Opinion
No. 1-672 / 00-2087.
Filed May 31, 2002.
Appeal from the Iowa District Court for Black Hawk County, James C. Bauch, Judge.
William Long appeals from his convictions and sentences for solicitation to commit sexual abuse and assault with intent to commit sexual abuse. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Robert L. Rausch of Rausch Law Firm, Waterloo, for appellant.
Thomas J. Miller, Attorney General, Darrel L. Mullins, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Joel Dalrymple, Assistant County Attorney, for appellee.
Heard by Sackett, C.J., and Zimmer and Vaitheswaran, JJ.
William Long appeals from the judgment and sentence entered upon jury verdicts finding him guilty of solicitation to commit sexual abuse and assault with the intent to commit sexual abuse. He contends (1) the trial court erred in overruling his motion to suppress statements he made to a polygraph examiner and (2) the trial court abused its discretion in not allowing evidence regarding the polygraph testing procedures used by the polygraph examiner. We affirm in part, reverse in part, and remand.
I. BACKGROUND FACTS.
In May 1999, fourteen-year-old Ashley C. met William Long through a friend who worked for Long. In early February of 2000, Ashley's parents learned that Long had been touching Ashley inappropriately and contacted the police. Ashley told a police officer that Long put his hands down her pants and up her shirt. She also informed police Long asked her to perform oral sex on him. Further investigation revealed Ashley's sister saw Ashley with Long in his truck with her shirt up and Long kissing her chest area. A friend of Ashley's observed Long with his hand down Ashley's shirt. Ashley told her friend that Long had just sucked her chest after he had paid Ashley's friend and sister a dollar to leave and walk away from his truck so he could be alone with Ashley. Ashley also told her friend that Long requested oral sex from her. Ashley's friend stated that Long always wanted to be left alone with Ashley, but Ashley did not want to be left alone with Long.
On February 23, 2000, Long voluntarily appeared for a polygraph test administered by Division of Criminal Investigations agent Larry Hedlund at the Division's office in Cedar Falls. Long signed a Miranda waiver form. Before the polygraph was administered, Hedlund reviewed police reports, and had a conversation with Long. Hedlund connected Long to the polygraph machine and questioned him. Long denied touching Ashley's vagina, putting his mouth on her breasts, and touching her sexually. The polygraph test results were inconclusive.
After Hedlund completed the examination, he told Long that "his charts were not truthful and that I felt that he did have sexual contact with the victim. . . ." He did not tell Long that the polygraph test results were inconclusive. Long subsequently admitted to Hedlund that he touched Ashley's breast on three or four different occasions underneath her bra with his hand. He also admitted he had rubbed or stroked her inner thigh. He denied having any other sexual contact with Ashley.
Long was charged with solicitation to commit sexual abuse in violation of Iowa Code sections 705.1 (1999) and 709.4 (1999 Supp. 1999) and assault with intent to commit sexual abuse in violation of section 709.11 (1999), along with three charges of supplying alcohol to a minor, which are not at issue on appeal.
Long filed a motion to suppress, seeking the suppression of statements he made to Hedlund after the polygraph examination. He alleged the incriminating statements were obtained involuntarily because Hedlund misled him regarding the results of the polygraph examination. The district court denied his motion, finding that Hedlund did not practice deception, and even if his actions were deceptive, the deception did not rise to the level where Long's will was overborne and his statements were involuntary.
A jury convicted Long of the charged offenses. The court sentenced Long to an indeterminate, five-year term of imprisonment for solicitation and to an indeterminate, two-year term of imprisonment for assault with the intent to commit sexual abuse, to be served consecutively. Long appeals.
II. SUPPRESSION OF STATEMENTS.
Long first contends the trial court erred in allowing his answers, admissions, conversation, and confessions relating to the polygraph process, as they were involuntarily obtained by deception. He contends Hedlund used deceptive practices by making him believe he had failed the polygraph in order to gain admissions.
A. Scope of review. Our review of a district court's refusal to suppress statements allegedly made in violation of constitutional guarantees is de novo. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). Under this review, we "make an independent evaluation of the totality of the circumstances as shown by the entire record." Id. We give deference to the district court's fact findings due to its opportunity to assess the credibility of witnesses, but we are not bound by those findings. Id.
B. Merits. The State must prove the voluntariness of a defendant's confession by a preponderance of the evidence, as a prerequisite to its admission in evidence. State v. Reid, 394 N.W.2d 399, 402 (Iowa 1986). Where the State fails to meet this burden, the defendant's inculpatory statements and confession must be suppressed and may not be admitted into evidence. Id. The test of voluntariness of an inculpatory statement or confession is "whether the defendant's will was overborne by the police officers," considering "the totality of the circumstances." Id. Factors relevant to this assessment include:
[T]he defendant's knowledge and waiver of his Miranda rights; the defendant's age, experience, prior record, level of education and intelligence; the length of time defendant is detained and interrogated; whether physical punishment was used, including the deprivation of food or sleep; defendant's ability to understand the questions; the defendant's physical and emotional condition and his reaction to the interrogation; whether any deceit or improper promises were used in gaining the admissions; any mental weakness the defendant may possess.
