State v. Ripperger

• Decision Date: 25 January 1994
• Docket Number: No. 92-813,92-813
• Citation: 514 N.W.2d 740
• Parties: STATE of Iowa, Appellee, v. Michael Wayne RIPPERGER, Appellant.
• Court: Iowa Court of Appeals

Page 740

514 N.W.2d 740

STATE of Iowa, Appellee, v. Michael Wayne RIPPERGER, Appellant.

No. 92-813.

Court of Appeals of Iowa.

Jan. 25, 1994.

Linda Del Gallo, State Appellate Defender, and Shari Barron, Asst. State Appellate Defender, for appellant.

Bonnie J. Campbell, Atty. Gen., Sheryl A. Soich, Asst. Atty. Gen., Patrick C. Jackson, County Atty., and John Jellineck, Asst. County Atty., for appellee.

Heard by DONIELSON, P.J., SCHLEGEL, J., and PERKINS, Senior Judge. ^*

SCHLEGEL, Judge.

The defendant, Michael Ripperger, appeals his convictions, following a jury trial, for kidnapping in the first degree and burglary in the first degree in violation of Iowa Code sections 710.2 and 713.3 (1991). He contends the district court erred in: (1) denying his motion to suppress; (2) admitting statistical evidence in relation to DNA fingerprinting; (3) admitting evidence of a prior crime to establish identity; (4) denying his discovery request; and (5) submitting a jury instruction explaining confinement and removal erroneously.

Annette Marmion's house was broken into by a man wearing a ski mask who bound and blindfolded her and raped her at knifepoint. The State charged Ripperger with first-degree burglary and kidnapping and two counts of second-degree sexual abuse.

Prior to trial Ripperger filed a motion to suppress the fruits of the search warrant and the nontestimonial identification order because they allegedly violated the Fourth Amendment for several reasons. First, he claimed the voice identification procedure carried out by the police impermissibly suggested that he was the offender. The procedure was conducted at his parole officer's office during a conversation about a denial of a discharge and a referral to a perpetrator's program. Second, Ripperger claimed that material misrepresentations were contained in the search warrant and nontestimonial applications. Third, he claimed that under the totality of the circumstances test, probable cause was lacking. Finally, he claimed the nontestimonial identification order was deficient. The district court overruled Ripperger's motion to suppress.

Ripperger also filed two motions in limine. The first one requested the exclusion of DNA evidence on the basis that the FBI's statistical results were unreliable due to their improper use of the "product rule." The second motion requested the exclusion of evidence that he had sexually abused another victim in 1983 by entering her home, covering his face with a shirt, and threatening her with a knife. Ripperger claimed the 1983 crime was not sufficiently similar to the present one to fall within a rule 404(b) exception. He also claimed the evidence was unfairly prejudicial. Both motions were overruled.

Ripperger also filed a motion to produce the DNA test results prepared for the present case, correspondence between the FBI and Dr. Eisenberg concerning FBI mistakes in DNA testing (in an unrelated case), and a copy of an unpublished report by the National Academy of Sciences regarding recommended procedures and protocol which are not practiced by the FBI. Ripperger claimed the last two items were material to his defense. The district court granted the request for DNA results concerning the present case but overruled the other requests.

The case proceeded to a jury trial. Ripperger objected to the district court's jury instruction defining confinement and removal. He claimed the court should have inserted the words "substantially" and "significantly" in the jury instruction. The district court overruled Ripperger's motion noting the court's desire not to depart from the present language of the uniform instructions.

Ripperger was found guilty of first-degree kidnapping and first-degree burglary and was sentenced to life imprisonment. Ripperger now appeals. We affirm.

I. Denial of Defendant's Motion to Suppress Evidence.

Ripperger's first contention on appeal is that the trial court erred in four respects in denying his pretrial motion to suppress evidence. He alleges: (1) the voice identification procedure was impermissibly suggestive; (2) material misrepresentations were contained in the warrant application and nontestimonial application; (3) probable cause was lacking under the totality of the circumstances test; and (4) the nontestimonial identification order was deficient. Since Ripperger asserts violation of a constitutional safeguard, our standard of review is a de novo evaluation of the facts based on the totality of the circumstances. Hinkle v. State, 290 N.W.2d 28, 30 (Iowa 1980).

