State v. Oliver

• Decision Date: 21 December 1983
• Docket Number: No. 68708,68708
• Citation: 341 N.W.2d 744
• Parties: STATE of Iowa, Appellee, v. Terrance Eugene OLIVER, Appellant.
• Court: Iowa Supreme Court

Page 744

341 N.W.2d 744

STATE of Iowa, Appellee, v. Terrance Eugene OLIVER, Appellant.

No. 68708.

Supreme Court of Iowa.

Dec. 21, 1983.

John P. Roehrick of Roehrick, Lavorato, Schuster & Hassell, P.C., Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., Roxann Ryan, Asst. Atty. Gen., Ted Prine and T. Dominic Corsello, Asst. County Attys., for appellee.

Considered by REYNOLDSON, C.J., and UHLENHOPP, McCORMICK, SCHULTZ, and WOLLE, JJ.

McCORMICK, Justice.

Defendant Terrance Eugene Oliver appeals from his conviction by jury and sentence for first-degree murder in violation of Iowa Code section 707.2(2) (1979). He urges six grounds for reversal. Because we find no merit in any of them, we affirm the trial court.

The charge arose from the stabbing death of Charles Leon Kimsey, Jr. on April 1, 1981. Kimsey was found dead in his Des Moines apartment on April 2, 1981, the apparent victim of robbery and murder. Following an investigation which included a search of defendant's residence, defendant and his sister Debra were arrested for the offense. Debra's conviction was recently affirmed by this court. See State v. Oliver, 341 N.W.2d 25 (Iowa 1983).

Defendant alleges the court erred in overruling his motion to suppress evidence obtained in the search, in overruling an objection to footwear impression testimony, in instructing the jury on the elements of felony murder, in overruling defendant's due process attack on the felony murder statute, and in denying a new trial because of juror misconduct. Defendant also alleges he was denied a fair trial because of ineffective assistance of counsel.

I. The search. Defendant lived in his mother's home. During the course of their investigation, the Des Moines police obtained a warrant to search the residence. Defendant had been implicated in the offense by his sister Debra. She told the officers that various articles taken at the time of the killing were in defendant's residence. She also described the clothing defendant wore at the time he allegedly stabbed the victim.

The officers knew certain "bachelor magazines" were missing from the victim's apartment, but they were not listed in the information for the warrant or the warrant itself. In executing the search warrant, the officers looked in defendant's bedroom for the clothing described in the warrant. They had not found a red T-shirt listed on the warrant at the time one officer lifted the edge of a rug on the bedroom floor. He found three magazines there of the kind taken from the victim's apartment. The officers seized the magazines and held them as evidence.

Before trial, defendant moved to suppress the magazines. The State asserted they were admissible under the "plain view" doctrine. The trial court initially sustained the motion but, when the State sought reconsideration of the ruling during trial, the court reversed itself and admitted the evidence.

The plain view doctrine provides a basis for upholding a seizure of evidence without a search warrant. The doctrine was delineated as an exception to the fourth amendment warrant requirement by a plurality of the United States Supreme Court in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The burden is on the State to prove its applicability. Id. at 454-55, 91 S.Ct. at 2032, 29 L.Ed.2d at 576. Cases in which this court has discussed and applied the doctrine include State v. Dickerson, 313 N.W.2d 526, 530-32 (Iowa 1981), State v. Holtz, 300 N.W.2d 888, 892 (Iowa 1981), State v. Kelly, 284 N.W.2d 236, 238-39 (Iowa 1979), and State v. Davis, 228 N.W.2d 67, 69-73 (Iowa 1975).

Three prerequisites must be satisfied for a plain view seizure. The intrusion into the otherwise protected area must be justified, the discovery of the object must be inadvertent, and its incriminating nature must be immediately apparent. Coolidge, 403 U.S. at 468-71, 91 S.Ct. at 2039-41, 29 L.Ed.2d at 584-86. Defendant contends none of the prerequisites were established in this case.

The first prerequisite is the lawfulness of the intrusion. Although defendant acknowledges the lawfulness of the officers' intrusion into his bedroom, he argues the warrant did not authorize a search under the rug. The officer testified he was looking for the T-shirt when he lifted up the rug. In arguing the intrusion was unjustified, defendant relies on cases holding that a search warrant does not authorize intrusions into areas where the objects of the search are unlikely to be. See, e.g., United States v. Chadwell, 427 F.Supp. 692 (D.Del.1977) (searching for mag wheels and tires on the small top shelf of a closet held not to be within the scope of a warrant). In the present case, however, the T-shirt for which the officer was looking might reasonably have been hidden under the bedroom rug.

Defendant questions the motive of the officer in lifting the rug. The issue, however, is not controlled by the officer's subjective state of mind. Instead it is determined by an objective assessment of the officer's actions in light of the facts and circumstances known to him. That "the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168, 178 (1978).

Applying the objective standard here, we find it was not unreasonable for the officer to look for the T-shirt under the bedroom rug. The first requisite of the plain view doctrine was satisfied.

For the State to establish the second requisite, it had to show the discovery of the magazines was inadvertent. An officer may not know in advance the location of certain evidence and intend to seize it, relying on the plain view doctrine only as a pretext. Texas v. Brown, 460 U.S. 730, ----, 103 S.Ct. 1535, 1540, 75 L.Ed.2d 502, 510 (1983) (plurality opinion). In the present case no basis exists for finding that the magazines were intentionally omitted from the search warrant and the plain view doctrine merely used as a pretext for seizing them. The record establishes that the magazines were omitted from the warrant application by oversight rather than intention, and the officers were not looking for them. We conclude that the magazines were discovered through inadvertence within the meaning of the doctrine.

The third and final requisite, that the incriminating nature of the magazines be immediately apparent, was also shown. The Supreme Court has said that a practical, nontechnical probability is all that is required. Id. at ----, 103 S.Ct. at 1543, 75 L.Ed.2d at 514. The necessary probability exists when there is probable cause to associate the property with criminal activity. Id. at ----, 103 S.Ct. at 1542, 75 L.Ed.2d at 513.

Here the officer had seen a National Lampoon magazine in the victim's mailbox with a mailing label addressed to the victim. The National Lampoon magazine found in defendant's bedroom had a portion of the front cover torn off where a mailing label might have been. The other two magazines that were found under the rug, Penthouse and Hustler, were of the kind reported missing from the victim's apartment, and they also had part of their covers torn off. This information was sufficient for a person of reasonable caution to believe that the magazines might have been stolen from the victim.

We conclude that all elements of the plain view doctrine were established. Therefore the trial court did not err in overruling defendant's motion to suppress the magazines.

II. The footwear impression. A criminalist compared a bloody shoe print found on a piece of paper in the victim's apartment with the sole of the defendant's tennis shoe. The witness was permitted to testify over defendant's foundation objection that defendant's shoe could have made the impression on the paper. Applicable principles are discussed in State v. Campbell, 326 N.W.2d 350, 354 (Iowa 1982), and State v. Mark, 286 N.W.2d 396, 409 (Iowa 1979). In this case the expert found a similar tread pattern, similar shoe size, and twelve similar individual or manufacturing defects. No dissimilarities were found. We find no abuse of trial court discretion in admitting the expert opinion.

III. The instruction. Defendant complains that the trial court's marshalling instruction on felony murder was unclear concerning whether the element of malice...