Opinion
No. 5-624 / 04-0096
Filed February 1, 2006
Appeal from the Iowa District Court for Floyd County, Bryan H. McKinley, Judge.
Todd Alan Woodworth appeals from his convictions for first-degree arson, second-degree arson, and five counts of attempt to commit murder. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.
Todd Alan Woodworth, Anamosa, pro se.
Thomas J. Miller, Attorney General, Cris Odell Douglass, Assistant Attorney General, and Marilyn Dettmer, County Attorney, and Scott Brown, Assistant County Attorney, for appellee.
Heard by Vogel, P.J., and Zimmer and Miller, JJ.
Todd Alan Woodworth appeals from his convictions for first-degree arson, second-degree arson, and five counts of attempt to commit murder. He claims the trial court erred in denying his motion for judgment of acquittal as to four counts of attempt to commit murder, because there was insufficient evidence to convict him on those charges. He also claims his trial counsel was ineffective for failing to object to the marshalling instructions for arson in the first degree and arson in the second degree. In an amended pro se brief Woodworth separately claims the district court erred in not suppressing his confession, because it was not voluntarily given, and in not compelling the State to produce a document, in violation of his right to due process under the federal constitution. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
From the evidence presented at trial the jury could find the following facts. Todd Woodworth lived diagonally across the street from Melanie Crane and two doors down the street from Dale Krieger. When Crane and Krieger became disturbed by the amount of traffic coming and going from Woodworth's residence they each separately called the Charles City police to voice their concerns. The police told them both to write down and report the license plate numbers of the cars that made frequent or brief visits to Woodworth's house. Based on the information provided by Crane and Krieger authorities obtained and executed a search warrant for drugs and drug paraphernalia at Woodworth's house on October 9, 2001. Woodworth was not charged with any crime as a result of the search.
On October 10, 2001, Jason Head met Woodworth at Woodworth's home late in the evening. Woodworth was blaming the neighbors for the search of his home and stated to Head "that the neighbors would have to learn or pay because of what they did" and pointed to the Crane residence. Woodworth and Head discussed "blowing up" the house and what they could use. Head then bought some high octane fuel and he and Woodworth made two "Molotov cocktails" by putting the fuel in bottles with a strip of towel in each for a wick. Woodworth had told Head where he could get the high octane fuel and provided him with the bottles and the towel. While they were making the "cocktails" Woodworth told Head he wanted him to "try and bring down the Crane house" and gave Head a computer tower for helping Woodworth do so. Woodworth later told Head to throw the bottle through the window on the opposite side of the Crane's front porch to "bring down the house."
Early in the morning of October 11, 2001, Head lit the bottles and threw them at the patio doors of the Crane house. Both bottles instead hit the siding and bounced off, rolling onto and burning the deck. One of the neighbors spotted the fire and called 911 and then called Melanie Crane. Crane woke up when she heard the phone, saw the flames, and ran from her bedroom which is fifteen feet away from the deck on the ground level of the house. The gas grill, an umbrella stand, and several spots on the deck were on fire. While standing outside waiting for the fire trucks to arrive Crane saw Woodworth and his girlfriend, Jennifer Usher, standing on the corner.
Crane's twelve-year-old daughter, Shelby, lived with her in the house. Shelby had lived there with her mother for eleven years, regularly spent time outside on the deck, and rode her bike up and down the street in front of Woodworth's house. On the night of the fire Shelby had spent the night at her grandparents' house. No one but family members and one of Shelby's schoolmates knew Shelby would be gone on the night of the fire, which occurred on a Wednesday of a school week.
Woodworth was angry the Crane house had not totally burned and told Head he had "fucked up" because he was "supposed to throw it through the window and it was supposed to burn down the house" and if Head had "done it the way he told" him it would have worked. Woodworth was also still angry at Krieger for "calling the cops on him" and told Head "the old man would have to pay" soon. He told Head there would have to be another fire, at the Krieger's residence, and told him which house it was.
Head met with Woodworth on the night of October 12 and Woodworth told him to "throw a rock through the window followed by the cocktails" to "burn down the house." Woodworth had agreed to pay Head $100 for starting this fire. Head this time made two "Molotov cocktails" with lighter fluid. He then went to the Krieger residence around midnight but instead of following Woodworth's instructions he set both of the cocktails by the Kriegers' detached garage and lit them there. Dale Krieger, who is on oxygen, awoke around 12:30 a.m., saw the flames, and yelled to his son, Ted, who was upstairs, that the garage was on fire. Ted called 911 and went out to get his father because he had gone outside with his oxygen tank. While the fire department was working to put out the Krieger's fire Woodworth was seen watching from a neighbor's back yard.
