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finding no coercion despite fact that the accused was held at police station for about seven hours and interviewed for two hours
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No. 04-0322.
March 16, 2005.
Appeal from the Iowa District Court for Clinton County, C.H. Pelton, Judge.
Lisa Heaivilin appeals the denial of her application for postconviction relief challenging her conviction and sentence for first-degree murder and first-degree robbery. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James G. Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Michael L. Wolf, County Attorney, and Gary P. Strausser, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan and Vaitheswaran, JJ.
A jury found Lisa Heaivilin guilty of first-degree murder and first-degree robbery. On direct appeal, our court affirmed her convictions, preserving several claims for postconviction relief. State v. Heaivilin, No. 99-2005 (Iowa Ct.App. Jan. 9, 2002). Heaivilin raised those and other claims in her post conviction relief application. The district court denied the application and this appeal followed.
On appeal, Heaivilin contends trial counsel was ineffective in (1) failing to move to suppress her confession, (2) failing to object to testimony from her ex-husband concerning prior bad acts, (3) failing to object to her ex-husband's testimony on hearsay grounds, (4) failing to object to a state expert's opinion as an improper comment on her guilt, and (5) calling an expert to opine that she was a non-violent psychopath. She also contends postconviction relief counsel was ineffective in failing to introduce letters from her boyfriend that she claims would have refuted her assertions of responsibility for the murder and robbery.
To prevail on ineffective-assistance-of-counsel claims, a postconviction relief applicant 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). To establish prejudice, the applicant must show "a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different." Collins v. State, 588 N.W.2d 399, 402 (Iowa 1998). A "reasonable probability" is "a probability sufficient to undermine the confidence in the outcome of the defendant's trial." Id. I. Suppression of Confession.
Heaivilin was questioned by law enforcement officers two days after the crimes were committed. During the interrogation, Heaivilin confessed her role in the crimes. At the hearing on her postconviction relief application, Heaivilin testified the confession was "involuntarily made." The district court rejected this contention, finding "no evidence in the record of any improper police conduct that would render the confession involuntary."
Wereviewthe totality of the circumstances to determine whether the confession is the product of free will. State v. Snethen, 245 N.W.2d 308, 315 (Iowa 1976). "Coercive police activity is a necessary predicate to the finding that a confession is not voluntary." State v. Vincik, 398 N.W.2d 788, 790 (Iowa 1987) (quoting Colorado v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515, 522, 93 L. Ed. 2d 473, 484 (1986)). Other relevantfactors include:
The 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, and any mental weakness the defendant may possess.
Vincik, 398 N.W.2d at 790.
Heaivilin was a twenty-nine year old woman with a general education degree. There is no indication of a less-than-average intelligence level. In fact, her own expert testified that individuals with her personality traits traditionally are "above average in intelligence or at least average." In addition, the videotape of her confession shows that she understood the questions that were being asked of her and gave responsive answers.
On the question of intoxication, there was a divergence in testimony, with an officer stating she appeared to be drug-free and Heaivilin testifying she consumed alcohol before the interview. We resolve this discrepancy by again resorting to the videotape, which suggests she was not intoxicated. However, even if she were under the influence of alcohol, this fact alone would not render the confession involuntary. Id. at 793. We turn, therefore, to other key factors.
Heaivilin hangs her hat on the length of the interrogation, noting she was at the police station for approximately seven hours. The record reveals Heaivilin was interviewed for the first time beginning at 7:30 P.M. This interview lasted for one and a half to two hours. According to a law enforcement officer, Heaivilin appeared happy and unconcerned about her grandmother's death. Following this interview, Heaivilin admitted she "was able to leave had I chose to." She elected to wait at the police station for her co-defendant. Shortly thereafter, law enforcement officers began a second custodial interrogation. This interrogation continued intermittently from 9:30 P.M. to approximately 2:30 A.M. During this timeframe, Heaivilin prepared a written statement and also took a trip with officers to retrieve evidence from various locations.
Although the interrogation was lengthy, the videotape does not suggest law enforcement officers needed or used this time to break Heaivilin's will. To the contrary, Heaivilin confessed shortly after the second interview began. Much of the remaining time was spent clarifying details of her confession. While Heaivilin was teary-eyed at the beginning of the second interview, she was cooperative throughout and appeared calm and relaxed as the interview progressed. She was afforded breaks, was provided drinks and a newspaper, and was allowed to smoke a cigarette before the trip to retrieve evidence. At one point, an officer told Heaivilin to get some rest and asked her if she wished to have the lights turned off. Heaivilin responded that she did not. Once the officers left, she placed her head on the table for a few minutes but soon decided to read a newspaper instead. In light of these circumstances, the length of the interrogation does not militate in favor of suppression.
