Opinion
No. 5-936 / 04-1785
Filed February 1, 2006
Appeal from the Iowa District Court for Des Moines County, Mary Ann Brown (motion to suppress) and William L. Dowell (trial), Judges.
Thomas Anthony Miller appeals his conviction, following a jury trial, for murder in the second degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber and Robert J. Glaser, Assistant Attorneys General, Patrick C. Jackson, County Attorney, and Amy K. Beavers, Assistant County Attorney, for appellee.
Heard by Zimmer, P.J., and Miller and Hecht, JJ.
Thomas Anthony Miller appeals his conviction, following a jury trial, for murder in the second degree. He contends the trial court erred in denying his motion for mistrial, failing to allow evidence vital to his theory of defense, and not suppressing the videotape of his interview by the police. He also claims his trial counsel was ineffective for failing to object to an impermissible comment on his credibility. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
The record reveals the following facts. On October 24, 2003, Thomas Miller's (Miller) brother, Joe Miller (Joe), showed up at Miller's apartment at about 5:00 p.m. They talked, ordered pizza, and drank some beer. Miller estimated he drank three to four beers while with his brother. At approximately 10:30 or 11:00 p.m. Miller, Joe, and Joe's girlfriend, Krystal Dickenson, left Miller's apartment and went to a local bar called Hot Toddies. While there Miller talked with friends and sang karaoke. He also talked to and danced with Janet McCammant. Joe and Dickenson stated they had never seen Miller and McCammant together before. Miller estimated he had five to seven beers while at Hot Toddies.
Around midnight Miller and McCammant left Hot Toddies together in a cab. The cab driver, who knew both Miller and McCammant, thought they were both intoxicated when he picked them up at the bar. The cab dropped both Miller and McCammant off at Miller's apartment. Miller called Joe and Dickenson around 1:00 a.m. and asked them to get some more beer. They bought some beer and arrived with it at Miller's apartment around 1:30 a.m. Joe testified at trial that he and Dickenson remained at Miller's apartment until about 2:00 a.m. and then went to their own residence which is about two blocks away. Joe stated he saw Miller drink one beer during the time he was there. Both Joe and Dickenson believed Miller was intoxicated when they left his apartment at 2:00 a.m.
Around 4:00 or 4:10 a.m. Miller called his brother Joe and said that he had killed McCammant with a knife. Around that same time Miller left a message on Joe's cell phone in which he said, "I stabbed her" and "My hands are all red." He also called his other brother, Ted Miller, around 4:20 a.m. leaving a very upset message on Ted's answering machine to the effect that he thought he had killed someone. Miller also called his mother between 4:00 and 4:30 a.m. and told her he had killed someone by stabbing them.
Dickenson arrived at Miller's apartment shortly after the incident and found McCammant on the kitchen floor bleeding. Miller was on the floor beside McCammant crying and apparently trying to stop the bleeding with his hand. Dickenson told Miller he should do CPR on McCammant and he told her he had until he heard her take her last breath. Miller told Dickenson not to call the police and when she tried to leave Miller stepped in front of her and would not let her leave. She eventually got away, went home, and told Joe that Miller had killed McCammant.
Joe went to Miller's apartment and saw the body on the floor. Miller told Joe it was self-defense. Joe said he should call 911 but Miller would not let him make the call and they argued about calling. Miller did call Ricky Hartman, his supervisor at work, and told him he had killed someone. Hartman asked Miller if he had called 911 and Miller said he had not and that he was scared. Hartman also spoke with Joe who told him Miller would not let him call 911. Hartman told Joe he had to call 911. Joe then called 911 and reported the stabbing. After the call Miller and Joe struggled as Joe attempted to keep Miller from leaving, but Miller pushed Joe down and fled the apartment. During their struggle Miller said he was going to kill himself.
