State v. Boley

• Decision Date: 23 May 1990
• Docket Number: No. 88-1067,88-1067
• Citation: 456 N.W.2d 674
• Parties: STATE of Iowa, Appellee, v. Kevin BOLEY, Appellant.
• Court: Iowa Supreme Court

Page 674

456 N.W.2d 674

STATE of Iowa, Appellee, v. Kevin BOLEY, Appellant.

No. 88-1067.

Supreme Court of Iowa.

May 23, 1990.

Raymond E. Rogers, State Appellate Defender, and Shari Baron, Asst. State Appellate Defender, for appellant.

Thomas J. Miller, Atty. Gen., Sarah J. Coats and Thomas H. Miller, Asst. Attys. Gen., and William H. Appel, County Atty., for appellee.

Considered by McGIVERIN, C.J., and HARRIS, SCHULTZ, CARTER, and LAVORATO, JJ.

SCHULTZ, Justice.

This appeal arises from defendant Kevin Lee Boley's conviction of first-degree murder and first-degree robbery following a jury trial. The charges stem from the shooting death of Marilyn Brisendine while she was working the night shift at the Amoco gas station in Agency, Iowa.

In the early morning hours of October 30, 1987, defendant and Lance Newland were seen loitering at the station. Their behavior made decedent and her coworker suspicious and nervous enough to write down the license number and description of the car that the two men were driving in case the police needed to be notified. Decedent also locked the normally unlocked cash register and hid the key. At about 3:45 a.m. a skinny, light-haired individual fitting defendant's description was seen quickly leaving the station and jumping into the car previously described by the victim. The observer, a customer, then found Ms. Brisendine "[lying] face down in [a] pool of blood" behind the counter. Despite the fact that she had been shot in the lower back and under the eye, she was able to tell the customer that "I wrote the license plate number down." Ms. Brisendine later died of the injuries inflicted by the 22-caliber bullet to her back.

Law enforcement officials found the note "Silver Dodge Aries, SJE-224" written on a pad on the counter in the station and traced the car to defendant's grandmother's apartment complex in Ottumwa. Defendant and Lance Newland were arrested there at approximately seven o'clock that morning.

The defendant had been living with his grandmother Lena Boley at another location for approximately three months until October 13. Defendant then moved in temporarily with a friend. After about a week, he and his friend quarrelled, and defendant moved out. He left a duffel bag and an unzippered suitcase at his friend's home. The defendant spent part of the night of October 29 at his grandmother's new apartment.

Officials obtained a warrant to search defendant's grandmother's home on October 30. The investigation team returned to the apartment later that day when they were notified that defendant's friend had dropped off his duffel bag and suitcase. The suitcase was closed but not zipped when defendant left it at his friend's house. It was zipped shut when it was brought to his grandmother's residence. She told the agents that they were welcome to search the luggage. The agents did not consider this search to be a continuation of the execution of the earlier search warrant. A barrel to a 22-caliber handgun was found in the suitcase and was later identified as the spare barrel for a missing Beretta handgun belonging to the father of Newland's former girlfriend.

Defendant and Newland were both charged with the crimes of murder and robbery in the first degree pursuant to Iowa Code sections 707.1, 707.2 and 711.1, 711.2 (1987). The court granted defendant's motions for change of venue and to sever the trials. Defendant's motions to suppress statements made to a jail informant, certain identification testimony and the warrantless search of his luggage were overruled. The case was then tried to a jury in Jefferson County in June 1988. Defendant was found guilty on both counts. The court of appeals affirmed the trial court as a matter of law. On further review, defendant claims that the trial court erred in (1) admitting into evidence the gun barrel which was seized in the warrantless search, (2) instructing the jury that it was immaterial to the offense of robbery whether property was actually stolen, (3) submitting the robbery count to the jury, and (4) refusing to submit involuntary manslaughter as a lesser-included offense. We affirm the trial court.

I. Warrantless search. Defendant claims that the warrantless search of his suitcase violated his right to be free from unreasonable searches and seizures under both the United States and Iowa Constitutions. See U.S. Const. amend. IV and Iowa Const. art. I, § 8. When state and federal constitutional sections encompass the same protections, we usually consider them identical in scope and purpose. State v. A-1 Disposal, 415 N.W.2d 595, 598 (Iowa 1987). We do so here. In assessing alleged violations of constitutional rights, we make an independent evaluation of the totality of the circumstances as shown by the entire record. State v. Campbell, 326 N.W.2d 350, 352 (Iowa 1982).

