State v. Harper: Forfeiture By Wrongdoing Appeal Likely

Another tip of the hat to Deputy Jason Barnes of the Madison County Sheriff's Department for this interesting article from the Fort Dodge Messenger. It's a thought provoking subject.

At the present time, Sessions Harper is awaiting trial out of Webster County, Iowa, for a particularly brutal homicide, kidnaping, arson and sexual assault case.

At issue are statements that the victim, Holly Michael, made to emergency room personnel prior to her death and whether they can be brought into evidence against Harper. Harper argued that the Sixth Amendment's Confrontation Clause barred admission of the statements because he hadn't been afforded the opportunity to cross examine the statements and the witness was unavailable. Of course, it was Harper's criminal act that made the witness unavailable.

It's a disingenuous argument that Harper makes while angling for a criminal windfall, akin to the man who killed his parents pleading for mercy because he's an orphan.

At issue are several court decisions.

(Parenthetically as we noted here six months ago, it appeared that Justice Scalia has declared war on the victims of domestic abuse. His love affair with the confrontation clause has led him to lose perspective on the subject of domestic abuse-perhaps because he never had a domestic abuse case to prosecute that I've heard about where the complainant went underground and couldn't be found later).

The federal courts have a trilogy of decisions on the question of the interplay of the confrontation clause, unavailable witnesses, and wrongful conduct of the actor. They are Crawford v. Washington, Davis v. Washington and Reynolds v. U.S.

Crawford bars admission of testimonial statements of a witness who did not appear at trial unless unable to testify and the defendant had a prior opportunity for cross examination, and Davis essays to make the distinction between testimonial and non testimonial statements.

Reynolds stands for the proposition that one who makes a witness unavailable to testify should not be entitled to a windfall based on the confrontation clause of the Sixth Amendment (the 'forfeiture by wrongdoing' exception), and in fact the exception was reiterated in Davis.

There's a split over what the scope of the forfeiture by wrongdoing exception really is.

On one hand, the federal courts and those states that adopted the federal version of Rule 804 (b)(6): Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness, and on the other hand there are those states such as Iowa that did not adopt the federal rule.

It's clear that the distinction lies between whether there is an intent to make the witness unavailable requirement or not.

The district court's decision to allow the statements of Holly Michael to emergency room personnel is the nub of the issue as far as the defendant is concerned. We have one case in Iowa on the subject and that is State v. Hallum, 606 N.W.2d 351 (Iowa 2000).

In Hallum, the defendant actively procured the witness' unavailability by urging him not to testify, although the witness initially made a statement implicating the defendant. The question of whether the defendant can profit by the criminal act (such as a homicide) that made a witness unavailable seems to be the one that will be in play in State v. Harper.

It certainly seems to be a pressing issue for the community, as an adverse decision would be a clear signal to the criminal community: Get out of jail free by killing the witnesses.

A recent case from the Colorado Court of Appeals sheds some light on this conceptual split and how it might play out. In People v. Vasquez, a defendant made calls to his ex wife in violation of a restraining order which the wife taped. Two days before the trial on harassment charges the defendant's wife was murdered-a fact to which the defendant admitted.

Vasquez made the argument that the tapes should not have been admitted under the doctrine of forfeiture by wrongdoing. The court of appeals summarized the history of the rule, including adverse decisions based on the Federal rule of evidence and its analogues.

The court of appeals sided with the minority because Colorado (like Iowa) did not adopt the Federal rule, the common law doctrine of forfeiture by wrongdoing did not impose a requirement that the defendant intend to prevent the witness from testifying in the same case the testimony was offered, and the rationale for the doctrine is consistent with not requiring such a showing.

Further, Reynolds and Davis did not impose an intent requirement. Basic equity prescribes that a defendant may not profit from his own wrongdoing, regardless of his intent to prevent the decedent from testifying. Vasquez could not claim a right to confront a witness he intentionally killed.

At present, a motion to present an interlocutory appeal on this subject is pending before the Iowa Supreme Court in Harper's case, and I haven't heard what the outcome of that is, or whether the case will go ahead and the issue will be examined on appeal if Harper is convicted.

Stay tuned. This could get all the way to the Big Supremes in Washington one of these days.

Sexually Violent Predators Stay Locked Up For Now

Atwood v. Vilsack, No. 05-0485 (Iowa Dec. 29, 2006).

In Atwood the U.S. District Court certified to the Iowa Supreme Court the following question:

Are pretrial detainees awaiting trial on sexually violent predator petitions entitled to bail?