At 4:25 a.m. police and paramedics were dispatched to Miller's apartment. Joe met them there and showed them McCammant's body in the kitchen. The murder weapon, a knife, was lying near her feet. When McCammant's body was found her jeans were unsnapped and pulled down to her hips. No seminal fluid was found in or on her body but three unopened condoms were found on the kitchen table and one under the table. The condoms were the type sold in the bathrooms at Hot Toddies. Joe Miller said the condoms were not there when he left Miller's apartment around 2:00 a.m. Further investigation determined the cause of McCammant's death was a stab wound to the abdomen which penetrated the abdominal wall, the liver, the diaphragm, and the inferior vena cava before striking her spine. She also had a defensive knife wound on the palm of her left hand.
After the police arrived at Miller's apartment Joe, Dickenson, and Hartman went with them to the police station to give statements. Miller had gone to Joe's residence, broken in, and called several relatives. He called his sister and told her he had killed somebody. He also left a message on her answering machine in which he said he had stabbed someone and repeatedly predicted he would go to prison because of it. He also called his brother Dan, his father, and his mother more than once. At 7:39 a.m. Joe and Dickenson arrived back at their house with police officers because the police wanted to hear the messages Miller had left on their answering machine. Miller was there drinking a beer. He was calm and did not try to flee from the police. The answering machine messages were gone and Miller volunteered that he had erased them. He told one of the officers "it was self-defense" and made a stabbing motion, but that he was going to go to jail anyway. Miller was arrested for the murder of McCammant.
At 8:27 a.m. Detective William Venvertloh began a videotaped interview with Miller. Miller first said he called a cab for McCammant, the driver took her home, and then returned to Hot Toddies and took him home. He quickly changed his story and said they left together in a cab around midnight and went to Miller's apartment. Miller stated that McCammant stayed at his apartment for a while, then left in a cab between 12:30 and 1:00 a.m., and he then went to bed. He stated that after what he estimated was about forty-five minutes or a "short time" he had been awakened by the sound of someone coming into his apartment. Miller told Venvertloh that without turning on a light he grabbed the knife he kept by his bed, with the knife in hand he walked out of the bedroom asking who was there, and threatened to call the police or kill the intruder. He stated that as he was looking for the intruder in the dark he turned quickly and accidentally stabbed McCammant. Miller told Venvertloh that he then turned on the light, saw it was McCammant, and tried to perform CPR and stop the bleeding with his hand.
During the interview Miller did not mention the fact that Joe and Dickenson had been at his apartment between 1:30 and 2:00 a.m. Nor did he give an explanation, according to his time line, of how or why McCammant was in his apartment at 4:00 a.m. in the morning, why her pants were partially pulled down, or why there were four condoms near her body in the kitchen.
On November 3, 2003, the State charged Miller, by trial information, with murder in the first degree in violation of Iowa Code sections 707.1 and 707.2(2) (2003). After his arrest, Miller's letters from jail indicated he was then claiming he had impulsively grabbed a large kitchen knife and announced his intent to commit suicide to McCammant by cutting his wrists. He asserted that McCammant had tried to stop him and was accidentally stabbed in the struggle.
Miller had attempted suicide in the past. Miller later told Dr. Gersh and Dr. Taylor this same version of events, that he attempted to commit suicide on the night in question. To explain why he did not tell the "attempted suicide" story to his family or Detective Venvertloh immediately after the stabbing occurred, Miller sought to show that he had been raised Catholic and the Catholic Church regarded suicide as a grave sin. He alleged he did not want his family to know he had contemplated suicide. Miller proposed to present evidence of the teachings of the Catholic Church through the testimony of Sister Nadine Meyer.
The case proceeded to jury trial and the jury found Miller guilty of the lesser included charge of murder in the second degree, in violation of Iowa Code section 707.3. Miller was sentenced to an indeterminate term of incarceration not to exceed fifty years.
