Opinion
No. 2-183 / 01-0512
Filed August 28, 2002
Appeal from the Iowa District Court for Clinton County, David H. Sivright, Jr., Judge.
Defendant appeals district court denial of suppression motion, arguing both court error and ineffective assistance of counsel.
AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger and James Kivi, Assistant Attorneys General, Michael E. Wolf, County Attorney, and Gary Strausser, Assistant County Attorney, for appellee.
Heard by Vogel, P.J., and Miller and Vaitheswaran, JJ.
James Curtis appeals his convictions and sentences for murder in the first degree and robbery in the first degree. Curtis argues the district court erred in denying his motion to suppress and claims counsel was ineffective in certain particulars in regard to the motion. We affirm.
Background Facts and Proceedings . On May 12 or 13, 1998, Don Davidson was robbed and murdered. Between May 14 and 26, 1998, the police contacted James Curtis four times in regard to the Davidson homicide, once for an interview and three times to obtain Curtis's voluntary compliance in securing fingerprints and an oral swab, a pair of sandals, and a shirt. On April 15, 1999, Curtis was served with an order to appear to provide blood, saliva, and hair samples in regard to the Davidson case. At a hearing on Curtis's challenge to the order, the district court directed that an amended order be served and stated "it can be served upon [Curtis's attorney] Mr. Pillers, who will accept service for Mr. Curtis." The order itself made no mention of service upon Pillers, however, and the order was served upon Curtis directly.
When Curtis appeared to give the samples on May 12, 1999, and informed the police he was meeting his attorney, the officers agreed to wait. The police admitted Pillers was very upset the order had not been served on him, but maintained they were not told Pillers was to be notified about any future contact between the police and Curtis, or that Curtis could not be contacted unless Pillers was present. Other than the police testimony, there was no evidence as to what Curtis or Pillers may have told the police about contact with Curtis in the absence of counsel.
On July 7, 1999, Curtis was being held in the Clinton County Jail, awaiting sentencing on unrelated robbery and burglary convictions. Police visited Curtis at the jail to ascertain the whereabouts of his brother, Tony. When Curtis saw police he told the jailer to call his attorney and then informed the police he did not want to speak with them. He then walked over to the officers, sat down, and began speaking with them about an appeal or appeal bond, presumably in regard to the Clinton County case. When the police informed Curtis they were not there to speak with him about the appellate matter, but were only seeking the location of his brother, Curtis provided the requested information. Tony was later charged in the Davidson homicide.
At times relevant to the Davidson investigation, Curtis was charged with and convicted of a Jackson County burglary, for which he received a deferred judgment and two years of supervised probation, as well as a robbery and burglary in Clinton County, for which he received two concurrent sentences not to exceed ten years.
On March 1, 2000, while Curtis was serving his prison sentences for the Clinton County robbery and burglary, the police once again visited him with a request. When Curtis saw the officers he stated that they should not be there and/or talking to him because his conviction was on appeal. The police informed Curtis they were not there in regard to that case, but had come to ask him to submit to a polygraph exam regarding the Davidson homicide. Curtis agreed, and on March 29, 2000, was transported to Highway Patrol Headquarters for the exam.
When Curtis arrived, he stated he didn't want to submit to the polygraph exam. Police then inquired whether he would speak with them regarding the Davidson case, and he agreed. Curtis's handcuffs and leg irons were removed, and police reviewed the Miranda form with him. Curtis stated he understood his rights and signed a written waiver. During the course of the four and one-half hour interview, which included three brief breaks, he made incriminating statements in regard to the Davidson matter.
Curtis was charged with murder in the first degree and robbery in the first degree. He filed a motion to suppress the statements made during the March 29, 2000, interview, which was denied by the district court. Curtis was subsequently convicted on both counts, and he now appeals.
Scope of Review . Our review of these constitutional issues is de novo. Iowa R. App. P. 6.4.
