State v. Ware, 68554

• Decision Date: 21 September 1983
• Docket Number: No. 68554,68554
• Citation: 338 N.W.2d 707
• Parties: STATE of Iowa, Appellee, v. Albert Wayne WARE, Appellant.
• Court: Iowa Supreme Court

Page 707

338 N.W.2d 707

STATE of Iowa, Appellee, v. Albert Wayne WARE, Appellant.

No. 68554.

Supreme Court of Iowa.

Sept. 21, 1983.

Kent A. Simmons, Davenport, for appellant.

Thomas J. Miller, Atty. Gen., John P. Messina, Asst. Atty. Gen., and William E. Davis, Scott County Atty., for appellee.

Considered by UHLENHOPP, P.J., and HARRIS, McGIVERIN, LARSON, and WOLLE, JJ.

WOLLE, Justice.

Defendant Albert Ware (Albert) appeals from his conviction by jury of murder in the first degree and robbery in the first degree. He contends that there was insufficient evidence independent of accomplice testimony to sustain the convictions. He also challenges the trial court's rulings on several pretrial motions and evidentiary questions that arose during the trial. Because we find no merit in any of Albert's contentions, we affirm.

Albert and his half-brother Daniel Ware (Daniel) were jointly charged, jointly tried, and both convicted of robbing and killing one Eugene Tappa on the night of November 19, 1981 in Davenport, Iowa. We are today filing our opinion deciding the issues raised by Daniel's appeal, State v. (Daniel) Ware, 338 N.W.2d 717 (Iowa 1983); the factual background and many of the legal issues are the same in both cases.

Eugene Tappa, the victim of the crime, was the proprietor of the Sports Page Lounge in Davenport. According to the testimony of the accomplice Dennis Williamson (Williamson), Albert, Daniel and Williamson knew that Tappa routinely brought a large amount of cash to his bar on Thursday nights to cash payroll checks. The three first planned to steal the money from the trunk of Tappa's car while he was visiting at his girlfriend's house. Daniel phoned the lounge and was told Tappa had not arrived, indicating to the three that his car would be at his girlfriend's house. The three went to the girlfriend's house, found Tappa's car, and Williamson used a coat hanger to enter the front seat of the car. Williamson tried to "hot-wire" the trunk release mechanism inside the glove compartment of the car but was unsuccessful. The three left the car and returned to Daniel's place of business where Daniel again phoned the lounge. Learning that Tappa would arrive within a half hour, the three then decided to rob him in the lounge parking lot. Albert and Williamson were to accost Tappa while Daniel was to wait in the getaway truck parked nearby. All were armed, Williamson with a .25 caliber weapon and Albert and Daniel with .38 caliber handguns.

Williamson testified that when Tappa arrived at the parking lot, Albert ran to the car, put his handgun to Tappa's stomach, and told Williamson to grab the money. Williamson took the money bag from Tappa and ran down the alley. He became frightened, however, when he heard a "pop" which sounded like Albert's gun, so he did not stop at Daniel's truck but instead ran with the money bag through alleys to Daniel's auto repair shop. When Albert and Daniel returned, the three counted and divided the money. Williamson further testified that Albert told him at that time that he shot Tappa although "he didn't mean to."

I. Sufficiency of the Corroborative Evidence. Defendant contends that the testimony of Williamson was not sufficiently corroborated by other evidence. The State relies upon three pieces of corroborative evidence: (1) ballistics evidence that Tappa was shot by a bullet received by Albert from one David Ogburn; (2) independent evidence that the glove box was broken in the way Williamson described; and (3) testimony by persons in the lounge about Daniel's phone calls just before the attempts to take Tappa's money bag.

Iowa Rule of Criminal Procedure 20(3) (1981) provides:

Corroboration of accomplice or person solicited. A conviction cannot be had upon the testimony of an accomplice ... unless corroborated by other evidence which shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.

Corroborative evidence need not be strong and need not be entirely inconsistent with innocence. The existence of corroborative evidence is a legal issue, but its sufficiency is ordinarily a question of fact for the jury. State v. Dickerson, 313 N.W.2d 526, 529 (Iowa 1981). The requirement of corroborative evidence is met "if it can fairly be said the accomplice is corroborated in some material fact tending to connect the defendant with the commission of the crime." State v. Vesey, 241 N.W.2d 888, 890 (Iowa 1976); State v. Dickerson, 313 N.W.2d at 529. Corroboration is required not only to provide a firm connection between the accused and the crime but also to enhance the credibility of an accomplice whose involvement in the crime and self-interest in blaming the defendant severely erode his believability. State v. Cuevas, 281 N.W.2d 627, 629 (Iowa 1979).

