STATE v. METZ, ___ N.W.2d ___ (Sup. Ct. No. 99-1790) (Iowa 11/15/2001). [1] State's use of post-Miranda statements for impeachment during trial. A defendant who remains silent after being Mirandized cannot be impeached by that silence when he testifies at trial. Doyle v. Ohio, 426 U.S. 610 (1976). However, if defendant talks (after receiving the warning) about his role in the offense, or offers an exculpatory story or alibi, Bass v. Nix, 909 F.2d 297 (8th Cir. 1990), he can be impeached with that prior inconsistent statement if he testifies otherwise at trial. Anderson v. Charles, 447 U.S. 404 (1980). Here, cross-examination of defendant about not having told his trial version to police when he spoke with them after his arrest required reversal because (1) the alleged inconsistent statement was never offered in evidence, negating the claim that the challenged cross-examination was part of an effort to impeach defendant by the prior inconsistent statement, and (2) the alleged prior inconsistent statement was "noticeably lacking in any comment by defendant on how [the victim's] death occurred or defendant's role in it." The error was not harmless as a constitutional violation under the standard of Chapman v. California, 386 U.S 18 (1967). [2] No error in failing to give mistake-of-fact instruction. Defendant's claim that, had he known who his alleged attacker was he would not have killed him, did not entitle him to a mistake-of-fact instruction given what the jury did find, in convicting him of first-degree murder. [3] Hearsay testimony -- defendant's admission to since-deceased person. DCI officer testimony that pawn shop employee, who was deceased at the time of trial, quoted defendant as making inculpatory statements was inadmissible hearsay: because other similar statements were available to the state, "the residual hearsay rule should [have been] invoked in the absence of a far greater need than that which was shown to exist." [4] Murder photos. No abuse of discretion in admitting photos of decedent's body.

STATE v. NAUJOKS, ___ N.W.2d ___ (Sup. Ct. No. 00-1149) (Iowa 11/15/2001). [1] Warrantless search of overnight guest in apartment. Overnight guest in an apartment has a legitimate expectation of privacy. Although probable cause existed, the warrantless search was illegal in the absence of exigent circumstances; here, the circumstances did not present any objective indication of fear or violence or jeopardy, nor was there any evidence of risk of escape, nor was hot pursuit or potential destruction of evidence involved. Case is remanded for new trial to remedy trial court's denial of motion to suppress. [2] Tainted search warrant -- effect. Search warrant that is later found to be based on tainted information (obtained from prior unlawful search) must be examined to determine if untainted information is sufficient, as here, to establish probable cause. [3] Nunc pro tunc order and double jeopardy. Nunc pro tunc order purporting to correct finding of guilt on two charges of third-degree burglary to two counts of second degree burglary violated double jeopardy.   (Rehearing being sought)

STATE v. OPPERMAN, ___ N.W.2d ___ (Sup. Ct. No. 00-1340) (Iowa 11/15/2001). [THIS IS A COMPANION CASE TO NAUJOKS, ABOVE] [1] Warrantless search of overnight guest in apartment. Overnight guest in an apartment has a legitimate expectation of privacy. Although probable cause existed, the warrantless search was illegal in the absence of exigent circumstances; here, the circumstances did not present any objective indication of fear or violence or jeopardy, nor was there any evidence of risk of escape, nor was hot pursuit or potential destruction of evidence involved. Case is remanded for new trial to remedy trial court's denial of motion to suppress. [2] Tainted search warrant -- effect. Search warrant that is later found to be based on tainted information (obtained from prior unlawful search) must be examined to determine if untainted information is sufficient, as here, to establish probable cause.