Of course, the answer was no. One wonders why this ever got as far as it did. The Court did its thing, digging through the legislative history of Iowa Code section 229A, the common law, and the constitutions of the state and the Union.

What's interesting about this case is how the litigants stack up. On one side we had the usual suspects-the attorney general and his henchmen. On behalf of the plaintiffs we have the Iowa Civil Liberties Union.

With all due deference to my equally liberal colleagues over there, including Bob Stone (I refuse to call him Ben), these guys would be appalled if loaded revolvers and shotguns were placed on every park bench by order of the court, or every thug was entitled to own a combative rottweiler and set it loose on the playground without a leash

The fact is, the folks who are section 229A detainees are damned dangerous people-they've proved it again and again, they probably can't be cured of their predilection with the state of our knowledge, and that's why they're where they are and where they'll stay for the foreseeable future. They're society's equivalent to rabid dogs-we don't know what to do with them, we can't cut them loose, and we can't euthanize them either, but to argue that they should be turned loose is the very legerdemain.

They're ticking time bombs, and they ought to stay right where they are.

Everyone Wants To Wear The Uniform...

A tip of the hat to Deputy Jason Barnes of the Madison County Sheriff's Department for this news item.

The link is to a recent AOL Autos article that points to the fact that a lot of people are now driving surplus Crown Vics, flashing badges and doing other such activities in an effort to shake people down. In particular, the article states that unescorted women ought to be more than ordinarily suspicions of such gambits.

I remember having an experience of this kind myself back in the day. When I got over my initial panic and thought "Real Metuchen police don't drive rusty Chevy Impalas and have badges that say 'security officer" I treated the guy to the Hawaiian Good Luck salute and some choice words and went on my way. If there'd been cell phones back then, the guy would have had a lot more trouble.

The suggestion is made that if you are suspicious of such a move that you should stop only when you reach a well lighted public place, or that one can merely open the window enough to furnish the requested identification. If the circumstances seem more than ordinarily suspicious, the motorist is advised to tell the 'officer' that you will follow them to the nearest police station, or that you should ask to have another officer come to the scene.

This could be particularly problematic in rural Iowa, as distances between towns are long and many areas are isolated or remote.

One may differ with some of the advice given in the article (as a charge of interference with official acts or eluding is a most serious matter), the best advice is still to pick up that cell phone and call 911 if there's any doubt at all.

http://autos.aol.com/article/general/v2/_a/is-it-a-cop/20061227110609990002

Potheads Behaving Badly, Part 2: Automobile Exception Expanded?

State v. Campbell, No. 05-1988 (Iowa Ct. App. Dec. 28, 2006).

In State v. Campbell, a Cedar Rapids officer saw the defendant pacing back and forth beside a van. When he inquired, the defendant was sitting in the van in the passenger 's seat with his feet outside the van. The officer smelled an odor of burnt marijuana, and the defendant stated he'd been smoking marijuana but was waiting for a ride home as he did not want to drive because of his inebriation.

A pat down search was conducted, and the defendant removed a marijuana pipe from his pocket and admitted he had marijuana on his person. The defendant's story differed, and he alleged that the search went far beyond what was permissible, and he moved to suppress evidence.

The District Court found that the defendant had not consented to the search as the state alleged, and that there was an insufficient basis for a Terry pat downbut denied the motion to suppress based on 'the automobile exception' and convicted the defendant. This appeal followed.

The defendant argued on appeal that the automobile exception applies to searches of automobiles and not people. The Court of Appeals disagreed, holding that the 'automobile exception' applied to a subset of searches based on probable cause and exigent circumstances.

Based on the observations of the officer, the defendant was intoxicated and possessed illegal drugs. Given the late hour, the access to the van and the likelihood that the defendant's ride home would arrive, along with the ready ability to discard the evidence, the Court of Appeals upheld the trial court's ruling on the defendant's motion to suppress.

The holding of the Court of Appeals seems to say that the courts will look to the totality of the circumstances in such a situation rather than the miscued phraseology of a district court judge.

Potheads Behaving Badly, Part 1: Too Much Sudafed Invites Unwanted Attention

State v. Myers, No. 06-0659 (Iowa Ct. App. Dec. 28, 2006).

In State v. Myers, a Marshalltown detective was advised of a possible violation of the state's restrictions on purchase of pseudoephedrine. See, Iowa Code sec. 124.213. A warrant was prepared and issued and in a search of the defendant's home 30 grams of marijuana were seized.

Myers moved to suppress evidence, arguing that there was insufficient probable cause to support the search warrant, but the motion was overruled by the District Court and Myers was convicted. He argued there was no nexus between the offense he was suspected of, and the search of his residence.

