IN THE COURT OF APPEALS OF IOWA - Bonnie's Blog of Crime



IN THE COURT OF APPEALS OF IOWA

No. 4-191 / 03-0475

Filed August 11, 2004

STATE OF IOWA,

Plaintiff-Appellee,

vs.

TRAVIS JOHN MILLIGAN a/k/a TRAVIS JOHN WOLFKILL,

Defendant-Appellant.

Appeal from the Iowa District Court for Polk County, Joel D. Novak, Judge.

Travis Milligan appeals his conviction for murder in the first degree. AFFIRMED.

Linda Del Gallo, State Appellate Defender, and Robert Ranschau, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, John Sarcone, County Attorney, and Nan Horvat, Assistant County Attorney, for appellee.

Heard by Vogel, P.J., and Hecht and Vaitheswaran, JJ.

HECHT, J.

Travis Milligan appeals his conviction for murder in the first degree. We affirm.

I. Background Facts and Proceedings. Some time on the night of March 1, 2002, Shirley Wilson was stabbed to death in her home she shared with her grandson, Travis Milligan. When Wilson’s son discovered her body late the next day, Milligan’s whereabouts were unknown. The rest of Wilson’s family went to the Des Moines police station to give statements, and police obtained a material witness arrest warrant for Milligan.

Milligan returned to his grandmother’s house at about 10:00 p.m. and found police investigating the crime scene. Milligan was asked if he wanted to go to police station with the rest of his family, and he agreed. An officer drove Milligan to the station in an unmarked van. They did not discuss the crime or the investigation during the drive.

Once at the station, Milligan was taken to an interview room on the second floor. He was questioned by two officers from 11:20 p.m. until 12:21 a.m. In the recorded interview, Milligan told police that he had been out with friends at a strip club on the evening of March 1 and had returned to his grandmother’s house some time between midnight and 1:00 a.m. He claimed to have smoked a couple cigarettes, but not to have heard or seen his grandmother while he was in the house. He told officers he left after fifteen or twenty minutes to walk to a convenience store to get more cigarettes. Milligan called his friend, D.J. Schofield, from the store and asked him to pick him up because it was too cold to walk home. Schofield picked Milligan up at the convenience store and took him to Schofield’s house rather than back to Milligan’s home. Milligan claimed to have no knowledge of his grandmother’s death until late the next day. As it became clear that the officers were not convinced by Milligan’s story and considered him a suspect in the murder, Milligan told the officers that he did not want to answer any more questions. The officers agreed, but asked if they could take photographs of him. Milligan refused. Officer Stanley told Milligan to “wait right here,” and at 12:21 a.m. the two officers left the interview room.

They did not return until six hours later, when they served Milligan with a search warrant to take the requested photos. In addition to obtaining the warrant, during those six hours, the officers had followed up on various aspects of Milligan’s story. They visited the strip club and the convenience store and interviewed Schofield. While taking the photographs, officers noticed a reddish brown smear on Milligan’s knee. They took a swab of the substance, which was later determined to be Shirley Wilson’s blood. After taking the photographs, the officers escorted Milligan out of the police station and told him he was free to go.

Milligan was ultimately charged with murder in the first degree. He filed a motion to suppress claiming his six-hour detention at the police station violated his state and federal constitutional rights against unreasonable seizures and that the evidence gathered as result of his detention should be suppressed, including the blood found on his knee. The district court denied this motion, concluding the police had probable cause to detain Milligan. Later, Milligan moved to dismiss the prosecution pursuant to Iowa Rule of Criminal Procedure 2.33(2)(a) because he had not been indicted within forty-five days of his arrest. This motion was also denied when the district court concluded Milligan had not been arrested until he was formally arrested on March 12, 2002.

After a trial, Milligan was found guilty of first-degree murder and sentenced to life in prison. He appeals, contending the district court erred in denying his motions to suppress and dismiss. He also claims his trial counsel was ineffective in several respects.

II. Motion to Suppress. Milligan argues that his six-hour detention at the police station was an unreasonable seizure in violation of his state and federal constitutional rights. He contends the district court erred by failing to suppress the evidence gathered as a result of his detention. The State argues that Milligan was not “seized,” but that if he was, his detention was constitutional because the police had a material witness arrest warrant for Milligan.

