State v. Wright

• Decision Date: 29 August 1985
• Parties: STATE of Iowa, Plaintiff-Appellee, v. Duane Eddie WRIGHT, Defendant-Appellant. 84-553.
• Court: Iowa Court of Appeals

Page 727

378 N.W.2d 727

STATE of Iowa, Plaintiff-Appellee, v. Duane Eddie WRIGHT, Defendant-Appellant.

84-553.

Court of Appeals of Iowa.

Aug. 29, 1985.

Kjas T. Long, of Gottschalk, Shinkle & Long, Cedar Falls, for defendant-appellant.

Thomas J. Miller, Atty. Gen., and Joseph P. Weeg, Asst. Atty. Gen., for plaintiff-appellee.

Considered by DONIELSON, P.J., and SCHLEGEL and HAYDEN, JJ.

DONIELSON, Presiding Judge.

The defendant and a companion, Rodney Jackson, were accused of robbing and killing a person. At their separate trials for first-degree murder, each intimated that the other had struck the fatal blows.

The defendant was convicted of first-degree murder and was sentenced to life in prison. He has appealed.

The defendant contends the trial court erred by admitting into evidence the transcript of a deposition given by his brother, Donnell Wright. Donnell testified that shortly after the crime the defendant and his companion had arrived at the brother's house with incriminating physical evidence and had made incriminating statements. The defendant contends he was prejudiced by repetitious hearsay statements contained in the deposition. He also believes the State made insufficient efforts to locate the brother and produce him at trial; the defendant asserts he was thereby prejudiced because the brother was not effectively cross-examined during the deposition proceeding. In addition, the defendant contends that if the deposition was to be admitted, the trial court should also have admitted his proposed opinion testimony by an attorney about the importance of cross-examination at trial rather than in a deposition and about the strategic value of avoiding vigorous cross-examination during a deposition so as not to educate the witness.

The defendant also contends the deposition testimony of his brother should have been suppressed because his brother's testimony was procured by illegal police conduct. The defendant alleges that his brother was the victim of an illegal police stop, an illegal search of his house, an arrest without probable cause and abusive questioning procedures. The defendant concedes that under ordinary principles of standing, he lacks standing to challenge the alleged violations of his brother's rights; however, the defendant asserts his challenge should be allowed in this case either because of the outrageousness of police conduct or because "a man's brother's mind should be a place in which a man has a reasonable expectation of privacy from police intrusion by terror."

The defendant contends the trial court erred by admitting evidence about a statement the defendant made to police while in jail. The defendant complains that the statement was made outside defense counsel's presence, even though counsel was already representing the defendant. The defendant also complains the statement was made without the benefit of current Miranda warnings, although the defendant had been given Miranda warnings upon his arrest two weeks earlier.

The defendant contends the trial court abused its discretion by admitting photographs of the victim's body and by admitting the victim's blood-soaked clothing. The defendant argues these exhibits were not relevant to any issue at trial and were highly prejudicial.

The defendant contends the trial court erred by admitting allegedly irrelevant evidence. A witness living in the general neighborhood of the crime scene testified that sometime on the night of the crime he had heard unidentified voices talking about avoiding the police.

The defendant contends that the sentence of life in prison is cruel and unusual punishment because it is disproportionate to the facts of this case. This argument rests on the defendant's allegation that his companion was the person who struck the fatal blows.

Finally, the defendant challenges several rulings on instructions. He asserts the trial court should have given his requested instruction that "passive failure to report a known crime does not render one an accomplice or render one guilty of that crime." He challenges the trial court's felony murder instructions; he asserts the court should have told the jury that he could not be convicted of murder unless he either possessed malice aforethought or knew that his companion did. He also challenges an instruction which allegedly permitted the jury to find guilt without finding a unanimous version of the facts.

I. Admission of Deposition

Defendant raises several issues regarding the use of Donnell Wright's deposition at trial. First, defendant contends admission of the deposition violated his sixth amendment right of confrontation. For reasons stated below, we uphold the trial court's ruling.

The confrontation clause requirement is met, even if the witness is not present for the trial, when the following tests are satisfied: (1) the witness is unavailable; and (2) defendant cross-examined the witness before trial. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).

