Opinion
No. 5-357 / 04-1284
Filed June 29, 2005
Appeal from the Iowa District Court for Scott County, Mark J. Smith, Judge.
Lam appeals a jury verdict finding him guilty of third-degree sex abuse, claiming his counsel failed to raise promissory leniency and Miranda violation claims. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell-Douglass and Thomas S. Tauber, Assistant Attorneys General, William E. Davis, County Attorney, and Robert Cusack, Assistant County Attorney, for appellee.
Heard by Sackett, C.J., and Huitink and Vaitheswaran, JJ.
Ronald Lam, Jr. appeals a judgment and sentence for third-degree sex abuse. Iowa Code 709.4(2)(b)(2003). He claims trial counsel was ineffective in failing to argue that his confession was induced by a promise of leniency. He also claims trial counsel should have raised a Miranda rights violation. We affirm.
United States v. Miranda, 384 U.S. 436, 472, 86 S. Ct. 1602, 1627, 16 L. Ed. 694,722 (1966).
I. Background Facts and Proceedings
Eighteen-year-old Lam lived at a residential correctional facility in Davenport. While waiting for a bus one day, he had sex with a thirteen-year-old girl he met at the bus terminal.
Several days after the incident, Detective Greg Keller of the Davenport Police Department called the facility and requested that Lam come to the police station for questioning. An employee of the residential correctional facility, Don Harper, drove Lam to the station. During the ride, Lam made inculpatory statements.
At the police station, Lam signed a written waiver of his Miranda rights and confessed to having sex with the girl, but stated he thought she was seventeen. He also wrote a statement describing the events at the bus terminal.
The State charged Lam with sexual abuse in the third degree. Lam moved to suppress his statements, claiming that he did not knowingly and voluntarily waive his right to remain silent. The district court denied the motion following a hearing. The court concluded that neither the detective nor the employee of the residential correctional facility violated Lam's constitutional rights.
The case was tried to a jury, which returned a finding of guilt. Lam appealed.
II. Ineffective Assistance of Counsel
As noted, Lam argues trial counsel was ineffective in failing to challenge his confessions on grounds of 1) promissory leniency and 2) Miranda. We ordinarily do not consider ineffective-assistance-of-counsel claims on direct appeal. See State v. McCoy, 692 N.W.2d 6, 14 (Iowa 2005). Here, we find the record adequate to address both assertions. State v. Hochmuth, 585 N.W.2d 234, 237 (Iowa 1998). Our review is de novo.
To prevail on ineffective-assistance-of-counsel claims, a defendant must show (1) counsel breached an essential duty and (2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 690-92, 104 S. Ct. 2052, 2066-67, 80 L. Ed. 2d 674, 695-96 (1984). A. Promissory Leniency
To be admissible, a confession must not have been "obtained by any direct or implied promises, however slight." State v. King, 492 N.W.2d 211, 215 (Iowa Ct.App. 1992) (citation omitted). Statements induced by promissory leniency are inadmissible because they are involuntary. State v. Kase, 344 N.W.2d 223, 225 (Iowa 1984).
During the police interview, Lam described his contact with the girl at the bus terminal. In the course of his narrative, he stopped and asked Keller, "how old is she?" Keller replied, "she is fourteen." In fact, the girl was thirteen at the time of the incident but turned fourteen in the intervening days.
Appellate counsel contends "the reason why Lam made his confession was Keller's promise to him about [the girl's] age." His argument goes as follows; it is axiomatic that a defendant is presumed to know the law. See Iowa Code § 701.6. Therefore, Lam was presumed to know that sex with a fourteen year old is a non-forcible felony and sex with a thirteen year old is a forcible felony. The detective's assertion that the girl was fourteen was effectively a "promise" that Lam would be charged with a non-forcible felony rather than a forcible felony. This "promise" induced Lam to confess. Trial counsel should have seen this and challenged the confessions on the basis of promissory leniency.
Iowa Code section 701.6 (2003).
All persons are presumed to know the law. Evidence of an accused person's ignorance or mistake as to a matter of either fact or law shall be admissible in any case where it shall tend to prove the existence or nonexistence of some element of the crime with which the person is charged.
We are not persuaded by this argument for several reasons. First, nothing in the detective's statement about the girl's age suggested Lam would get a better deal for admitting to having sex with a fourteen-year-old rather than a thirteen-year-old. Cf. McCoy, 692 N.W.2d at 28 (noting that detective stated at least twenty-five times, "If you didn't pull the trigger, you won't be in any trouble."). Second, Lam cites no authority for his novel use of Iowa Code section 701.6. Therefore, this theory cannot serve as the basis of a finding that Lam's trial attorney breached an essential duty. See State v. Hawkins, 620 N.W.2d 256, 261 (Iowa 2000) (noting no citation of authority for legal proposition that formed basis of ineffective assistance of counsel claim). Third, assuming the presumption could be used in this fashion, Lam's subsequent statements establish he did not know the legal implications of having sex with a fourteen-year-old rather than a thirteen-year-old. Specifically, he asked Keller, "[a]nd if she's fourteen, then what?" As Lam did not know the effect of having sex with a fourteen-year-old, the detective's disclosure of the girl's present age could not have induced his confession. Id. (stating "[b]ecause the record does not furnish an evidentiary basis for submission of this essential element of the perjury defense to the jury, Hawkins' counsel was not ineffective for failing to urge it").
