*1 Iowa, Plaintiff-Appellee, STATE of
Khamfeuang THONGVANH,
Defendant-Appellant.
No. 84-1736.
Court Appeals of Iowa.
Oct. 1986. *2 Hаbhab, Goode, L. L. Approximately forty William and Allan minutes in- into the Price, Goode, Breen, Dodge, Breen Ft. & Blessman, terview a non-interview- defendant-appellant. ing agent, was informed that defendant’s fingerprints had been identified on a board Miller, Gen., Atty. Thomas J. James W. scene, at the Gen., Stephen found crime which have Ramey, Atty. Asst. E. *3 Barbour, Atty., plaintiff-appellee. bludgeon Agent Co. for used been to the victim. Blessman then called the Web- Assistant DONIELSON, C.J., by Heard and County Attorney ster to advise him of this HAYDEN, JJ., SNELL and but development apрropriation and discuss the considered en banc. phone of an arrest warrant. After this call, interviewing Agent Basler, the while HAYDEN, Judge. break, taking a was informed ar- that an Defendant appeals from his conviction being sought. rest warrant was The trial first-degree for murder. Defendant as- portion suppressed court the of defendant's 1) all, serts portion, that: rather than a of a the statement made after break. statement in was obtained violation of his rights sixth amendment and should have Following the a arrest warrаnt is- was 2) probable been in entirety; its for a search sued of defendant’s residence. justify cause was shown to not sufficient An unsuccessful suppress motion to the a issuance of warrant for the search of by fruits of the search filed was residence; 3) property seized asserting in particulars several during sup- the search should been have supporting affidavit was insufficient to es- pressed; 4) testimony improperly was al- probable At tablish cause. the time concerning lowed matters contained issued, investigating was officers statement; suppressed portion 5) person wearing aware that were a a brown trial improperly court restricted cross-ex- leather coat had been seen at the victim’s witness; 6) amination prosecution of a and home the defendant wore produce failed exculpatory certain evi- type of coat. No such coat was listed dence; 7) hearsay improperly warrant, but such a was coat admitted; 8) jury and have been should seized when found in a closet. test- When manslaughter voluntary instructed on as a ed small blood stain of of the victim’s lesser included offense. The State asserts type was found. 1) objection inter alia that: allegedly suppressed testimony of un- defendant was trial At D.C.I. Basler con- testified timely and therefore error was not cerning alleged matters which to have 2) preserved; alleged exculpatory evi- suppressed portion contained in the been dence was either disclosed or known to defendant’s statement. Defense counsel defendant; 3) and evidence objected testimony to this moved hearsay either was not or within was challenge mistrial. The was made after impression exception, sense its the State had rested case and was over- substantially similar had sought ruled. Defendant cross-examine presented without in a manner same witness other about statements rendering any non-prejudicial. error an attempt made defendant in to show victim, refugee, a Laotian was found easily defendant confused about strangled in Dodge her Fort home. Sever- court, upon objection by dates. The trial al valuable had items been taken. Defend- State, limited cross-examination to evidence ant, refugee, a Laotian questioned presented through direct examination investigators D.C.I. in Storm Lake. Prior witness. to the interview defendant was advised of ' trial, During hearsay objection, over two rights his Miranda and read the waiver form, English daughters in both of the victim testified and Laotian. De- concern- signed fendant ing waiver. statements the had con- victim made denied, by defendant to her ceming previous visits L.Ed.2d 95 given daughter had earlier A third
home.
direct,
redi-
cross and
similar
on
In both
and Jackson the defend-
Johnson
objection.
rect without
custody
ants had been arrested and were
when interviewed. The United States Su-
defendant’s re-
The trial court refused
recognized
right to
preme Court has
on
quest
jury be instructed
volun-
pretrial pro-
“critical”
counsel
certain
manslaughter
lesser included of-
tary
as a
Wade,
ceedings,
United States
fense.
(1967),
apрeal involve a con-
When the issues on
the accused must still be confronted
but
right
review the evidence de
stitutional
we
expert adversary
procedural sys-
an
or the
totality
of the circum-
novo
view
Gouveia,
189,104
tem or both.