Miller appeals, contending the court erred in denying his motion for mistrial, failing to allow him to present evidence vital to his theory of defense, and not suppressing the videotape of his interview by the police. He also claims his trial counsel was ineffective for failing to object to impermissible comment on his credibility. We address these issues separately, in a different order.
II. MERITS.
A. Motion to Suppress.
Miller filed an amended and substituted motion to suppress on January 16, 2004, seeking, in part, to suppress his videotaped interview by Detective Venvertloh, arguing his statements were involuntary because he was intoxicated. The district court denied the motion, concluding the totality of the circumstances did not indicate Miller's will was "overborne by the alcohol or other factors of the interview" or that his mental state was disabled so "as to render him unable to make a voluntary statement." On appeal Miller claims the court erred in allowing the videotape because as a result of his intoxication his statements were not voluntary. He claims his statements were part of an "intoxicated delusion."
We review de novo the ultimate conclusion reached by the district court in ruling on a motion to suppress. State v. Heminover, 619 N.W.2d 353, 356 (Iowa 2000), abrogated on other grounds by State v. Turner, 630 N.W.2d 601, 606 n. 2 (Iowa 2001). In doing so we independently evaluate the totality of the circumstances shown by the entire record. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). We consider not only the evidence presented at the suppression hearing but also the evidence offered at trial. State v. Carter, 696 N.W.2d 31, 36 (Iowa 2005). "The State bears the burden of proving by a preponderance of evidence that an accused's confession is voluntary." State v. Bowers, 661 N.W.2d 536, 541 (Iowa 2003).
The Fifth Amendment to the United States Constitution provides, in relevant part, that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." Any use in a criminal trial of an involuntary statement is a denial of due process requiring automatic reversal. State v. Davis, 446 N.W.2d 785, 788 (Iowa 1989).
The ultimate test in making this determination is whether, under the totality of the circumstances, the statements were the product of an essentially free and unconstrained choice, made by the subject at a time when that person's will was not overborne or the capacity for self-determination critically impaired.
Bowers, 661 N.W.2d at 541.
Factors bearing on the issue of voluntariness include:
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.
State v. Trigon, Inc., 657 N.W.2d 441, 445 (Iowa 2003) (quoting State v. Hodges, 326 N.W.2d 345, 348 (Iowa 1982)). However, being under the influence does not, standing alone, render inculpatory statements involuntary. State v. Edman, 452 N.W.2d 169, 170 (Iowa 1990). "The defendant's insobriety is merely one factor to be considered in the `totality of the circumstances' surrounding the confession. . . ." Id. Under the totality of the circumstances, including all of the factors listed above, we agree with the district court that Miller's statements to the police were voluntary.
First, it is not at all clear that Miller was still intoxicated during the interview. The videotape shows Miller was alert, he understood and was able to answer Detective Venvertloh's questions appropriately, his speech was not slurred, and he had no difficulty expressing himself and relating his version of the events. He remembered his address, date of birth, social security number, personal and work telephone numbers, and his mother's telephone number. At one point while Venvertloh was taking notes Miller was able to read Venvertloh's writing upside down, spot his error, and correct it. Miller had no trouble writing or opening a can of soda. He also got up and walked several times during the interview, for various reasons, and did not appear to have any trouble walking. Although he did become upset and cry toward the end of the interview he recovered his composure fairly quickly. Considering what Miller had just experienced in the hours before the interview and the realization of the circumstances he found himself in at that time, it was not at all unusual for him to become upset and that did not necessarily indicate he was intoxicated.
Miller told Venvertloh that he had drunk about twelve beers in the hours before the crime. It is undisputed that Miller was drinking during the night in question. However, all of the evidence, including statements from Joe and Dickenson, indicates the number of beers Miller consumed was much closer to the eleven to twelve beers he told Venvertloh about than the thirty to forty he later claimed to Dr. Taylor that he had consumed. The officers who booked and photographed Miller stated that although he smelled of an alcoholic beverage he was coherent, able to communicate, follow directions, had no problems standing or walking, and did not appear impaired. About an hour before the interview Miller was coherent enough to remember to erase the messages he had left earlier on Joe's answering machine.