Woodworth was again angry at Head because he had "fucked up again" and stated to Head that "maybe he should have done it himself" because Head had not followed his directions. Woodworth never gave Head the agreed upon payment for either of the fires and told Head to keep his "F____ing" mouth shut.
Charles City police were led to Head because he used a business card as a wick in one of the cocktails. The card was from a local hair salon which when contacted stated Jason Head was to come in for an appointment at the day and time listed on the card. After Head's arrest Charles City Police Department Investigator Todd Smith interviewed Head and learned that Woodworth had instigated both fires and had hired Head to start both fires. Head signed a plea agreement with the State. The State charged Head with arson in the second degree and agreed to recommend probation, and Head agreed to plead guilty and testify against Woodworth. Despite the State's recommendation of probation Head was sentenced to an indeterminate ten-year term of incarceration.
On December 7, 2002, Woodworth was arrested for domestic abuse. He applied for and was granted court-appointed counsel on that charge. He was arrested again on December 10, for violating a no-contact order, again applied for court-appointed counsel, and counsel was appointed on December 11. On December 12 Investigator Smith and State Fire Marshal's Agent Michael Keefe interviewed Woodworth in the Floyd County Jail concerning the Crane and Krieger fires. Investigator Smith testified that Woodworth admitted to him that he and his girlfriend both had drug problems and orally confessed to the Crane arson. He later provided a written confession to the Crane arson. However, the written confession denied he had any involvement in the Krieger fire.
On December 16, 2002, Woodworth was charged with two counts of arson in the first degree (Counts I, V), five counts of attempt to commit murder (Counts II, III, VI, VII, VIII) and two counts of conspiracy (Counts IV, IX). The trial information was later amended to change Count V to arson in the second degree and Count IX to a class "D" felony conspiracy.
Prior to trial Woodworth filed a motion to suppress his confession. The court denied the motion. Also prior to trial Woodworth filed a motion to compel the State to produce an alleged handwritten statement by Head. The State responded it had no such document in its possession. The court believed the State did not have such a document and it thus could not compel the State to produce it. However, the court stated that to the extent the State was claiming it did not have the document in its possession, Woodworth's counsel "shall have the right to initiate an investigation, including depositions of material witnesses."
The case proceeded to jury trial. Woodworth moved for judgment of acquittal after the close of the State's evidence and again after the close of all the evidence. The court denied the motions. The jury found Woodworth guilty as charged. At sentencing the trial court concluded it could not sentence Woodworth both for conspiracy to commit arson on the Crane property (Count IV) and arson on the Crane property (Count I), and could not sentence Woodworth both for conspiracy to commit arson on the Krieger property (Count IX) and arson on the Krieger property (Count V). It therefore entered judgments of conviction and sentenced Woodworth on all counts except Counts IV and IX. Woodworth appeals.
II. MERITS.
A. Sufficiency of the Evidence.
Our scope of review and many of the standards of review that apply in sufficiency-of-the-evidence challenges are set forth in State v. Webb, 648 N.W.2d 72, 75-76 (Iowa 2002) and need not be repeated here. The following additional standardsare applicable as well. Inherent in our standardofreview of jury verdicts in criminal cases is the recognition that the jury was free to reject certain evidence, and credit other evidence. State v. Anderson, 517 N.W.2d 208, 211 (Iowa 1994). A jury is free to believe or disbelieve any testimony as it chooses and to give as much weight to the evidence as, in its judgment, such evidence should receive. State v. Liggins, 557 N.W.2d 263, 269 (Iowa 1996); State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993).
Woodworth argues there was insufficient evidence to support his convictions for attempt to commit murder of Shelby Crane (Count III) and attempt to commit murder of the three members of the Krieger family (Counts VI, VII, and VIII), and thus the trial court should have granted his motion for judgment of acquittal on these charges.
With regard to Shelby Crane, Woodworth specifically argues there was not sufficient evidence to convict him of attempt to commit murder because Shelby was not present in the house the night of the fire and therefore he could not have intended to cause the death of someone who was not there. He also alleges there was not evidence that he knew Shelby lived at the Crane residence.
To find Woodworth guilty on this count the jury was instructed that the State had to prove beyond a reasonable doubt that:
1. On or about the 11th day of October 2001, the defendant, Todd Alan Woodworth, caused Jason Head to commit Arson in the First Degree, or its lesser included offenses, at the Crane property. . . .