467 U.S. at
Aldape,
stances. State
S.Ct. at
81 L.Ed.2d at
and Jack-
*4
1981);
Fisher,
279
36
State v.
son,
proceeding
complaint
in
is to file a
Iowa
magistrate.
before a
Iowa Code
804.1
I
§
(1985). The court in
concluded
Johnson
The defendant contends
filing
complaint
the is-
of a
and
interviewing
D.C.I.
statement made to
suance оf a warrant will create
formal
sup
have
agent Basler should either
the cir-
charge against a
when
entirety
suppressed
or
from
pressed
its
prose-
show a commitment to
cumstances
point
the decision was made
where
Jackson,
justify the issuance of a warrant. State v. Seager, (Iowa 1983); Ill McManus, Having decided that probable sufficient alleges Defendant cause existed for the issuance of the search affidavit was defective in that: certain de- warrant, we next consider defendant’s con- incorrect; scriptions were bare conclusions tention that the brown leather coat which alleged; and false intentionally or pursuant was seized to the search was not false statements were used. specifically listed on the there- *5 fore should have suppressed. Prior allegations
Defendant’s initial are trial, defendant filed a sup- without merit. The motion to descriptions incorrect press evidence, given by witnesses, are those which the trial court various over- but ruled. included within the affidavit was a сorrect description of objects. Any discrep these requires fourth amendment ancy apparent magistrate. was made to the pursuant items seized to a search warrant
We find no “bare” conclusions to
exist
specifically
Bakker,
be
described. State v.
the affidavit.
538,
(Iowa 1978);
262 N.W.2d
545
State
Hall,
702,
(Iowa 1975)
235 N.W.2d
717
cert.
A “false” affidavit statement has
denied,
822,
66,
434 U.S.
98 S.Ct.
54
been defined as “one which misleads the
requirement
L.Ed.2d 79
This
fur
magistrate
believing
into
the existence of
goal
thers the
privacy by ensuring
certain facts
thought
which еnter into his
even searches made with a warrant should
process in evaluating probable cause.”
as
possible.
be
limited as
United States v.
204,
(Iowa
v. Groff,
323 N.W.2d
210
Clark,
928,
(8th Cir.1976),
531 F.2d
931
1982).
Supreme
The Iowa
Court has
(citing Coolidge v.
Hampshire,
New
403
adopted, in Groff, the standard set
forth
443, 467,
2022, 2038,
U.S.
91 S.Ct.
29
Supreme
the United
regard
States
Court
564,
(1971)).
recognized
L.Ed.2d
583
A
ex
ing false statements made in search war
ception
requirement
that items be
Delaware,
rant affidavits. Franks v.
438
specifically described in the warrant is the
154, 155-56,
2674, 2676,
57
plain view doctrine. The State has the
667,
(1978);
L.Ed.2d
672
Grоff, 323 N.W.2d
prove
application.
burden to
its
Coolidge,
Franks,
Supreme
at 207.
Court
454-55,
2032,
187
Oliver,
1983)
744,
(Iowa
error,
leged
746
341 N.W.2d
counsel made a
(iciting Coolidge,
been to the victim’s residence The United States Court has day beyond of the murder matters suppression by prosecu- was held that “the therefore, direct, inquired into on the trial tion of evidence favorable to an accused limiting court did not abuse its discretion upon rеquest process violates due where cross-examination. guilt evidence is material either to or to punishment, irrespective good faith further contends that Defendant prosecution.” or bad Brady faith the court sustain abused its discretion Maryland, 83, 87, 1194, 373 U.S. 83 S.Ct. ing objection properly since it not 215, (1963). 10 L.Ed.2d 218 offered. Regarding the situation where the de- adopted general Iowa has rule that pretrial request specific fense makes a in ex- “courts have a considerable latitude disclosed, material which is not the Su- cluding objectiona- offered evidence that preme Court stated that the conviction will ble, any objection or even the absence of be set aside if the defense can show the ground proper if there is a which is not materiality of the evidence. United States York, 314, 211 stated.” State v. N.W.2d 97, 104, 2392, Agurs, 96 S.Ct. (Iowa 1973); Hade, 318 245 Bash v. Iowa 2348, 342, (1976). 49 L.Ed.2d 350 332, 341-42, 180, (1954). 186 770, Beeman, also State v. See (1) The defense must show that (Iowa 1982). In this case the court was requested (2) suppressed, evidence authority correcting well within its favorable relating basis of the to cross-ex- (3) the evidence was material. Moore amination. 786, 794, 2562, v. Illinois 408 U.S. 92 S.Ct. Finally, 706, (1972). we note that defect that See also have been created the court’s action States, Lindhorst v. United 658 F.2d (8th Cir.1981). could have been cured the defense Materiality exists when, trial, they at the end of the called appears where it evi Agent Basler as their own witness. might dence have affected the outcome Hall, the trial. State v.
