Opinion
No. 2-484 / 01-0822.
Filed December 11, 2002.
Appeal from the Iowa District Court for Black Hawk County, KARL D. BRINER, Judge.
Defendant appeals from a judgment and sentence entered following his conviction for murder in the second degree. AFFIRMED.
Robert Montgomery of Montgomery Law Office, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Christen Odell, Assistant Attorney General, Thomas Ferguson, County Attorney, and Danielle Davis, Assistant County Attorney, for appellee.
Heard by SACKETT, C.J., and MILLER and EISENHAUER, JJ.
Jesse James Jones, Jr. appeals his conviction for second-degree murder. He contends error in (1) admitting a videotaped statement over a hearsay objection, (2) failing to grant a new trial because the evidence was insufficient to prove his guilt, (3) failing to require disclosure of the identity of an informant and (4) denying a new trial because the State failed to produce certain police reports.
I. Background Facts and Proceedings. On January 9, 2000, an after hours party was held at the home of Sandy Kuykendall at 701 Logan Street, Waterloo, Iowa. Jerry Lee Davis arrived at the party after borrowing a car and $100. He parked across the street and came to the party in search of crack cocaine. He approached Sheila Cole, who was taking admission money for the party, a number of times asking for change for his $100 bill. Cole last saw Davis walking to the back of her house with Jones.
Meanwhile, a large crowd had gathered in front of the Kuykendall home and across the street by a funeral home. Charvis Bentley and Terrell Manning were involved in an incident, and Bentley discharged a rifle as it was grabbed from him near the funeral home. He was then forced into a car and driven away. A second shot was then heard from behind the Kuykendall home. Davis ran from behind the house and disappeared. He was found clutching the $100 bill about a block away. He bled to death from a gunshot wound to his leg. A trail of blood ran from the Kuykendall home to Davis.
Jones was charged with first-degree murder and the jury convicted him of second-degree murder. Jones filed a motion for new trial, a motion in arrest of judgment, and a motion for judgment of acquittal. The motions were denied and he was sentenced to an indeterminate prison term not to exceed fifty years.
II. Hearsay. Jones first argues error in admitting a videotaped statement of witness Justin Cole. He only challenges that portion of the ruling admitting Cole's statement as residual hearsay. Review of admissibility of hearsay is for errors of law. State v. Long, 628 N.W.2d 440, 447 (Iowa 2001). We give deference to the trial court's factual findings. State v. Cagley, 638 N.W.2d 678, 681 (Iowa 2001). A trial court's factual findings concerning application of the hearsay rule are binding on appeal if they are not "clearly erroneous" or without substantial evidence to support them. Long, 628 N.W.2d at 445.
Justin Cole gave a videotaped statement to police on January 13, 2000, four days after the shooting. He was accompanied by his mother. He stated he saw Jones coming from behind the house with the pistol. He reported Jones said, "I should have got a hundred dollars from this hype" and "I shot at him. I think I shot him in the leg. Man, I could have had one hundred dollars." Justin recanted everything in the videotaped statement at deposition and at trial.
The trial court ruled the videotaped statement admissible in a pretrial order and again after objections and an offer of proof at trial. It ruled the statements by Jones to Justin Cole were admissible as admissions pursuant to Iowa Rule of Evidence 5.801(d)(2)(A), and those portions of the videotaped statement representing Justin Cole's direct observations were admissible pursuant 5.803(24). The trial court recognized the residual exception to the hearsay rule should only be used rarely and it applied the criterion set out in State v. Rojas, 524 N.W.2d 659, 662-63 (Iowa 1994). It analyzed the videotaped testimony and found it to be trustworthy, material and necessary, its admission served the interests of justice and the state had given proper notice of its intended use. We have reviewed the videotape and reach the same conclusion as the trial court. State v. Rojas, 524 N.W.2d 659, 662-63 (Iowa 1994) sets forth the criterion for determining admissibility under the residual hearsay exception. Only a finding of trustworthiness is challenged by Jones. Factors to consider in making a trustworthiness determination under Rule 5.803(24) include: the declarant's propensity to tell the truth, whether the alleged statements were made under oath, assurance of declarant's personal knowledge, the time lapse between the alleged event and the statement by Justin Cole concerning the event, and the motivations to make the alleged statements. See State v. Weaver, 554 N.W.2d 240, 248 (Iowa 1996), overruled on other grounds by State v. Hallum, 585 N.W.2d 249 (Iowa 1998). Additional circumstances to consider include corroboration, reaffirming or recanting the statement by the declarant, credibility of the witness reporting the statement, and availability of the declarant for cross-examination. Id. The trial court found Cole was relaxed during the interview, the questioning by the officer was open ended and not leading, his mother was present, the answers were detailed and included information not generally known, and he was available for cross examination.