Second, even if Miller was still under the influence of alcohol at the time of the interview this is but one factor in the totality of the circumstances surrounding the interview used to determine the voluntariness of his statements. As set forth above, the ultimate test in making this determination is whether under the totality of the circumstances "the statements were the product of an essentially free and unconstrained choice, made by the subject at a time when that person's will was not overborne or the capacity for self-determination critically impaired." Bowers, 661 N.W.2d at 541. Miller was thirty-two years old, was a high school graduate, had several prior criminal charges and thus had experience dealing with law enforcement and had knowledge of his rights in such situations, and was allowed to use the restroom and was given soda during the interview. No physical punishment was used. Miller apparently understood all of the officers' questions and answered them appropriately, there is no evidence any deceit or improper promises were used to gain his admissions, and he had no apparent mental weakness except perhaps any remaining influence from the alcohol.
Accordingly, based on the totality of the circumstances we conclude Miller's statements were the product of an essentially free and unconstrained choice, made at a time when his will was not overborne or his capacity for self-determination critically impaired, by alcohol or otherwise. The district court did not err in denying Miller's motion to suppress the videotape of his interview by Detective Venvertloh.
B. Motion In Limine.
Prior to trial the State filed a motion in limine arguing that Sister Meyer's testimony would be irrelevant and unduly prejudicial and thus asking the testimony not be presented to the jury without prior court approval. The court sustained the State's motion, without prejudice to Miller's right to make an offer of proof at trial to show the relevancy of Sister Meyer's proposed testimony. The State argues Miller did not preserve this issue for appeal because the district court's ruling on the motion to suppress was not final and Miller never made an offer of proof at trial concerning any proposed testimony by Sister Meyer.
It is generally recognized that a motion in limine does not preserve error, since error does not occur until the matter is presented at trial unless the court's ruling on the motion amounts to an unequivocal holding on the issue. State v. Delaney, 526 N.W.2d 170, 177 (Iowa Ct.App. 1994). When a motion in limine is made by the State and no evidence is introduced on presentation of the motion to the trial court, counsel argues in generalities, the court sustains the motion but does not preclude defendant from presenting the matter for reconsideration when the parties try the case or from making an offer of proof, and the defendant then does neither at trial, the case falls under the general rule that orders on motions in limine are not final and reviewable. State v. Langley, 265 N.W.2d 718, 720-21 (Iowa 1978). An offer of proof is necessary to preserve error so the reviewing court does not have to speculate on whether the defendant was prejudiced by lack of testimony which might have been elicited by questions which were not asked. State v. Greene, 592 N.W.2d 24, 28 (Iowa 1999).
Here, no evidence on the issue of Sister Meyer's testimony was presented to the trial court on presentation of the motion in limine and Miller's attorney only described Sister Meyer's testimony in somewhat general terms, saying it would "show that in the Catholic catechism suicide is regarded as a grave offense with particularly grave consequences traditionally." Miller's attorney conceded that Sister Meyer was not the one who had taught Miller at catechism class, and made no mention of what Miller's current religious beliefs were. He did state that Miller was from a Catholic family and that Miller's mother was a devout Catholic. The court sustained the motion without prejudice to the right of either the State of Iowa or the Defendant to offer proof at an appropriate time during the course of trial outside the presence of the jury of those matters precluded by the Court's orders. . . . And if it then appears, in light of the record made, that the evidence is relevant, material, and competent and the probative valued outweighs any prejudicial effect, the evidence may then be introduced subject to opposing counsel's objection.
Miller did not thereafter make an offer of proof or bring up the subject of possible testimony by Sister Meyer.
Under these circumstances we conclude the trial court's ruling on this portion of the motion in limine was clearly not meant to be a final ruling and thus is not reviewable by this court. See Delaney, 526 N.W.2d at 177.
