State v. Thongvanh

Decision Date22 October 1986
Docket NumberNo. 84-1736,84-1736
Citation398 N.W.2d 182
PartiesSTATE of Iowa, Plaintiff-Appellee, v. Khamfeuang THONGVANH, Defendant-Appellant.
CourtIowa Court of Appeals

William L. Habhab, and Allan L. Goode, of Price, Goode, Breen & Breen, Ft. Dodge, for defendant-appellant.

Thomas J. Miller, Atty. Gen., James W. Ramey, Asst. Atty. Gen., and Stephen E. Barbour, Co. Atty., for plaintiff-appellee.

Heard by DONIELSON, C.J., and SNELL and HAYDEN, JJ., but considered en banc.

HAYDEN, Judge.

Defendant appeals from his conviction for first-degree murder. Defendant asserts that: 1) all, rather than a portion, of a statement was obtained in violation of his sixth amendment rights and should have been suppressed in its entirety; 2) probable cause was not shown sufficient to justify the issuance of a warrant for the search of defendant's residence; 3) property seized during the search should have been suppressed; 4) testimony was improperly allowed concerning matters contained in the suppressed portion of the statement; 5) trial court improperly restricted cross-examination of a witness; 6) prosecution failed to produce certain exculpatory evidence; 7) hearsay evidence was improperly admitted; and 8) the jury should have been instructed on voluntary manslaughter as a lesser included offense. The State asserts inter alia that: 1) objection to the allegedly suppressed testimony of defendant was untimely and therefore any error was not preserved; 2) the alleged exculpatory evidence was either disclosed or known to defendant; and 3) the evidence alleged to be hearsay either was not or was within the present sense impression exception, and substantially similar evidence had been presented without objection in a manner rendering any error non-prejudicial.

The victim, a Laotian refugee, was found strangled in her Fort Dodge home. Several valuable items had been taken. Defendant, a Laotian refugee, was questioned by D.C.I. investigators in Storm Lake. Prior to the interview defendant was advised of his Miranda rights and read the waiver form, in both English and Laotian. Defendant signed the waiver.

Approximately forty minutes into the interview Agent Blessman, a non-interviewing agent, was informed that defendant's fingerprints had been identified on a board found at the crime scene, which may have been used to bludgeon the victim. Agent Blessman then called the Assistant Webster County Attorney to advise him of this development and discuss the appropriation of an arrest warrant. After this phone call, the interviewing Agent Basler, while taking a break, was informed that an arrest warrant was being sought. The trial court suppressed the portion of defendant's statement made after the break.

Following the arrest a warrant was issued for a search of defendant's residence. An unsuccessful motion to suppress the fruits of the search was filed by defendant, asserting that in several particulars the supporting affidavit was insufficient to establish probable cause. At the time the warrant was issued, investigating officers were aware that a person wearing a brown leather coat had been seen at the victim's home and that the defendant wore that type of coat. No such coat was listed in the search warrant, but such a coat was seized when found in a closet. When tested a small stain of blood of the victim's type was found.

At trial D.C.I. Agent Basler testified concerning matters which were alleged to have been contained in the suppressed portion of defendant's statement. Defense counsel objected to this testimony and moved for mistrial. The challenge was made after the State had rested its case and was overruled. Defendant sought to cross-examine the same witness about other statements made by defendant in an attempt to show that defendant was easily confused about dates. The trial court, upon objection by State, limited cross-examination to evidence presented through direct examination of this witness.

During trial, over hearsay objection, two daughters of the victim testified concerning statements the victim had made concerning previous visits by defendant to her home. A third daughter had earlier given similar testimony on direct, cross and redirect without objection.

The trial court refused defendant's request that the jury be instructed on voluntary manslaughter as a lesser included offense.

When the issues on appeal involve a constitutional right we review the evidence de novo in view of the totality of the circumstances. State v. Aldape, 307 N.W.2d 32, 36 (Iowa 1981); State v. Fisher, 279 N.W.2d 265, 268 (Iowa 1979).

I

The defendant contends that the statement made to the interviewing D.C.I. agent Basler should either have been suppressed in its entirety or suppressed from the point where the decision was made to arrest the defendant, prior to the break.

"In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his Defense." United States Constitution amendment VI.

The United States Supreme Court recently set forth the "core purpose" of the sixth amendment counsel guarantee as to assure assistance at trial when the defendant is confronted with the intricacies of the law and the advocacy of the government prosecutor. United States v. Gouveia, 467 U.S. 180, 188-189, 104 S.Ct. 2292, 2297-99, 81 L.Ed.2d 146, 153-56 (1984) (quoting United States v. Ash, 413 U.S. 300, 310, 93 S.Ct. 2568, 2574, 37 L.Ed.2d 619, 627 (1973)) and see State v. Jackson, 380 N.W.2d 420, 423 (Iowa 1986).

