STATE OF IOWA, Plaintiff-Appellee, vs. CHRISTINA LORRAINE THOMAS, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-1024 / 08-0052
Filed April 8, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
CHRISTINA LORRAINE THOMAS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark D. Cleve,
Judge.
Christina Thomas appeals from judgment and sentences entered upon her
convictions for possession of a controlled substance with intent to deliver, child
endangerment, and delivery of a controlled substance. AFFIRMED IN PART;
REVERSED AND REMANDED IN PART.
Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas W. Andrews, Assistant
Attorney General, Michael J. Walton, County Attorney, and Kelly Cunningham,
Assistant County Attorney, for appellee.
Heard by Sackett, C.J., and Potterfield and Mansfield, JJ.
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POTTERFIELD, J.
Christina Thomas appeals from judgment and sentences entered upon her
convictions for possession of a controlled substance with intent to deliver, child
endangerment, and delivery of a controlled substance. She contends the trial
court erred in admitting evidence that she refused consent to search her home
after arrest; that trial counsel was ineffective in not arguing the admission of her
refusal to consent denied her a fair trial; that the court erred in allowing hearsay
evidence; and that there was insufficient evidence to sustain the child
endangerment conviction. With respect to the drug convictions, we conclude the
trial court abused its discretion in allowing into evidence repeated testimony and
argument concerning Thomas’s refusal to consent to a search of her residence.
However, we conclude the alleged hearsay evidence was merely cumulative and
there was sufficient evidence to sustain the child endangerment conviction.
I. Background Facts and Proceedings
At about one o’clock in the morning on July 10, 2007, Benji Engesser
awoke to knocking on his front door. When he answered the door, he found a
boy who was about three years old. Engesser recognized the child, who had
recently moved into his Davenport neighborhood. The boy told Engesser, “I want
my mommy. I miss my mommy.” Engesser got dressed and walked with the boy
to his house. Engesser found the screen door closed, but the inside door wide
open. He knocked on the screen door, yelled, and walked around the house, but
saw no one and heard no response. Engesser returned to his home with the boy
and called the police.
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Police officers Randy Gard and Eric Gruenhagen arrived and spoke with
Engesser. The officers walked to the boy’s house and yelled, but, like Engesser,
heard no response from within.
While the officers were there, a truck1 pulled up outside the boy’s house.
Christine Thomas got out of the passenger side and the truck left. Thomas
approached the officers and identified herself as the boy’s mother. The officers
explained that her child had been out wandering by himself. Thomas seemed
concerned and told the officers she had left the boy with her mother, Karla
Kosgard, while she went to the boat to gamble. She told the officers her mother
had recently had a medical procedure and a change of prescription. Thomas
expressed concern that her mother’s mental status might have been altered by
those changes.
Officer Gard called the dispatcher and asked that they check local
hospitals for possible news of Kosgard. Thomas and the boy went into their
residence. The officers were outside on the sidewalk when two women, Julia
Sird and Lisa Woods, arrived in Woods’s car. The officers apparently knew
Woods as a person who monitored a police scanner. Woods had heard law
enforcement communications about Kosgard and telephoned Sird, who was
Kosgard’s sister.
After speaking with the officers, Woods and Sird drove away.
Sird
telephoned Kosgard at her home in Moline, Illinois. She told Kosgard that the
police were at Thomas’s residence, that Thomas’s son had been walking down
1
Officers later learned that the driver was Roy Caskey.
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the street by himself, and that the officers had been told that Kosgard was babysitting and had left the boy home alone.
Woods and Sird continued to monitor radio transmissions on the police
scanner. Within minutes of speaking with Kosgard, the two women heard a
report on the scanner that Kosgard was in the area of a nearby Walgreen’s. The
two women went to the Walgreen’s and found police there waiting for Kosgard.
Sird informed police she had just spoken with Kosgard, who was in Moline.
The officers returned to watch Thomas’s residence. Thomas was outside
in her yard. The same truck in which Thomas had arrived earlier, pulled up to the
curb near Thomas’s house.
This time it was Kosgard who got out of the
passenger side and went into the residence.
Thomas walked up to the
passenger-side window and leaned in.
After Thomas went back inside her home, Officer Gard approached the
driver, Roy Caskey, and asked him to get out of the truck. The officer noticed
that Caskey had something in his hand. Caskey showed him a $10 bill wrapped
around a rock of crack cocaine, and told the officers Thomas had given it to him
for driving her around.