C. Motion for Mistrial.
At trial the videotape of Miller's interview with Detective Venvertloh was played for the jury. Toward the end of the tape Miller stated, "But whatever happened, I'm still going to jail anyway, so maybe we should just stop right here, and talk to a lawyer first." The tape was played for the jury, but only through the word "talk" in the quoted sentence. Miller moved for mistrial, arguing the jury had heard him invoke his right to remain silent. The prosecutor argued that the parties had agreed the videotape would be stopped after the words "stop right here" due to Miller's concern the jury not hear him invoke his rights to remain silent and to counsel. The court summarily denied the motion.
It is not clear from the record exactly what, if anything, defense counsel agreed upon regarding how much of the videotape would be played. Accordingly, we will address this issue with regard to the entirety of the challenged language that was heard by the jury, and we reject the State's argument error was only preserved as to part of the challenged language.
On appeal Miller asserts there was no reason for the jury to hear the purported invocation of his right to remain silent, because the evidence "established an accidental stabbing, not a stabbing done with malice aforethought." He argues it is likely the jury improperly found him guilty of murder in the second degree because of a negative assumption about his invocation of his right to remain silent and stop the interview.
We generally review a trial court's denial of a motion for mistrial on an abuse of discretion standard. Delaney, 526 N.W.2d at 177. However where, as here, a constitutional right is involved we review the issue de novo to determine whether the trial court abused its discretion. See State v. Veal, 564 N.W.2d 797, 809 (Iowa 1997) (holding that review of denial of a motion for mistrial grounded in claimed violation of constitutional rights is de novo to determine whether the trial court abused its discretion).
A trial court has broad discretion in ruling on a motion for mistrial. State v. Brown, 397 N.W.2d 689, 699 (Iowa 1986); State v. Waters, 515 N.W.2d 562, 567 (Iowa Ct.App. 1994). "The court is found to have abused its discretion only when defendant shows prejudice which prevents him from having a fair trial." State v. Callender, 444 N.W.2d 768, 770 (Iowa Ct.App. 1989). "[T]he test of prejudice is whether it sufficiently appears that the complaining party has suffered a miscarriage of justice." State v. Williamson, 570 N.W.2d 770, 771 (Iowa 1997).
[I]it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.
Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S. Ct. 1602, 1625 n. 37, 16 L. Ed. 2d 694, 720 n. 37 (1966). In Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 2245, 49 L. Ed. 2d 91, 98 (1976), the Supreme Court held that "the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment." In deciding whether Miller's statement in this case implicates the Doyle holding, we ask not whether the jury possibly or even probably would view the challenged remark as a reference to the accused's right to remain silent, but whether it necessarily would have done so. State v. Hulbert, 513 N.W.2d 735, 738 (Iowa 1994); see also State v. Bishop, 387 N.W.2d 554, 563 (Iowa 1986).
We conclude that when considered in the context of the rest of the interview, including Miller's quite apparent willingness to speak freely up to that point, the jury would not necessarily have construed the portion of the challenged sentence that it in fact heard to be an invocation of Miller's right to silence. With respect to Miller's present claim that the language constituted impermissible evidence of his exercise of his right to remain silent the language in question is, at best, ambiguous and equivocal. Although the phrase "stop right here, and talk" may be seen as indicating a possible desire or intent to end discussion as to the subject matter of the moment, it at least as strongly, and in fact more strongly, also indicates a desire or intent to "talk" further. We find the trial court did not abuse its discretion in declining to grant a mistrial.
D. Ineffective Assistance.
At trial Miller called clinical psychologist Frank Gersh to give an opinion that, on the night of the crime, Miller was too intoxicated, depressed, and impulsive to premeditate, deliberate, or form specific intent. In rebuttal the State called psychiatrist Michael Taylor, who opined that Miller was fully capable of premeditating, deliberating, and forming specific intent at the time of the crime. As a foundation for this opinion Dr. Taylor testified, in relevant part,
Mr. Miller also reported to me that he had made a decision while he was talking with the victim to kill himself. And he told me how strong his intent to kill himself was. And it was his representation to me that it was his determination to kill himself after having made the decision to do so that led to the struggle with the victim for the knife.
