Opinion
No. 4-485 / 03-1194.
September 29, 2004.
Appeal from the Iowa District Court for Hardin County, David R. Danilson, Judge.
Kendon H. Schwebke appeals from rulings on pre-trial motions and from his conviction by the district court. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Robert P. Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Scott D. Brown, Assistant Attorney General, and Richard N. Dunn, Hardin County Attorney, for appellee.
Considered by Huitink, P.J., and Hecht and Eisenhauer, JJ.
Kendon H. Schwebke appeals from rulings on pre-trial motions and from his conviction by the district court. We affirm.
I. Background Facts and Proceedings.
Jim Worsfold, a tenant of Kendon Schwebke's father, disappeared on September 4, 2002. Responding to a call about Worsfold's disappearance, officers entered the farmhouse occupied by Worsfold on September 9 and found blood in both an upstairs bedroom and on a mattress that had been pulled out into the hallway. Thereafter, officers were contacted by Schwebke, who also reported Worsfold's disappearance. Schwebke was asked to come into the sheriff's office for a short interview, during which Schwebke gave his written consent for officers to search the farmhouse and its outlying buildings. That search was conducted, pursuant to a valid warrant, on September 10.
On the morning of September 17, Officer Rodney Stoner phoned Schwebke, requesting another interview. Though he had planned a consultation with his lawyer that afternoon, Schwebke consented to the interview and arrived at the Iowa Falls police station shortly after 10:00 a.m. Schwebke was met at the station by his interrogator, Agent Mel McCleary, who escorted him into a second floor interview room and closed the door. Shortly after the onset of the interview, McCleary chose to inform Schwebke of his rights, but expressly informed Schwebke that he was not under arrest, that he was free to leave at any time, and that the door was only closed for Schwebke's privacy.
McCleary asked Schwebke to read his rights printed on a form, and interrupted after each right was read to obtain confirmation that Schwebke understood each one. On being queried about his willingness to be interviewed, Schwebke responded "Yea, but I'm not going to sign anything." During the course of the ensuing interview, which lasted some five hours, Schwebke was given two bathroom breaks, and was offered refreshment on several occasions. Initially, McClearly conducted the interrogation, but he was later joined by Agent Johnson. The course of the interview revealed Schwebke's involvement with Worsfold's murder, his participation in disposing of the victim's body, and information which led to the discovery of Worsfold's remains.
Schwebke was forty-three years old at the time of the interview. He attended Radcliffe High School and there earned his G.E.D. at age eighteen. Schwebke was a heavy abuser of methamphetamine for most of the decade prior to the interrogation, and admitted to use of the substance daily over that time period. Schwebke claimed, however, at the outset of the interrogation that he was not under the influence of any drug, and denied using methamphetamine in the last nine or ten days. Schwebke has had little contact with the criminal justice system. He had some difficulty reading the Miranda warning without assistance, but acknowledged he understood each of the included rights.
Although he was informed at the beginning of the interrogation that no charges had been filed against him, that he was not under arrest, and was free to leave at anytime, Schwebke was arrested at the close of the five-hour interrogation and subsequently charged with first-degree murder of Jim Worsfold.
Schwebke filed a motion to suppress evidence seized in the first warrantless search of the farmhouse, and statements he made during the five-hour interrogation on September 4, 2002. Schwebke claimed the interrogation was custodial and that he had invoked his right to counsel on numerous occasions during the interrogation. He further claimed the interrogating officers did not honor his invocation of his right to counsel by ceasing the interrogation. Schwebke also claimed his statements were not given pursuant to a voluntary and knowing waiver of his right to remain silent.
In its written opinion of February 14, the district court denied Schwebke's motion to suppress. The district court agreed with Schwebke that at some point during the interrogation, the interview became custodial, such that the right to counsel attached. The district court found, however, that Schwebke knew and understood his rights, but did not clearly and unequivocally invoke his right to counsel. The district court further found that Schwebke voluntarily waived his right to remain silent, and thus the interrogators did not violate Schwebke's rights by continuing to question him after the interrogation became custodial. The case proceeded to trial, and a Hardin County jury convicted Schwebke of murder in the second degree. Iowa Code § 707.3 (2001).