Officer Gard then spoke with Kosgard and determined that the boy had
been left home alone. Thomas was brought out of the residence and arrested for
child endangerment. The officers read Thomas her Miranda rights and asked her
to consent to a search of her residence. She refused consent.
The officers applied for and obtained a warrant to search Thomas’s
residence for additional drugs or drug paraphernalia. While the officers awaited
the warrant, Kosgard was in the residence with the boy and a police officer was
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stationed with her to secure the premises. Thomas was held in a patrol car, and
repeatedly asked the officers to allow her to return to her residence.
The
eventual search resulted in the police finding $310 cash and four rocks of crack
cocaine.
Thomas was charged with possession of a controlled substance with
intent to deliver, child endangerment, and delivery of a controlled substance. Her
motion to suppress the results of the search was denied. Before trial, Thomas
moved in limine, among other things, to exclude “[a]ny reference to the
Defendant’s reported refusal to permit a voluntary search of the premises in
question. Whether someone claims their constitutional rights is not relevant to
whether a crime has occurred.”
At the hearing on the motions, the State argued “it would be evidence of
the defendant’s recognition that she had illegal substances in her residence and
so therefore wasn’t going to grant consent because if officers went in and did a
search, they would find the drugs.” The district court denied the motion in limine.
At trial, the State’s opening argument included the following:
Now given those statements by Roy Caskey, then Christina
Thomas obviously becomes the focus of their investigative efforts.
They then go to approach the residence to speak with Christina.
She comes outside. They are going to arrest her for child
endangerment—obviously we have the delivery of crack cocaine.
She is taken to Officer Gruenhagen’s car and she’s placed in the
car. She is Mirandized. And then she begs him to let her out and
her focal point was she wanted to get back into that house and that
was the constant focus of her comments, to please write her a
ticket, please let her go, she needed to get back to the house. It
wasn’t about the child, she needed to get back into the house.
This raised Officer Gruenhagen’s suspicions because you
have the delivery of crack cocaine and she is really urgent about
the need to get back into that house. Consent was requested so
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that officers could go in and do a search.
consent.
She wouldn’t give
Thomas continued to object to any evidence concerning her refusal to consent to
a warrantless search. The district court continued to overrule the objections.
The following testimony by Officer Gard was received over Thomas’s objections:
Q. What were you focusing on at this point? A. Quantity of
crack cocaine.
Q. Did you believe there might be drugs located
somewhere? A. I believe there was some still in the residence,
yes.
Q. Because of that, were there any conversations with the
defendant about that? A. I believe Corporal Gruenhagen asked her
if he could—
[Defense counsel]: Objection, hearsay.
THE COURT: Sustained.
[By Prosecutor]:
Q. Based on your involvement was consent given to search
the residence?
[Defense counsel]: Your Honor, I would object for the
reasons previously urged.
THE COURT: Overruled.
....
Q. Was consent given to search the residence? A. No, it
was not.
The prosecutor then asked about the search warrant application.
Thomas’s
counsel objected and moved for mistrial. The court overruled the motion, but
instructed the county attorney:
[h]owever, the Court will direct the county attorney to not get into
any great detail on the search warrant application. That really is
not necessary in the Court’s estimation. The jury is entitled to know
there was a search warrant, it was applied for and it was allowed
and that’s the basis of the search of the defendant’s residence, but
I see anything much more beyond that as material that is not
terribly relevant to this case.
The prosecutor later questioned Officer Gruenhagen about Thomas’s
refusal of consent to search her home.
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Q. Did you want to do a search of that residence? A. Yes.
Q. What was the first step you took in an attempt to search
that residence? A. After arresting Christine Thomas, I advised her
of her Miranda rights. She advised me that she understood them.
[Prosecutor]: If we could, Your Honor, just real quick—may
we approach?
THE COURT: Go ahead.
....
[By Prosecutor]:
Q. With that, did you ask her for consent to search the
residence? A. After I asked her—after I advised her of Miranda, I
did ask. I asked her for her consent verbal and written to search
the interior of her home for narcotics.
Q. What was the— A. She refused to give verbal consent
and she refused to give written consent.
Q. Having said that then, what did you notice about the
defendant and the behaviors that she began to exhibit from that
point?
Defense counsel again objected and the jury was excused. Defense counsel
again moved for a mistrial, and the following argument ensued.
[By prosecutor]: . . . When we talk about the rights
exercised, we talk about the right to not incriminate oneself. There
has been no suggestion that she refused to respond to questioning.
This simply is about a Fifth Amendment—a Fourth Amendment
issue and if she doesn’t give consent, then the officers have to get
a search warrant and it is an explanation to the jury about that.
