State v. Harris, 87-731

• Decision Date: 22 February 1989
• Docket Number: No. 87-731,87-731
• Citation: 436 N.W.2d 364
• Parties: STATE of Iowa, Appellee, v. Daniel Brian HARRIS, Appellant.
• Court: Iowa Supreme Court

Page 364

436 N.W.2d 364

STATE of Iowa, Appellee, v. Daniel Brian HARRIS, Appellant.

No. 87-731.

Supreme Court of Iowa.

Feb. 22, 1989.

Raymond E. Rogers, Acting Appellate Defender, for appellant.

Thomas J. Miller, Atty. Gen., Christie J. Scase, Asst. Atty. Gen., E.A. Westfall, County Atty., and Drew Kouris and Timothy Markel, Asst. County Attys., for appellee.

Considered by HARRIS, P.J., and SCHULTZ, CARTER, NEUMAN, and ANDREASEN, JJ.

CARTER, Justice.

Defendant, Daniel Brian Harris, appeals from his conviction of first-degree murder in violation of Iowa Code sections 707.1 and 707.2 (1985). He makes three claims of error in arguing for reversal and a new trial. These are that the district court erred: (1) in overruling his motion for change of venue; (2) in overruling his motion to suppress evidence allegedly obtained as the product of a warrantless search; and (3) in overruling another motion to suppress evidence which, it is alleged, was obtained pursuant to an invalid search warrant. We consider each of these contentions and conclude that they provide no basis for disturbing the judgment of the district court.

On Wednesday, December 31, 1986, the body of Kristina Nelson, a sixteen-year-old high school student, was discovered by two men looking for a fishing spot on the east bank of the Missouri River near Council Bluffs. Police officer Lyle Brown, who was called to the scene, observed a shoeprint in the sand approximately ten to fifteen feet from the body. Officer Brown also discovered a scarf of blue-gray color near the crime scene.

State Medical Examiner Thomas Bennett performed an autopsy on the body on January 1, 1987. He concluded that death resulted from ten stab wounds to the chest inflicted by an instrument with one blunt edge and one sharp edge. He further established that the victim had suffered a skull fracture, and neck contusions consistent with manual throttling. He estimated the time of death at sometime during the evening of December 30, 1986.

Evidence presented at the trial included two statements given to the police by the defendant. The first statement was given to officer Brown on January 4, 1987. At this time, defendant stated that he had known Kristina Nelson for two years and had last spoken to her in a telephone conversation sometime between December 28 and December 31. He told officer Brown that he had not seen Kristina Nelson in person since Christmas. Brown interviewed the defendant again on January 6. At this time defendant indicated that he had spoken with the victim by telephone on December 29 between 5 and 6 p.m. He said he had worked at the Burger King restaurant on the nights of December 29, 30, and 31 from 9 p.m. until 2 a.m. He again stated that he had not seen the victim personally since sometime prior to Christmas.

Three witnesses testified that they saw defendant with the victim on the evening of December 30. An inmate at the Pottawattamie County jail during the time that defendant was detained there awaiting trial testified that defendant told him that defendant's brother had sexually assaulted the victim and that, following this, defendant had cut her with a knife. This witness also testified that defendant had talked of taking a gold neck chain which the victim had been wearing.

Physical evidence obtained from defendant's residence pursuant to two search warrants included deck shoes with a shoeprint pattern similar to the one found at the scene of the crime and a gold neck chain (found in the personal effects of defendant's brother) which was identified by the victim's father as being similar to a chain worn by his daughter.

Vacuum sweepings from defendant's Mustang automobile produced fibers of the same diameter and color as those taken from the scarf found near the crime scene. The fibers were also chemically the same as those in the scarf. Other scientific evidence offered by the State included an analysis indicating human blood was present on defendant's deck shoes which was identified as group O PGM type 1+2+. The victim's blood was also determined to be group O PGM type 1+2+. Ten percent of the population has this type of blood.

The defendant called several alibi witnesses to account for his whereabouts on the evening of December 30, 1986. Among these was the assistant manager of the Burger King restaurant where defendant was employed. That witness testified that defendant had worked at the Burger King from 9 p.m. on December 30, 1986, until 1:30 a.m. on the following day.

