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State v. Vongchanh

February 9, 2000

STATE OF IOWA,
APPELLEE,
V.
CARL KON VONGCHANH,
APPELLANT.



The opinion of the court was delivered by: Zimmer, J.

Appeal from the Iowa District Court for Polk County, Jack Levin, Judge.

Carl Kon Vongchanh appeals from his convictions for second-degree murder, first-degree robbery, and willful injury.

AFFIRMED.

Heard by Sackett, C.J., and Zimmer, and Miller, JJ.

This is a companion case to State v. Leutfaimany, 585 N.W.2d 200 (Iowa 1998). The defendant, Carl Kon Vongchanh, appeals a jury verdict of guilty on the charges of second-degree murder, first-degree robbery, and willful injury. Finding no merit to his contentions, we affirm the convictions.

I. Background Facts and Proceedings.

On October 25, 1996, Tom and Annette Banh arrived at their store around 9:35 a.m. Soon after, four young men, Sy Roeuth, Hatsady Leutfaimany, the defendant, and Kingkhoy Vongphakdy, entered the store. Mrs. Banh recognized Roeuth because some of his family members were regular customers. Mr. Banh went into a back room to do some work. Leutfaimany appeared to do some shopping and testimony suggested Vongchanh stayed near the front of the store in a 'look-out' role. Meanwhile, Vongphakdy and Roeuth went in the back seeking to rob the store. They confronted Mr. Banh and Vongphakdy shot him several times after Banh tried to grab his gun. The four fled the scene. The action in the front of the store, as well as voices and gunshots, were captured on videotape. Mr. Banh died two months after the robbery when life support was removed.

Police located Roeuth and Leutfaimany within hours of the robbery. These two incriminated themselves along with Vongchanh and Vongphakdy. Authorities apprehended Vongchanh in New Mexico on November 5, 1996. Vongphakdy was later arrested in California.

The four men were jointly charged in a single trial information with first-degree murder, first-degree robbery, and willful injury. Over their objections, the four defendants were tried together. The jury found Vongchanh guilty of second-degree murder, in violation of Iowa Code sections 707.1 and 707.3 (1995), first-degree robbery, in violation of Iowa Code sections 711.1 and 711.2, and willful injury, in violation of Iowa Code section 708.4. His co-defendants were found guilty as charged. On appeal, Vongchanh argues: (1) the district court erred in failing to suppress the statement he gave officers in New Mexico; (2) his case should have been dismissed when he was not brought to trial within the ninety-day speedy trial deadline; (3) the trial court erred in failing to sever his trial from that of his co-defendants; (4) the State committed prosecutorial misconduct during its closing argument; (5) the trial judge should have recused himself; and (6) the jury should have been allowed to hear the entire tape-recorded statement Vongchanh made to the police.

II. Suppression of Statement to New Mexico Police.

Vongchanh was sixteen years old at the time of his arrest in New Mexico. He admitted participation in the robbery to the police. Before the interview, New Mexico police obtained a written waiver of Vongchanh's right to counsel. Vongchanh filed a motion to suppress this statement. In denying the motion, the district court concluded the law of New Mexico applied. Unlike Iowa, New Mexico does not require police to make a good faith effort to contact a parent or guardian of a juvenile in custody who is sixteen years or older. See N.M. Stat.Ann. § 32A-2-14 (1997 Supp.). Alternatively, if Iowa law applied, the district court ruled because Vongchanh was charged with a forcible felony, Iowa Code section 232.8(1)(c) excluded Vongchanh from the jurisdiction of the juvenile court, making section 232.11 inapplicable.

On appeal, defendant contends it was error for the trial court to deny suppression. He argues Iowa Code section 232.11, governing admissibility of a juvenile's statement to police, applies to a statement elicited from a juvenile in another state. The New Mexico officers failed to make any effort to contact a parent or guardian, as section 232.11 requires, before procuring a waiver of Vongchanh's right to counsel. Because Vongchanh asserts no constitutional barriers to the admissibility of his statement, we review this issue of statutory interpretation for errors at law. See State v. Eickelberg, 574 N.W.2d 1, 3 (Iowa 1997); State v. Terry, 569 N.W.2d 364, 366 (Iowa 1997) (interpreting 'reverse waiver' provision of the juvenile justice code).

A juvenile's statutory right to counsel is contained in Iowa Code section 232.11:

1. A child shall have the right to be represented by counsel at the following stages of the proceedings within the jurisdiction of the juvenile court under division II:

a. From the time the child is taken into custody for any alleged delinquent act that constitutes a serious or aggravated misdemeanor or felony under the Iowa criminal code, and during any questioning thereafter by a peace officer or probation officer. . . .

2. . . . The child's right to be represented by counsel under subsection 1, paragraph "a" shall not be waived by a child less than sixteen years of age without the written consent of the child's parent, guardian, or custodian. The waiver by a child who is at least sixteen years of age is valid only if a good faith effort has been made to notify the child's parent, guardian, or custodian that the child has been taken into custody and of the alleged delinquent act for which the child has been taken into custody, the location of the child, and the right of the parent, guardian, or custodian to visit and confer with the child. Iowa Code § 232.11 (emphasis added).

Section 232.11 clearly applies only to proceedings within the juvenile court's jurisdiction.

Iowa Code section 232.8(1)(c) exempts certain classes of juvenile offenders from the initial jurisdiction of the juvenile court:

Violations by a child, age sixteen or older, which subject the child to the provisions of section 124.401, subsection 1, paragraph "e" or "f", or violations of section 723A.2 which involve a violation of chapter 724, or violation of chapter 724 which constitutes a felony, or violations which constitute a forcible felony are excluded from the jurisdiction of the juvenile court and shall be prosecuted as otherwise provided by law unless the court transfers jurisdiction of ...


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