On appeal, Schwebke alleges the district court erred in finding a voluntary waiver of his right to remain silent and in finding he failed to invoke his right to counsel. The State argues the district court erred in finding that the interrogation was custodial.
Schwebke further challenges the sufficiency of the evidence to support his conviction of second-degree murder.
II. Standard and Scope of Review.
The issues raised on appeal stemming from the interrogation of Schwebke implicate constitutional principles, and hence our review of these issues is de novo. State v. Evans, 495 N.W.2d 760, 762 (Iowa 1993). The review of these constitutional issues considers both evidence adduced at the hearing on the motion to suppress and that adduced at trial. State v. Bowers, 656 N.W.2d 349, 352 (Iowa 2002). The question of whether the evidence adduced at trial is sufficient to sustain a conviction is reviewed for errors at law. State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). A verdict of guilty is upheld if the evidence supporting the verdict is substantial, in that it is sufficient to convince a rational trier of fact of the defendant's guilt beyond a reasonable doubt. State v. Turner, 630 N.W.2d 601, 610 (Iowa 2001).
III. Discussion. A. Was Schwebke ever in custody during the interrogation?
We begin our analysis of the interrogation issues with a review of what constitutes a custodial interrogation under our case law, for it is only upon a finding that an interrogation subject was in custody that we must consider whether the subject's will and ability to exercise their Fourth and Fifth Amendment rights was overborne. In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the Supreme Court held that a subject in custody must be given an explanation of these rights prior to being questioned. However, no such explanation is required until an interrogation subject is in custody. Illinois v. Perkins, 496 U.S. 292, 296, 110 S. Ct. 2394, 2397, 110 L. Ed. 2d 243, 250 (1990).
Iowa has adopted a factor-based balancing test in order to determine whether, under the totality of the circumstances surrounding the interrogation, the defendant has been taken into custody or otherwise deprived of freedom in any significant way. State v. Mortley, 532 N.W.2d 498, 501 (Iowa Ct.App. 1995). These factors include: (1) whether the suspect was informed at the time of questioning that the questioning was voluntary, that the subject was free to leave, or that he was not under arrest; (2) whether the suspect possessed unrestrained freedom of movement throughout questioning; (3) whether strong arm tactics or deceptive stratagems were employed during questioning; (4) whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to respond; and (5) whether the atmosphere was police dominated. Id.
There is a split in the federal circuits as to whether the actual reading of Miranda rights in an otherwise non-custodial interrogation is enough to transform the interrogation into the custodial type. For those circuits adopting the transformation theory, see United States v. Bautista, 145 F.3d 1140, 1151 (10th Cir.), cert. denied, 525 U.S. 911, 119 S. Ct. 255, 142 L. Ed. 2d 210 (1998); Tukes v. Dugger, 911 F.2d 508, 516 n. 11 (11th Cir. 1990). For those circuits expressly rejecting the transformation theory, see Davis v. Allsbrooks, 778 F.2d 168, 172 (4th Cir. 1985); United States v. Charles, 738 F.2d 686, 693 n. 6 (5th Cir. 1984) (overruled on other grounds); United States v. Lewis, 556 F.2d 446, 449 (6th Cir. 1977). Other circuits take a middle ground, such that the reading of Miranda rights is but one factor in making a custody assessment. Sprosty v. Buchler, 79 F.3d 635, 642 (7th Cir. 1996). Neither the Eighth Circuit, nor the state of Iowa, has expressly ruled on the transformation theory. U.S. v. Harris, 221 F.3d 1048, 1051 (8th Cir. 2000) ("Although we are disinclined to adopt the transformation argument as an extension of our Miranda jurisprudence, we need not decide that issue in this appeal."). The fact that the popular media often links the Miranda warning with arrest may trigger in an interrogation subject, upon its reading, the belief that his freedom of movement is restrained, and gives rise to this transformation theory. We note that upon the reading of his rights, Schwebke asked, "[a]re you charging me with anything?"