Our review of claims of violations of constitutional protections is de novo. State v. Campbell, 326 N.W.2d 350, 352 (Iowa 1982). We will review the entire record and make an independent evaluation of the totality of the circumstances. Id.

We find unconvincing the State’s argument that Milligan was not seized during those six hours he was left in an interview room of the Des Moines police department. When Milligan refused to allow police to take photographs of him, Officer Stanley said, “OK. Wait right here.” The two officers left the room and did not return until roughly 6:30 in the morning. When they returned, Milligan was still in the interview room, waiting, as he had been instructed. Testimony during the suppression hearing indicated that although Milligan was not guarded during those six hours, several police officers occupied the room immediately outside the interview room. As a practical matter, Milligan could not have left the building without a police escort because of the time of night and the security system in place at the station. Testimony at the suppression hearing and at trial indicated that Milligan left the interview room and made at least one phone call to ask a friend to come pick him up. However, Travis Logson testified at trial that when he came to the station at about 2:00 a.m., “they wouldn’t release him,” and he was not able to see Milligan. Although police apparently did not explicitly tell Milligan he was not free to go between 12:21 a.m. and 6:30 a.m., after the search warrant was executed Milligan was escorted to the door of the building and told he was free to leave.

Not all interactions between police and private citizens are considered seizures implicating the Fourth Amendment protections. State v. Harlan, 301 N.W.2d 717, 719 (Iowa 1981). A seizure for Fourth Amendment purposes occurs when an officer, by means of physical force or show of authority, restrains the liberty of a citizen. Id. Although Milligan traveled to the police station and answered questions voluntarily for roughly an hour, we think that once the interview ended and Milligan was told to “wait right here,” the voluntary nature of the encounter changed. After considering the totality of the circumstances, we conclude a reasonable person in Milligan’s position would not have felt free to leave the police station, but rather would have felt compelled to obey Officer Stanley’s directive to wait. Accordingly, we conclude Milligan was seized for Fourth Amendment purposes.

Having determined that Milligan was seized, we must next decide whether the seizure was unreasonable and, consequently, a violation of Milligan’s constitutional rights. State v. Pickett, 573 N.W.2d 245, 247 (Iowa 1997). A warrantless seizure is per se unreasonable unless the police had probable cause to detain the defendant. Id. We must make an objective determination of the existence of probable cause. See State v. Hofmann, 537 N.W.2d 767, 769-70 (Iowa 1995). “So long as the officer is legally permitted and objectively authorized to do so, an arrest is constitutional.” Id. at 770.

Before Milligan had been located and appeared at the station, police had obtained a material witness arrest warrant for Milligan. Although police did not execute this arrest warrant, the warrant provided the officers the legal authority to detain Milligan without his consent. Accordingly, we conclude Milligan suffered no constitutional violation, and we affirm the district court’s denial of Milligan’s motion to suppress.

III. Motion to Dismiss. Iowa Rule of Criminal Procedure 2.33(2)(a) provides that a prosecution must be dismissed if a defendant is not indicted within forty-five days of his arrest. Milligan contends his six-hour detention on March 3 constituted an arrest which triggered the running of forty-five day limit on indictment. He argues his prosecution should have been dismissed because he was not indicted until April 23, 2002, fifty days after his detention. The State contends, however, that Milligan was not arrested for purposes of the speedy indictment rule until he was formally arrested on March 13, 2002, and that his indictment was timely.

We will review the district court’s denial of Milligan’s motion to dismiss for errors at law. State v. Johnson-Hugi, 484 N.W.2d 599, 600 (Iowa 1992). Although Milligan’s trial attorney untimely filed the motion to dismiss, the State concedes error has been preserved on this issue. The district court addressed the merits of the motion to dismiss below, and we will address the merits of Milligan’s claim on appeal.

Our determination that Milligan was seized for Fourth Amendment purposes does not dictate a finding that Milligan was arrested for speedy indictment purposes. A person may be seized for Fourth Amendment purposes, yet not be formally arrested. State v. Bradford, 620 N.W.2d 503, 507 (Iowa 2000). An arrest for purposes of rule 2.33(2)(a) is defined in Iowa Code sections 804.5 and 804.14 (2003). Johnson-Hugi, 484 N.W.2d at 600. Section 804.5 defines an arrest as “taking a person into custody when and in the manner authorized by law, including restraint of the person or the person’s submission to custody.” Section 804.14 requires that the person making the arrest

inform the person to be arrested of the intention to arrest the person, the reason for the arrest, and that the person making the arrest is a peace officer, if such be the case, and require the person being arrested to submit to the person’s custody.