VI
denied,
cert.
argues
Defendant also
er-
Love,
reversible
tory granted evidence. The court said mo- possible misconduct, prosecutorial rather tion. Defendant then filed a motion for the harm we focus on committed to defend sanctions, the court ordered in camera in- suppression ant due to the of this evidence. spection any exculpatory to determine if required Defendant was to show that the investigative evidence existed in the State's suppressed evidence was to favorable his Immediately prior file. to trial defendant case and that said evidence was material. upon filed a motion to dismiss based appeal On defendant failed his burden. produce State’s failure to excul- favorability He showed neither the nor the patory evidence. The court overruled the materiality of the evidence. motion, stating that it examine the would during posttrial hearing file voir dire. At VII for new trial the court admitted that it “did opportunity perform not hаve a real next consider We defendant’s contention honest-to-goodness inspection.” hearsay camera statements im- various properly require admitted and therefore a Kham Cam was “substantially the same” new trial. Therefore, as that of her sisters. ad- hearsay mission of in this situation was not Cam, daughter, Kham victim’s prejudicial. testified that her told mother had her that stopped by defendant had her house the prior
week to the murder. This VIII brought through out extensive direct Defendant contends that the court com- During and cross-examination. this exami mitted reversible error when it failed to hearsay nation no was made. charge instruct on the involuntary man- Khamphoui slaughter then Yiep, called as a lesser included offense of daughter degree another of the victim. She testi- first murder. We find no merit fied that defendant had argument. visited her moth- prior er’s home several times the week A appro lesser included offense is brought the murder. This information was priate when the elements of the lesser of out over оbjection. In re- elementary part greater fense are an sponse question why to State’s as to offense and there is a factual basis for the home, defendant visited the victim’s Mrs. instruction in the record. State v. Mills
Yiep stated that at the second visit defend- paugh, 1977) 257 N.W.2d ant said that he had been laid off and asked (quoting Rosewall, money. (Iowa 1976)). Voluntary man Finally, daugh- the State called the third slaughter legally is a included offense of ter, Khampai again Baecan. She testified degree first or second murder. Iowa Code that her mother had told her that defend- 707.4 § stopped ant had at her home. This evi- dence was received over defense counsel’s A prerequisite for defendant objection. voluntary have been convicted of man- slaughter “solely was that he acted as the Hearsay statement, is defined as “a oth- sudden, violent, result of and irresistible er than one made the defendant while passion resulting provocation from serious testifying at hearing, the trial or offered in passion per- sufficiеnt to excite such son_” in a prove evidence to the truth of the matter (1985), Iowa Code 707.4 § asserted.” Iowa Rules of Evidence No. Ware, see 714-15 801(c). (Iowa 1983). There is no of such objected The statements that defendant passion Voluntary in this case. man- prove to were not offered to that defendant slaughter factually supported was not a money. was laid off and in need of included offense. lesser part of the State’s case that Upon careful review we find no errors. rekindling showed the recent of a relation- We affirm. ship the defendant and between the victim. prove It was not offered to the truth of AFFIRMED.
anything might the victim have said. The. hearsay. statements were not See State v. Judges except All concur SNELL 1978).
