Opinion
No. 4-187 / 03-0265.
July 14, 2004.
Appeal from the Iowa District Court for Linn County, Amanda Potterfield, Judge.
David Keegan appeals his conviction and sentence for first-degree murder and second-degree robbery. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, Harold Denton, County Attorney, and Russell Keast and William Croghan, Assistant County Attorneys, for appellee.
Heard by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
A jury found David James Keegan guilty of first-degree murder and second-degree robbery in connection with the slaying of a pizza delivery man. On appeal, Keegan contends the State did not comply with a statute governing waiver of a juvenile's right to counsel. In his view, defense counsel was ineffective in failing to properly raise this ground as a basis for suppressing statements he made to police. Keegan also maintains counsel should have objected to allowing jurors a second viewing of his videotaped statements to police. We affirm.
I. Background Facts and Proceedings
The Pizza Hut in Marion, Iowa received an order for a delivery to the apartment of David Keegan. Greg Wells left the restaurant for Keegan's apartment to make the first of two deliveries. When the second customer called to complain that he had not received his pizza, the shift manager left a message at Keegan's apartment and called the police. She then went with a friend to look for Wells's car. After spotting a Pizza Hut hat in the driveway of Keegan's apartment building, the manager contacted police a second time.
Officers knocked on Keegan's apartment door, received no response, and entered the unlocked apartment. Once inside, they discovered a person lying face down with multiple wounds and no signs of life. The person was identified as Wells. A forensic pathologist later opined that Wells died of multiple blunt force trauma to his head or a knife wound to his neck.
Law enforcement officials traced a car that frequented Keegan's apartment building to a motel in Cedar Rapids, Iowa. Keegan was observed in one of the motel rooms with four other people. A detective advised Keegan that he intended to have all five come to the Marion Police Department in connection with an investigation of "a very serious incident which took place at his apartment." Keegan responded, "Good. I can talk there." The five were transported separately to the police station.
Law enforcement officers interviewed Keegan three times. At the time of the interviews, Keegan was seventeen years old. Prior to the first interview, Keegan was informed of his Miranda rights and signed a waiver of those rights, including his right to counsel. The last two interviews were videotaped. After the third interview, Keegan was placed under arrest.
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).
The State charged Keegan with first-degree murder and first-degree robbery. Keegan moved to suppress his statements to police, claiming the State did not obtain a valid juvenile waiver of his right to counsel. The district court denied the motion.
A jury found Keegan guilty of murder in the first-degree and robbery in the second degree. Following the district court's denial of his new trial motion and the court's imposition of sentence, Keegan appealed.
As noted, Keegan raises two ineffective-assistance-of-counsel claims. Our review of these claims is de novo. State v. Dalton, 674 N.W.2d 111, 119 (Iowa 2004). Keegan was required to establish that 1) trial counsel failed to perform an essential duty; and 2) he was prejudiced. State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003).
II. Ineffectiveness on Motion to Suppress
Iowa Code section 232.11, governing a juvenile's right to counsel, states in pertinent part:
1. A child shall have the right to be represented by counsel at the following stages of the proceedings within the jurisdiction of the juvenile court under division II:
a. From the time the child is taken into custody for any alleged delinquent act that constitutes a serious or aggravated misdemeanor or felony under the Iowa criminal code, and during any questioning thereafter by a peace officer or probation officer.
* * *
2. * * * The child's right to be represented by counsel under subsection 1, paragraph "a" shall not be waived by a child less than sixteen years of age without the written consent of the child's parent, guardian, or custodian. The waiver by a child who is at least sixteen years of age is valid only if a good faith effort has been made to notify the child's parent, guardian, or custodian that the child has been taken into custody and of the alleged delinquent act for which the child has been taken into custody, the location of the child, and the right of the parent, guardian, or custodian to visit and confer with the child.
Iowa Code §§ 232.11(1)(a), (2) (2001). On appeal, Keegan concedes his trial counsel raised the potential applicability of this provision, but contends the argument was not sufficiently nuanced. In his view, trial counsel should have argued that 1) an authoritative Iowa Supreme Court opinion is distinguishable and 2) the State did not fully comply with the statutory requirement to notify his mother. The State responds that these arguments are immaterial because Keegan was not entitled to the protections of Iowa Code section 232.11 in the first instance. We agree with the State.
Iowa Code section 232.11 requires the State to use special safeguards when seeking a waiver of a juvenile's right to counsel. This provision does not apply if the juvenile is in custody for a forcible felony. See Iowa Code § 232.8(1)(c). First-degree murder is a forcible felony. Iowa Code § 702.11(1). Therefore, first-degree murder "is excluded from the jurisdiction of the juvenile court by section 232.8(1)(c)." State v. Harris, 589 N.W.2d 239, 244 (Iowa 1999).
Keegan claims Harris is distinguishable. He asserts that he was not a murder suspect from the outset as Harris was and, accordingly, he was "within the exclusive jurisdiction of the juvenile court" until the end of the third interview. The record belies this claim. Prior to trial, the parties stipulated that Keegan "was in police custody at the Marion police station for the murder of Gregory Wells." As this stipulation conclusively establishes that Keegan was in custody for a forcible felony, Harris is squarely on point. Therefore, trial counsel did not breach an essential duty in failing to urge the distinction Keegan now makes. See Graves, 668 N.W.2d at 870.
This conclusion disposes of Keegan's second argument. As Iowa Code section 232.11 does not apply, the State was not required to comply with its parental notification provision. Therefore, trial counsel was not ineffective in failing to raise this noncompliance issue.
III. Videotapes to Jury
A videotape of Keegan's last two interviews with police was admitted as an exhibit and was played during trial. The jurors had access to the exhibit during deliberations and had the equipment to view the videotape again.
Following trial, a juror testified that the tape had indeed been viewed again. The juror also testified that the videotape "seemed to convince a lot of the jurors, because the Defendant was on the stand, and there was a large difference between his demeanor on the tape and the demeanor on the stand . . ."
Keegan contends trial counsel was ineffective in failing to object to "the jury being provided a means to view the videotape during jury deliberations." He asserts that, having viewed the videotape twice, jurors might have over-emphasized its contents. See State v. Baumann, 236 N.W.2d 361, 366 (Iowa 1975) (stating "[a] deposition, if constantly available for reference by the jury, could assume a disproportionate importance in relation to other trial testimony, for which the jurors were required to call upon their recollection only."). We conclude Keegan cannot establish Strickland prejudice. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984).
Iowa Rule of Evidence 5.606(b) states in pertinent part that a juror may not testify "to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment. . . ." except "whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror." Keegan does not argue that either of the two exceptions apply. Therefore, Rule 5.606(b) precludes consideration of the juror's testimony.
Absent the juror's testimony, we are left with no record of how Keegan was prejudiced by having the videotape sent to the jury room. Therefore there is not a reasonable probability that the district court would have exercised its discretion to exclude the videotape from consideration during deliberations. See Baumann, 236 N.W.2d at 365 (noting court vested with considerable discretion in deciding what to send to jury for deliberation).
IV. Disposition
We affirm Keegan's judgment and sentences.