This decision has been referenced in a "Decisions Without Published Opinions" table in the North Western Reporter.
Appeal from the Iowa District Court for Scott County, Paul L. Macek (suppression) and Marlita A. Greve (trial), Judges. The defendant appeals his convictions for burglary, theft, and operating without the owner's consent.
Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha E. Trout, Assistant Attorney General, Michael J. Walton, County Attorney, and Will Ripley, Assistant County Attorney, for appellee.
Considered by Doyle, P.J., and Tabor and Bower, JJ.
Charleston Heston Walker appeals his convictions for four counts of third-degree burglary, one count of second-degree theft, and one count of operating without the owner's consent. See Iowa Code § § 713.1, 713.6A (burglary), 714.1, 714.2(2) (theft), 714.7 (operating without consent) (2011). Walker asserts the district court erred by allowing into evidence the " tainted" identifications made by two police officers. Assuming without deciding the officers' identifications were improper, we conclude the admission of the challenged evidence constitutes harmless error.
I. Background Facts and Proceedings
In the early morning hours of September 10, 2012, police in Scott County received reports of four " smash and grab" burglaries at closed convenience stores. The suspect stole cigarette cartons at each location. Around 4:00 a.m., undercover Davenport Police Officers Bryan Butt and Patrick Sievert drove an unmarked car toward the fourth location. They were aware the suspect was dressed in black. A short distance from the store, they saw a green Buick, " the only vehicle in the area," and followed it. Officer Butt noted the Buick was missing the driver's side hub cap and the driver was male, between eighteen and twenty-five years old, with light-complected black skin and a pony tail. When the Buick quickly pulled into the parking lot of a flower shop and turned around, the officers drove past, continued down the street, and then turned around to continue their mobile surveillance.
Just before an interstate bridge overpass, both vehicles stopped side-by-side for the duration of a red light. Due to the street lighting around the interstate ramps, the intersection was well-lit. From about three feet away, Butt observed the driver's profile and the fact he was wearing a white tank top, inconsistent with the evening's cool temperature. Butt could see inside the car and his view at the stop light reinforced his initial observation of the driver.
Sievert was in the passenger seat and farther away from the stopped Buick. He observed the driver to be a light-skinned black male with dark hair in a ponytail and wearing a white tank top. When the light changed, the officers drove straight ahead and called for a marked squad car to stop the Buick.
That marked squad car met and then passed the green Buick and the unmarked car, before making a U-turn in the middle of the street. When the marked squad car turned around, the Buick sped up, quickly changed lanes, pulled into the lot of an apartment complex, and parked. Officers Butt and Sievert followed, blocked the Buick, and activated their lights. Next, the marked squad car pulled in and its video shows the Buick's driver exiting the car and running away.
Officer Sievert was face to face with the driver from a distance of ten feet before the driver exited the Buick. Butts and Sievert gave chase but lost the suspect when he entered a brushy, wooded area. During the chase, Butt noted the driver wore black sweat pants and a white tank top. When Butt returned to the abandoned Buick, he discovered multiple cigarette cartons and clothing consistent with ...