Opinion
No. 2-188 / 01-0769.
Filed May 31, 2002.
Appeal from the Iowa District Court for Webster County, Kurt L. Wilke and Joel E. Swanson, Judges.
Defendant challenges a guilty verdict for second-degree theft, challenging the denial of a suppression motion, the admission of certain evidence, and submission of a verdict form. AFFIRMED.
Thomas N. Hendrickson, pro se, and Linda Del Gallo, State Appellate Defender, and James G. Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, Ron Robertson, County Attorney, and Ricki L. Williamson, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Vogel and Eisenhauer, JJ.
John Bockoven reported to the police that his toolboxes and tools had been stolen, along with his suspicion that his former employee, Thomas Hendrickson, was the thief. The next day he contacted police stating he had located Hendrickson's vehicle and that he could see the stolen property contained within the car's back seat. A warrant was issued, the vehicle was searched, and the stolen property recovered in Bockoven's presence. The evidence was removed to a nearby room, tagged, and placed into a cart for transporting to the ID room.
After being charged with theft in the second degree, Hendrickson moved to suppress the evidence. The motion was denied, and at a hearing on Hendrickson's motion to reconsider, the district court intervened in the questioning of Bockoven by Hendrickson's attorney:
Q. Now, in deposition my question, I am on page 16 of the deposition, line 6, "Now, you previously said you looked in the car and couldn't see any tools." A. That's correct.
. . .
Q. All right. And so you could not have told the officers that you saw your tools in the car, could you? A What I had —
Q. Answer the question, sir. You couldn't have told the officers that you saw your tools in the car.
THE COURT: He is not giving a yes or no answer on that. He will answer the question as best he can. Go ahead and answer whatever way you feel is appropriate.
Bockoven then clarifies he observed the corner of a toolbox, but not individual tools.
After the reconsideration request was denied, the matter proceeded to trial, and a jury found Hendrickson guilty of theft in the second degree. Hendrickson now appeals, raising issues of ineffective assistance of counsel, admission of evidence, and submission of a jury verdict form Upon our de novo review of the ineffective assistance of counsel claims and review for errors at law of the remaining issues, Iowa R. App. P. 6.4, we affirm.
Chain of custody . In his pro se appellate brief Hendrickson argues there were substantial breaks in the chain of custody such that the tools and toolboxes should not have been admitted into evidence. However, it appears the only possible break may have occurred after the items had been tagged and were awaiting transport to the ID room. Given that Bockoven testified and identified the items as both those that were taken from his possession and those that were seized from the Hendrickson's vehicle, there was a "reasonable probability that tampering, substitution, or alteration of the evidence did not occur." State v. Satern, 516 N.W.2d 839, 842 (Iowa 1994). This is particularly true where, as here, the items are not especially susceptible to alteration or substitution and many bore very distinct markings. State v. Lamp, 322 N.W.2d 48, 57 (Iowa 1982). Accordingly, we find the district court did not abuse its discretion when admitting the items into evidence.
Second-degree theft . In a brief written by appellate counsel, Hendrickson claims there was insufficient evidence to establish the items taken exceeded $1,000 in value. See Iowa Code § 714.2(2) (1999). Hendrickson therefore claims it was error to submit a verdict form, which included an option for the jury to find the value of the items in Hendrickson's possession were valued at, "more than $1000 but not more than $10,000." However, Bockoven testified as to the individual values of over twenty items, totaling $933. "[T]estimony as to value is liberally received with its weight to be determined by a jury, and . . . [g]enerally, an owner is deemed competent as a matter of law to testify as to the value of property he owns." State v. Houston, 439 N.W.2d 173, 176 (Iowa 1989).
The jury was also presented with evidence the toolboxes contained more than fifty additional, unvalued items. Hendrickson argues that, since the tools were specific to the carpentry trade, their value could not be within the common knowledge of the jury. This argument might have some persuasive value if we were dealing with only one or two specialty items. However, many of these items were common tools-putty knives, wrenches, measuring tape, bolt cutter, padlocks, wire strippers/cutter, knives, pliers, vice-grips, screw drivers — that are familiar to many if not most individuals. The jury could also have received some guidance in the valuation process by looking to the value Bockoven had assigned to similar items. Given the sheer number of tools admitted into evidence, even assigning a relatively nominal value to each item, the jury could easily arrive at a total value of more than $1,000 to find the State met its burden of proof of second-degree theft. See State v. Theodore, 260 Iowa 1038, 1045, 150 N.W.2d 612, 616 (1972) (holding jury could base its finding on common knowledge and experience in absence of valuation testimony).
Ineffective assistance of counsel . Finally, in the brief written by counsel, Hendricks argues competent counsel would have moved to suppress the tools and tool boxes, as a "small view of a commonplace toolbox(es) in the back seat" does not constitute probable cause for the issuance of a search warrant. He also argues counsel was ineffective for failing to move for the recusal of the district court judge presiding over the suppression hearing, as his interruption of the questioning demonstrated bias and another judge would have suppressed the evidence. We fail to find merit in either argument.
In this case, the issuing judge was presented with a search warrant application identifying the individual who owned the tools and toolboxes, stating this individual had observed his toolboxes in the back seat of Hendrickson's vehicle and knew they were his because "of the color and all three were identical to the one he had reported stolen. . . ." The warrant also identified another named individual who claimed to have witnessed Hendrickson in the area at the time the theft had occurred. We find these facts sufficient to support the issuing judge's "practical, common-sense decision [that], given all the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information," probable cause exists. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983).
Because a challenge to the search warrant would not have resulted in suppression of the evidence, Hendrickson has failed to show the prejudice necessary for a successful ineffective assistance of counsel claim. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). This finding applies not only to the alleged failure to move for suppression of the evidence, but also to the contention that counsel should have moved for the recusal of the suppression hearing judge. Putting aside the issue of whether such a motion was either necessary or proper, based upon the content of the warrant, Hendrickson has not shown a reasonable probability that another judge would have ruled to suppress the evidence. See State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999).
AFFIRMED.