2. By his acts . . . Woodworth expected to set in motion a force or chain of events which could have caused or resulted in the death of . . . Shelby Crane.
3. When . . . Woodworth acted, he specifically intended to cause the death of . . . Shelby Crane.
See Iowa Crim. Jury Instruction 700.19; Iowa Code § 707.11 (2001). We conclude the evidence in the record is sufficient for a reasonable juror to have found the State met its burden on each of these elements.
Woodworth's girlfriend testified at trial that she heard Woodworth say he needed to do something about the neighbors across the street, that he "wanted to hurt them," to "pay them back." Head testified Woodworth hired him to start a fire in the Crane home because he was mad at Melanie Crane for calling the police on him. Woodworth wanted Head to "bring down the Crane house" and helped Head get the materials for and to construct two "Molotov cocktails" to throw at the house. Woodworth also instructed Head exactly how and where to throw the cocktails. Woodworth instructed Head to go over to the Cranes and "do it now," meaning throw the cocktails into the Crane's window around midnight. Because this is a time when most people are at home asleep it would be reasonable for a factfinder to presume Woodworth believed the Cranes would be home asleep and the fire could cause or result in their deaths.
In addition, the record shows that a reasonable juror could find Woodworth was aware Shelby Crane lived in the residence and thus would reasonably expect she was home at the time of the fire. Shelby had lived with her mother in the house diagonally across the street from Woodworth for the last eleven years. Shelby knew who Woodworth and his sons were. Shelby spent a lot of time on her deck and riding her bike around the neighborhood, so she was regularly visible to those who lived in that neighborhood. A reasonable factfinder could find Woodworth was aware Shelby Crane lived at the residence with her mother.
As noted above, Shelby was spending the night at her grandparents' home on the night of the fire. The record does not show that anyone but family members and one of Shelby's schoolmates were aware that Shelby would not be home that night. The fire occurred on a Wednesday night of a school week. Accordingly, there was sufficient evidence for a reasonable factfinder to find Woodworth had a reasonable expectation twelve-year-old Shelby Crane would be home in bed around midnight on Wednesday of a school week when he instructed Head to go start a fire in the Crane residence.
Woodworth's argument concerning both the charge of attempt to commit murder of Shelby Crane, and the charges of attempts to commit murders of the Kriegers, is largely an argument that it is not factually possible his acts could have caused or resulted in deaths. As acknowledged by Woodworth's counsel at oral argument, our supreme court has held that the language "will cause" in Iowa Code section 707.11 refers to the actor's expectation of the consequences of his act, not the probability of success, and thus factual possibility or probability of success is irrelevant in determining whether acts were in furtherance of the specific intent necessary to support a conviction for attempted murder. See State v. Young, 686 N.W.2d 182, 185 (Iowa 2004). However, because Woodworth's argument concerning his convictions for attempts to commit murder may arguably be seen as raising additional grounds we have chosen to address what appear to be different or additional arguments on which error may arguably have been preserved.
To find Woodworth guilty on the counts of attempts to commit murders of the Kriegers, the jury was instructed the State had to prove beyond a reasonable doubt that:
1. On or about the 13th day of October 2001, the defendant, Todd Alan Woodworth, caused Jason Head to commit Arson in the Second Degree, or its lesser included offense, at the Krieger property. . . .
2. By his acts . . . Woodworth expected to set in motion a force or chain of events which could have caused or resulted in the death of (a) Count VI — Ted Krieger; (b) Count VII — Dale Krieger; (c) Count VIII — Beverly Krieger.
3. When . . . Woodworth acted, he specifically intended to cause the death of (a) Count VI — Ted Krieger; (b) Count VII — Dale Krieger; (c) Count VIII — Beverly Krieger.
With regard to the members of the Krieger family, Woodworth specifically argues that because the fire occurred at the Krieger's detached garage it could not have caused or resulted in the deaths of the Kriegers because they were not in the garage. He argues there was thus insufficient evidence to find him guilty on the three counts of attempt to commit murder relating to the Kriegers. For reasons somewhat similar to those involving Woodworth's conviction for attempt to commit murder of Shelby Crane, we conclude there is sufficient evidence in the record for a reasonable factfinder to find the State met its burden on each of these charges.