Frazer, SCHLEGEL, JJ., who dissent. *8 Parenthetically, we note that even SNELL, Judge (dissenting). if these as statements could be construed wrongly IAs believe the district court they correctly hearsay, were allowed. The the use of evidence in allowed obtained Supreme preju Iowa Court has held that violation of the defendant’s constitutional substantially dice will not found where be rights, respectfully I dissent. in the same evidence is the record without Johnson, points objection. majority v. The out both that the State (Iowa 1978). The of fourth amendment to the United States requires that search should Constitution warrants be obvious to this court. It does not seized, particularly objects agents’ uncertainty, describe to be follow from the even Clark, true, United 531 F.2d 931 assuming States jacket’s that to be (8th Cir.1976); Bakker, State v. 262 discovery initially I note inadvertent. 1978), and that thе N.W.2d premise apparently that the State’s be- plain exception view doctrine is an to this jack- lied the contention that the State’s Oliver, requirement, N.W.2d “inadvertently ap- et was omitted from the agree, I cannot how- plication and the warrant.” This conces- ever, majority’s application with the of that negates majori- sion the State the also doctrine to the facts of the case. ty’s statement that “no basis exists for the agents conclusion that the ... knew the listing After the the elements State must location of the coat in In advance....” plain in order for the view doctrine to show event, inquiry the correct under the Oliver, apply, see at the agents fourth amendment is the whether majority discusses the record evidence in were, looking jacket. they were for the If support of each of these elements. The requires the constitution that it listed on be required application second element for an the warrant. plain of the view doctrine is that the dis- covery the of evidence be inadvertent. Id. Blessman, responsible John for majority’s complete analysis of that application support in the and affidavit is as element follows: of the search warrant one of the agent may An not know in advance the search, agents who conducted the conceded location of certain evidence and intend to deposition testimony “everyone in his that using plain seize it the view doctrine as a [prior was aware that a search] (citation omitted) pretext, No basis ex- leather coat Bless- brown was involved.” ists for conclusion that the brown leather jacket man on admit went that the seized intentionally coat was omitted from the object was an of the search. warrant, agents the that knew the Sheppard, 325 N.W.2d 915-16 advance, of location the coat and that Ct.App.1982), quoted ap- this court with plain merely doctrine used view proval following annotation from 29 pretext. by Agent as a As stated Bless- 1067, 1075: L.Ed.2d man, the failure to include the brown If anticipate law еnforcement officers be- leather coat on the search warrant was a going particular place they fore to a oversight. incriminating find certain will there, if analysis adequately I fail to see how this there is no substantial dan- ger taking the time to addresses issue inadvertence. No obtain valid argues appeal disappearance result in the one on this that the search warrant will evidence, pretext involved here was a search. The officers must obtain urged authorizing upon contention us is that the search a valid warrant the seizure evidence, ‘exigent scope of such exceeded warrant and was circumstances’ justifying failure exploratory therefore to obtain a valid violation lacking, rights. defendant’s fourth amendment I such a situation are analysis that a correct of the de- and the mere fact the evidence believe allegations plain anticipated seizing fendant’s and the State’s which the officers agree particular place on this turns viеw defense issue leads us to out plain they the defendant. view when arrive there cannot with justify their seizure of the evidence with- argues in its brief having out their first obtained a valid inadvertent, “discovery was as that term is warrant. courts, agents used because did apparent not know for certain that the coat It is to me that the would be searching.” looking jacket they located the house before for the when searched non-sequitur argument Similarly apparent in the home. State’s *9 glaring inconsistency jackеt is the involved in con- constitutionally justified was not cluding into the would reverse that when the State went and remand for a trial. new seeking jacket, defendant’s home a jacket SCHLEGEL, J., discovery joins
State’s of that was “inad- this dissent. vertent.” support
The State cites to Oliver of its
argument plain view doctrine Oliver, applied. supreme
should In our situation,
court was faced a similar in with bar, respect
this to the case at where evi- during
dence seized a search was not listed upholding on the search warrant. In RAY, Petitioner-Appellant, Dennis D. doctrine, plain seizure under the view court stated that record establishes “[t]he IOWA DEPARTMENT OF JOB SER- magazines were omitted from the VICE North Star Steel application by oversight warrаnt rather Company, Respondents-Appellees. intention, than and the were not officers looking Accordingly, them.” the court No. 85-1297. found discovery of the evidence inad- Appeals Court of of Iowa. meaning plain vertent of within case, present doctrine. In the view Oct. 1986. record expect- satisfies me that the jacket ed to seize the defendant’s and I consequently
would decline to find its dis-
covery plurality inadvertent. As the
Coolidge
Hampshire,
v. New
(1971),
opinion plain which enunciated the view form, during
doctrine in its current stated
its discussion of the element of inadvert-
ence: upon
If the initial intrusion is bottomed a particular
warrant that fails to mention a
object, though police its loca- know it,
tion and intend to then seize there is a express
violation constitutional re-
quirement particularly of “Warrants ...
describing things ... to be seized.” [the]
Id. at
586. pretext,
The issue is not one of it is one preventing initially an limited search turning general
from into a one. A search accomplishes objective by re-
quiring particular description
things to be seized. Id. at
case, goal not I achieved. would employed.
not sanction the means I would
hold that the seizure of the defendant’s