That’s all. It is very simple.
[By defense counsel]: It is not—if it is that, very simply then
why does she want it in other than the fact that she believes the
fact she denied the request to consent is incriminatory in nature,
otherwise it would not have come in from the State.
[By prosecutor]: I disagree with that . . . . There has been
suggestion made through the motion to suppress that officers were
inappropriate and may have conducted a search, and that’s
something that the State needs to address so the jury understands
that the officers asked for the search warrant under the
circumstances, and that way no allegations can be raised about
any type of wrongdoing by the officers. It is about protecting the
record and shutting down arguments that counsel may make.
THE COURT: Counsel’s motion for a mistrial is denied. The
Court does not find that the record presented to date is such that it
implicates Doyle v. Ohio and the constitutional issues that are
addressed and raised in that ruling.
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Having said that, counsel, I think we are past the point where
any additional testimony in regards to either the consent or any
discussion with the Defendant at the scene is necessary and to the
extent that counsel for the defense has raised that issue, I will rule
at this point that there—at this point that that has become at best
cumulative and that there need be no further testimony on those
issues.
When the jury returned the prosecutor questioned Officer Gruenhagen
about Thomas’s requests to re-enter her home. The officer also testified further
about the search warrant application procedure until the court sustained defense
counsel’s objection.
In closing argument the prosecutor argued that Thomas’s refusal to
consent to search was evidence of her guilt.
When they got that rock of crack cocaine from Roy and they
had the contact with her and she was placed in the back of the
squad car, Officer Gruenhagen told you that he asked her for
consent—both verbal and written consent—to go into that house to
search. She didn’t give any verbal consent, but she refused to sign
off on a piece of paper that she would not give consent, and at that
point in time, he made it clear that they were going to get a search
warrant. The Defendant, how did she react? She begged him just
to release her, let her go back. She kept wanting to get into that
house. Why did she want to get back into that house? And if you
go back to the beginning, that source of cocaine delivered from
Roy—or delivered to Roy came from someplace. Christine made
that delivery. Where was that supply? What was in the house?
Who denied consent? What does that say about her state of mind
in terms of knowing there is drugs there, and why did she want to
get back into that house before officers applied for a search
warrant?
Thomas was convicted as charged and now appeals. She argues that the
court erred in admitting evidence that she refused to consent to the search of her
home. At trial, Thomas moved in limine to exclude the evidence as a violation of
her constitutional rights and because it was not relevant. On appeal, Thomas
contends our standard of review is de novo, claiming the issue involves her
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constitutional rights to remain silent, not to be a witness against herself, not to be
subject to an unreasonable search, and to be afforded a fair trial. 2 The State
argues the issue is a traditional relevance question.
II. Discussion
A. Constitutional implications. No reported Iowa case deals directly
with the issue of the admissibility of a defendant’s refusal to consent to a search
of her residence. Courts from other jurisdictions have concluded that there is a
constitutional right to refuse and that use of that refusal at trial constitutes error.
See, e.g., Elson v. State, 659 P.2d 1195, 1199 (Alaska 1983) (holding “that
evidence of a refusal to consent to a search is inadmissible regardless of the
legality of the search”); Longshore v. State, 924 A.2d 1129, 1159 (Md. 2007)
(concluding that “[a] person has a constitutional right to refuse to consent to a
warrantless search of his or her automobile, and such refusal may not later be
used to implicate guilt.”); Reeves v. State, 969 S.W.2d 471, 493-95 (Tex. Ct.
App. 1998) (discussing case law and concluding that “[t]o allow the use of one’s
refusal to consent to entry into his home without a warrant would be to impose a
penalty for exercising a constitutional right,” which was error). The constitutional
basis for the “right to refuse” generally relies upon some derivative or
combination of the Fourth, Fifth, and/or Fourteenth Amendments. Elson, 659
P.2d at 1197 (citing Fourth and Fifth Amendments); State v. Palenkas, 933 P.2d
2
The defendant further acknowledges that the claim of denial of a fair trial was not made
below. She contends trial counsel was ineffective in failing to raise the due process
claim. Because we do not reach the constitutional issue, we need not address the
State’s argument that this error was not preserved or defendant’s ineffective-assistanceof-counsel claim.
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1269, 1280 (Ariz. Ct. App. 1996) (holding “the prosecution’s references to
defendant’s invocation of his fourth amendment rights to refuse to consent to a
warrantless entry and to his contact with an attorney prior to his arrest violated
defendant’s due process rights to a fair trial”); Longshore, 924 A.2d at 1158
(drawing analogy from United States Supreme Court cases that hold that a
defendant’s assertion of the Fifth Amendment right to remain silent may not be
used against the defendant at trial).
