Opinion
No. 2-485 / 01-1067.
Filed December 11, 2002.
Appeal from the Iowa District Court for Woodbury County, JOHN ACKERMAN, Judge.
The defendant appeals from convictions, following a jury trial, of second-degree kidnapping, first-degree robbery, first-degree burglary, going armed with intent, assault while participating in a felony, conspiracy to commit kidnapping, robbery, assault, theft or burglary, and first-degree theft. AFFIRMED.
Patrick Thomas Parry of Forker and Parry, Sioux City, for appellant.
Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, Thomas S. Mullin, County Attorney, and Jill Pitsenbarger, Assistant County Attorney, for appellee.
Heard by VOGEL, P.J., and ZIMMER and HECHT, JJ.
The defendant appeals from convictions, following a jury trial, of second-degree kidnapping, first-degree robbery, first-degree burglary, going armed with intent, assault while participating in a felony, conspiracy to commit kidnapping, robbery, assault, theft or burglary, and first-degree theft. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
Defendant Tyler Reynolds was charged by trial information with kidnapping in the second degree, robbery in the first degree, burglary in the first degree, going armed with intent, assault while participating in a felony, conspiracy to commit kidnapping, robbery, assault, theft or burglary, and theft in the first degree. The State, in the trial information, alleged that Reynolds had entered the home of jewelry store owner, David Levin, with an accomplice, Gina Taylor. The State further alleged that Taylor confined Levin at his home while Reynolds robbed Grand Jewelers with the help of another accomplice, Jennifer Stewart, and that the three subsequently sold the jewelry at various pawn shops across the country over a several month period. Trial commenced on May 2, 2001, and at the end of the trial, Reynolds was found guilty on all counts.
Defendant filed notice of appeal of June 28, 2001. He raises four issues in this appeal: (1) the guilty verdict was contrary to the law and evidence presented at trial, and the district court erred by not granting Reynolds' motion for a new trial; (2) Reynolds' constitutional right to confrontation was violated; (3) the court erred by admitting in evidence two notices of alibi defenses; and (4) Reynolds is entitled to a new trial because of prosecutorial misconduct.
II. GUILTY VERDICT AND DENIAL OF MOTION FOR NEW TRIAL.
Reynolds makes two distinct arguments relating to the evidence supporting the guilty verdict. First he argues that the verdict is contrary to the law and evidence presented at trial because the testimony of two accomplices was not sufficiently corroborated by other evidence. Second, he argues that the district court erred by denying his motion for a new trial because the weight of evidence does not support the guilty verdict. The State concedes Reynolds preserved error on his claim for a new trial, but contends the motion for acquittal was too vaguely worded to preserve error on his assertion that the verdict was contrary to the law and based upon insufficient evidence. Although we agree that the motion did not raise the specific substantive argument presented in this appeal, because the denial of his motion for a new trial and the sufficiency of the evidence claims are so closely related, we will address the sufficiency of the evidence claim.
We review the challenge to the sufficiency of the evidence for errors at law. State v. Rohm, 609 N.W.2d 504, 509 (Iowa 2000). We review the district court's denial of a motion for a new trial for abuse of discretion. State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). The crux of Reynolds' claims is that there was insufficient corroboration of the testimony of accomplices Gina Taylor and Jennifer Stewart. He cites Iowa Rule of Criminal Procedure 2.21(3), which states that 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." He contends the only evidence corroborating the testimony of each accomplice is the testimony of the other accomplice. Reynolds argues such corroboration is not sufficiently independent to satisfy rule 2.21(3). We need not reach the issue of whether one accomplice can corroborate the testimony of another accomplice because in this case, the testimony of the two accomplices was adequately corroborated by other evidence.
Corroborative evidence required to sufficiently support accomplice testimony need not be strong nor entirely inconsistent with innocence. "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. Ware, 338 N.W.2d 707, 710 (Iowa 1983) (quoting State v. Vesey, 241 N.W.2d 888, 890 (Iowa 1976)). In this case, Gina Taylor testified that Reynolds was overweight and was too large to fit through the basement window of Levin's house. This testimony was corroborated by the victim who estimated the male robber's weight at approximately 260 to 270 pounds. A police officer testified that Reynolds weighed 280 pounds. The accomplice testimony was also corroborated by Reynolds' own statements regarding his involvement in the possession and pawning of the stolen jewelry, as well as other witnesses who observed Reynolds in possession of the stolen goods. Furthermore, the accomplices testified that walkie-talkies were used in the commission of the crime. Hayes Baker, a friend of Reynolds, testified that he saw walkie-talkies in Reynolds' home a couple of months before the robbery.
