Opinion
No. 2-415 / 99-0744
Filed October 16, 2002
Appeal from the Iowa District Court for Black Hawk County, James Bauch, Judge.
Defendant appeals from his two convictions, following separate jury trials for second degree robbery, in violation of Iowa Code sections 711.1 and 711.3 (1997). AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Nyaradzia Kadenge of Kadenge Law Office, Waterloo, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell, Assistant Attorney General, Thomas Ferguson, County Attorney, and D. Raymond Walton, Assistant County Attorney, for appellee.
Heard by Sackett, C.J., and Vogel and Mahan, JJ.
Defendant-appellant, McDale Thompson, Jr., appeals from his two convictions, following separate jury trials for second-degree robbery, in violation of Iowa Code sections 711.1 and 711.3 (1997). Defendant claims on appeal 1) the trial court's denial of his motion in limine seeking to limit eyewitness identification was an abuse of discretion; 2) the trial court's denial of his motion for a new trial in one case was an abuse of discretion; 3) the trial court's denial of his motion to dismiss and motion in arrest of judgment was in error; 4) the trial court's allowing evidence of his first conviction in the trial on the second charge was an abuse of discretion; 5) the trial court erred in denying defendant's motion to suppress testimony of witness Barbara Adams, as it resulted from prosecutorial bribery; and 6) the trial court's denial of his motion for an independent fingerprint expert was an abuse of discretion. We affirm in part, reverse in part and remand for a new trial.
I. BACKGROUND FACTS AND PROCEEDINGS
From May 26th to May 29th, 1998, defendant was tried on a first-degree robbery charge based on a robbery at a Big 10 Mart and a Hardee's robbery in Waterloo, Iowa, within a twelve-hour time span on August 30 and 31, 1997. Defendant at the time was staying close to the scene of both robberies. At the conclusion of the State's case defendant moved for a judgment of acquittal on the first-degree robbery charges. Finding no evidence of a dangerous weapon, the district court sustained the motion, and the trial proceeded on second-degree robbery charges.
There is no evidence pinpointing the distance between the two establishments, although the State suggested in oral argument they may be two and one half to three miles apart.
Prior to trial the district court had overruled defendant's request to hire an expert to testify concerning the reliability of eyewitness identification. During the trial, on June 2, 1998, the Iowa Supreme Court filed an opinion that the district court found impacted that ruling. Consequently, the court granted a mistrial on June 2, 1998.
A new trial charging defendant with second-degree robbery of both robberies commenced December 1, 1998. A jury convicted defendant of the Big 10 robbery but could not reach a verdict in the Hardee's robbery. On March 9-12, 1999, defendant was retried for the Hardee's robbery. Evidence he was convicted of the Big 10 robbery was introduced at that trial.
Evidence introduced at the March 1999 trial showed the Hardee's robbery in some detail. On August 30, 1997, at about 7 o'clock p.m., a Hardee's in Waterloo was robbed. According to Debra Jackson, who was working at the time, a man came up to the counter with a bag over one of his hands, put his hands on the counter and told her to give him the money in the drawer. The robber took the money, "jogged" to the door, and walked out. Ms. Jackson described the robber as "tall," "brown-skinned," and "light-complected," with "curls in like an Afro," and having a goatee. She said he was wearing khaki pants and a button-up shirt. Later Ms. Jackson was shown a photo array. She identified defendant as the robber, but she testified defendant was the only person in the array who matched the description she had given.
Another employee working at the time, Vernon Kalkbrenner, described the robber as middle-aged and a "light-skinned black male with kind of curly or bushy hair and wearing some khaki pants and a Casino Magic hat and a polo-type shirt." He testified the robber bumped into another customer and then "sprinted" away from Hardee's with the money. Mr. Kalkbrenner also identified defendant out of the photo array but also agreed only one person in the array even matched his description.
An investigation following the robbery turned up an identifiable fingerprint and handprint on the Hardee's countertop where witnesses indicated the robber had placed his hand, just after the counter had been cleaned. Neither the fingerprint nor the handprint matched defendant.
On August 30, 1997, defendant arrived by Greyhound bus in Waterloo. He was carrying a bag with clothes in it. Robert Sisk said defendant spent part of the afternoon and evening at Sisk's house, and that Barbara Adams was there for part of the time. Mr. Sisk and Ms. Adams did a lot of drinking that day and into the next, and they also came and left several times, sometimes together and sometimes alone. At some point that evening Sisk left his house. He went to a bread store and then to Hardee's to use the restroom while a robbery was apparently being perpetrated there. Sisk claimed he paid no attention to it.
Over defendant's objection evidence defendant was convicted of the Big 10 Mart robbery was introduced and the attendant at Big 10, Teresa Wade, identified defendant from the photo array.