Upon review of the record, we agree with the district court's conclusion that, at some point during the interrogation, Schwebke was in custody. It is true that Schwebke voluntarily appeared at the station and was told at the outset of the interrogation that he was not under arrest, and was free to go at anytime. Nonetheless, Schwebke did not enjoy unrestrained freedom of movement throughout the five-hour interrogation. Although he was able to take unattended restroom breaks, Schwebke at one point was prevented from using the downstairs restroom and to visit with his father. The atmosphere surrounding the interrogation was clearly police dominated. Schwebke was interviewed in a closed room, on the second floor of the police station. He described the setting as one in which he "was boxed in," seated face to face with his interrogator who sat between Schwebke and the door. Late in the interview, two officers were present in the room. The presence of multiple officers in a closed room could cause the subject to believe his movement was impaired, and militates toward a finding that the atmosphere was police dominated. After reviewing the totality of these circumstances, we agree with the district court's determination that at some point during the five hour interview, custody was established, and Schwebke's Fifth Amendment right to counsel attached. The question remains whether Schwebke ever properly invoked that right.
Schwebke was told, however, that the door was closed to protect his privacy.
B. Did Schwebke unambiguously invoke his right to counsel?
The Fifth Amendment right to counsel is designed to protect Schwebke's right to remain silent in the face of a custodial police interrogation. If once in custody he "indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning." Miranda, 384 U.S. at 444-45, 86 S. Ct. at 1602, 16 L. Ed. 2d at 707; Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1885, 68 L. Ed. 2d 378, 386 (1981) (holding that interrogation must cease upon an invocation of Fifth Amendment right to counsel). This statement has been further refined by Supreme Court jurisprudence to require a clear and unequivocal request to end questioning or to request the presence of counsel before officers have a duty to halt. Davis v. United States, 512 U.S. 452, 461-62, 114 S. Ct. 2350, 2356, 129 L. Ed. 2d 362, 373 (1994). Given the context of the various instances during the interrogation in which Schwebke mentions his lawyer, we agree with the district court that Schwebke failed to invoke his right to counsel sufficiently such that a "reasonable officer should have been certain that the suspect expressed the unequivocal election of the right [to counsel]." Texas v. Cobb, 532 U.S. 162, 176, 121 S. Ct. 1135, 1345, 149 L. Ed. 2d 325, 333 (2001) (Kennedy, J. concurring).
It is only when in custody that a subject's right to invoke his right to counsel is implicated. In Harris v. United States, 221 F.3d 1048 (8th Cir. 2000), the court observed that "[c]oncern that a suspect will be "badgered" is greatest when a suspect remains in confinement from the time he requests a lawyer until the time that police attempt to reinterrogate him." Id. at 1052. That concern is diminished when the subject is not in continuous custody and the coercive effects of confinement dissolve. Id. Schwebke, with full opportunity to consult his lawyer before meeting with law enforcement officers, chose instead to go directly to the station for the interview. Even if we assume without deciding that Schwebke invoked his right to counsel before voluntarily going to the police station, his subsequent voluntary appearance served as a reinitiation after the initial invocation, and allowed the interrogation to proceed uncounseled. Arizona v. Roberson, 486 U.S. 675, 682, 108 S. Ct. 2093, 2098, 16 L. Ed. 2d 694 (1988). Thus, Schwebke's claimed pre-interrogation requests to see a lawyer did not obligate the officers to halt questioning and are disregarded in our analysis.
Schwebke's references to counsel, made at various points during the interrogation, are as follows:
What do, you think I should have a lawyer here?
And, uh, definitely gonna see a lawyer and I'm definitely gonna talk with `em. But I . . .
That's why . . . that's why . . . that's why I want . . . want to talk to the lawyer because I don't . . . I disapprove of this . . . I don't . . . was not . . . I was not in a plan . . .
I wanted to . . . I wanted to talk with [my lawyer] and let him know that I was gonna come here and tell you guys . . . I wanted to talk to an attorney basically to know just what . . . how, you know, how I do all this and then be honest, you know, and just . . .
No, it . . . I just want . . . I want . . . want my lawyer just to . . .
