Charles Crawley was convicted of forgery and being an habitual offender, in violation of Iowa Code sections 715A.2 and 902.8 (1997), respectively. He claims error in the admission of certain evidence. We affirm.
On November 6, 1998, a Waterloo business was burglarized, and some of the business checks were taken. One of the checks was written without authorization, payable to Jon Gross, and cashed for $260. Gross, who became a state’s witness, testified Crawley wrote the check out to Gross,
As part of its investigation, on March 25, 1999, the State obtained an order requiring Crawley to submit a handwriting exemplar. The State contended that Crawley failed to comply with this order by providing an accurate exemplar because he had disguised his handwriting. The State then requested a contempt order, and on April 8, the court found him in contempt. The court found the defendant “willfully and intentionally refused to comply with handwriting exemplar orders, and to subvert exemplar through feigned cooperation.”
On May 6 the State filed a motion to adjudicate law points, requesting that evidence of Crawley’s refusal to provide an accurate handwriting exemplar be admitted at trial. The court granted the State’s motion, ruling that testimony of the lack of compliance with the court’s order was admissible; however, evidence Crawley had been found in contempt for failing to provide the sample was not admissible. At trial two officers, including a handwriting expert, testified Crawley disguised his handwriting while preparing the exemplar.
Crawley was convicted of forgery in the first stage of a bifurcated trial, and in the second stage, he was found guilty of being an habitual criminal. On his appeal we address five issues: (1) the admission of evidence of his refusal to provide the exemplar, (2) the court’s failure to adequately admonish the jury with respect to evidence of the contempt finding, (3) the admission of “bad acts” evidence involving “a rash of several burglaries,” (4) the admission of “bad acts” evidence concerning drug use, and (5) the admission of Craw-ley’s jail booking card into evidence. We reserve other issues for possible postcon-viction proceedings.
I. Evidence of Defendant’s Refusal to Provide Handwriting Exemplar.
At trial the State offered evidence of the defendant’s failure to provide a handwriting exemplar, and pursuant to the court’s pretrial ruling, the evidence was admitted at trial. In
State v. Longstreet,
The defendant relies on
United States v. White,
The
Jackson
court adopted the majority view, stating “[w]e believe the evidence of the defendant’s refusal to furnish writing exemplars, like evidence of flight and concealment, is probative of consciousness of guilt, or in other words guilty knowledge.”
Id.
at 846;
see also Wilson v. State,
It is clear handwriting exemplars are different from statements privileged under the Fifth Amendment:
There is no doubt that requiring a defendant to give a handwriting specimen does not violate his fifth amendment privilege against self-incrimination since the privilege reaches only compulsion of a defendant’s communication. Gilbert v. California,388 U.S. 263 , 267,87 S.Ct. 1951 , 1953,18 L.Ed.2d 1178 (1967). “A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection.” Id. at 266-67,87 S.Ct. at 1953 (citation omitted); see also United States v. Mara,410 U.S. 19 , 21,93 S.Ct. 774 , 776,35 L.Ed.2d 99 (1973). Since handwriting exemplars are not testimonial or communicative matters but instead are an “identifying physical characteristic” of the person, Gilbert,388 U.S. at 266-67 ,87 S.Ct. at 1953 ; Schmerber v. California,384 U.S. 757 , 764,86 S.Ct. 1826 , 1832,16 L.Ed.2d 908 (1966), evidence of, or comment on the defendant’s refusal to comply with the lawful court order for the handwriting exemplars is distinguishable from evidence of, or commenting on the defendant’s constitutional rights to refuse to testify at trial, or to post-arrest silence.
Jackson,
It also appears there is no difference between a refusal to submit a handwriting exemplar and an attempt to disguise the handwriting in the exemplar; evidence of noncompliance is admissible in both instances.
“[I]t is not improper for the prosecution to show that the defendant attempted to avoid providing a valid handwriting sample by intentionally distorting his handwriting.”
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Just as a defendant’s refusal to provide a handwriting exemplar is admissible evidence of consciousness of guilt, so too is opinion evidence of a defendant’s efforts to disguise his handwriting on an exemplar.
People v. Tai,
We hold this evidence was properly admitted.
II. Reference to Contempt Proceedings.
The trial court had ruled the State would not be permitted to introduce evidence of the defendant being found in contempt. Crawley, however, contends that the following colloquy violated that ruling:
Q. So were you able to — does this wrap up your investigation of this case, Investigator Moller? A. No. There were hearings involved in regard! ] to contempt of court hearings regarding....
[DEFENSE COUNSEL]: Objection, your Honor. I don’t believe that’s a fit subject for this hearing.
THE COURT: Alright. Sustained. Disregard, ladies and gentlemen.
This comment only referred to contempt proceedings in general and made no reference to a finding of contempt regarding Crawley. In any event, any error was cured by the court’s admonition to the jury to disregard the reference to contempt.
III. Reference to “A Rash of Several Burglaries, ”
One of the officers testified there had been “a rash of several burglaries” to explain why he was conducting an investigation. The defendant claims this was “bad acts” evidence prohibited by Iowa Rule of Evidence 404(b). The colloquy was as follows:
Q. Did you investigate an incident which occurred at M.A. Moore & Associates and Overhead Door back in November of 1998, Investigator Moller? A. Yes, I did.