Heaivilin finally points to a short interchange with a law enforcement officer which, she suggests, shows that her confession was the product of an impermissible promise of leniency. See State v. McCoy, ___ N.W.2d ___ (Iowa 2005). The exchange is as follows:
INVESTIGATOR: That's not your fault. That's not your fault that your boyfriend did this.
LISA: What's to say he's not gonna twist the whole thing around?
INVESTIGATOR: Oh.
LISA: He's already lied once.
INVESTIGATOR: Don't worry, don't worry, we're okay, we're okay there. There's good evidence. All right? Unless you're telling me. . . . Did you do any of those things to her?
LISA: No. I didn't touch her.
INVESTIGATOR: Did you know he was gonna hurt her?
LISA: No.
INVESTIGATOR: Okay.
We are not convinced this statement amounts to a promise of leniency. Cf. id. at ___ (affirming finding of promissory leniency where officer advised suspect twenty-two times that he would be in no trouble if he did not pull the trigger). Later in the interview, the officer advised Heaivilin that she would be charged with crimes and stated he did not know what those crimes would be.
We conclude Heaivilin was not coerced into confessing. Therefore, trial counsel did not breach an essential duty in failing to file a motion to suppress her oral and written statements to law enforcement officers.
II. Prior Bad Acts Evidence.
At trial, the State called Heaivilin's former husband Mark Hagen as a rebuttal witness. He testified that Heaivilin told him she committed "two to three burglaries" in the past. He also testified that Heaivilin told him she and her boyfriend planned to rob his trailer. Trial counsel did not object to this prior bad acts testimony as improper character evidence or as more prejudicial than probative. See Iowa R. Evid. 5.403, 5.404( b). Heaivilin claims this omission amounted to ineffective assistance of counsel.
We conclude that Heaivilin did not establish the second prong of the ineffective-assistance of counsel test, Strickland prejudice. The evidence showed that Heaivilin and her boyfriend planned to rob and kill Heaivilin's grandmother. They went to her house in the early evening hours, with Heaivilin's boyfriend carrying a table leg. The two gained admission to the grandmother's house on the pretext that Heaivilin had to use her bathroom. Once inside, Heaivilin's boyfriend proceeded to beat the grandmother over the head with the table leg. He then choked her. Finally, he took a knife from a kitchen drawer Heaivilin opened for him and used it to saw the grandmother's neck. After the murder, Heaivilin and her boyfriend took various items from the grandmother's house, including thirty-one dollars in cash. Together, they disposed of the incriminating evidence and spent the cash. Given this record, we conclude there is no reasonable probability that the outcome of the trial would have changed had trial counsel succeeded in excluding the references to Heaivilin's past participation in "two or three" burglaries and her boyfriend's intent to rob a trailer.
III. Hearsay Testimony
Heaivilin contends her trial attorney should have objected to testimony from her ex-husband that Heaivilin's boyfriend told Heaivilin he "wanted to know what it felt like to stab somebody." Assuming this testimony was inadmissible hearsay, we again conclude Heaivilin was not prejudiced, given the overwhelming evidence of guilt contained in the record. Collins, 588 N.W.2d at 402.
IV. State's Expert
Heaivilin contends trial counsel should have objected to the testimony of a State expert, who opined that people with a profile such as her own tend to commit crimes that "are usually senseless, poorly planned or carried out and may include some of the most vicious and savage forms of sexual and homicidal attack." She contends this is an impermissible comment on her guilt or innocence. See State v. Dinkins, 553 N.W.2d 339, 341 (Iowa Ct.App. 1996). The State counters that the testimony was admissible to show Heaivilin's propensity for violence or, alternately, Heaivilin opened the door to this testimony by offering an opinion that she was a non-violent psychopath. As with the previous two claims, we conclude Heaivilin was not prejudiced by the admission of this testimony.
V. Defense Expert
Heaivilin's trial attorney called an expert witness who testified she was a psychopath, albeit a non-violent psychopath. Heaivilin contends there was no strategic reason for offering this testimony. The State counters that Heaivilin waived this issue by failing to raise it on direct appeal. We agree. See Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999) (stating issues raised in postconviction relief application must have first been raised and preserved at trial and on direct appeal unless sufficient reason for failing to do so is shown)
The State preserved error on this waiver argument. Cf. DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002).
VI. Ineffectiveness of PCR Counsel
Heaivilin finally claims that post conviction relief counsel was ineffective in failing to introduce letters from her boyfriend that she contends would have refuted her admissions of responsibility for the robbery and murder. She also contends postconviction relief counsel was ineffective in failing to identify the names of potential character witnesses and the content of their testimony. These claims were not raised on direct appeal and no sufficient reason has been provided for appellate counsel's failure to do so. Therefore, these claims are waived.
VII. Disposition
We affirm the denial of Heaivilin's application for postconviction relief.