Additional evidence in the December 1998 trial where defendant was charged with both robberies included testimony of Barbara Adams, who did not later testify at the Hardee's trial. She said sometime in the early morning of August 31 she and defendant walked to a Big 10 Mart where they bought cigarettes and defendant went to use the phone as she left the store. Adams said she came back into the store and saw defendant robbing it, so she ran outside. Ms. Adams later gave authorities defendant's name, and upon being taken to defendant in a holding cell at the police station, identified him as the man she had been with at the Big 10 Mart.
II. MOTION IN LIMINE — CONSOLIDATED TRIAL
Defendant's first claim on appeal is that the district court erred in denying his March 1998 motions in limine, made in anticipation of the May 1998 consolidated trial, to exclude testimony by any eyewitnesses as to the certainty of their identification and to exclude in-court identification of the defendant. Defendant further requested the court, if allowing in-court identification, to take steps to ensure its accuracy.
We review the district court's ruling on defendant's motion in limine for abuse of discretion. State v. Hubka, 480 N.W.2d 867, 868 (Iowa 1992). Defendant sought to exclude testimony of witnesses' certainty because he believed it would unfairly bolster the witnesses' credibility. In denying defendant's motion the trial court concluded the accuracy of eyewitness identification would be adequately challenged through cross-examination. We find no abuse of discretion.
Defendant's motion also sought to exclude in-court identification or to re-arrange the placement of defendant before such identification was made. The district court did not make a final ruling on this point, but instead reserved that issue for trial. Defendant made no further record on this point, neither renewing his motion nor objecting at trial. We conclude error was not preserved. See State v. Harlow, 325 N.W.2d 90, 91 (Iowa 1982).
III. MOTION FOR A NEW TRIAL
Defendant's second claim on appeal is that the district court erred in denying his motion for a new trial in the Big 10 robbery case because his Exhibit 8, which documented defendant's existing medical condition at the time of the robbery and he claims was crucial to the outcome of the trial, was inadvertently kept out of the exhibits sent to the jury room for deliberations. Defendant claims the omission of Exhibit 8 from the exhibits sent to the jury room is a violation of his constitutional rights.
We review the trial court's denial of defendant's motion for a new trial for abuse of discretion. State v. Belt, 505 N.W.2d 182, 184 (Iowa 1993). Ordinarily, abuse of discretion is found only where there is not support in the record for the trial court's determination. State v. Brewer, 247 N.W.2d 205, 211 (Iowa 1976). Insomuch as this is a constitutional challenge, we review de novo. State v. Taft, 506 N.W.2d 757, 762 (Iowa 1993). Most constitutional errors do not automatically require the reversal of a conviction if the error is harmless. State v. Hensley, 534 N.W.2d 379, 382 (Iowa 1995) (citations omitted). In order for a constitutional error to be harmless, the court must be able to declare it harmless beyond a reasonable doubt. State v. Deases, 518 N.W.2d 784, 791 (Iowa 1994) (citation omitted).
The trial court denied defendant's motion based upon extensive in-court testimony as to the substance of Exhibit 8. The court determined there had been a great deal of testimony at trial regarding defendant's medical condition and that the omission of a document to that effect would not have prejudiced the outcome. We agree that this mistake would not have prejudiced the verdict, as there was extensive testimony separate from Exhibit 8 that defendant's medical condition prevented him from "sprinting," as the robber apparently had. Given the testimony at trial, we find a document confirming the substance of that testimony would not have been determinative of the outcome of the trial. We find the inadvertent omission of it from the jury room was harmless error. We affirm the district court's denial of defendant's motion for a new trial.
IV. MOTION IN ARREST OF JUDGMENT / MOTION TO DISMISS Defendant's next claim is that the trial court erred in denying his motion in arrest of judgment and motion to dismiss. We review for errors at law. Iowa R.App.P. 6.4.
The basis of defendant's motion, raised at the close of the State's case in the December 1998 consolidated trial, was that the State did not amend the trial information and charge him with second degree robbery after the judgment of acquittal was entered on his first degree robbery charges in May of 1998. After the judgment of acquittal, the trial proceeded on second-degree robbery charges. There was no amendment to the charges, nor was the original indictment dismissed.
The State contends that defendant failed to preserve this argument and even if he did, no such amendment to the charges was necessary. Even if this issue were preserved for review, we find it to be without merit. Under Iowa Rule of Criminal Procedure 2.22(3), a jury may find defendant guilty of any of the lesser degrees of the offense with which he was charged. Further, the original indictment was never dismissed. Defendant's argument under Iowa Rule of Criminal Procedure 2.11(7) that a "new information or indictment must be filed within 20 days of the dismissal of the original indictment or information" therefore does not apply. We affirm on this issue.