Head testified Woodworth told him the "old fucker," referring to Dale Krieger, "would have to pay" for calling the cops and causing Woodworth's house to be searched. He also stated that Woodworth instructed him to "burn the [Krieger] house down" and to ensure that the bottle would actually get into the house, unlike at the Crane fire, Woodworth instructed Head to use a rock to break the window first and then throw the "Molotov cocktails" in. In addition, Head testified Woodworth agreed to pay him $100 to start the fire. The testimony of Woodworth's girlfriend regarding him wanting to hurt the neighbors and pay them back applied as much to the Kriegers as to Crane. Here, as with the Crane fire, Woodworth sent Head out to start the Krieger home on fire close to midnight when people are typically in bed asleep and thus Woodworth would have a reasonable expectation he had set in motion a force or chain of events which could have caused or resulted in the deaths of the Kriegers.
Once Head got to the Krieger home he changed the plan and set the "Molotov cocktails" next to the Krieger's garage and lit them instead of throwing a rock to break a window of the home and then throwing the cocktails in, as he had been instructed to do by Woodworth. Head testified he changed the plan because he had become scared when he had seen a neighbor come home earlier. Woodworth was not aware Head had changed the plan and Head testified Woodworth was upset when he next saw Head and told him he "fucked up again." Accordingly, although Head ended up setting only the Krieger's garage on fire, a rational factfinder could find Woodworth intended that Head set on fire the house where he believed the Kriegers would be sleeping, thus causing or resulting in their deaths.
Woodworth further points out that, as instructed on the charges of attempts to commit murders of the Kriegers, the State was required to prove that Woodworth caused Jason Head to commit arson in the second degree at the Krieger property. He notes that while arson in the first degree involves property "in which the presence of one or more persons can be reasonably anticipated," see Iowa Code § 712.2, arson in the second degree is "[a]rson which is not arson in the first degree," see Iowa Code § 712.3, thus involving property other than property in which the presence of people can be anticipated. He argues that by the very definition of arson in the second degree, neither Head nor he "could expect to cause the deaths of or result in the deaths [of] people not anticipated to be in the building or actually in the building."
The State has asserted Woodworth has not preserved any error on the issue of the sufficiency of the evidence to support his convictions for attempts to commit murders of the Kriegers, arguing the challenge to the sufficiency of the evidence he makes on appeal is different than the challenge he made in the trial court. In a motion made at the close of the State's evidence and renewed at the close of all evidence Woodworth asserted in relevant part only that (1) there was not substantial evidence Woodworth had set in motion a force or chain of events that would cause or result in the death of the Kriegers, and (2) there was no evidence corroborating Jason Head's testimony concerning Woodworth's specific intent. We have chosen to address a portion of the argument Woodworth makes on appeal concerning the sufficiency of the evidence to support these convictions. However, his claim that the definition of arson in the second degree precludes convictions for attempts to commit murders of the Kriegers clearly was not raised in the trial court. We conclude error was not preserved on this claim and do not further address it.
We conclude there was sufficient evidence for a rational jury to find Woodworth guilty beyond a reasonable doubt of attempts to commit the murders of Shelby Crane and the three members of the Krieger family. The trial court did not err in denying his motion for judgment of acquittal.
B. Ineffective Assistance of Counsel.
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 trial counsel was ineffective 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).
Generally, we do not resolve claims of ineffective assistance of counsel on direct appeal. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002) (citing State v. Kinkead, 570 N.W.2d 97, 103 (Iowa 1997)). We prefer to leave ineffective-assistance-of-counselclaims for postconviction relief proceedings. State v. Lopez, 633 N.W.2d 774, 784 (Iowa 2001); State v. Ceron, 573 N.W.2d 587, 590 (Iowa 1997). However, we will address such claims on direct appeal if the record is sufficient. State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001). We find the record sufficient to address Woodworth's claims of ineffective assistance.
Woodworth claims his trial counsel was ineffective for failing to object to the marshaling instructions for first and second-degree arson. More specifically, he agues counsel should have requested an amendment to the second element of the uniform instruction which was given as to each of these offenses. Element No. 2 of the instruction given to the jury on first-degree arson stated, "The defendant intended to destroy or damage the house or knew the house would probably be destroyed or damaged." The second element of the instruction on second-degree arson stated, "The defendant intended to destroy or damage the property or knew the property would probably be destroyed or damaged." Woodworth claims that arson is a specific intent crime and thus his attorney was ineffective for not requesting that Element No. 2 of these instructions be amended to state in relevant part that he " specifically intended to destroy or damage" the house or property.