One commentator has argued that these cases—while generally coming
to the right conclusion that the evidence is inadmissible—unsatisfactorily base
their
reasoning
on
constitutional
principles.
Kenneth
J.
Melilli,
The
Consequences of Refusing to Consent to a Search or Seizure: The Unfortunate
Constitutionalization of an Evidentiary Issue, 75 S. Cal. L. Rev. 901, 903-18
(2002). The commentator argues admissibility of “refusal to consent” should be
determined “upon ordinary rules of evidence.” Id. at 937. On the record before
us and defense counsel’s objections to the evidence, we do not reach the
constitutional claim,3 but turn to an analysis under our evidentiary rules.
B. Rules of Evidence. The inquiry whether evidence is admissible under
our Iowa Rules of Evidence 402 and 403 involves a two-step inquiry: first, is the
evidence relevant? If so, is its probative value substantially outweighed by the
danger of prejudice or confusion? Evidence is relevant if it has a tendency to
make a consequential fact more or less probable than it would be without the
evidence. Iowa R. Evid. 401; McClure v. Walgreen Co., 613 N.W.2d 225, 235
3
“[W]e are constrained by our principles of self-restraint, including the longstanding rule
that we will not decide constitutional questions when a case can be resolved on other
grounds.” State v. Williams, 695 N.W.2d 23, 30 (Iowa 2005).
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(Iowa 2000). Even relevant evidence, however, is not admissible “if its probative
value is substantially outweighed by the danger of unfair prejudice.” Iowa R.
Evid. 403.
Under these ordinary rules of evidence, generally exercising one’s
privilege to be free from warrantless searches is simply not probative (or has low
probative value) to a determination of guilt, and is unfairly prejudicial. Thus, the
defendant’s right not to be penalized for exercising such a privilege is paramount.
See, e.g., United States v. Thame, 846 F.2d 200, 207 (3rd Cir. 1988). Cf. United
States v. Hale, 422 U.S. 171, 180, 95 S. Ct. 2133, 2138, 45 L. Ed. 2d 99, 107
(1975) (“Not only is evidence of silence at the time of arrest generally not very
probative of a defendant’s credibility, but it also has a significant potential for
prejudice.”).
On the other hand, when such evidence is probative for some purpose
other than to simply penalize the defendant for exercising a constitutional right,
then notions of fair play and the need to preserve the truth-testing functions of
the adversarial process may outweigh the prejudice. For instance, evidence of
refusal to consent to a warrantless search has been admitted as “fair response”
to rebut a defendant’s theory. See Leavitt v. Arave, 383 F.3d 809, 828 (9th Cir.
2004) (noting that comments regarding one’s exercise of Fourth Amendment
rights are generally improper unless such comments fairly rebut a claim by
defendant—in this case, evidence showing that defendant was the only suspect
who refused to voluntarily give a blood sample was properly admitted to rebut
defendant’s claim that he cooperated with the investigation); United States v.
Dozal, 173 F.3d 787, 794 (10th Cir. 1999) (finding no Fourth Amendment
12
violation where comments regarding defendant’s refusal to permit search were
admitted for proper purposes and were not meant simply to penalize defendant
for exercising a constitutional right—in this case, the evidence helped establish
that defendant had dominion and control over the premises); United States v.
McNatt, 931 F.2d 251, 258 (4th Cir. 1991) (finding no Fourth Amendment
violation where comments regarding defendant’s refusal to permit search were in
fair response to defendant’s argument that drugs were planted by police in his
vehicle).
Questions of the admissibility of evidence are generally reviewed for an
abuse of discretion. State v. Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001). An
abuse of discretion occurs when the trial court exercises its discretion “on
grounds or for reasons clearly untenable or to an extent clearly unreasonable.”
State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997). We presume prejudice from the
admission of irrelevant evidence. See Lewis v. Kennison, 278 N.W.2d 12, 15
(Iowa 1979). Accordingly, reversal is required unless the record shows a lack of
prejudice. See McClure, 613 N.W.2d at 235. Thus, despite the discretionary
nature of the trial court’s decision to admit evidence, we do not hesitate to
reverse “when the jury was allowed to consider plainly irrelevant and prejudicial
evidence.” State v. Oppedal, 232 N.W.2d 517, 520 (Iowa 1975).