V. MOTION IN LIMINE — HARDEE'S TRIAL
Defendant's next argument is that the trial court abused its discretion in denying his motion in limine and allowing witnesses from the Big 10 robbery, a crime for which defendant had been convicted, to testify in the later trial on the Hardee's charge.
The trial court determined the testimony, admissible under Iowa Rule of Evidence 5.404(b) would be more probative than prejudicial under rule 5.403, as the robberies were "strikingly similar" and showed a common scheme or plan on the part of defendant.
We review for abuse of discretion. State v. Anderson, 565 N.W.2d 340, 342 (Iowa 1997). In the December 1998 consolidated trial of the Big 10 and Hardee's robberies, the jury found defendant guilty of the Big 10 robbery but deadlocked on the Hardee's robbery. In ruling on defendant's motion to exclude testimony from the Big 10 robbery, the district court said:
I think that the evidence would show from the record that the — at least in the past has showed that there was very similar circumstances, the approach was made the same, the type of store that was approached was the same, the age of the individuals were similar in nature, in other words young people, and the actions taken by the person were very similar. . . . And they are strikingly similar especially in the representation that a person had a weapon.
The Court will advise the jury that it's only for a very limited purpose and not to show a person is a bad character. But I do think the matters are strikingly similar, number one; and, number two, it is more probative than prejudicial.
Ordinarily, proof of a prior crime is inadmissible to show defendant's guilt at a later trial for another offense. State v. Walsh, 318 N.W.2d 184, 185 (Iowa 1982) (citation omitted). However, there are well-defined exceptions to this rule, one of which permits the admission of such evidence to establish a common scheme of criminal activity if the probative value of the evidence outweighs its prejudicial effect. Id. Probative value has been found to outweigh prejudicial effect if evidence in defendant's prior crime and in the crime currently at issue are "strikingly similar." Id. (citations omitted). "Strikingly similar" criminal methods tend to identify the perpetrator once that particular method is linked to him. See Id.
The similar circumstances of the two robberies mentioned by the district court were that the "approach" was the same, the "type of store" robbed was the same, the age of the individuals was "young," and in both robberies there was a representation that the robber had a weapon.
In the Big 10 robbery, defendant went into the store accompanied by Barbara Adams several times before robbing it. In the Hardee's robbery the robber was alone and there was no evidence the robber was in the restaurant prior to the robbery. While the robber in both cases approached a single attendant, there was another person in the Big 10 at the time of its robbery, and the Hardee's attendant was one of two workers behind the counter. It is therefore unclear how his "approach" was the same.
The Big 10 is a convenience store; Hardee's is a fast-food restaurant. The age of the person robbing Big 10 was estimated in testimony from the December 1998 trial to be fifty, which, in comparison to most of this country's population, is not young. The robber in both instances covered his hand. In the Big 10 case, the robber pushed the attendant against the counter while holding something hard against her back, while in the Hardee's case the robber put his hands on the counter, made a statement about shooting, but left without using direct physical force against any person.
We disagree with the district court that the factors it used to find the two crimes "strikingly similar" were sufficient to admit evidence of the Big 10 robbery in the Hardee's trial.
Further, in the May 1998 hearing where a mistrial was declared, the district court was concerned that evidence from the Big 10 trial, where corroborating evidence buttressed eyewitness accounts pointing to defendant, could be prejudicial in the Hardee's trial, where the only evidence pointing to defendant as the robber was eyewitness testimony. We consider it noteworthy that fingerprints found on the freshly-wiped Hardee's counter where the robber was said to have put his hand were not identified as defendant's. We conclude the trial court's March 1999 conclusion that Big 10 evidence was admissible at the Hardee's trial, reasoning it to be more probative than prejudicial, was an abuse of discretion. Consequently, we reverse defendant's conviction of the Hardee's robbery and remand for a new trial on this charge.
VI. PROSECUTORIAL BRIBERY
Defendant's next claim is that the trial court erred in concluding the prosecutor did not commit bribery in violation of Iowa Code section 722.1 in making a plea agreement with Barbara Adams in exchange for her testimony against defendant. We review for errors at law. See State v. Kotlers, 589 N.W.2d 736, 738 (Iowa 1999). We conclude, as the district court did, that plea bargaining between Barbara Adams and the prosecutor in this case does not qualify as bribery. See United States v. Singleton, 165 F.3d 1297, 1298 (10th Cir. 1999).
VII. INDEPENDENT FINGERPRINT EXPERT
Defendant's final claim on appeal is that the trial court abused its discretion by denying his motion for an independent fingerprint expert. We review for abuse of discretion. State v. Schultz, 579 N.W.2d 317, 319 (Iowa 1998).
In that the fingerprint evidence introduced at trial showed defendant was indisputably not a match, we find no abuse of discretion in denying defendant another fingerprint expert. The State's fingerprint evidence made defendant's fingerprint case for him. We affirm on this point.