We conclude none of these statements could be construed as a request to have a lawyer present at the interview before Schwebke would answer any further questions. There is no duty for officers, in the face of an ambiguous request for counsel, to ask clarifying questions. Dormire v. Wilkinson, 249 F.3d 801, 805 n. 2 (8th Cir. 2001). However, it is always good police practice to clarify the request. Davis, 512 U.S. at 461-62, 114 S. Ct. at 2356, 129 L. Ed. 2d at 373.
When placed in context, each of the statements claimed by Schwebke to be an invocation appears to be a reference to either an abandoned intent to see his lawyer before coming to the police station, or a reference to seeking out legal advice to stop those in the community who Schwebke believed were accusing him of the murder. Both of these contextual settings are borne out by clarifying questions asked by Agents McCleary and Johnson. We affirm the district court's determination that Schwebke failed to invoke his right to counsel during a custodial interrogation.
C. Did Schwebke voluntarily waive his right to remain silent?
"[C]ases in which a defendant can make a colorable argument that a self-incriminating statement was `compelled' despite the fact that the law enforcement authorities adhered to the dictates of Miranda are rare." Berkemer v. McCarty, 468 U.S. 420, 433 n. 20, 104 S. Ct. 3138, 3147, 82 L. Ed. 2d 317, 330 (1984). "[G]iving the warnings and getting a waiver has generally produced a virtual ticket of admissibility; maintaining that a statement is involuntary even though given after warnings and voluntary waiver of rights requires unusual stamina, and litigation over voluntariness tends to end with the finding of a valid waiver." Missouri v. Seibert, ___ U.S. ___, 124 S. Ct. 2601, 2608, 159 Ed. 2d 643, ___ (2004).
It is this up-hill battle that Schwebke must confront if he is to prevail on this issue. Schwebke was given the Miranda warnings at the outset of the interview and they were explained to him, point by point. He was then asked, "Do you understand each of these rights I've explained to you?" Schwebke indicated he did understand his rights. He was next asked, "Having these rights in mind, do you wish to talk to talk to us now?" Schwebke indicated that he did wish to speak, but that he would not sign a written waiver for fear that his talking to police might be noticed and harm brought to himself and his father as a result. This response, in light of his acknowledgement of the rights he possessed, can be viewed as a voluntary, knowing and intelligent waiver of his right to remain silent. Schwebke's refusal to sign the written waiver is not dispositive, as a signed waiver is not mandated by due process. North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 1757, 60 L. Ed. 2d 286, 292 (1979); State v. Davis, 304 N.W.2d 432, 435 (Iowa 1981).
Schwebke clearly made an oral waiver of his right to remain silent. What remains to be decided is whether that waiver was, under the totality of the circumstances, a "product of an essentially free and unconstrained choice, made by the Defendant at a time when his will was not overborne or his capacity for self-determination critically impaired." State v. Snethen, 245 N.W.2d 308, 315 (Iowa 1976).
On appeal, Schwebke points to a number of factors bearing on his ability to voluntarily waive his rights. First, he claims that both his lack of education and his lack of experience with the criminal justice system prevented his full understanding of the rights to which he is entitled under Miranda. Second, he points to his heavy drug use, the effects of which significantly impaired his judgment when waiving his rights. Third, Schwebke claims a diminished mental state or paranoia, perhaps as a result of continual methamphetamine use for the ten years previous to the interrogation, which also prevented a knowing or voluntary waiver. Lastly, he points to certain representations and "threats" that officers made prior to and during the interrogation.
A defendant's intelligence quotient has never been held to presumptively bar his capacity to volunteer a confession. See Winfrey v. Wyrick, 836 F.2d 406 (8th Cir. 1987), cert. denied 488 U.S. 833, 109 S. Ct. 91, 102 L. Ed. 2d 67 (1988) (holding seventeen-year-old's confession voluntary despite showing of abnormally low IQ, because he understood that statement could be used against him); State v. Reid, 394 N.W.2d 399 (Iowa 1986) (confession of a mildly retarded man held voluntary because he was shown to be able to discern right from wrong and could understand and adequately respond to the questions asked of him). Throughout the interrogation, Schwebke appeared to understand the questions asked of him, and was responsive to them. Thus, we find no support in the record for Schwebke's assertion that his lack of intelligence rendered his confession involuntary.