In addition to the above findings, several other facts convince us that the videotaped testimony was sufficiently trustworthy to constitute admissible hearsay under Iowa Rule of Evidence 5.803(24). These facts were corroborated by other witnesses and included the size of the crowd in the area, the confrontation between Bentley and Manning, a gunshot coming from near the Kuykendall home, Jones coming from the back of the house, Cole talking with Jones at the side door of the house, and Jones having a pistol. These factors outweighed any inconsistencies with other testimony and the suggestion Cole was not credible from one of the prospective jurors. The residual hearsay ruling was supported by substantial evidence and we find no error.
III. Sufficiency of the Evidence. Jones moved for a new trial alleging insufficient evidence to prove his guilt. We review the district court's denial for abuse of discretion. State v. Atley, 564 N.W.2d 817, 821 (Iowa 1997).
A motion for new trial requires the trial judge to weigh the evidence and consider the credibility of the witnesses. State v. Ellis, 578 N.W.2d 655, 658-659, (Iowa 1998). Here the trial court reviewed the evidence in detail both favorable and unfavorable to the state and concluded "a strong preponderance of the credible evidence" supported the verdict. After Davis ran, Jones came from behind the Kuykendall home and spoke to Justin Cole. He had a pistol in his hand and told Justin, "I should have got a hundred dollars from this hype" and "I shot at him. I think I shot him in the leg. Man, I could have had one hundred dollars." He put the pistol in the waistband of his pants and went inside the Kuykendall house. He later put the pistol and some crack cocaine in Syphina Anderson's purse. He rode in a car with Anderson and her friends to the Waterloo Holiday Inn. In the car, he took the pistol out of Anderson' purse. The pistol was put under a bed in a room at the hotel. When Jones left the hotel he had the pistol in his waistband.
We find no abuse of discretion.
IV. Identity of Confidential Informant. Jones sought and was denied the name of a confidential informant. We review for abuse of discretion. State v. Nelson, 395 N.W.2d 649, 653 (Iowa Ct.App. 1986).
The "informant" reported hearing that someone other than Jones killed Davis. The trial court interviewed, in camera, the officer who received the information. It then found the informant could not identify a source of the information, had no personal knowledge of the crime, was only relating rumors, and there was no reasonable likelihood that disclosure would lead to any admissible evidence.
The State's general privilege to withhold the identity of confidential informants must be balanced against the defendant's right to prepare and present a defense. State v. White, 530 N.W.2d 77, 82 (Iowa Ct.App. 1994). Here, the informant was not a witness to the crime and, in fact, had no knowledge other than rumor to support his statements. He did not testify and neither did the officer to whom he reported the rumors. It was not an abuse of discretion to deny the request for disclosure of the name of the informant.
V. Withholding Police Reports. Jones claims he should have a new trial because the State or the Waterloo police department suppressed police reports in violation of the fourteenth amendment to the United States Constitution.
We find Jones failed to preserve error on this issue. He first raised the issue in the amended motion for new trial. The materials were provided by the State six days prior to trial. He made no challenge at the time and requested no continuance. It is well settled in Iowa that objections to evidence must be raised at the earliest opportunity after the grounds for objection become apparent. State v. Sharkey, 311 N.W.2d 68, 71 (Iowa 1981). Constitutional questions must be preserved in the same manner as any other issue. State v. Johnson, 272 N.W.2d 480, 484 (Iowa 1978). No "plain error" rule exists to allow appellate review of allegations and deprivation of constitutional rights without requiring preservation of error via timely and adequate objections at trial. Id. This issue was raised for the first time in the amended and substituted motion for new trial. It was not addressed in the court's ruling and the defendant did not seek further ruling. Without a ruling by the trial court we have nothing to review. We do not consider issues not presented to or decided by the district court in the first instance. State v. Halliburton, 539 N.W.2d 339, 342 (Iowa 1995) (party cannot seek reversal on appeal based on contention not presented to the district court); State v. Ashburn, 534 N.W.2d 106, 109 (Iowa 1995) (defendant did not preserve issue for appeal where he did not raise the issue before the trial court).