State v. McPhillips, 96-1176

• Citation: 580 N.W.2d 748
• Decision Date: 01 July 1998
• Docket Number: No. 96-1176,96-1176
• Parties: STATE of Iowa, Appellee, v. Duane Paul McPHILLIPS, Appellant.
• Court: United States State Supreme Court of Iowa

Page 748

580 N.W.2d 748

STATE of Iowa, Appellee, v. Duane Paul McPHILLIPS, Appellant.

No. 96-1176.

Supreme Court of Iowa.

July 1, 1998.

Douglas D. Daggett of Douglas D. Daggett, P.C., Creston, for appellant.

Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, and A. Zane Blessum, County Attorney, for appellee.

Considered by HARRIS, P.J., and LARSON, CARTER, NEUMAN, and TERNUS, JJ.

TERNUS, Justice.

Defendant, Duane Paul McPhillips, appeals his convictions of burglary, theft, and robbery. See Iowa Code §§ 711.2, 713.3, 714.1 (1995). He challenges the trial court's failure to suppress evidence seized pursuant to a search warrant that McPhillips claims was invalid. McPhillips also contends the evidence is insufficient to sustain his convictions. Finally, he alleges he received ineffective assistance from his trial counsel. Finding no infirmity in the proceedings leading to McPhillips' convictions, we affirm.

I. Background Facts and Proceedings.

Kenneth Daniel Stark was assaulted in the early morning hours of September 11, 1995, when two intruders broke into the Winterset home he shared with his mother. The intruders robbed Stark at gun point and assaulted Stark with the gun, inflicting a deep laceration on Stark's neck.

On September 24, 1995, an Atlantic police officer contacted the Winterset police department with information about the incident received from Rhonda McPhillips, the defendant's estranged wife. She implicated her husband and his friend, Scott Haines, in the burglary. On the basis of the information provided by Rhonda McPhillips, the police obtained a search warrant for the defendant's apartment, which he shared with Haines, and for the automobiles of both men. Upon execution of the warrant, the officers recovered clothing matching the description of clothing worn by the intruders as well as a rifle stolen from Stark's house. The officers later retrieved a shotgun that McPhillips had sold to a friend; blood on the gun matched Stark's blood.

Haines confessed to the crime and agreed to testify against McPhillips as part of a plea bargain. The State charged McPhillips with first-degree burglary, see Iowa Code § 713.3, assault while participating in a burglary, see id. § 708.3, fourth-degree theft, see id. §§ 714.1-.2, and first-degree robbery, see id. § 711.2.

Prior to trial, the defendant filed a motion to suppress the evidence seized under the search warrant on the basis that (1) the information provided by the informant, McPhillips' wife, was unreliable, (2) the magistrate failed to make the credibility findings required by Iowa Code section 808.3, (3) the information provided by the informant was stale, (4) the applicant for the warrant withheld material information relating to the informant's credibility, and (5) the warrant was not supported by probable cause. The district court overruled the motion. The case against McPhillips proceeded to trial, resulting in a guilty verdict on the burglary, theft and robbery offenses. Sentence was imposed and this appeal followed.

On appeal, McPhillips claims the trial court erred in denying his motion to suppress on several grounds: (1) use of the information provided by McPhillips' wife to obtain the warrant violated the marital privilege contained in Iowa Code section 622.9; (2) the applicant for the warrant concealed material information from the magistrate bearing on the informant's credibility; and (3) the magistrate failed to make an independent determination of the informant's credibility. The defendant also challenges the sufficiency of the evidence to support the jury's verdict. Finally, McPhillips raises an ineffective-assistance-of-counsel claim. Should the court decline to reach the merits of his search warrant challenge, he claims his trial counsel was ineffective for failing to preserve error. McPhillips also contends his trial counsel rendered ineffective assistance in waiving his right to a speedy trial.

II. Motion to Suppress.

A. Error preservation. The State claims McPhillips failed to raise the marital privilege issue in the trial court and therefore has waived any error based on section 622.9. We agree. To preserve error on a trial court's suppression ruling, a defendant must alert the trial court to the specific objection upon which the defendant seeks to exclude the evidence. See State v. Washington, 257 N.W.2d 890, 895 (Iowa 1977). A failure to do so prevents the defendant from relying on that objection to obtain a reversal of the court's ruling. See id.

