State v. Van Hoff
| Decision Date | 30 April 1985 |
| Docket Number | No. 83-1457,83-1457 |
| Citation | 371 N.W.2d 180 |
| Parties | STATE of Iowa, Plaintiff-Appellee, v. Roger Gene VAN HOFF, Defendant-Appellant. |
| Court | Iowa Court of Appeals |
Charles L. Harrington, Appellate Defender, and Raymond E. Rogers, Asst. Appellate Defender, for defendant-appellant.
Thomas J. Miller, Atty. Gen., and Mary Jane Blink, Asst. Atty. Gen., for plaintiff-appellee.
Heard by DONIELSON, P.J., and SNELL and SCHLEGEL, JJ.
The defendant in this action, Roger Van Hoff, was convicted and sentenced for two counts of first-degree murder for the deaths of his father and one of his sons. On appeal, three arguments are raised for this court's consideration: 1) that the trial court erred in denying defendant's motion to suppress a blue notebook allegedly seized in violation of the fourth amendment; 2) that the defendant's eight-year-old son was not competent to testify at trial; and 3) that the trial court erred in denying the defendant's request for surrebuttal and his motion for mistrial after the prosecutor allegedly misstated the evidence and argued a new theory of evidence during closing argument. We affirm.
Prior to trial, the defendant moved for suppression of a blue notebook on the grounds that it was seized in violation of the fourth amendment. The evidence presented at the suppression hearing indicated that while defendant was in jail he asked the sheriff to go to his home, pick up certain items and bring them back to him. The sheriff went to the defendant's home and found Rania Green there. Rania had moved out of the defendant's home the day before the murders and she had returned to collect her personal belongings. The sheriff asked Rania to help him locate the items. Rania found the blue spiral notebook that the defendant wanted. She leafed through the pages and came across a page with a handwritten paragraph that appeared to be a threat to the man that Rania had moved in with after leaving the defendant. Rania showed this to the sheriff who seized it as evidence.
The trial court ruled that the defendant had no expectation of privacy in the notebook, that the evidence was in plain view, and that the defendant consented to the search and seizure. The defendant's motion to suppress was overruled. Later at trial, over the defendant's renewed objections, the notebook was admitted into evidence.
The defendant argues in his first assignment of error that the blue notebook should not have been admitted into evidence because it was the product of a warrantless search in violation of the fourth amendment. In considering the defendant's constitutional claim, we make an independent evaluation of the totality of the circumstances. State v. Cuevas, 322 N.W.2d 910, 911 (Iowa Ct.App.1982). In doing so, we conclude that there has been no constitutional infringement.
The applicability of the fourth amendment depends upon whether "the person invoking its protection can claim a 'justifiable,' a 'reasonable,' or a 'legitimate expectation of privacy' that has been invaded by government action." Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220, 226 (1979). In Katz v. United States, Justice Harlan suggested that an expectation of privacy is "justifiable" if an individual has exhibited a subjective expectation of privacy and the expectation is one that "society is prepared to recognize as 'reasonable.' " 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576, 588 (1967) (Harlan, J., concurring). The Court has consistently emphasized the latter of these two requirements. Hudson v. Palmer, 468 U.S. 517, ----, 104 S.Ct. 3194, 3199, 82 L.Ed.2d 393, 402 n. 7 (1984).
In Hudson, the Supreme Court had an opportunity to apply these principles and consider whether a prisoner had an expectation of privacy in a prison cell. The Hudson court stated,
Notwithstanding our caution in approaching claims that the fourth amendment is inapplicable in a given context, we hold that society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell and that, accordingly, the fourth amendment proscription against unreasonable searches does not apply within the confines of a prison cell.
--- U.S. at ----, 104 S.Ct. at 3200, 82 L.Ed.2d at 402-03 (1984). The defendant in this action argues that the principles of Hudson are not applicable to the present case since the alleged invasion of privacy took place in a private home rather than a prison cell. We are unpersuaded by this argument.
The controlling factor in this case is that the defendant specifically requested that the sheriff bring the blue notebook to his jail cell. As the State indicates, if a person has no expectation of privacy in items in his jail cell, it follows that he can have no reasonable expectation of privacy in an item which he has requested a law enforcement officer bring to him in the jail cell. As long as a prisoner has specifically requested an item, it makes little difference where the item is inspected. Any expectation of privacy ceases to exist at the time the request is made. It is less than realistic and bordering on absurd to suggest that a jailed suspect could ask a sheriff who is investigating a double murder to go to his house, secure important and relevant evidence, and still be able to claim an expectation of privacy in the items requested.
We therefore conclude that the search of the blue notebook did not violate the fourth amendment and it was properly admitted into evidence. The defendant did not have the reasonable expectation of privacy which is necessary to invoke the fourth amendment protections.
The defendant also claims that the trial court abused its discretion in ruling that the defendant's eight-year-old son, Michael, was competent to testify.
Iowa Rule of Evidence 601 provides, "[e]very person of sufficient capacity to understand the obligation of an oath or affirmation is competent to be a witness except as otherwise provided in these rules." The competency of a witness to testify has two aspects: (1) the mental capacity to understand the nature of the questions put and to form and communicate intelligent answers thereto and (2) the moral responsibility to speak the truth, which is the essence of the nature and obligation of an oath." 1 State v. Harvey, 242 N.W.2d 330, 336 (Iowa 1976). The ultimate determination of competency is within the discretion of the trial court. Calvert v. State, 310 N.W.2d 185, 186-87 (Iowa 1981).
In examining the record, we cannot say the court abused its discretion in permitting Michael to testify. Prior to trial, the defendant challenged the competency of his son to testify. A competency hearing was held and Michael was questioned by defense counsel, the prosecutor, and the trial court. It is apparent from the transcript of this proceeding that Michael had some difficulty when asked generalized questions concerning truth and lies. However, when asked more specific questions, he was able to demonstrate his understanding of these concepts and the importance of telling the truth:
MR. RAMEY: What the Judge needs to know is if you know the difference between the truth and telling a lie.
What if I said you had two sisters; that you had a sister named Barbara. Would that be right?
You have to answer yes or no.
What was he doing when he said that?
We believe this testimony adequately demonstrates Michael's competency to testify at trial. The defendant stresses the fact that Michael testified that he had never told a lie and that he could hit a baseball to the moon. It is claimed that these "obviously false answers" show that Michael has little or no grasp of the...
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Van Hoff v. State
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...counsel for Rieflin was able to thoroughly and completely argue the insanity defense during his closing argument. See State v. VanHoff, 371 N.W.2d 180, 186 (Iowa App.1985). We conclude the district court did not err in denying Rieflin's request for rebuttal argument. We therefore affirm the......
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...Iowa Code section 622.1 (1983) to Iowa Rule of Evidence 601 did not change the applicability of this two-part test. State v. Van Hoff, 371 N.W.2d 180, 183 n. 1 (Iowa Ct.App.), cert. denied, --- U.S. ----, 106 S.Ct. 598, 88 L.Ed.2d 578 (1985). Moreover, the ultimate determination of competen......