State v. Harrington

• Decision Date: 17 October 1979
• Docket Number: No. 62543,62543
• Citation: 284 N.W.2d 244
• Parties: STATE of Iowa, Appellee, v. Terry HARRINGTON, Appellant.
• Court: Iowa Supreme Court

Page 244

284 N.W.2d 244

STATE of Iowa, Appellee, v. Terry HARRINGTON, Appellant.

No. 62543.

Supreme Court of Iowa.

Oct. 17, 1979.

Paul E. Watts, Omaha, Neb., and Noran L. Davis, Council Bluffs, for appellant.

Thomas J. Miller, Atty. Gen., and Lona J. Hansen, Asst. Atty. Gen., for appellee.

Considered by REES, P. J., and HARRIS, McCORMICK, ALLBEE and McGIVERIN, JJ.

McGIVERIN, Justice.

Defendant Terry Harrington appeals from his conviction and sentence for first-degree murder under sections 690.1-.2, The Code 1977. In seeking a reversal and new trial, defendant raises five issues involving trial court rulings. We affirm.

Defendant's jury trial conviction arose from the July 22, 1977, killing of John L. Schweer, a nighttime security guard for several Council Bluffs auto dealerships.

We considered a companion case involving this incident in State v. McGhee, 280 N.W.2d 436 (Iowa 1979).

Harrington raises the following issues for our review of adverse trial court rulings:

1. Whether evidence relative to his seized jacket should have been suppressed;

2. Whether his motion for directed verdict should have been sustained because of insufficient evidence of premeditation and deliberation, essential elements of first-degree murder under section 690.2;

3. Whether his motion for directed verdict should have been sustained because of insufficient evidence to corroborate the testimony of an alleged accomplice;

4. Whether the jury was adequately instructed regarding consideration of prior inconsistent statements of witnesses; and

5. Whether alleged prosecutorial misconduct deprived defendant of due process and a fair trial.

The principal witness for the State was Kevin Hughes.

From the evidence, the jury could have found the following facts. After midnight on July 22, 1977, defendant, Curtis McGhee and Hughes, all juveniles, met at a parking lot in Omaha, Nebraska. The three drove to Council Bluffs, planning to steal a car. They parked near the McIntyre Oldsmobile-Cadillac lot. McIntyre's was one of the businesses employing John Schweer as a security guard.

Defendant got a shotgun from his auto trunk and wrapped it in his jacket. Harrington and McGhee went into the car lot in furtherance of the plan while Hughes stayed at defendant's auto.

Three or four minutes later, Hughes heard a shot. Defendant and McGhee ran back to the car with defendant carrying the shotgun and jacket. Hughes asked what happened and defendant responded that he had "shot a cop." Hughes verified this statement with McGhee. Defendant put the shotgun in the car and the three drove back to Omaha.

On return to Omaha at about 1:30 a. m., Hughes went to the house of Linda Lee, his girlfriend, where he went inside for five or ten minutes. Next defendant and McGhee took Hughes to the original parking lot from which Hughes phoned Candace Pride.

On the morning of July 22 John Schweer was found dead from shotgun wounds along some railroad tracks near the car dealerships that employed him.

After a petition alleging delinquency by defendant in connection with the murder was filed in juvenile court under Chapter 232, The Code 1977, the court, after application and hearing under section 232.72, transferred the case to the Pottawattamie County Attorney for proper action under the criminal law.

The county attorney then charged defendant by information with the first-degree murder of Schweer.

Other facts will be stated later as necessary for understanding of the issues raised for review.

I. The seized jacket. In a pretrial motion, defendant sought to suppress evidence relative to a jacket he was wearing when arrested on the evening of September 30. The jacket matched the description of the one Hughes said the murder weapon was wrapped in, except for a slight variation in color. At approximately 8:30 a. m. on October 1 while defendant was in police custody, officer Putnam requested the jacket from defendant, who gave it to him. No search warrant was obtained for the taking.

Chemical examination disclosed the jacket contained two flakes of gunpowder of the type used in shotguns.

The court overruled defendant's motion to suppress, relying on the "plain view" exception to the requirement for a search warrant before seizing a person's property by police authorities. See State v. Davis, 228 N.W.2d 67, 71 (Iowa 1975).

The jacket and particles of gunpowder found on it were admitted in evidence at trial. In contesting the ruling, defendant claims his rights under the fourth and fourteenth amendments to the United States Constitution against unreasonable searches and seizures were violated; therefore the evidence is inadmissible at trial. State v. Rees, 258 Iowa 813, 824, 139 N.W.2d 406, 413 (1966).

