Opinion
No. 3-429 / 02-0810
Filed September 10, 2003
Appeal from the Iowa District Court for Polk County, Robert A. Hutchison, Judge.
The applicant appeals the district court's denial of his postconviction relief application. AFFIRMED.
Paul Scott of Cook, Brown Scott, P.L.C., Clive, for applicant.
Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney General, John Sarcone, County Attorney, and Steve Foritano, Assistant County Attorney, for respondent.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
A motherbriefly left her small child, Devon, with Owens Thompson. On returning, she found Devon listless and sick. Devon was taken to the hospital, where he died.
An autopsy revealed Devon suffered bruises to his chest and a severely lacerated liver. Des Moines police questioned Thompson at the police station, where he admitted to spinning Devon and releasing him into the side of a bed. Police then escorted Thompson to the apartment and videotaped a reenactment of the spinning incident.
Thompson was charged and found guilty of first-degree murder and his conviction was affirmed on direct appeal. See State v. Thompson, 570 N.W.2d 765 (Iowa 1997).
Thompson sought postconviction relief, claiming his trial and appellate attorneys were ineffective in various respects. The district court rejected his claims and dismissed his application. On appeal, Thompson also contends postconviction relief counsel was ineffective. We affirm.
I. Ineffective Assistance of Trial Counsel.
Thompson claims trial counsel was ineffective in failing to: (1) retain an independent medical expert to testify regarding the time and manner of the child's death, (2) investigate a history of abuse at the hands of his father, (3) investigate the role of the child's mother in his death; (4) file a motion to suppress the statement and videotape, and (5) adequately advise him concerning his right to testify at trial. He also contends trial counsel's cumulative failures resulted in an unfair trial.
Thompson concedes these issues were not first raised on direct appeal as required by our jurisprudence. See Bugley v. State, 596 N.W.2d 893, 896 (Iowa 1999). He claims the omissions were the fault of appellate counsel. An allegation of ineffective assistance ofappellate counsel has been deemed sufficient reason to bypass our error preservation rules. Collins v. State, 477 N.W.2d 374, 376 (Iowa 1991). Therefore, Thompson has overcome this procedural barrier to consideration of these claims.
To prevail on his claims, Thompson must show (1) his counsel failed to perform an essential duty, and (2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). Our review of these constitutional claims is de novo. Berryhill v. State, 603 N.W.2d 243, 244-45 (Iowa 1999).
1. With respect to the first claim, the district court found and we agree that "the time and manner of Devon's death was never at issue." Therefore, counsel did not breach an essential duty in failing to call an expert to opine on these questions. Schrier v. State, 347 N.W.2d 657, 663 (Iowa 1984).
2. The district court also rejected Thompson's second claim concerning trial counsel's alleged failure to investigate abuse he suffered as a child. We agree with this disposition, as this type of evidence was inconsistent with trial counsel's defenses of accidental death and third-party responsibility. Id. Trial counsel breached no essential duty in failing to investigate Thompson's victimization.
3. The district court likewise rejected Thompson's third claim concerning improper investigation of the mother's role in Devon's death. We agree with this resolution, as the record reflects trial counsel did question the mother concerning her role in prior incidents of abuse and elicited an admission that she "spanked him on the butt with a belt."
4. Thompson's fourth claim is that counsel should have sought to suppress a statement he made to police as well as a videotaped reenactment of the incident, on the ground that neither was voluntary. His pro se application alleges the following:
Police and procecutor (sic) misconduct in the cohersion (sic) of a confession whereas officers Noel, Quick, and Follet, (see transcript 210-230) tricked applicant back to the crime scene with police escort, under the guise they could not get in, with no written waiver, no warrant, and no notice counsel could be present. To and for the purpose of physiological (sic) attack and to gain full confession, (which there was never motion to suppress) and to get a full re-enactment (sic) of events. Applicant believes at this time, from being at the police station and escorted to his home he was under arrest. Applicant does not recall anytype (sic) of Miranda (sic) warnings. This is a clear cut 5th Amendment violation.
(Emphasis in original). We find this to be the most problematic of the several issues raised by Thompson as, in other circumstances, our highest court has characterized trial counsel's failure to move to suppress statements on these grounds as "fundamental error." See State v. Hrbek, 336 N.W.2d 431, 436 (Iowa 1983). See also State v. Rhiner, 352 N.W.2d 258, 261 (Iowa 1984).
Thompson's application appears to allege two forms of involuntariness: a) the absence of a voluntary waiver of his Miranda rights and b) the involuntariness of his videotaped statement. Id. at 262-63.
See Miranda v. Arizona, 384 U.S. 436, 473-76, 86 S.Ct. 1602, 1627-29, 16 L.Ed.2d 694, 723-25 (1966) (requiring police to tell persons subject to custodial interrogation the following: (1) they have the right to remain silent; (2) anything they say can be used against them in a court of law; (3) they have the right to the presence of an attorney; and (4) if they cannot afford an attorney, one will be appointed prior to questioning, if they desire).
a. Voluntariness of Waiver of Miranda Rights. The Fifth and Fourteenth Amendments to the United States Constitution require police to clearly inform a suspect of certain rights, including the right to remain silent and the right to counsel during a custodial interrogation. United States v. Miranda, 384 U.S. 436, 472, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694, 722 (1966). The State bears a heavy burden to establish that a waiver of those rights was knowing and intelligent. State v. Peterson, 663 N.W.2d 417, 425 (Iowa 2003).
