State v Downs, 98-2014
| Decision Date | 25 October 2000 |
| Docket Number | 98-2014 |
| Parties | NOTICE! No decision has been made on publication of this opinion. The opinion is subject to modification or correction by the court and is not final until the time for rehearing or further review has passed. An unpublished opinion of the court of appeals MAY NOT BE CITED by a court or by a party in any other action. The official published opinions of the Iowa Court of Appeals are those published in the North Western Reporter published by West Group. STATE OF IOWA, Plaintiff-Appellee, vs. MICHAEL JAMES DOWNS, Defendant-Appellant/ 98-2014 IN THE COURT OF APPEALS OF IOWA Filed |
| Court | Court of Appeals of Iowa |
Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.
Defendant appeals from the judgment and sentence entered upon a jury verdict finding him guilty of homicide by vehicle in violation of Iowa Code section 707.6A(1)(b) (1997), involuntary manslaughter in violation of section 707.5 (1997), and failure to remain at the scene of an accident and provide information and aid in violation of sections 321.261(2), 321.263, and 321.261(3) (1997). AFFIRMED.
Lori Holm, Des Moines, and Christopher A. Kragnes, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, John P. Sarcone, County Attorney, and Odell McGhee, Assistant County Attorney, for appellee.
Heard by Huitink, P.J., and Mahan and Zimmer, JJ.
Michael Downs appeals from the judgment and sentence entered upon a jury verdict finding him guilty of homicide by vehicle in violation of Iowa Code section 707.6A(1)(b) (1997), involuntary manslaughter in violation of section 707.5, and failure to remain at the scene of an accident and provide information and aid in violation of sections 321.261(2), 321.263, and 321.261(3). He contends: (1) the district court's failure to grant his motion to suppress pretrial statements denied him his rights to counsel and against self-incrimination, (2) the district court's failure to grant his motion in limine denied him his right to be free of unduly prejudicial evidence, (3) there was insufficient evidence to support his convictions, and (4) Iowa Code section 910.3B is unconstitutional in that it constitutes an excessive fine and amounts to cruel and unusual punishment, violates his due process and equal protection rights, and subjects him to double jeopardy. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS. At approximately 6:00 p.m. on November 29, 1997, Charles and Julie Schlomer were southbound on Highway 65. As they approached the intersection of Highway 65 and Lincoln Street Southeast in Bondurant, Iowa, in the west lane heading south, Charles Schlomer observed a vehicle in the northbound turn lane. The vehicle, driven by defendant, Michael Downs (Downs), proceeded across Mr. Schlomer's path. Mr. Schlomer applied his brakes, but was unable to stop his vehicle before broadsiding the vehicle driven by Downs. The Schlomer's vehicle ended up on the west shoulder of the southbound lane facing north. Downs's vehicle came to a stop in the ditch on the west side of the road, facing west. Officers investigating the accident observed no physical evidence at the scene to suggest the car driven by Downs had attempted to stop. Skid marks indicated the car driven by Schlomer did attempt to stop.
It was thirty-nine degrees, raining, and the roads were wet the evening of the crash. It was dark at the time of the collision. No large lights light the intersection. A yield sign is posted for drivers turning left from northbound Highway 65 onto Lincoln Street Southeast. A videotape of the scene revealed a glare on the road from the rain and vehicle headlights the evening of the crash. The headlights of oncoming traffic from the north blend with lights from a residential area nearby.
Emergency personnel, including Iowa State Patrol officers, arrived at the scene within minutes. Officers Douglas Cutts and Blaine Camp arrived at the scene and observed Downs's vehicle, a large Chrysler, in the west ditch with heavy damage to the passenger side. Downs's wife Eunice, a passenger in the vehicle, was still inside. As Officer Cutts approached the vehicle to assist Eunice, a voice from behind him, who he later identified as Downs, asked Officer Cutts if he would take care of Eunice, because Downs had to use the restroom. Officer Cutts advised Downs ambulances were on the way, and assisted Eunice until medical personnel arrived a short time later. During his brief encounter with Downs, Officer Cutts could not smell alcohol on the breath of defendant. He did not observe any evidence of drinking in or around Downs' vehicle. A videotape of the scene showed Downs walking up the bank of the ditch without slipping or falling.
Officers at the scene attempted to locate Downs. After looking around the area without success, including a nearby convenience store and storage buildings, officers widened their search. Meanwhile, emergency personnel removed Eunice from the vehicle and transported her to Methodist Hospital, where she died at 7:48 p.m. of multiple thoracic and abdominal injuries sustained in the accident.