Milligan’s detention the night of March 3 does not meet the technical requirements of section 804.14. Milligan was not informed of the officer’s intent to arrest him or the reason for the arrest, he was simply told to “wait right here.” He was not handcuffed or “booked.” While Milligan may have not been free to leave and his detention may have been such that he was guaranteed certain constitutional protections, a de facto arrest does not trigger the running of the speedy indictment clock. State v. Gathercole, 553 N.W.2d 569, 573 (Iowa 1996). We find no legal error in the district court’s denial of Milligan’s motion to dismiss and affirm.

IV. Ineffective Assistance of Counsel. To succeed on a claim of ineffective assistance of counsel, Milligan must prove both that his trial counsel breached an essential duty and that prejudice resulted. State v. Shumpert, 554 N.W.2d 250, 254 (Iowa 1996). In order to satisfy the first prong, Milligan must overcome the presumption that his trial counsel’s actions were reasonable and within the normal range of competency. Id. To satisfy the prejudice prong, he must prove a reasonable probability that but for his counsel’s deficient performance, the result of the proceeding would have been different. Id.

Because Milligan is claiming a violation of a constitutional right, we review his claim de novo. Taylor v. State, 352 N.W.2d 683, 684 (Iowa 1984). Claims of ineffective assistance of counsel are normally not decided on direct appeal, but are preserved for postconviction relief proceedings. State v. Westeen, 591 N.W.2d 203, 207 (Iowa 1999). When the record is adequate, however, we will resolve ineffective assistance claims on direct appeal. Id.

A. Failure to Object to Prejudicial Evidence. At trial, the State introduced a photograph and a videotape of the bedroom Milligan occupied in Wilson’s home. Because the photo and the video depict, among other things, a scale commonly used to weigh illegal drugs sitting on top of the dresser, Milligan argues his attorney was ineffective by failing to object to the introduction of the evidence. Milligan contends that the image of this scale in his bedroom has no probative value to any of the issues in the trial and was extremely prejudicial to him.

While we may agree that the specific image of the scale is not relevant to the issues in Milligan’s trial, we conclude Milligan has failed to demonstrate he was prejudiced by the admission of the photo and video. The scale was not the focal point of either the photo or the video. The State did not refer to the presence of the scale in its case in chief or its closing argument. Because the scale was not mentioned in testimony or the argument, we find no reason to believe the jury noticed the scale, or realized its implications, in the midst of the extreme clutter depicted in the bedroom and on the dresser. Accordingly, we conclude Milligan’s trial counsel was not ineffective in this respect.

B. Failure to Move for a New Trial. Milligan contends his trial counsel was ineffective for failing to move for a new trial. He claims that had his trial counsel made the motion, the district court would have concluded the greater weight of the evidence did not support his conviction. See State v. Ellis, 578 N.W.2d 655, 658 (Iowa 1997).

The evidence supporting Milligan’s conviction was overwhelming. Jeremy Circh testified that Milligan had told him earlier on the evening of Wilson’s death that he was going to kill somebody. Milligan admitted to being in the house at about the time Wilson was killed. Wilson’s blood was found on Milligan’s leg. The crime scene indicated Wilson had struggled with her killer, and a day after the murder, Milligan’s body displayed marks consistent with having been in a fight. A bloody shirt was found in Milligan’s bedroom. We conclude Milligan’s trial counsel had no duty to make a meritless motion for a new trial and was not ineffective in this respect.

C. Failure to Preserve Error on Speedy Indictment Claim. Milligan also makes a claim that his trial counsel was ineffective for failing to timely move for dismissal due to lack of speedy indictment and preserve the issue for appeal. However, we have already determined above that this claim was preserved for appeal and addressed the merits of Milligan’s speedy indictment claim. Accordingly, we conclude his trial counsel was not ineffective in this regard.

AFFIRMED.

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