A. Voice Identification Procedure.

Ripperger first claims his due process rights were violated when the victim in this case and another victim (whose sexual abuse complaint was being investigated by police) were brought to Ripperger's parole office to listen to his voice. Impermissibly suggestive identification procedures causing a likelihood of irreparable misidentification violate a defendant's right to due process. See Manson v. Brathwaite, 432 U.S. 98, 109, 116, 97 S.Ct. 2243, 2250, 53 L.Ed.2d 140, 151, 153 (1977); State v. Mark, 286 N.W.2d 396, 403, 405 (Iowa 1979); State v. Salazar, 213 N.W.2d 490, 493 (Iowa 1973). The relevant due process test to be applied was articulated by the United States Supreme Court in Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199, 1206 (1967). Identification testimony is prohibited where the confrontation conducted is unnecessarily suggestive and conducive to irreparable mistaken identification. Id. This test has also been discussed by the Iowa Supreme Court. See Salazar, 213 N.W.2d at 493; see also State v. Ash, 244 N.W.2d 812, 814 (Iowa 1976).

We review the circumstances on a case-by-case basis to determine whether the identification procedure at issue was so inherently unreliable that due process would bar its admission. Manson, 432 U.S. at 116, 97 S.Ct. at 2254, 53 L.Ed.2d at 155. To succeed on this claim, the defendant must establish that the procedure was in fact impermissibly suggestive and that a substantial likelihood of irreparable misidentification existed. ¹ Id.; State v. Neal, 353 N.W.2d 83, 86-87 (Iowa 1984).

Ripperger contends that the procedure used in this case was impermissibly suggestive since the two women were aware that the procedure was being conducted at the office of the defendant's parole officer and since a discussion occurred concerning a perpetrators' program and a denial of a discharge. We do not find the voice identification procedure in the present case to be impermissibly suggestive. Although the location of the parole office in this case suggests Ripperger is a criminal, it does not suggest he is the criminal who raped these victims. The record reflects that the victims listened to the voice of another man at the parole office as well; Ripperger's voice was in no way highlighted before the women.

Furthermore, the discussion that occurred at the parole office concerning a perpetrators' program and denial of a discharge failed to render the voice identification procedure impermissibly suggestive. The procedure did not point to Ripperger as the perpetrator here, or even as a sex abuser. No mention was made during the interview of any subject that was sexual in nature. As the parole officer noted, "I did not use the word sex or sexual or refer to sex in any form.... I was as ambiguous about it as I could be." Ripperger did not discuss his prior conviction in detail, nor did he mention anything pertaining to rape. The witnesses in the present case were at no time told that the police believed the perpetrator was present.

Because we conclude that none of the voice identification procedures used were impermissibly suggestive, we decline to address the second prong of the test: whether a substantial likelihood of irreparable misidentification existed. See id. at 87.

B. Material Misrepresentations.

Ripperger next claims that the search warrant in the present case contained false statements and omitted material facts and was, therefore, invalid. To impeach a search warrant, the defendant must make the following showing:

There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant.

Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 2684-85, 57 L.Ed.2d 667, 682 (1978). The remedy for such a Fourth Amendment violation is to excise the false statements from the warrant application. If the remaining contents of the application fail to establish probable cause, the fruits of the search must be suppressed. Id. at 171-72, 98 S.Ct. at 2684-85, 57 L.Ed.2d at 682. "The omission of facts rises to the level of misrepresentation only if the omitted facts 'cast doubt on the existence of probable cause.' " United States v. Ellison, 793 F.2d 942, 947 (8th Cir.1986) (citation omitted).

Ripperger argues that police had no evidence which singled him out as the perpetrator. He argues that in order to gain the search warrant, police constructed the warrant application in a fashion which left out key facts crucial to the determination of probable cause. Ripperger points to Officer Hedlund's testimony at the suppression hearing as proof that police made no attempt to include all of the truth in the application. Officer Hedlund testified that he felt he had no duty to include facts in the warrant application which tended to show that the suspect (Ripperger) was...