At oral argument, Lam's appellate attorney argued the presumption can never be rebutted. His argument, however, turns on Lam's presumed knowledge that sex with a fourteen-year-old carries a lighter sentence than sex with a thirteen-year-old and the detective's exploitation of that presumed knowledge. As a factual matter, there could be no exploitation, if Lam did not know the effect of the age difference.
We conclude the detective's statement about the girl's age was not a promise of leniency. Therefore, Lam's trial counsel was not ineffective in failing to raise this argument for suppression of the statements. Hochmuth, 585 N.W.2d at 238.
B. Miranda
Lam next asserts that the employee of the residential correctional facility was obligated to give him Miranda warnings prior to eliciting a partial confession during the ride to the police station, and trial counsel should have raised his failure to do so.
The Iowa Supreme Court has summarized the law on this issue as follows:
Pursuant to the Fifth Amendment, a person questioned by the police after being "taken into custody or otherwise deprived of his freedom of action in any significant way" must first be warned that "he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 706-07 (1996).
State v. Peterson, 663 N.W.2d 417, 423 (Iowa 2003). As noted, the warnings are not triggered unless the person is "in custody." Id. The fact that a person is in a prison facility does not per se mean this requirement is satisfied. Id. at 427. "[T]here must be some added restriction on the inmate's freedom of movement stemming from the interrogation itself." State v. Deases, 518 N.W.2d 784, 789 (Iowa 1994). Thefollowing factors are relevant: "[T]he language used to summon the individual, the purpose, place and manner of interrogation, the extent to which the defendant is confronted with evidence of his guilt, and whether the defendant is free to leave the place of questioning." Id.
Donald Harper testified he was a residential officer with the Department of Correctional Services. Id. at 790 ("[W]hen a state official conducts a custodial interrogation that would require a Miranda warning if undertaken by a police officer, then the official is similarly required to give a Miranda warning."). He stated he handled security at the residential correctional facility, including "tracking their whereabouts and making sure they are doing everything they are supposed to be doing and following all the rules." He stated Detective Keller contacted him "because he had learned that Lam was the one that had sex with the girl, and he asked me to bring him down to the police station." Cf. Id at 789 ("[T]he purpose of questioning Deases was not to generally investigate Perez's death but rather was to find out the nature and extent of Deases' culpability for that death."). Harper then called Lam into the office, explained what he had learned, including the fact that the girl was thirteen, asked him if he made his bus on time, and said, "Well, you need to go talk to Detective Keller." Harper said he would give Lam a ride to the police station. He testified that, had Lam refused to come to the office, disciplinary action could have been taken against him. Additionally, Harper stated that, if Lam had refused the ride, he would have called the Davenport Police Department and had them "pick him up." Lam confirmed he had no choice about whether or when to go to the police station. He stated that, had he been given the option, he "would have went to work" and "would have got with the officer later." Cf. Id. (stating Deases "was not free to leave."). From this testimony, we conclude Lam was "in custody."
We are not persuaded, however, that Harper "interrogated" Lam. See Miranda, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706 (interrogation means "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of freedom of action in any significant way."). According to Harper, the only question he asked Lam was whether he got on the bus on time. When Lam tried to discuss additional facts, Harper told him "you need to talk to [Detective Keller]. I am just concerned if you made your bus on time." He said, "You don't have to explain anything to me. You need to talk to the police officer and just be honest with them."
Harper testified that he was careful not to ask any questions because he was aware that doing so would trigger an obligation to read Lam his Miranda rights. Harper and Lam got into the van and Lam stated, "I am going to tell you what happened because I didn't do anything wrong." He admitted to having sex with a girl at the terminal.
At the suppression hearing, Lam testified Harper told him he "wasn't in any trouble at all, just go let them know the truth." He also testified Harper told him he would not be charged or arrested. The district court rejected the suggestion that Harper's statements amounted to coercion or a promise of leniency. Lam does not appeal this aspect of the court's ruling.
We conclude Harper did not "interrogate" Lam during the ride to the police station. Id. at 478, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726 ("The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated."). As Miranda rights are triggered by both custody and interrogation and there was no interrogation, we further conclude Harper was not obligated to read Lam his Miranda rights. U.S. v. Lockett, 93 F.3d 834, 838 (8th Cir. 2005); U.S. v. Hatter, 68 F.3d 257, 261 (8th Cir. 1995). Accordingly, trial counsel was under no obligation to challenge the confession on this ground.
III. Disposition
We reject both ineffective-assistance-of-counsel claims and affirm Lam's judgment and sentence for third-degree sexual abuse.