Here, the independent evidence concerning the glove box and phone calls by Daniel to the lounge do tend to bolster the credibility of the accomplice Williamson. The critical corroborative testimony connecting Albert to the crime, however, is that concerning bullets he received from Ogburn. Because Albert contends Ogburn was himself an accomplice, a further recitation of facts is necessary.

David Ogburn, an acquaintance of Albert, testified that several weeks before Tappa was shot, Ogburn had given Albert twelve .38 caliber wadcutter bullets which belonged to Ogburn's father. Chemical analysis of the wadcutter bullet removed from Tappa's body and bullets received from Ogburn's father showed that they had the same elemental composition. FBI ballistics expert, Donald Havekost, opined that the bullet found in Tappa was manufactured from the same batch of lead and at the same time and place as those in Ogburn's styrofoam holder from which David Ogburn had taken the wadcutters given to Albert. From this evidence the jury could reasonably have concluded that Albert shot Tappa with the bullet Ogburn gave him.

Albert argues that Ogburn was himself an accomplice as a matter of law, and since his testimony was not itself corroborated, it cannot be used to corroborate Williamson's testimony. The issue of who is an accomplice, however, was here a question of fact for the jury. Neither the evidence nor the court's instructions to the jury generated a jury question as to whether Ogburn was an accomplice. The jury instructions refer only to Williamson as an accomplice, and the record is entirely silent on whether Ogburn had an intent to aid the robbery in any way by providing bullets to Albert. There is no evidence tending to show that Ogburn knew how Albert planned to use the bullets, if indeed Albert planned to use the bullets in crime when he first received them from Ogburn.

We hold that the evidence tending to connect Albert with wadcutter bullets just like the one found in Tappa's body sufficiently corroborated Williamson's testimony.

II. Was Sandy Cady Albert's Common-Law Wife? Albert contends that the witness Sandy Cady was his common-law wife and was therefore incompetent to testify, with their conversations accordingly privileged. Iowa Code §§ 622.7, .9 (1981). The trial court held a separate hearing on the matter outside the presence of the jury, then found that Albert had not established the existence of a common-law marriage. The trial court committed no error by so ruling. The party claiming the existence of a common-law marriage must prove all elements of such a marriage by a preponderance of clear, consistent and convincing evidence. In Re Estate of Dallman, 228 N.W.2d 187, 190 (Iowa 1975). The trial court's findings of fact on whether or not a marital relationship exists have the effect of a jury verdict. State v. Arnold, 225 N.W.2d 120, 121 (Iowa 1975). There was substantial evidence supporting the trial court's finding of no common-law marriage. Sandy Cady and Albert filed separate, single-status tax returns for 1981, maintained separate bank accounts, owned little jointly held property, and produced no witnesses other than themselves to testify that they had held themselves out as husband and wife. Because Albert failed to prove that he was married to Sandy Cady, she was competent to testify and her conversations with him were not subject to a spousal privilege.

III. Impeachment of the Witness Cady. Albert contends that the trial court erred in admitting into evidence a written statement given by Albert's girlfriend Sandy Cady to Detective Hammes of the Davenport police department. A few months after Tappa was shot and killed, Cady gave an oral and subsequent handwritten statement implicating Albert, Daniel and Williamson in the robbery and murder. Cady was listed in the minutes of testimony and called as a trial witness by the State. She first denied having knowledge of facts implicating Albert. Confronted with her previous statements, she said she had been forced to give the statements, that nothing in them was true. She further testified that Albert had been home with her the night of the murder, thereby supporting his alibi defense. After the prosecutor had questioned her about specific parts of the statement, the handwritten statement was offered and admitted for impeachment purposes, with the trial court overruling defense counsel's objection that the statement was incompetent, irrelevant, immaterial and constituted hearsay.

On cross-examination, Cady testified further about the involuntary aspects of the statements and in further support of Albert's alibi defense. Subsequently, the State called Detective Hammes as a witness, and he was allowed to read the written statement to the jury, the court again overruling defense counsel's hearsay objection.

Albert contends that the trial court erred in allowing the statement to be admitted into evidence and read to the jury. He asserts that once Cady admitted making the statement, the purpose of impeachment was completed and...