So by Mr. Miller's description, he very clearly formed the intent to commit suicide. He premeditated and deliberated out loud to the victim, if Mr. Miller's version to me of the conversation is to be believed, and took appropriate action to allow himself to follow through with his intent to kill himself.
(Emphasis added). Miller claims the emphasized portion of Dr. Taylor's testimony implied that Taylor did not believe Miller's story and his trial counsel was ineffective for failing to object to such testimony on the theory it constituted impermissible testimony as to Miller's credibility.
When there is an alleged denial of constitutional rights, such as an allegation of ineffective assistance of counsel, we evaluate the totality of the circumstances in a de novo review. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). To prove ineffective assistance of counsel the defendant must show that counsel failed to perform an essential duty and that prejudice resulted from counsel's error. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). A reviewing court may look to either prong to dispose of an ineffective assistance claim. Ledezma v. State, 626 N.W.2d 134,142 (Iowa 2001). To show counsel failed to perform an essential duty, Miller must demonstrate his attorney performed below the standard demanded of a reasonably competent attorney. Strickland, 466 U.S. at 688, 104 S. Ct. at 2064-65, 80 L. Ed. 2d at 693-94; Ledezma, 626 N.W.2d at 142. In order to prove prejudice, Miller must show there is a reasonable probability that but for his counsel's unprofessional errors the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Ledezma, 626 N.W.2d at 143-44. While we often preserve ineffective assistance claims for postconviction proceedings, we consider such claims on direct appeal if the record is sufficient. State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001). Neither party here asserts the record is insufficient, we find it to be adequate, and we address the claim.
Expert testimony directly expressing an opinion on the credibility of a witness is not admissible. State v. Allen, 565 N.W.2d 333, 338 (Iowa 1997). Because the ultimate determination of the credibility or truthfulness of a witness is not a fact in issue, but a matter to be generally determined solely by the jury expert opinions as to the truthfulness of a witness are not admissible pursuant to Iowa Rule of Evidence 5.702. State v. Myers, 382 N.W.2d 91, 97 (1986). If the effect of the expert's opinion is the equivalent of opining on the truthfulness of the defendant the testimony is not admissible. See id.
We conclude the challenged testimony of Dr. Taylor did not express an opinion on Miller's credibility. Dr. Taylor did not say he did not believe Miller's version of events or that it was unbelievable in general. On the contrary, he in fact indicated he relied on Miller's version of events, along with other evidence, to form and support his opinion that Miller had been able to form specific intent at the time of the crime. Accordingly, Miller's trial counsel had no duty to object to Dr. Taylor's testimony on the grounds urged by Miller as such an objection should have been overruled. Counsel isnot ineffective for failing to raise meritless issues or to make questionable or meritless objections. State v. Smothers, 590 N.W.2d 721, 724 (Iowa 1999); State v. Hochmuth, 585 N.W.2d 234, 238 (Iowa 1998). Accordingly, Miller was not denied his right to effective assistance of counsel.
IV. CONCLUSION.
For the reasons set forth above, we conclude the trial court did not err in denying Miller's motion to suppress the videotape of his police interview, because his statements were voluntary. We further conclude the court did not err in denying Miller's motion for mistrial, as the jury would not necessarily have construed the challenged statement as an invocation of Miller's right to remain silent. Miller did not preserve error on his challenge to the court's ruling on the State's motion in limine regarding the testimony of Sister Meyer, because it was not a final ruling and Miller did not thereafter make an offer of proof or otherwise raise the issue. Finally, Miller's trial counsel was not ineffective for failing to object to Dr. Taylor's testimony, as it was not an impermissible comment on Miller's credibility.