Approximately forty-five newspaper articles concerning the Nelson murder were published in two locally read newspapers, the Omaha World Herald and the Daily Nonpareil. These articles indicated that defendant had also been arrested and charged with committing an unrelated rape which occurred in October of 1986. The articles described some circumstantial similarities between the October rape and Kristina Nelson's murder. These articles described some of the physical evidence later introduced at defendant's trial and other physical evidence which was not admitted at trial. Extensive press coverage continued until approximately one month prior to the commencement of the trial. Defendant's motion for change of venue based on excessive pretrial publicity in Pottawattamie County was denied.

The case proceeded to jury trial on April 21, 1987, and on April 29, the jury found defendant guilty of first-degree murder in Kristina Nelson's death. Other facts material to the case on appeal will be discussed in connection with our consideration of the legal issues which are presented.

I. Refusal to Grant Change of Venue.

The first issue on appeal concerns the trial court's refusal to grant defendant's motion for change of venue. Defendant asserts the intense media coverage of the crime and its investigation prevented the selection of a fair and impartial jury.

Iowa Rule of Criminal Procedure 10(10)(b) requires a trial court to grant a motion for change of venue if it determines that

such degree of prejudice exists in the county in which the trial is to be had that there is a substantial likelihood a fair and impartial trial cannot be preserved with a jury selected from that county....

To secure reversal of a conviction based on the denial of a change of venue, a defendant has the burden to show "either actual prejudice on the part of the jury or ... that the publicity attending the case was so pervasive and inflammatory that prejudice must be presumed." State v. Spargo, 364 N.W.2d 203, 207 (Iowa 1985). A trial court's decision rejecting a motion for change of venue will not be overturned unless this court finds an abuse of discretion. State v. Wagner, 410 N.W.2d 207, 210 (Iowa 1987).

The pretrial publicity in the present case was extensive, prolonged, contained some inaccurate information, and referred to some evidence not admitted at defendant's trial. Notwithstanding the circumstances which have been shown concerning this publicity, we do not find that the trial court abused its discretion in denying the motion for change of venue. In denying the motion, the court stated that it was in a position to "allow a careful selection of a local jury to insure the defendants receive a fair trial." The court's order indicated that voir dire would be transcribed and that it would reconsider the necessity of a venue change at the time of or following jury selection.

When defendant's motion for change of venue was renewed at the completion of jury selection, the court again denied the motion stating that "in [its] opinion it seem[ed] like jury selection went very well.... [W]e had a lot of uninformed people." This conclusion regarding jury selection is, we believe, supported by the record. Thirty-nine prospective jurors were questioned by counsel. Defendant challenged four jurors for cause. Only two of these challenges were based on exposure to pretrial publicity. All challenges for cause which the defendant lodged were sustained by the district court.

Exposure to news accounts does not by itself create a substantial likelihood of prejudice in the minds of prospective jurors. State v. Johnson, 318 N.W.2d 417, 422 (Iowa 1982); State v. Lanscak, 404 N.W.2d 192, 193 (Iowa App.1987). The crucial determination is whether, as a result of pretrial publicity or for other reasons, a substantial number of prospective jurors hold such fixed opinions on the merits of the case that they cannot impartially judge the issues to be determined at trial. State v. Gavin, 360 N.W.2d 817, 819 (Iowa 1985); State v. Ware, 338 N.W.2d 707, 713 (Iowa 1983); State v. Nebinger, 412 N.W.2d 180, 184 (Iowa App.1987). The reported voir dire questioning in the present case fails to indicate that this type of pervasive prejudice existed so as to poison the available pool of jurors. The motions for change of venue were properly denied.

II. Evidence Obtained by Alleged Warrantless Search.

Defendant's first motion to suppress evidence was based on the contention that information contained in a search warrant application presented on January 13, 1987, was obtained from a prior warrantless search of defendant's residence. On this aspect of the case, the investigating officers had concluded the shoeprint found at the crime scene resembled that made by a deck shoe. They later examined the sole patterns of different brands of deck shoes sold in the Omaha-Council Bluffs area. Several of the brands were found to have sole patterns similar to the print found near the victim's body.

On January 8, 1987, the police went to defendant's residence with an arrest warrant to be executed in connection with a different crime. They were admitted to the residence by defendant's father and went to a bedroom where the defendant was sleeping. They awoke defendant and took him into custody. In that process, one police officer observed a pair of deck shoes on the floor of the bedroom.

The officer moved nearer to the shoes in order to observe the...