It does not appear our supreme court has previously addressed whether our arson statute in effect at the time of the acts involved in this case involves a general intent or specific intent crime. In Veverka v. Cash, 318 N.W.2d 447, 450 (Iowa 1982) the court held that arson as defined in Iowa Code section 707.1 (1975) was a general intent crime. However, that statute was subsequently repealed and replaced by what became Iowa Code section 712.1 (1979) and has continued in the same language thereafter. See 1976 Iowa Acts ch. 1245(1), § 1201 (defining arson); id. ch. 1245(4), § 526 (repealing chapter 707); id. ch. 1245(4), § 529 (providing that the provisions of chapter 1245 took effect January 1, 1978); see also Iowa Code § 712.1 (1979, 2001, 2003, 2005).
In determining whether a crime is a general intent or specific intent crime our focus must be on legislative intent, which is to be determined by reference to statutory language read in light of the statute's evident purpose and design. State v. Buchanan, 549 N.W.2d 291, 293-94 (Iowa 1996).
When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a further consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to defendant's intent to do some further act or achieve additional consequence, the crime is deemed to be one of specific intent.
Id. at 294 (quoting Eggman v. Scurr, 311 N.W.2d 77, 79 (Iowa 1981), with emphasis added).
Thus the term "specific intent" is used to designate a special mental element which is required above and beyond any mental state required with respect to the actus reus of the crime. In contrast, "general criminal intent refers to whether the defendant intended deliberate or knowing action, as opposed to causing the prohibited result through accident, mistake, carelessness, or absent-mindedness."
Id. (citations and some quotation marks omitted).
Since January 1, 1978, Iowa Code section 712.1 has provided, in relevant part:
Causing a fire or explosion, or placing any burning or combustible material, or any incendiary or explosive device or material, in or near property with the intent to destroy or damage such property, or with the knowledge that such property will probably be destroyed or damaged, is arson.
(Emphasis added). We conclude the actus reus of section 712.1 consists of causing a fire or explosion, or placing any of the designated items, in or near property. We further conclude the mens rea of section 712.1 consists of performing the actus reus either (1) with specific intent, as described by the first phrase emphasized in the statute quoted above, or (2) with guilty knowledge, as described by the second phrase emphasized in the statute quoted above. We thus conclude the crimes as submitted to the jury in this case are, in one of the two submitted alternatives, specific intent crimes. We now return to the question of whether counsel rendered ineffective assistance by not requesting that the second element of each marshaling instruction on arson be amended to require, as to the first of the two alternative mental states necessary for committing arson, that the State prove Woodworth " specifically intended to destroy or damage" the property in question.
The trial court in this case did give the jury an instruction defining "specific intent." No claim is made that this definitional instruction was inaccurate or inadequate.
In State v. Doughty, 359 N.W.2d 439 (Iowa 1984), on direct appeal from a conviction for kidnapping in the first degree the defendant claimed, among other things, that the trial court erred in failing to instruct on "specific" rather than "general" intent. Id. at 441. Our supreme court held that although the crime was a specific intent crime the trial court did not err in refusing Doughty's request that its instruction contain language expressly stating the specific intent requirement. The court stated:
We find no merit in the argument that the court erred in failing to state in its instructions that the "intent to subject the [victim to] sexual abuse," for kidnapping under section 710.1(3) must be a "specific" rather than a general intent. The jury was correctly instructed that it must find an intent to commit sexual abuse. Such intent is specific, regardless of how it was characterized by the court; and it was not necessary that the statutory language be supplemented by insertion of the word "specific." While the court could have avoided this argument by simply acceding to the defendant's request in this regard, it was not error to refuse to do so.
Id. Based on the court's analysis and holding in Doughty we conclude counsel did not breach an essential duty by not requesting the addition of the word "specifically" to the marshaling instructions on arson, and Woodworth did not suffer prejudice as a result of the absence of that word from those instructions.
As part of his claim of ineffective assistance of counsel regarding the marshaling instructions on arson Woodworth asserts Jason Head had only intended "to scare people" and "did not intend to hurt anyone," and argues: "If Jason Head did not have the required specific intent, then Todd Woodworth cannot be found guilty," and "[A]n aider and abettor cannot have a specific intent unless the principal also has that same specific intent."
The first element of the marshaling instruction for arson in the first degree required the State to prove that Woodworth "aided and abetted Jason Head in placing a burning, combustible, or incendiary device or material in or near the Crane house." Similarly, the first element of the marshaling instruction for arson in the second degree required the State to prove that Woodworth "aided and abetted Jason Head in placing a burning, combustible, incendiary material or device located in or near the Krieger garage." We have earlier in this section of our opinion set forth the second element of each instruction.