State v. Hodges, 326 N.W.2d 345, 348 (Iowa 1982) (citations omitted); see also State v. Coburn, 315 N.W.2d 742, 745 (Iowa 1982) (other factors bearing on voluntariness are the defendant's awareness of the alleged crime and his ability to understand his constitutional rights and the consequences of waiving them).
Evidence that an accused was "threatened, tricked or cajoled" into waiving constitutional rights indicates a waiver was not voluntary. Reid, 394 N.W.2d at 404. However, deception is merely one factor to be considered in evaluating the totality of the circumstances surrounding the confession. State v. Oliver, 341 N.W.2d 25, 28 (Iowa 1983).
We find there was an element of deception in Hedlund's statement to Long that "his charts were not truthful and that I felt that he did have sexual contact with the victim . . . ." When polygraph test results are inconclusive, that means the tester cannot say that Long was deceptive based on the charts alone. Truthful charts, inconclusive charts, and deceptive charts all look differently. While Long's charts were not truthful, they were also not untruthful, and they were not deceptive. Hedlund's statement was at best incomplete. We find deception in Hedlund's statement.
Finding deception, we now consider the other factors to determine whether Long's will was overborne such that his statements were involuntary and should have been suppressed. The trial court noted in its ruling that Long was fifty-five years old, he was of average intelligence, he was fully apprised of his Miranda rights and waived them, he was not in custody, he appeared at Hedlund's office voluntarily, he freely left at the conclusion of the interview, the testing period was not continuous, he had breaks, the interrogation occurred during the day, and it was relatively short. We agree with these factual findings. Additionally, we note that Long was neither punished physically nor deprived of food nor promised leniency in exchange for a confession.
Although an element of deception was employed by Hedlund, after considering the totality of the circumstances, we conclude Long's will was not overborne such that his statements were involuntary. The district court properly denied Long's motion to suppress his statements. We affirm on this issue.
III. POLYGRAPH EVIDENCE.
Long contends that the trial court erred by not allowing him to cross-examine agent Hedlund regarding the polygraph procedures which Hedlund employed. He contends the jury was entitled to hear about all the circumstances surrounding his statements to Hedlund in order to ascertain the weight and believability of any admissions he made.
A. Scope and standard of review. The parties agree our review is for the correction of errors at law. Iowa R. App. P. 6.4. We review this evidentiary issue for the abuse of discretion. State v. Countryman, 573 N.W.2d 265, 266 (Iowa 1998).
Formerly Iowa R. App. P. 4.
B. Merits. Our supreme court has stated that the admissibility of polygraph evidence depends on the type of polygraph evidence offered and the specific objection lodged against its admission. In re E.H. III, 578 N.W.2d 243, 247 (Iowa 1998). Generally, "results" of a polygraph examination are inadmissible because the reliability of them has not been adequately demonstrated. Id. The "results" are the opinions of the examiner as to which questions were answered truthfully. Id. The examiner's testimony is inadmissible opinion evidence because "the scientific acceptance and evidentiary reliability" of the process by which an examiner determines whether the person being tested has answered truthfully has not been established. Id. Where both parties stipulate to the admission of polygraph evidence, though, it may be admitted. Id. Statements made during a polygraph examination are not per se inadmissible. Id.
In this case, the parties agree there was no stipulation that the results of Long's polygraph examination would be admitted into evidence. As a result, the State did not refer to the results of the polygraph examination during Agent Hedlund's direct examination. However, the State questioned Hedlund extensively regarding his interview of Long. Hedlund testified on direct examination that Long admitted he asked the victim to "give me some head before you go to bed," and also that Long eventually admitted that he had touched the victim's breast three or four times on three or different occasions underneath her bra with his hand. Hedlund also testified that Long admitted he had rubbed or stroked the victim's inner thigh several times.
Long's attorney cross-examined Agent Hedlund regarding a number of issues including: the length of his interrogation, the forcefulness of Long's admissions, the police investigative reports Hedlund relied on during the interview, and Long's persistence in denying that he touched Ashley's vagina and put his mouth on her breast. Counsel then advised the court he wished to cross-examine Hedlund concerning the report Hedlund prepared regarding Long's polygraph examination. The trial court denied Long's request.
Although results of a polygraph test are generally inadmissible absent a stipulation by the parties, we determine Long should have been allowed to cross-examine agent Hedlund regarding the procedures employed by Hedlund to elicit Long's admissions. Hedlund was more than a polygraph examiner. He also interrogated Long at length, and he engaged in a degree of deception in eliciting Long's responses to his questions. Long's responses were admitted as evidence. Id. It is up to the jury to determine the weight and credibility of a confession. State v. Leiss, 258 Iowa 787, 789, 140 N.W.2d 172, 174 (1966). We conclude the jury was entitled to consider the circumstances surrounding Long's admissions to Hedlund in order to determine their weight and credibility. Thus, we conclude the trial court abused its discretion in refusing to allow Long's trial counsel to cross-examine Hedlund regarding the procedures used to elicit Long's admissions. We reverse on this issue and remand for a new trial.
IV. CONCLUSION.
We conclude that Long's admissions were voluntary. The district court properly denied Long's motion to suppress his statements. We determine the trial court abused its discretion in denying Long's request to cross-examine Hedlund regarding the full circumstances surrounding his admissions.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.