A cab driver picked up Downs at Bosselman's Truck stop, in Altoona, Iowa, sometime after the accident. He was soaking wet when she picked him up. The cab driver followed Downs's specific directions and took him to a trailer court on Bloomfield Road. Downs did not appear drunk to the cab driver, and she did not smell alcohol in the cab. He sat in the back seat of the cab, behind the front passenger seat. Downs stood outside the cab when he paid the cab driver with a $20 bill.
Officers arrived at the trailer court on Bloomfield Road at approximately 10:00 p.m. Trooper Wellner observed Downs walking toward his trailer at approximately 11:30 p.m. He approached Downs and asked if he knew anything about a motor vehicle accident earlier in the evening. Downs told Trooper Wellner he did not. After dispatching Officer Cutts to the scene to identify Downs, Trooper Wellner informed Downs he needed to talk to Downs about some "serious business," and therefore needed to read him his Mirandarights. Trooper Wellner recited from memory the Miranda warning. Downs acknowledged he understood his rights. While speaking with Downs, Trooper Wellner noticed an alcohol-type odor on Downs's breath. He asked Downs if he had been drinking. Downs told the officer he had not. Trooper Wellner noticed a red blotch on Downs's face and asked if he was hurt. Downs responded he was not. The officer informed Downs his wife had been killed in a traffic accident. Downs responded "Oh, no, you're kidding." The officer handcuffed Downs. Downs stated he wanted to see a lawyer right away.
At 11:52 p.m., Trooper Wellner informed Downs he would be asking him to provide a body specimen. Downs stated he would not do so without talking to a lawyer. At 11:55 p.m., officers transported Downs to the Iowa State Patrol district office. Officers provided Downs with a phone book to try and locate an attorney. After Downs spoke with his mother on the phone, Trooper Wellner asked him if he had an attorney he wanted to call. Downs replied, Trooper Wellner invoked implied consent and requested a urine specimen from Downs. At 12:58 a.m. on November 30, 1997, Downs provided the urine specimen. The officer took the specimen to the Iowa Division of Criminal Investigation (DCI) laboratory in Des Moines for analysis.
DCI toxicologist and laboratory administrator, Michael Rehberg, tested the urine sample and determined it contained .021 grams per sixty-seven milliliters of alcohol. Several months later, Rehberg was asked to calculate Downs's level of intoxication at the time of the accident.1 He considered the time of the test, the time of the crash, and Downs's statement to officers he did not drink during the intervening period. Given these factors, and the average metabolic rate for alcohol, Rehberg opined Downs's blood alcohol level was .12 at the time of the crash.
The county attorney filed a trial information on January 9, 1998, charging defendant with (I) homicide by vehicle, in violation of Iowa Code section 707.6A(1)(b); (II) involuntary manslaughter, in violation of Iowa Code section 707.5; (III) failure to remain at the scene of an accident and to provide information and aid, in violation of Iowa Code sections 321.261(2), 321.263, and 321.261(3); and (IV) operating a motor vehicle while license is under suspension, in violation of Iowa Code section 321J.32(1).2 An amended information, containing the same charges, was filed April 27, 1998.
On August 24, 1998, a jury returned guilty verdicts on Counts I, II and III. The court sentenced Downs to imprisonment for a period not to exceed ten years on the homicide by vehicle charge (Count I), and imprisonment for a period not to exceed two years on the failure to remain at the scene of an accident and provide information and aid charge (Count III), and ordered the sentences to run concurrently.3 The court ordered Downs to make restitution, pursuant to Iowa Code section 910.3B, in the amount of $150,000, to the estate of Eunice Downs for having caused her death in a felonious manner. Downs appeals.
II. MOTION TO SUPPRESS. We review de novo defendant's claim his constitutional rights were violated. State v. Godbersen, 493 N.W.2d 852, 854 (Iowa 1992). We make an independent evaluation of the totality of the circumstances as shown by the entire record. State v. Astello, 602 N.W.2d 190, 195 (Iowa App. 1999). We consider both the evidence from the suppression hearing and that introduced at trial. State v. Countryman, 572 N.W.2d 553, 557 (Iowa 1997).
A. Statement. Downs argues the district court's failure to grant his motion to suppress a statement made by him to an officer denied Downs his constitutional rights to counsel and against self-incrimination. We disagree.
We have a...
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