When reviewing a trial court order overruling a motion to suppress based on a claimed violation of constitutional rights, we make an independent evaluation of the totality of the circumstances. State v. Iowa District Court In and For Johnson County, 247 N.W.2d 241, 245 (Iowa 1976).

The general rule that warrantless searches and seizures are unreasonable under the fourth amendment to the United States Constitution is subject to various exceptions. One of these exceptions, asserted here by the State, permits a warrantless search and seizure incident to arrest. United States v. Edwards, 415 U.S. 800, 802, 94 S.Ct. 1234, 1237, 39 L.Ed.2d 771, 775 (1974); State v. Kramer, 231 N.W.2d 874, 878 (Iowa 1975); State v. Raymond, 258 Iowa 1339, 1348, 142 N.W.2d 444, 449 (1966).

Under the rationale of Edwards, the clothes worn by a defendant at the time of his arrest may be taken, examined, and preserved for use as evidence without a warrant the day after his arrest, when defendant is still in the lawful custody of the police. As the Court said in Edwards, "(I)t is difficult to perceive what is unreasonable about the police examining and holding as evidence those personal effects of the accused that they already have in their lawful custody as the result of a lawful arrest." 415 U.S. at 806, 94 S.Ct. at 1238, 39 L.Ed.2d at 777. We said in State v. Kramer : "(T)he warrantless seizure of defendant's jacket within two or three hours following his arrest and while he continued in custody did not violate his constitutional rights. This situation falls within the 'search incident to an arrest' exception to the general requirement of a search warrant." 231 N.W.2d at 878.

We hold that where the police have probable cause to believe that a jacket worn by defendant at the time of his arrest is evidence of a crime committed by him, it is not unreasonable under the fourth amendment to take, examine and hold as evidence that jacket the morning after his arrest when the officers familiar with the crime first interrogate him.

We, therefore, find it unnecessary to consider whether defendant's jacket was properly seized under the "plain view" exception to the search warrant requirement.

The trial court did not err in overruling defendant's motion to suppress.

II. Sufficiency of premeditation and deliberation evidence. Harrington next contends the evidence bearing on the issue of his premeditation and deliberation was not sufficient to justify submission to the jury of the first-degree murder charge; therefore his motion for directed verdict as to first-degree murder should have been sustained.

Section 690.2 provides in pertinent part, that all murder (killing any human being with malice aforethought) ¹ that is a "willful, deliberate, and premeditated killing" is murder in the first degree. ² State v. Gilroy, 199 N.W.2d 63, 66 (Iowa 1972).

The standard for review of the sufficiency of evidence to support a criminal conviction is set out in State v. Overstreet, 243 N.W.2d 880, 883-84 (Iowa 1976). "Although the test repeated in Overstreet regarding adequacy of circumstantial evidence . . . has been supplanted by a revised standard, See State v. O'Connell, 275 N.W.2d 197, 204-05 (Iowa 1979), the remaining aspects of Overstreet still apply here." State v. Hillsman, 281 N.W.2d 114, 115 (Iowa 1979).

If there is sufficient evidence before the jury to support a first-degree murder conviction, an instruction on first degree should have been given. See State v. Reese, 259 N.W.2d 771, 778 (Iowa 1977).

We must apply the Overstreet-O'Connell test and determine if sufficient evidence of premeditation and deliberation by Harrington exists to support his conviction.

We have stated:

To deliberate is to weigh in one's mind or to consider. To premeditate is to think or ponder upon a matter before action. Premeditation and deliberation may not be presumed. It may not be inferred from intent. However, premeditation and deliberation need not exist for any particular length of time.

State v. Fryer, 226 N.W.2d 36, 41 (Iowa 1975) (citation omitted).

"(T)he general rule is that one who arms himself with the express purpose of shooting another cannot ordinarily claim the elements of first degree murder are lacking. The use of a deadly weapon accompanied by an opportunity to deliberate is evidence of malice, deliberation, premeditation and intent to kill." State v. Smith, 240 N.W.2d 693, 695 (Iowa 1976); Fryer, 226 N.W.2d at 41.

When the State is required to rely upon circumstantial evidence of premeditation and deliberation, one or more of three categories of evidence are often used: (1) evidence of planning activity of the defendant which was directed toward the killing; (2) evidence of motive which might be inferred from prior relationships between defendant and the victim; and (3) evidence regarding the nature of the killing. See People v. Anderson, 70 Cal.2d 15, 26-27, 73 Cal.Rptr. 550, 557, 447 P.2d 942, 949 (1968); W. LaFave and A. Scott, Handbook on Criminal Law § 73 at 564 (1972). Adequate evidence to support submission of the issue, and a subsequent conviction, might come entirely from one category, or from more than one. Cf. Fryer, 226 N.W.2d at 41 (showing of motive is not required)....