On review, the Iowa Court of Appeals using a totality of the circumstances approach found considerable evidence that Myers had violated restrictions on the purchase of pseudoephedrine, and that fact supported the issuance of the warrant. Specifically, the search warrant affidavit alleged sufficient facts to constitute a fair probability that contraband would be found at the residence.

I Wanna Walk With The Animals

It was reported recently that a Polk City, Florida man was rescued from a lake where he'd gone skinny dipping with some of the local residents after ingesting a snootful of crack. The residents were a couple of fairly healthy alligators and the swimmer was somewhat the worse for wear.

The moral of the story?

I haven't a clue.

It's That Time Again: Silly Season Starts In Earnest

The New York Post reports today that a woman died when the Mitsubishi she was driving smashed into a couple of unsuspecting trees and a lamppost after skidding across the Henry Hudson Parkway.

Police called to the scene found an excessive amount of makeup on the driver's side airbag, leading to the conclusion that Lusaed Perez was applying her makeup while she was driving.

There was no mention of where the cell phone was found....perhaps the autopsy will provide some enlightenment there.

Be careful out there.

Missouri v. Seibert Split Interrogation Claim Fails

State v. Saner, No. 05-0527 (Iowa Ct. App. Dec. 13, 2006).

Defendant was convicted of first degree murder in Des Moines County on a set of facts that makes me wonder whether there is any intelligent life on this planet.

Saner filed a motion to suppress statements that he made to law enforcement concerning the events that had taken place. The district court overruled his motion. Saner was convicted and this appeal followed.

Saner was interviewed two times a few hours apart.

In the first interview, Saner agreed to talk to police and subsequently was driven to the police station by a friend. Saner and two friends were together and not restrained and were never told they could not leave the police station. Saner was taken to an interview room and was interviewed without a Miranda warning. He gave some interesting information and then was allowed to leave.

On balance, the Court of Appeals held that the factors suggesting Saner was not in custody outweighed tbe factors that suggested that this was a custodial interriogation. Saner testified at trial that he was, in fact, free to leave in the course of the interview.

In the second interview, Saner showed police some knives at his apartment. He was again interviewed and this time he was given the Miranda warning and thereafter made damaging admissions that led to him being arrested.

Saner argued that Missouri v. Seibert should apply to the case. Seibert is a U.S. Supreme Court decision that disapproved of a split interrogation that first breaches the Defendant's confidences, elicits incriminating information and then sanitizes the procedure by administering the Miranda warning prior to the second interview. The process is sometimes called 'beachheading' and it is taught by some police trainers as a way wo get around the strictures of Miranda.

The state argued that Seibert did not apply because Saner was not in custody in the first interview. The Court of Appeals agreed, saying that the dictate of Seibert regarding a dual custodial interrogation were inapplicable to this case.

All we here at the Reporter can say about this is to restate the words of Geoffrey Chaucer in the Nun's Priest's Tale: "Murder will out, as we see day by day

Staying in Touch: Article 36 of the Vienna Convention

As noted in the Afo-odjebiti case, the defendant raised the Article 36-access to consular officials claim based on the Vienna Convention to which the U.S. is a signatory.

There's an excellent article on Vienna cases in the Wisconsin Law Journal. The writer states that failure to comply with Article 36 is no longer without consequences when police agencies arrest a foreign national. The undecided issue is what remedies are provided.

In Sanchez-Llamas v. Oregon, Nos. 04-10566 & 05-51 (June 28, 2006) the United States Supreme Court held that application of the exclusionary rule is not an appropriate remedy for Article 36 violations. However, in Jogi v. Voges, No. 01-1657 (7th Cir. 2005) it was found that Article 36 conferred a private right of action for money damages to a foreign national defendant who'd not been informed of his rights under the Convention.

The takehome for all Iowa law enforcement officers and the agencies is clear. When there is the slightest doubt as to whether a person being arrested is a U.S. citizen, common sense should tell you that the arrestee should be afforded the knowledge necessary to make an informed decision to either contact consular authorities or to knowingly and intelligently waive that right on the record, just as we do with the other rights articulated in Miranda v. Arizona.

Article 36 of the Vienna Convention states the following:

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
(a) Consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;
(b) If he so requests, the competent authorities of the receiving state shall, without delay, inform the consular post of the sending state if, within its consular district, a national of that state is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph.
(c) Consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended."

The Convention is accompanied by an Optional Protocol Concerning the Compulsory Settlement of Disputes, to which these three states are also parties. Article I of the Optional Protocol provides: "Disputes arising out of the interpretation or application of the [Vienna] Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol."