Here, McPhillips did not mention the marital privilege issue in his motion to suppress or at the hearing on that motion. Therefore, we will not consider it on appeal from his conviction. As a result, McPhillips is left to argue that his trial counsel was ineffective in failing to preserve error, a claim we shall consider later in this opinion. Because error was preserved on the remaining issues raised on appeal in connection with the court's denial of McPhillips' motion to suppress, we will consider those issues now.

B. Concealment of material information. McPhillips contends the officer applying for the search warrant omitted material facts from the application that bore on the informant's credibility. This claim implicates Fourth Amendment rights and, therefore, our review is de novo. See State v. Gogg, 561 N.W.2d 360, 363 (Iowa 1997); State v. Niehaus, 452 N.W.2d 184, 187 (Iowa 1990). We consider all relevant facts and circumstances in deciding whether the defendant has carried his burden to show an intentional or reckless misrepresentation. See Gogg, 561 N.W.2d at 364.

To successfully impeach the warrant application, McPhillips must establish that the officer "was purposely untruthful with regard to a material fact in his ... application for the warrant, or acted with reckless disregard for the truth." Niehaus, 452 N.W.2d at 186. The officer's conduct must be more than negligence or a mistake. See id. at 186-87. The magistrate must be misled "into believing the existence of certain facts which enter into his thought process in evaluating probable cause." State v. Groff, 323 N.W.2d 204, 210 (Iowa 1982).

McPhillips does not claim the officer here deliberately falsified the search warrant application. Rather, he claims the officer omitted material information in reckless disregard for the truth. See State v. Paterno, 309 N.W.2d 420, 424 (Iowa 1981) (noting a failure to disclose facts can constitute a misrepresentation in reckless disregard of the truth). Reckless disregard can be shown in two ways: (1) proof that the applicant harbored serious doubts about the informant's truthfulness; or (2) showing circumstances evincing an obvious reason to doubt the informant's veracity. See Niehaus, 452 N.W.2d at 187. McPhillips contends the circumstances here demonstrate an obvious reason to doubt the truthfulness of his wife's statements.

The defendant argues the officer applying for the search warrant omitted the following facts: the informant was angry at McPhillips because of an alleged affair; the informant had been physically abused by McPhillips; and the informant was relieved to learn that McPhillips would go to jail if arrested. At the hearing on the defendant's motion to suppress, the magistrate issuing the warrant testified that she had viewed a videotape recording of the informant's statement to the police. The magistrate was aware the informant and McPhillips were married, but separated. She knew the informant was afraid of McPhillips and was concerned he would take their children to Texas. The magistrate testified that even if she had been informed of the omitted facts, she still would have found the informant credible because (1) the informant was concerned for her personal safety as a result of talking to the police, (2) her statements to two different police officers and her statements on the videotape were consistent, and (3) the officers' investigation corroborated what the informant said.

The record confirms that the information provided by the informant to the police matched the victim's description of the crime and of the assailants. More important, the officers familiar with the crime testified that the informant knew details of the offense that had not been publicly revealed. Finally, the information omitted from the application merely supplied additional reasons to believe the informant would like to see her husband in jail, a conclusion easily drawn by the magistrate from the information that was already included in the warrant application.

Given the strong corroboration of the information provided by the informant and the cumulative nature of the omitted information, we think any omissions by the officer applying for the warrant do not establish obvious reasons to doubt the informant's credibility. Nor is there any evidence that the magistrate was misled by the omissions. Therefore, we agree with the district court's conclusion that the defendant failed to prove the police acted with reckless disregard for the truth in applying for the search warrant.

C. Independent determination of informant credibility. McPhillips argues the magistrate failed to comply with Iowa Code section 808.3. We review issues concerning the statutory sufficiency of a search warrant for correction of errors of law. See State v. Myers, 570 N.W.2d 70, 72 (Iowa 1997).

When a magistrate relies on information provided by a confidential informant in determining that probable cause exists for issuance of a search warrant, the magistrate

shall include a determination that the information appears credible either because sworn testimony indicates that the informant has given reliable information on previous occasions or because the informant or the information provided by the informant appears credible for reasons specified by the magistrate. The magistrate may in the magistrate's discretion require that a witness upon whom the applicant relies...