A witness is not unavailable for confrontation clause purposes unless the prosecutor has made a good faith effort to have the witness present at trial. Roberts, 448 U.S. at 74, 100 S.Ct. at 2543, 65 L.Ed.2d at 613 (emphasis in original); see also State v. Dean, 332 N.W.2d 336 (Iowa 1983); State v. Zaehringer, 325 N.W.2d 754 (Iowa 1982). Defendant maintains the police were lackadaisical in their efforts to find Donnell and lacked due diligence. We cannot agree.

The record indicates the witness testified at the trial of Rodney Jackson two weeks before the Wright trial was scheduled to commence. The subpoena for the Wright trial was not issued until four days before the trial was to begin. Prior to Donnell's absence, he had cooperated with the authorities, had strong family ties in Waterloo and indicated that he could be found at 112 Phillips. During the four intervening days, the police made numerous attempts to locate Donnell at this address, but their efforts were fruitless. Upon realizing Donnell would not likely be located at 112 Phillips, Donnell's attorney, aunt, sister, and mother were questioned as to his whereabouts. The police even used informants to try to locate Donnell. While we are troubled that the authorities did not subpoena Donnell earlier, there is sufficient evidence to find that the prosecution had no reason to believe Donnell would disappear at this late stage of the proceeding. When a witness leaves town and purposefully avoids detection and the authorities undertake efforts such as this to locate the witness, we conclude that a good faith effort was made and that the witness was "unavailable." Compare Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (court found witness was unavailable when witness was not at her last-known real address, had left the state, and her whereabouts were unknown even to family members) with Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968) (witness was not unavailable when prosecution knew where the absent witness was living). The diligence used by the prosecution in this instance was much more substantial than in the Iowa cases of Dean and Zaehringer.

The next issue in determining the admissibility of Donnell's deposition is whether defendant meaningfully cross-examined the witness before trial. Iowa recognizes that deposition testimony used at trial can satisfy confrontation clause requirements. See State v. Castillo, 315 N.W.2d 63 (Iowa 1982). Based on the record, we find that Donnell was meaningfully cross-examined during the deposition. At the deposition, Donnell was under oath and defendant's attorney asked him several leading questions which are the hallmark of cross-examination under Roberts.

Defendant further contends it was error for the court to exclude testimony from an attorney regarding different motives in cross-examining a witness at a deposition as opposed to such questioning at trial. The trial court found such testimony irrelevant and we agree. The issue is whether cross-examination occurred at all and not the degree of cross-examination the witness was subjected to. As mentioned, cross-examination at the deposition did take place.

Defendant also objected to hearsay statements offered by a police officer on the issue of Donnell's unavailability. On a preliminary question such as unavailability, the court is free to admit hearsay statements. Iowa R.Evid. 104(a); see also Howard v. Sigler, 454 F.2d 115, 118-19 (8th Cir.1972). We find no merit in defendant's claim on this issue.

Turning to the substance of the properly admitted deposition, defendant takes the position that the testimony contained a hearsay statement which was repeated seven times during trial.

Specifically, Donnell testified that Rodney and the defendant were in Wright's home when one of them said, "We took this white man's car. I think I hit him too hard." Donnell did not know who made this statement.

The statement was either made by Rodney or defendant. If Rodney made the statement, it could be admitted as a co-conspirator's statement. See Iowa R.Evid. 801(d)(2)(E). Defendant contends it was not a co-conspirator's statement because no evidence of a conspiracy was introduced at trial. We disagree.

The rule regarding admissibility of a co-conspirator's statements provides that:

When there is substantial evidence of a conspiracy, whether the offense charged is conspiracy or not, everything said by any conspirator in furtherance of the common purpose is deemed to have been said in behalf of all parties to the conspiracy. A statement by a co-conspirator of a party during the course and in furtherance of the conspiracy is thus admissible against the party as an admission.

Two conditions must be met for this rule to be applicable. First, the statement must have been made during the pendency of the conspiracy. Second, it must have been in promotion of the object or design of the conspiracy.

State v. Kern, 307 N.W.2d 22, 25 (Iowa 198...