Felons Behaving Badly, Part 3: State v. Afo-odjebiti

In State v. Afo-odjebiti, No. 05-1128 (Iowa Ct. App. November 30, 2006), a foreign born defendant was convicted of theft in the first and second degree in a check kiting scheme. The defendant opened checking accounts at several Davenport credit unions with small deposits. He then deposited checks and withdrew large sums. The checks he deposited were bogus, of course, and the defendant was convicted.

The defendant, a native of Togo, filed a motion requesting an interpreter in the Ewe language, stating he understood English but had an accent that made his words difficult to understand. The state resisted the motion and the district court found that the defendant's language skills in English were sufficient to proceed to trial without an interpreter.

Evidence adduced at the hearing substantiated that the defendant could read documents in English, file pro se legal documents in English, communicate with the employees of the credit unions he defrauded, and was videotaped at the police station speaking and understanding English.

Further, the court found that the defendant had deliberately thwarted attempts to obtain a Ewe speaking interpreter, and although fluent in French, refused to acknowledge a French speaking interpreter sent to the jail.

The defendant also argued that he was denied his right to contact consular authorities pursuant to Article 36 of the Vienna Convention. However, he had been informed of his right to do so, discussed the matter with his attorney, and made no indication that he wished to pursue the matter. The court of appeals determined the defendant had waived error in this matter.

Felons Behaving Badly, Part 2: State v. Hardesty

In State v. Hardesty, No. 05-1180 (Iowa Ct. App. Nov. 30, 2006) the defendant's home was searched pursuant to a warrant obtained in a murder investigation. Hardesty's vehicle had been observed in the vicinity of where his paramour's body was dumped in Jasper County. Hardesty was also identified personally as being in the park on the day in question by a person who'd been picking berries.

The next day a DCI agent observed Hardesty's car in the trailer park where his paramour lived in Des Moines. When Hardesty saw police, he abruptly left the scene. Hardesty's home was searched pursuant to a warrant and knives were found that were similar to the weapon that was used to dispatch the decedent. A blood stain matching the decedent's was found in Hardesty's car and on his shoes.

Hardesty moved to suppress the search, arguing the warrant was not supported by probable cause. The court found that the application for the search warrant set forth a sufficient nexus between the physical description of the defendant leaving the park in company of the decedent, and a car later traced to Hardesty which was also seen in the park where the decedent's body was dumped.

Felons Behaving Badly, Part 1: State v. Loeum

State v. Loeum, No. 04-1441 (Iowa Ct. App. November 30, 2006). In this case a defendant was charged with first degree murder in the death of his brother whom he had been arguing with. The decedent suffered a fatal bullet wound to the head. The defendant, convicted of the lesser included offense of murder in the second degree argued that he'd meant to merely pistol whip the decedent, the pistol accidentally discharged and he therefore lacked the requisite bad intent to show malice. The Court of Appeals disagreed, finding substantial evidence to raise the inference of malice-particularly the use of a weapon.

OWI Third-Habitual Offender Draws Resentencing Order

State v. Iowa District Court, Harrison County/State v. Donelson, No. 05-1472 (Iowa Ct. App. Nov. 30, 2006). Donelson was sentenced to a five year indeterminate sentence for OWI 3rd as an habitual offender. The State appealed. It was found that Iowa Code section 902.9(5) precludes imposition of this term of imprisonment for habitual offenders. In particular, 902.9(3) provides for imprisonment of habitual offenders for not more than fifteen years.
The district court had no discretion to impose a lower sentence.

Wrong Car, Right Subject, Good Stop.

State v. Wagner, No. 06-0012 (Iowa Ct. App. November 30, 2006) An Osage police officer was investigating a criminal mischief complaint of a white car hitting a mailbox when he stopped the defendant who was driving a white Neon, which was the second car stopped in the investigation. The officers determined that the Neon had not been involved in the accident but asked Wagner to chat in the cruiser.
It appeared that Wagner had been partaking in adult beverages and he failed a PBT and FSTs, and he was arrested. At the station his BAC was a measured 0.178.

Wagner moved to suppress the results of the FST and breath tests and any statements he made because, he argued, the investigation should have terminated with respect to him when it was determined his car was not the one involved in the vandalism.

The court of appeals found that although the scope of investigation in a vehicle stop must be reasonable, it can include asking for documents and asking the detainee to sit in a patrol car. If the detainee's responses trigger further suspicion unrelated to the reason for the initial stop, the investigation may be broadened. In this case it was noted that the defendant smelled of alcohol.