Sixth Amendment Right to Counsel . Curtis argues his Sixth Amendment right to counsel attached at the time of the 1999 non-testimonial identification procedure and contends that, because he did not thereafter waive this right to counsel, the police questioning conducted on March 29, 2000, was unconstitutional. See State v. Nelsen, 390 N.W.2d 589, 592 (Iowa 1986) (noting that once right attaches, police may not deliberately elicit incriminating statements from a defendant, unless counsel is present or defendant has made a valid waiver). However, a Sixth Amendment right to counsel does not attach until "adversary judicial criminal proceedings" are initiated. McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 2207, 115 L.Ed.2d 158, 167 (1991) (citations omitted). The circumstances at the relevant time must show the State has committed itself to prosecution of the defendant. State v. Jackson, 380 N.W.2d 420, 423 (Iowa 1986).
"In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI.
At the time referenced by Curtis, while he was admittedly a suspect in the Davidson homicide, filing of the trial information was over a year away. The mere fact the county attorney was involved in the investigative stages of this case, in that he sought the taking of identifying samples, does not render the non-testimonial identification procedure a critical stage of the proceedings. See, e.g., State v. Evans, 495 N.W.2d 760, 764 (Iowa 1993) (finding prosecuting attorney's involvement in the decision to obtain an arrest warrant did not establish a state commitment to prosecute). See also Bousman v. Iowa Dist. Court for Clinton County, 630 N.W.2d 789, 793 (Iowa 2001) (noting a person ordered to provide samples for a non-testimonial identification procedure, who had not been accused of or charged with any crime, is a suspect only). The district court correctly found Curtis did not have a Sixth Amendment right of counsel at the time of the non-testimonial identification procedures.
Curtis also appears to argue that invoking his right to have counsel present at the non-testimonial identification procedure, pursuant to Iowa Code section 810.8(8) (1999), somehow engendered a constitutional right to counsel. While we agree such an issue would be a matter of first impression in Iowa, Curtis cites no authority in support of this claim, nor does he develop any argument beyond a bare assertion that representation pursuant to section 810.8(8) creates an offense-specific right to counsel under the Iowa and/or United States Constitutions. Accordingly, we find this issue is waived. See Iowa R. App. P. 6.14(1)( c).
Fifth Amendment Right to Counsel . Curtis also claims the questioning on March 29, 2000, was in violation of his Fifth Amendment right to counsel, which applies in cases of custodial interrogation. McNeil, 501 U.S. at 176, 111 S.Ct. at 2208, 115 L.Ed.2d at 167. Once such right is invoked, all interrogation must cease, and the police may not seek to further question the defendant until counsel has been made available. Id. at 176-77, 111 S.Ct. at 2208, 115 L.Ed.2d at 167. It is clear the circumstances of March 29 constituted custodial interrogation and that Curtis had a Fifth Amendment right to counsel on that day. It is equally clear he signed a waiver of that right. Curtis argues, however, that his Fifth Amendment right to counsel had attached and been invoked prior to March 29, which rendered the questioning conducted on that date unconstitutional. We find no merit in these claims.
"No person . . . shall be compelled in any criminal case to be a witness against himself. . . ." U.S. Const. amend. V.
Curtis contends he invoked his Fifth Amendment right to counsel during the July 7, 1999, and March 1, 2000, jail and prison visits. However, neither situation can be said to be custodial. Beyond the underlying incarceration, there is no evidence Curtis's freedom of movement was in any way restricted. See State v. Deases, 518 N.W.2d 784, 789 (Iowa 1994) ("Incarceration does not automatically render an inmate in custody for purposes of Miranda. In the prison context there must be some added restriction on the inmate's freedom of movement stemming from the interrogation itself.").