Q. And can you tell the ladies and gentlemen [of the jury] how you first got involved in that matter? A. I first became involved in the burglary to two businesses which occupy the residence or the address of the 800 block of Commercial and this would be M.A. Moore & Associates and also Overhead Door. They were broken into and nothing at that time of value appeared to be taken. This was on a Thursday, November the 5th. And it was a couple days after that that I was assigned to the case and the case progressed from there.
Q. Okay. And in the course of your initial investigation, did you discover anything at that time? A. Yes, I did. I might also mention that back in October and November of last year, we had a rash of several burglaries in the downtown area where a forced entry would be made sometime during the evening and there appeared to be nothing of value taken.
The State responds that the comment was merely background to explain investigator Moller’s actions. See 1 Jack B. Weinstein & Margaret A. Berger, Wein-stein’s Evidence ¶ 401[05], at 401-29 (1994) [hereinafter Weinstein] (“Evidence that serves as background information about persons, subjects or things in a trial is generally admissible although it may not relate to a consequential fact.”). It is clear this was the context in which the court admitted the testimony, as shown by its admonition to the jury:
I’ll allow the witness to give a little more background as to why he was investigating this case, but I’d ask counsel to keep that limited and this is only for context, ladies and gentlemen of the jury. This is not for purposes of this prosecution other than to give a brief background.
The reference to other burglaries did not link the defendant to them, and in any event, the court’s admonition adequately cured any error.
IV. Introduction of Evidence of Prior Drug Use.
Jon Gross, who helped Crawley cash the check, testified Crawley used drugs and used the check proceeds to buy drugs. Crawley did not object at trial to this evidence, but he argues on appeal that this evidence was also “bad acts” evidence prohibited by rule 404(b). He contends his failure to object at trial is excused because of ineffective assistance of his trial counsel. After his conviction, Crawley was represented by a new attorney who raised the issue as a ground for a new trial. At the hearing on his motion, Crawley’s new counsel examined Crawley’s trial attorney
In
State v. Plaster,
In determining whether evidence of “other crimes, wrongs, or acts” is admissible, the trial court must employ a two-step analysis. The court must first decide whether the evidence is relevant. If the court finds that it is, the court must then decide whether the evidence’s probative value is substantially outweighed by the danger of unfair prejudice ....
In the process of employing the two-step analysis, the trial court must exercise its discretion. We will reverse its decision only when we find a clear abuse of discretion.
In
State v. Liggins,
Liggins, however, cannot be read so broadly as to hold that references to drugs in all circumstances is irrelevant for purposes of rule 404(b). Here, the testimony was that the motive for cashing the check was to obtain drugs, and credible authority supports the admissibility of such evidence under those circumstances. One authority states:
Evidence of other crimes has been admitted to show the likelihood of defendant having committed the charged crime for money, particularly for money to buy drugs; for sex; for goods to sell; because he was filled with hostility, sought to conceal a previous crime, or wanted to escape; because he intended to silence a potential witness, required assistance in a criminal scheme, or needed to protect himself in the commission • of another crime.
Weinstein ¶404[14], at 404-86 to 404-90 (emphasis added) (footnotes omitted).
This proposition is not without controversy; recent cases are divided on the issue.
See United States v. Brooks,
In Liggins we said:
Evidence of other offenses should never be admitted when the other offense is committed wholly independent of the one for which the defendant is on trial.
In the present case, the drug use was not “wholly independent” of the crime for which the defendant was being tried, as it was in Liggins. It was clearly relevant as to motive: The State’s witness testified that the need to obtain money with which to buy drugs was the reason the forgery was undertaken. Even if defense counsel had objected, the court would not have abused its discretion in admitting it or in concluding its probative value was not “substantially outweighed by the danger of unfair prejudice” under Iowa Rule of Evidence 403.
Y. Jail Booking Card.
After securing Crawley’s handwriting exemplar, officer Moller obtained Crawley’s jail booking card for comparison purposes. This card was admitted as an exhibit, and the defendant claims the trial court abused its discretion in admitting it. He contended there was no evidence that Crawley signed the jail booking card.
We summarily reject that argument. The officer testified the defendant signed the booking form and identified the exhibit introduced at trial as a true and correct copy of the card.
VI. Other.Issues.
Crawley raises several other issues that, because of an inadequate record, we decline to resolve on appeal. The State concedes some issues should be preserved for possible postconviction proceedings, but it contends the record before us (as presented in the new-trial proceedings) is sufficient to consider, and reject, two ineffective-assistance-of-counsel issues: defense counsel’s failure to retain a handwriting expert and ineffective assistance in questioning one of the State’s witnesses.
We believe that all the following issues as to which Crawley claims ineffective assistance of counsel should be preserved for possible postconviction proceedings in order to consider them in their totality. These include (1) defense counsel’s failure to retain a handwriting expert; (2) defense counsel’s soliciting the handwriting opinion of officer Moller, notwithstanding Moller’s admitted lack of expertise; (3) failing to object to Moller’s testimony regarding other forgeries of checks from the same business; and (4) soliciting officer Moller’s testimony regarding other suspects with whom Crawley was familiar.
VII. Conclusion.
We find no error in the court’s rulings on any of the issues considered in divisions I through V. All other issues are preserved for possible postconviction relief.
AFFIRMED.