It is undisputed that police did not advise Thompson of these rights prior to eliciting the first inculpatory statement. However, this omission did not amount to a Fifth Amendment violation, as Thompson was not yet in custody. See State v. Countryman, 572 N.W.2d 553, 558 (Iowa 1997). Although the interview took place at the police station, the record reflects that officers asked rather than ordered Thompson to come, and Thompson drove himself. Thompson admitted he was not under arrest at the time and further admitted he agreed to talk to the officers. During the conversation, Thompson asked to speak to his mother and was given the opportunity to do so. Because Thompson was not in custody, his Fifth Amendment rights were not triggered and there was, accordingly, no issue concerning the voluntary waiver of these rights.
The videotaped interview does implicate the Fifth Amendment. By the time of this interview, Thompson was a suspect, was in custody at the police station, and had been read his Mirandarights. The key question is whether he voluntarily waived those rights. While the State conceded he did not sign a written waiver, an express waiver is not required. See State v. Mann, 512 N.W.2d 528, 534 (Iowa 1994); State v. Davis, 304 N.W.2d 432, 435 (Iowa 1981). Instead, we examine the suspect's words and actions to determine if there was in fact a waiver. Davis, 304 N.W.2d. at 435.
The record contains no indication Thompson invoked his right to counsel. See Davis v. United States, 512 U.S. 452, 461, 114 S.Ct. 2350, 2357, 129 L.Ed.2d 362, 371 (1994) (stating "[i]f the suspect's statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning. . . ."). As for his right to remain silent, "[a] voluntary decision to talk to an officer may clearly be implied from the fact he did so after being advised he was not required to do so." State v. Thai, 575 N.W.2d 521, 524 (Iowa Ct.App. 1997). Once at the apartment, Thompson voluntarily spoke to the officer about the incident. Given his past experience with the criminal justice system and his admission that he had, on prior occasions, spoken to police after being read his rights, we believe Thompson knowingly and intelligently waived his rights to counsel and to remain silent.
The record suggests that, unbeknownst to the interviewing officer, the videotaped statement was taken as charges were being filed. Thompson does not, however, suggest that his Sixth Amendment right to counsel had attached at the time of the statement. See State v. Peterson, 663 N.W.2d 417, 425-26 (Iowa 2003).
b. Voluntariness of Videotaped Statement. We next must decide whether the videotaped statement was voluntary. To establish voluntariness of a defendant's inculpatory statements, the State must show "the statements were the product of an essentially free and unconstrained choice, made by the defendant at a time when his will was not overborne nor his capacity for self-determination critically impaired." Rhiner, 352 N.W.2d at 262. We review de novo the totality of circumstances surrounding these statements. Id.
Thompson does not appear to contest the voluntariness of his first statement to police.
We agree with Thompson that his arrival at the apartment was not voluntary. After Thompson inculpated himself at the police station, an officer asked him to come to the apartment to clarify some aspects of his statement. Thompson declined, and the officer and a social worker proceeded to the apartment on their own. On arriving there, the social worker contacted the station and asked an officer to bring Thompson to the scene. The record suggests Thompson was only told he needed to go there to let the officer into the apartment. Thompson was escorted to the apartment in handcuffs.
Despite the involuntariness of Thompson's arrival at the scene, the videotape reveals that his statement was voluntary. Thompson was not handcuffed while giving the statement and the questions asked of him were generally broad and open-ended. Thompson was calm and lucid throughout. The interview lasted less than an hour and, unlike Rhinerand Hrbek, in which police promised the suspect leniency, no such promise was made here. See Rhiner, 352 N.W.2d at 263-64; Hrbek, 336 N.W.2d at 436. Nor did the officers threaten Thompson. Under these circumstances, we conclude the videotaped statement was voluntary. For these reasons, trial counsel did not breach an essential duty in failing to move to suppress Thompson's statements.
An officer did state, "I don't think you meant to kill him but I think you meant to put the fear of God in him. Is that true?" We do not read this statement as a promise of lenient treatment.
5. Thompson's fifth claim, that trial counsel failed to adequately advise him concerning his right to testify at trial, was not preserved for review. Although Thompson raised the issue in his postconviction relief application, his post-hearing memorandum made no mention of the issue. The memorandum did allege trial counsel was ineffective in "[f]ailing to prepare the Plaintiff for cross-examination" but this issue is not the same as the one Thompson now pursues. Accordingly, we decline to consider the issue on appeal. State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996).
6. Finally, Thompson claims the trial was infected with counsel's cumulative errors. Having found no individual errors, we decline to find cumulative error. State v. Artzer, 609 N.W.2d 526, 532 (Iowa 2000).
II. Ineffective Assistance of Appellate Counsel.
Thompson claims appellate counsel was ineffective in failing to raise trial counsel's ineffectiveness and also was ineffective in failing to raise: 1) the timeliness of the prosecution's motion to amend the trial information, 2) the prosecutor's allegedly improper statements during voir dire, opening statements, and closing arguments, and 3) a challenge to the sufficiency of the evidence. He finally maintains these claimed cumulative errors are sufficient to justify reversal.
Having rejected Thompson's challenges to trial counsel's performance, we conclude appellate counsel was not obligated to raise trial counsel's ineffectiveness. Schrier, 347 N.W.2d at 667. As for his remaining three ineffective-assistance-of-counsel claims, we find them too general to address. Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). We also reject his allegation of cumulative error. Schrier, 347 N.W.2d at 668.
III. Ineffective Assistance of Postconviction Counsel.
Thompson finally argues postconviction relief counsel was ineffective in failing to present evidence concerning: 1) the necessity of expert testimony regarding Thompson's victimization as a child, 2) an alternate cause for the child's injuries, 3) the likelihood of success on a motion to suppress, and 4) the likelihood that he would have taken the stand on his behalf if adequately prepared. We have already rejected these claims as to trial counsel. Those conclusions are dispositive.
IV. Disposition.
We affirm the district court's denial of Thompson's postconviction relief application.