Nor can we find an inquiry into his brother's whereabouts, or a request to submit to a polygraph test at a future date, to be interrogation. Interrogation occurs when the police engage in express questioning or its functional equivalent, which is defined as any conduct reasonably likely to elicit an incriminating response. Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297, 308 (1980). This is because, at its heart, the Fifth Amendment right to counsel is a protection against compulsory self-incrimination. See McNeil, 501 U.S. at 176-77, 111 S.Ct. at 2208, 115 L.Ed.2d at 167. Neither inquiry in this case was likely to evoke an incriminating statement from Curtis. See, e.g, Van Hoff v. State, 447 N.W.2d 665, 672 (Iowa Ct.App. 1989) (noting that interrogation does not include basic identification questioning or general on-the-scene questioning); State v. Little, 421 N.W.2d 172, 174 (Iowa Ct.App. 1988) (finding request for consent search was not interrogation as consent is not an incriminating statement). Curtis did not have a Fifth Amendment right to counsel during either of the prior visits, and those encounters accordingly have no impact on the validity of the waiver made March 29. Voluntariness of Confession . Curtis claims his confession was involuntary, arguing he was suddenly removed from his cell to what was a physically confining and intimidating environment and that he was particularly susceptible to making an involuntary confession, as he lacked self-confidence and was "easily intimidated, easily led, and easily dominated." However, we note Curtis had prior knowledge and experience with the criminal justice system and specifically with the Miranda process, was of average to high average intelligence, appeared to be alert and responsive with normal demeanor and speech, was detained for less than five hours and given three breaks, and was not subjected to force or coercion on the part of police. See State v. Morgan, 559 N.W.2d 603, 608 (Iowa 1997) (setting forth the relevant factors for consideration). Even assuming Curtis was "very susceptible to influence," we examine the totality of the circumstances when assessing the voluntariness of a confession. Id. Assessing all the circumstances in this case, we cannot find the confession to be involuntary.
Curtis also claims that, "in the earlier encounters," he was denied his right to contact an attorney or family member pursuant to Iowa Code section 804.20, as he was not advised of this right by the police. Above and beyond the fact that police have no affirmative duty to advise a defendant of this right, see State v. Meissner, 315 N.W.2d 738, 740 (1982), we find this statutory right to counsel or advice is inapplicable under the facts of this case. Police must honor a request under section 804.20 when a person has been arrested or their liberty is otherwise restrained. At the time of the July 7 and March 1 jail and prison visits, Curtis was not under arrest in regard to the Davidson case, nor did the police in any way move to restrain his freedom.
Prior to the July 7, 1999, jail visit, police had executed a search warrant and/or questioned Curtis, regarding the Jackson and Clinton County cases, on four separate occasions. In each of the two cases the Miranda warning was given and the rights were waived.
Ineffective Assistance of Counsel . Curtis forwards three grounds for his ineffective assistance of counsel claim. He first argues his attorney should have testified at the suppression hearing:
In this case it seems clear that Mr. Pillars [sic] believed that he had told Agent Smith to not contact his client in the context of the order for non-testimonial evidence. If the attorney had so testified, it likely would have made a difference in the outcome of the motion to suppress.
Not only is it unclear precisely what Pillers would likely testify to, but Curtis has failed to identify how any such testimony would have affected the proceeding. See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994) (finding a defendant must state the specific way in which counsel's performance was deficient and identify how competent representation probably would have changed the outcome). This claim is too general in nature to allow for either direct review or preservation for postconviction proceedings. See id.
The same is true in regard to Curtis's contention that counsel should have moved to suppress the March 29 statements on the basis that his right to counsel was violated under the Iowa Constitution. See Iowa Const. art. 1, sec. 10. Curtis argues only that such a claim is "meritorious as discussed above," and fails to state how a claim under the Iowa Constitution would have or could have been successful, where his federal constitutional claims failed. We decline to address this contention on direct appeal or preserve it for postconviction proceedings. See Dunbar, 515 N.W.2d at 15.
Finally, Curtis argues counsel should have formally made the transcript of the April 1999 hearing on his challenge to the non-testimonial identification procedure a part of the record. However, for trial counsel to be deemed ineffective, his performance must have fallen below the normal range of competency, and the inadequate performance must have prejudiced Curtis's case. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed. 674, 693 (1984). A review of the record indicates, and Curtis concedes, that the hearing transcript was in fact made a part of the record prior to the district court's suppression ruling. As such, any failure on the part of counsel in this regard cannot be prejudicial. Whether the transcript was properly considered by the district court is a separate issue not before us.
AFFIRMED.