This decision is published in table format in the North Western Reporter.
Appeal from the Iowa District Court for Black Hawk County, Kellyann M. Lekar, Judge. Appeal from convictions of robbery in the first degree, theft in the first degree, and carrying a dangerous weapon.
Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik Assistant Attorney General, Thomas J. Ferguson, County Attorney, and James Katcher, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Tabor and McDonald, JJ.
Deanthony Kirkland appeals from his convictions of robbery in the first degree, theft in the first degree, and carrying a dangerous weapon. He claims his attorney was ineffective in not seeking to suppress incriminating statements and physical evidence on common-law evidentiary grounds in addition to the constitutional grounds actually raised. He also claims the court erred in not granting his motion to suppress the same statements and physical evidence on the constitutional grounds actually raised.
At approximately 9:00 p.m. on October 7, 2012, a Pizza Hut delivery driver delivered pizza to Nathan Jacobi and Andrew Hoffman's apartment. Later that night, the same delivery driver returned to the apartment with three others and robbed Jacobi and Hoffman at gunpoint. It was the delivery driver who brandished the gun during the robbery. The four men stole a gold necklace, a silver necklace, a PlayStation 3, four PlayStation controllers, a bottle of Ciroc vodka, and Jacobi's and Hoffman's cell phones.
After Jacobi and Hoffman reported the incident to police, the police contacted Pizza Hut and determined Kirkland was the delivery person for Jacobi and Hoffman. Local law enforcement was familiar with Kirkland and knew where he lived. The police went to his residence and stopped Kirkland's vehicle as Kirkland was leaving his house. There were two passengers in Kirkland's vehicle: Malik Edwards and Jacquel Williams. Williams was wearing a gold necklace matching the description of the one stolen. Edwards had a silver necklace in his front pocket, also matching the description of the one stolen. A bottle of Ciroc vodka was found in the vehicle. All three men were taken to the police station for questioning.
Williams cooperated with the police. Williams admitted his involvement in the robbery and stated that Kirkland, Edwards, and one other person were also involved. Williams told the police that Kirkland used a silver and black handgun during the robbery. Williams' description of the handgun Kirkland used during the robbery matched Jacobi's description of the same.
At the same time Williams was giving his statement, Kirkland was being questioned by Officer Girsch. Prior to questioning, Kirkland was notified of his Miranda rights. Kirkland initially agreed to be interviewed. After denying any knowledge of or involvement in the incident, Kirkland then invoked his rights to silence and to an attorney. Officer Girsch terminated the interview and began leaving the interview room. As Officer Girsch was leaving, Kirkland asked him to wait and said, " hey, I got some questions for you." Officer Girsch explained to Kirkland the interview could not continue because Kirkland invoked his right to silence and his right to an attorney. Kirkland repeatedly stated to Officer Girsch that he had questions and wanted to continue to speak with Officer Girsch without an attorney. After he was convinced Kirkland wanted to continue to speak without counsel, Officer Girsch continued the questioning and confronted Kirkland with Williams' statements. Officer Girsch then truthfully told Kirkland that another officer was preparing a search warrant for Kirkland's home based, in part, on Williams' statement. Officer Girsch asked Kirkland whether any weapons were in the home, and Kirkland denied the presence of any weapons. Officer Girsch then explained that the presence of weapons in the home may pose a risk to those executing the warrant and accordingly may change the manner in which the warrant was executed. Kirkland then admitted he had an inoperable handgun in a pillow case in his bedroom.
The police executed the warrant and found the handgun as Kirkland described. At no point did Kirkland admit participating in the robbery or admit that the weapon seized ...