C. Relevance of Refusal of Consent. We have already set forth in some
detail the testimony of and argument surrounding the admission of Thomas’s
refusal to consent to a search. Thomas’s refusal to consent to a search of her
home was a recurring theme in the State’s case. The prosecutor’s justification
for the refusal to consent evidence was “it would be evidence of the defendant’s
13
recognition that she had illegal substances in her residence and so therefore
wasn’t going to grant consent because if officers went in and did a search, they
would find the drugs.”
This is precisely the improper inference the rules of
evidence seek to avoid.
Contrary to the prosecutor’s argument, a defendant’s refusal to consent to
a warrantless search is too ambiguous to be relevant—it could mean several
things, particularly when it is made post-arrest and post-Miranda. As one court
has concluded:
Because the right to refuse entry when the officer does not have a
warrant is equally available to the innocent and the guilty, just as is
the right to remain silent, the refusal is as “ambiguous” as the
silence was held to be in United States v. Hale . . . . Yet use by the
prosecutor of the refusal of entry, like use of the silence by the
prosecutor, can have but one objective to induce the jury to infer
guilt. In the case of the silence, the prosecutor can argue that if the
defendant had nothing to hide, he would not keep silent. In the
case of the refusal of entry, the prosecutor can argue that, if the
defendant were not trying to hide something . . . she would have let
the officer in. In either case, whether the argument is made or not,
the desired inference may be well drawn by the jury. This is why
the evidence is inadmissible in the case of silence. It is also why
the evidence is inadmissible in the case of refusal to let the officer
search.
Inadmissible evidence, which can readily be misinterpreted
by the jury, should not be admitted just to put the relevant facts in
their true setting . . . . [T]he facts in issue are so ambiguous as to
be irrelevant.
Moreover, they are so readily subject to
misinterpretation by a jury as to render a curative or protective
instruction of dubious value.
United States v. Prescott, 581 F.2d 1343, 1352 (9th Cir. 1978) (internal citations
omitted) (emphasis added). As Thomas’s counsel argued,
if someone comes and knocks on my door and says they want to
walk through my house, I have the absolute right to say no it is
not—it is not indicative of anything other than I know what my rights
are.
14
We conclude the evidence of Thomas’s refusal to consent was irrelevant and
unfairly prejudicial, and the district court erred in admitting it.
The prosecutor argued, and the trial court apparently agreed, that the
testimony gave context to why the police sought a search warrant. However,
“[i]nadmissible evidence, which can readily be misinterpreted by the jury, should
not be admitted just to put the relevant facts in their true setting.” Prescott, 581
F.2d at 1352.
The prosecutor also argued the evidence was admissible to
“shut[ting] down arguments” the defense might make.
However, this highly
prejudicial evidence was not offered to rebut any defense that had been
presented to the jury.
We conclude the admission of Thomas’s refusal to consent to a
warrantless search was prejudicial error. We therefore reverse the two drug
convictions and remand for a new trial on those counts.
D. Child Endangerment.
Thomas also argues that the admission of
hearsay evidence was prejudicial to her and that the record contains insufficient
evidence to convict her of child endangerment. We uphold a verdict if substantial
evidence supports it.
State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005).
“Evidence is substantial if it would convince a rational fact finder that the
defendant is guilty beyond a reasonable doubt.” Id. The erroneous admission of
hearsay is presumed to be prejudicial; however, we will not find prejudice if the
admitted hearsay is merely cumulative.
State v. Hildreth, 582 N.W.2d 167,
170 (Iowa 1998).
The evidence supporting the child endangerment conviction includes
Engesser’s testimony that Thomas’s child was wandering the neighborhood in
15
the very early hours of the morning and knocked on his door to get help finding
his mother. When Engesser went to Thomas’s residence, it appeared empty and
no one responded to his calls.
Roy Caskey testified that when he dropped
Christine Thomas off at her residence, they saw a police officer walking in front of
her house and Thomas said “the baby must have woke [sic] up.” Caskey also
testified that Thomas called him again at about 2:30 a.m. and asked him to pick
up her mother in Moline and bring her to Thomas’s home. Thomas had told the
officers that her mother had been at Thomas’s home to care for her child.
Thomas complains of the testimony of an officer that he had a
conversation with Thomas’s mother, which led him to determine that the child
had been left alone. Even if we were to determine that the evidence in question
was hearsay, that evidence is cumulative to Caskey’s testimony and did not add
to the evidence supporting the child endangerment conviction.
The State’s evidence supporting the child endangerment count is sufficient
to convince the jury that Christine Thomas had left her young son at home alone
in the middle of the night. The child endangerment conviction is affirmed.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
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