We are likewise unpersuaded that any paranoia resulting from Schwebke's history of heavy drug use was so profound as to render his confession involuntary. Schwebke did make several implausible references to sophisticated criminal gangs bent on his demise and claimed personal knowledge of a former governor's drug use and trafficking. However, there is no indication that Schwebke, at the time of the interrogation was under the influence of any mood-altering substance. Schwebke told investigators that he had not used methamphetamine in the previous ten days, and was generally responsive to all questions posed. We are unpersuaded that he suffered from a mental condition bearing on the voluntary nature of his confession during the interrogation.
Finally, Schwebke alleged that an officer's "threat" to involve his father in the investigation affected his ability to waive his Miranda rights. Investigators had questioned Schwebke about the ownership of the apparent murder weapon, and disclosed their intention to speak to his father if Schwebke was unresponsive. We conclude the officers' disclosure was neither threatening nor coercive in nature. We find no evidence in the record tending to establish that Schwebke was moved by the implication that his father might be interviewed. Further, no deceit was employed as it was clear the officers could have and most likely would have spoken to his father had Schwebke not been forthcoming.
Schwebke also maintains that his will was overborne by a pre-interrogation statement made in a phone call by Deputy Stoner, in which Stoner stated "it looks better if you come in and tell me everything, doesn't it?" Confessions obtained through a promise of leniency by a police officer are deemed involuntary. State v. Whitsel, 339 N.W.2d 49, 153 (Iowa 1983). A statement by an investigating officer suggesting it would be best if a robbery suspect would tell what he knew concerning the crime, and indicating more mercy would be granted to the suspect if he made disclosures, rendered a subsequent confession involuntary. State v. Mullin, 85 N.W.2d 598, 601, 249 Iowa 10, 16 (1957). In this case, however, Stoner made no false promise of leniency in exchange for a confession. Moreover, we conclude Stoner's statement was merely an effort to persuade Schwebke to come into the station for the interview. We find it significant that the statement was made over the phone while Schwebke was in his home, prior to the interview and prior to exposure to the potentially coercive atmosphere inherent in custodial interrogations.
Therefore, after reviewing the totality of the circumstances we conclude Schwebke's waiver was the product of his free will. His statements made during the custodial interrogation were admissible at his trial because he failed to unequivocally invoke his right to counsel. We therefore affirm the district court's denial of Schwebke's motion to suppress the fruits of his interrogation.
D. Was the evidence sufficient to sustain Schwebke's conviction?
A jury convicted Schwebke of murder in the second degree. Iowa Code § 707.3 (2001). It found that Schwebke, or someone that he aided and abetted, under section 703.1, intentionally shot Jim Worsfold; that that act caused the death of Worsfold; and that Schwebke or someone he aided and abetted acted with malice aforethought. Viewing the evidence in the light most favorable to the State, we find that each of these elements was proven by substantial evidence, such that a rational fact finder could find Schwebke guilty beyond a reasonable doubt. State v. Turner, 630 N.W.2d 601, 610 (Iowa 2001).
Evidence was presented indicating that Worsfold and Schwebke had had heated differences, and that on at least one occasion, Schwebke had threatened Worsfold with a gun. Schwebke admitted his presence on the farmstead at the time Worsfold was killed. Schwebke owned the rifle that was used to shoot and kill Worsfold. Schwebke actively participated in the attempt to conceal the crime by attempting to clear blood from the farmhouse and dispose of the murder weapon and the body of Worsfold. Blood from the victim was found in Schwebke's truck, which he used to dispose of the body. Only Schwebke identified the location of the victim's body. And while no direct evidence was adduced pointing to Schwebke as the one who shot Worsfold, there was clearly enough proof to convince a rational trier of fact that Schwebke aided and abetted whoever did. One guilty of aiding and abetting the commission of a crime may be charged, tried and punished as a principal. Iowa Code § 703.1.
Finding each of the elements of the crime supported by sufficient evidence, we affirm Schwebke's conviction and sentence for second-degree murder.