Because the testimony of the two accomplices was sufficiently corroborated by other evidence, the verdict was not contrary to the law and evidence presented at trial. We also conclude the district court did not abuse its discretion when it found the jury's verdict was not contrary to the weight of the evidence.
III. REYNOLDS' RIGHT OF CONFRONTATION.
Reynolds contends his constitutional right to confront witnesses against him was violated when Jennifer Stewart was allowed to invoke her privilege against self-incrimination during cross-examination. The State contends Reynolds failed to preserve error on this issue because he failed to request that Stewart's entire testimony be stricken after the court allowed Stewart's invocation of her Fifth Amendment right in response to a particular question. Even if we presume error was preserved on this issue, we conclude Reynolds' right to confrontation was not violated.
We review de novo claims asserting infringement of the constitutional right to confrontation. State v. Castaneda, 621 N.W.2d 435, 443 (Iowa 2001).
In an effort to attack Stewart's credibility, defense counsel asked her whether she had spoken to a third person about the robbery. Stewart invoked her Fifth Amendment privilege and refused to answer the question. "If the witness's refusal to testify merely precludes inquiry into an area relating to a collateral matter, such as the credibility of the witness, the defendant has suffered no prejudice and the witness's other testimony may be admitted." U.S. v. Gould, 536 F.2d 216, 221 (8th Cir. 1976). Because the testimony Reynolds sought to elicit from Stewart related to the collateral matter of impeachment, we conclude Reynolds suffered no prejudice and his constitutional right to confront Stewart was not violated.
IV. ADMISSION OF NOTICES OF ALIBI DEFENSE.
Reynolds contends the district court erred by admitting, over objection, two separate notices of alibi defense filed by Reynolds' standby counsel before trial. Reynolds asserts the notices of alibi constitute hearsay and that the ruling admitting them should be reviewed for errors at law. We agree with the State that the notices are admissions, and we will therefore review the district court's ruling for abuse of discretion. State v. Maniccia, 355 N.W.2d 256, 260 (Iowa 1984).
Reynolds relies on State v. Howell for the proposition that "[a]dmissions of an attorney, in order to bind his client, must be distinct and formal, and made for the express purpose of dispensing with formal proof of a fact at the trial." State v. Howell, 290 N.W.2d 355, 359 (Iowa 1980) (quoting Treadway v. The S.C. St. P. R. Co., 40 Iowa 526, 527 (1875)). He argues that the notices of alibi defense, while distinct and formal, were not made with the purpose of dispensing with formal proof at trial. Rather, he contends, they serve as notice only of an intent to present an alibi defense. A defendant is not bound to present the alibi defense once the notice has been filed, nor is he excused from proving that alibi at trial if he chooses to present it.
The State relies on Suntken v. Suntken for the proposition that evidence of admissions made by one's attorney may be admitted if the attorney's "`authority is made affirmatively to appear by evidence other than the attorney's declarations and the statement is shown to have been within the actual or ostensible scope of the authority, during the continuance of his agency, and while engaged in bona fide attempt to discharge the duties of his employment." Suntken v. Suntken, 223 Iowa 347, 356, 272 N.W. 132, 137 (1937) (citation omitted). However, Reynolds asserts Suntken is not dispositive in this case because the record is devoid of evidence that he authorized the declarations made in the notices filed by stand-by counsel. We conclude it is unnecessary to decide whether the notices were inadmissible hearsay. Even if the notices of alibi defense were hearsay and their admission constituted an abuse of discretion by the court, their admission was not so prejudicial as to require reversal. The notices were offered through defendant Reynolds' testimony, but the questions about the notices were directed only to foundational matters. The State placed no further emphasis on their contents during testimony or in closing arguments. Given the weight of the other evidence of Reynolds' guilt, the admission of the notices was not so prejudicial as to require reversal.
V. PROSECUTORIAL MISCONDUCT.
Reynolds argues that the prosecutor repeatedly offered inadmissible evidence of alleged prior crimes or bad acts. Reynolds contends this conduct of the prosecutor caused prejudice and denied him a fair trial. The State points out, however, that Reynolds failed to preserve error on this issue. Reynolds objected on relevance grounds, but did not claim in the district court that the prosecutor's conduct rendered the trial unfair Accordingly, error was not preserved on this issue, and we do not address it.
VI. CONCLUSION.
We affirm Reynolds' convictions. The accomplices' testimony was sufficiently corroborated, and the district court did not abuse its discretion by denying Reynolds' motion for a new trial. Reynolds' right of confrontation was not violated by an accomplice's invocation of her Fifth Amendment privilege against self-incrimination. The admission of two conflicting notices of alibi defense was not so prejudicial as to require reversal. Error was not preserved on Reynolds' claim of prosecutorial misconduct.