A. Expectation of privacy. The fourth amendment protects an individual's legitimate expectation of privacy from government intrusion. State v. Flynn, 360 N.W.2d 762, 764 (Iowa 1985). We must therefore determine whether the defendant had a constitutionally protected reasonable expectation of privacy in the contents of his unzipped luggage left at his friend's apartment. The trial court in its ruling on the motion to suppress concluded that he did not have such an expectation of privacy. We agree.

The Supreme Court has stated that "luggage is a common repository for one's personal effects, and therefore is inevitably associated with the expectation of privacy." Arkansas v. Sanders, 442 U.S. 753, 762, 99 S.Ct. 2586, 2592, 61 L.Ed.2d 235, 244 (1979) (unlocked suitcase); see also United States v. Chadwick, 433 U.S. 1, 13, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538, 548-49 (1977) (double-locked footlocker); United States v. Barry, 853 F.2d 1479, 1481-82 (8th Cir.1988) (locked suitcase); United States v. Presler, 610 F.2d 1206, 1213 (4th Cir.1979) (locked briefcases); United States v. Stevie, 582 F.2d 1175, 1179 (8th Cir.1978) (closed suitcase), cert. denied, 443 U.S. 911, 99 S.Ct. 3102, 61 L.Ed.2d 876 (1979); United States v. Schleis, 582 F.2d 1166, 1172 (8th Cir.1978) (locked briefcase). The issue is whether defendant had a legitimate expectation of privacy when he left the unzipped suitcase at his friend's apartment.

The Eighth Circuit Court of Appeals in Barry quoted Presler, 610 F.2d at 1213-14, to support its conclusion that by locking his suitcase before checking it and keeping the key, the defendant demonstrated that he had a "legitimate expectation of privacy" in the luggage. Barry, 853 F.2d at 1482. In contrast, in State v. Schrier, 283 N.W.2d 338, 346 (Iowa 1979), we noted that defendant's knapsack's strap was not tightly latched so that its contents "became visible by simply pushing the flap aside." We held that the defendant's fourth amendment rights were not violated when the officer simply pushed that flap aside and looked into the bag's main compartment. Id. Similarly, in United States v. Ramapuram, 632 F.2d 1149, 1156 (4th Cir.1980), cert. denied, 450 U.S. 1030, 101 S.Ct. 1739, 68 L.Ed.2d 225 (1981), the court noted that the defendant had "failed to secure" the trunk of his car and upheld the warrantless search conducted by government agents.

As in Ramapuram and Schrier, defendant could have secured his personal belongings; he could have simply closed his suitcase by using the zipper. In Schrier we contrasted the knapsack with a footlocker, briefcase or suitcase "which securely conceals articles from view unless unlatched." 283 N.W.2d at 346 (emphasis added). Defendant's suitcase was not secured, and he did not take any precautions to protect its contents. He left it unzipped and unattended at his friend's home following a quarrel, returning only once in five days to change clothes. He allowed the friend to help him put his belongings back in the suitcase after he had removed them. When his friend brought defendant's luggage to his grandmother's apartment, it was necessary to close the suitcase by zipping it to prevent the contents from spilling out during the move.

In Presler the defendant had given his locked briefcases to a friend for safekeeping. The court cited his failure to give that friend the keys or the combination to the locks as clear evidence that defendant had no intention of giving the friend or anyone else access to the briefcases. 610 F.2d at 1214. The owner had taken physical precautions to protect his property from intrusions by third persons. No such care was taken here. On the contrary, defendant allowed his friend access to the contents of the suitcase. Whenever one knowingly exposes his effects to third parties, he surrenders his fourth amendment protections in such property. U.S. v. Sellers, 667 F.2d 1123, 1126 (4th Cir.1981).

Furthermore, during defendant's five-day absence, his former girlfriend visited his friend's home and looked through defendant's suitcase for any of her belongings that he might have taken from her when they separated. The girlfriend did not ask the friend's permission to search the luggage, and the friend did not stop her. She removed some stuffed animals and cassette tapes which she said belonged to her.

Taking all these facts into consideration, we conclude that the trial court was correct in its determination that defendant did not have a reasonable expectation of privacy in the contents of his luggage. It was not a violation of the fourth amendment to admit the seized spare gun barrel into evidence.

B. Harmless error. Even if the court had erred in admitting the gun barrel, we need not reverse defendant's conviction because such error would be harmless. Prejudice must be shown before any error requires reversal. State v. Cole, 295 N.W.2d 29, 40 (Iowa 1980). An error of constitutional magnitude does not mandate a new trial if the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710-11 (1967); State v. Freeman, 297...