A defendant's sixth and fourteenth amendment right to counsel attaches when "adversary criminal proceedings" are initiated, "whether by way of formal charge, arraignment, preliminary hearing, information or indictment." Kirby v. Illinois, 406 U.S. 682, 688-89, 92 S.Ct. 1877, 1881-82, 32 L.Ed.2d 411, 417 (1972); State v. Jackson, 380 N.W.2d 420, 423 (Iowa 1986); State v. Johnson, 318 N.W.2d 417, 432 (Iowa), cert. denied, 459 U.S. 848, 103 S.Ct. 106, 74 L.Ed.2d 95 (1982).

In both Johnson and Jackson the defendants had been arrested and were in custody when interviewed. The United States Supreme Court has recognized the right to counsel in certain "critical" pretrial proceedings, United States v. Wade, 388 U.S. 218, 18 L.Ed.2d 1149, 87 S.Ct. 1926 (1967), but the accused must still be confronted by an expert adversary or the procedural system or both. Gouveia, 467 U.S. at 189, 104 S.Ct. at 2298, 81 L.Ed.2d at 155, and Jackson, 380 N.W.2d at 423.

The method for commencing a criminal proceeding in Iowa is to file a complaint before a magistrate. Iowa Code § 804.1 (1985). The court in Johnson concluded that the filing of a complaint and the issuance of a warrant will create a formal charge against a defendant, when the circumstances show a commitment to prosecute. See Jackson, 380 N.W.2d at 423. See also State v. Nelsen, 390 N.W.2d 589 (Iowa 1986).

In the present case the complaint that was filed was signed by the magistrate shortly before 4:22 p.m. All information collected after the 3:46 p.m. break was suppressed by the trial court. The defendant was not confronted with the advocacy of the governmental prosecutor prior to the break, there was no commitment to prosecute. We conclude that defendant's sixth amendment rights were not violated.

We note that the information regarding defendant's whereabouts on the morning of the murder was discussed in the interview after Blessman had called Barbour. At trial Basler testified that defendant had told him that he had spent a number of hours at his brother's house visiting with his sister-in-law on the day of the murder. Defendant contends that this information should have been suppressed and was harmful in that it led the prosecution to claim that defendant had given an untrue alibi. No evidence relating to an alibi defense was presented at trial and the mandatory written notice was never filed. Iowa R.Crim.P. 10(11). Defendant's agrument is without merit. Error, if any, was harmless.

II

Defendant contends that the court erred in failing to suppress those items seized from his home and car, as the search warrants were issued without probable cause.

It is well-established that we may consider only the information contained in the search warrant affidavit in deciding whether probable cause was shown sufficient to justify the issuance of a warrant. State v. Seager, 341 N.W.2d 420, 426 (Iowa 1983); State v. McManus, 243 N.W.2d 575, 577 (Iowa 1976). Defendant alleges that the affidavit was defective in that: certain descriptions were incorrect; bare conclusions were alleged; and false or intentionally false statements were used.

Defendant's initial allegations are without merit. The incorrect descriptions are those given by various witnesses, but included within the affidavit was a correct description of these objects. Any discrepancy was made apparent to the magistrate. We find no "bare" conclusions to exist in the affidavit.

A "false" affidavit statement has been defined as "one which misleads the magistrate 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). The Iowa Supreme Court has adopted, in Groff, the standard set forth by the United States Supreme Court regarding false statements made in search warrant affidavits. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667, 672 (1978); Groff, 323 N.W.2d at 207. In Franks, the Supreme Court held that the defendant must show that the affiant either intentionally and knowingly made a false statement, or made a false statement with reckless disregard for the truth. 438 U.S. at 155, 98 S.Ct. at 2676, 57 L.Ed.2d at 672.

Defendant has failed to show that the affidavit either intentionally and knowingly made a false statement, or made a false statement with reckless disregard.

Furthermore, we conclude that a reasonably prudent person upon reading the search warrant affidavit...

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5 cases
  • Thongvanh v. State
    • United States
    • Iowa Supreme Court
    • 24 Enero 2020
    ...of first-degree murder in 1984. He appealed, and the court of appeals affirmed his conviction in 1986. State v. Thongvanh , 398 N.W.2d 182, 184, 189 (Iowa Ct. App. 1986) (en banc). A few years later, he filed a PCR application, raising among other things a fair-cross-section claim. Thongvan......
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    • Iowa Supreme Court
    • 21 Marzo 1990
    ...whether the killing was done intentionally by reason of passion resulting from serious provocation. Id. at 259. In State v. Thongvanh, 398 N.W.2d 182, 189 (Iowa App.1986), the court found voluntary manslaughter was not a factually-supported lesser-included offense where there was no evidenc......
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    • Iowa Supreme Court
    • 20 Enero 1993
    ...violation of Iowa Code sections 707.1 and 707.2 (1983). The court of appeals affirmed his conviction and life sentence. State v. Thongvanh, 398 N.W.2d 182 (Iowa App.1986). Thongvanh now appeals from a denial of his application for postconviction relief. We On appeal, applicant raises two is......
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    • 20 Noviembre 2000
    ...to be timely it must ordinarily be made at the earliest opportunity, once the basis of the objection becomes apparent. State v. Thongvanh, 398 N.W.2d 182, 187 App. 1986). Failure to make timely objection or motion to strike showing reason for delayed objection will preclude a party from lat......
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