent Allison Semmes. His testimony discloses the coat and culottes were tested by him for presence of blood.

F.B.I. Agent James Daniel Beck received these three items from Semmes. Testifying on rebuttal, this witness stated he conducted a chemical and microscopic examination of the coat for gun powder residues, but found none. His inspection of the spent bullet, Exhibit 13, revealed it was fired from a 25 caliber automatic hand weapon as opposed to a revolver. This witness did not say the exhibits were, at time of trial, in substantially the same condition as when inspected by him. Agent Beck might well have testified the articles involved were in the same condition when offered in evidence as they were when received by him, if such is the fact. State v. Grady, 183 N.W.2d 707, 711 (Iowa).

On the other hand Agent Semmes testified: 'I was the lead examiner. I received packages of items of evidence from both the Rock Island, Illinois Police Department and the Davenport, Iowa Police Department. These packages were received in good condition at the time I received them. The items were pretty much retained by me or under my jurisdiction and control. * * * I examined the coat and culottes for blood. I found Group 'O' human blood on each item. * * * I have examined the coat which is State's Exhibit 9. I notice some initials on that, A.C.S. They are mine. There are other markings on the coat that I could tell that we had them as evidence. I placed my initials on each item itself. There are pieces of tape with arrows on them which are stapled on the coat. This is my work. The purpose was to designate the areas on the coat that I tested for the presence of blood. I removed a portion of it. There were other holes in the coat, that is, other than what I had made. * * * The coat is a rather loose weave coat. The hole in the left shoulder area is a different hole from those holes I cut in the garment by which I placed numbers or letters to indicate where I placed them. However, there is an additional hole which I did not cut in the garment which appears to be a wear hole. The hole I have talked about in the coat was one that I did not put there myself. These items are in the same condition substantially now as they were at all times when I had general jurisdiction and control of them in the lab.' (Emphasis supplied).

Other witnesses testified to the same effect.

Donald Joseph Vieger, Detective Sergeant, Davenport Police Department, found the body, was present at a subsequent autopsy, received Exhibits 9 and 10 from Dr. Ketelaar, and made no changes in them. In course of his testimony Officer Vieger stated: 'Exhibits 9 and 10 are in substantially the same condition now as when they were removed from the body.' (Emphasis supplied).

With regard to the spent bullet, Exhibit 13, Officer Carl Meyer, a detective, Davenport Police Department, being recalled, related he was present when that item was removed from the body of Sandra Ubben. This witness said: 'The exhibit itself is a small calibre slug. I can identify it since I placed an 'M' on the base of this slug, on the slug itself. I first saw that slug at the autopsy room at St. Luke's Hospital. I was present when the autopsy was performed on the body of Sandra Ubben, and Dr. Ketelaar gave me the slug. I took it to the Davenport Police Station. The slug is in substantially the same condition now as it was when I got it from Dr. Ketelaar.' (Emphasis supplied).

Moreover, Eugene Sternberg, a Davenport Police Department Lieutenant, custodian of property and evidence, testified he received Exhibits 9 and 10 from Detective Vieger and another officer on February 1, 1970. Mr. Sternberg sent them to the F.B.I. laboratory. He stated: 'I did not make any changes or alterations of any kind or nature in and to any of these exhibits. They are in substantially the same condition now as they were when I first received them. There are some other...