For several somewhat related reasons we find no merit to this part of Woodworth's claim of ineffective assistance. First, Woodworth's argument misconstrues the law of aiding and abetting. See State v. Tangie, 616 N.W.2d 564, 573 (Iowa 2000) ("When intent is an element of the crime charged, a person may be convicted as an aider and abettor by participating either with the requisite intent or with the knowledge that the principal possesses the required intent."). Woodworth's arguments, that he could not be found guilty unless Head had the required specific intent and that Woodworth could not have the required specific intent unless it was the same specific intent held by Head, are both contrary to existing law. Woodworth could be convicted as an aider and abettor if (1) Woodworth had the required specific intent, or (2) Head had the required specific intent and Woodworth was aware of Head's specific intent, whether or not Woodworth shared Head's specific intent. See id.
Second, whether Head had only the specific intent to scare people and did not intend to harm people is not at all inconsistent with the specific intent required for the crime of arson, an intent to destroy or damage the property in question.
Third, while Woodworth could be convicted of the arsons if he aided and abetted Head either (1) with the requisite specific intent, or (2) with the knowledge Head possessed the required specific intent, see id., the relevant portions of the marshaling instructions limited the jury to finding Woodworth guilty if Woodworth had the required specific intent. The instructions were thus in fact more restrictive and favorable to Woodworth than necessary under the evidence and applicable law.
We conclude Woodworth's claim of ineffective assistance of counsel is without merit.
C. Suppression of Confession.
Prior to trial Woodworth filed a motion to suppress his confession to Investigator Smith and Special Agent Keefe. As shown by the district court's ruling on the motion he asserted that: (1) his written statement implicating himself in the arson was not voluntary; (2) his Sixth Amendment rights were violated since he was represented by counsel for the charge of domestic abuse and alleged violations of a no-contact order, but his attorney was not present at the questioning; and (3) a violation of the rules of professional conduct had occurred. The district court denied Woodworth's motion to suppress. The court found, in relevant part, that Woodworth's testimony as to the version of events was not credible. Instead the court found Investigator Smith and Special Agent Keefe to be more credible and placed reliance on their testimony. On appeal Woodworth argues the court erred in denying his motion because his confession was involuntary under the totality of the circumstances. Our review of this constitutional claim is de novo. State v. Reid, 394 N.W.2d 399, 402 (Iowa 1986); State v. Snethen, 245 N.W.2d 308, 311 (Iowa 1976).
Woodworth does not pursue the alleged violation of the rules of professional conduct on appeal. To the extent his pro se appellate brief attempts to raise grounds for suppression of his confession in addition to those presented in the district court, such issues were not presented to or ruled upon by the district court and thus are not preserved for our review. Error preservation is required even on constitutional issues. State v. Mulvany, 600 N.W.2d 291, 293 (Iowa 1999).
The State has the burden of establishing by the preponderance of evidence the confession is voluntary. State v. Payton, 481 N.W.2d 325, 328 (Iowa 1992); State v. Oliver, 341 N.W.2d 25, 28 (Iowa 1983). In determining whether a confession is voluntary, we look at all the circumstances under which it was given. See State v. Smith, 546 N.W.2d 916, 926 (Iowa 1996). No one factor is determinative. State v. Hodges, 326 N.W.2d 345, 348 (Iowa 1982). The following are factors to consider in determining the voluntariness of confessions.
[T]he defendant's age, experience, prior record, level of education and intelligence; the length of time the defendant is interrogated; whether physical punishment was used; defendant's ability to understand the questions; defendant's physical and emotional condition; whether any deceit or improper promises were used in gaining the admission; and any mental weaknesses the defendant may possess. In the event the questioning was custodial, defendant's knowledge and waiver of his Miranda rights and the length of his detention would also be considered.
State v. Davis, 446 N.W.2d 785, 789 (Iowa 1989) (internal citations omitted). A confession is voluntary if it is 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." State v. Foell, 512 N.W.2d 809, 812 (Iowa Ct.App. 1993) (quoting Snethen, 245 N.W.2d at 315).
Contrary to Woodworth's assertion, he was not misled about the purpose of the interview. Both Investigator Smith and Special Agent Keefe testified at the suppression hearing that during their December 12 discussion with Woodworth they each told him they were there to talk to him about the Crane and Krieger fires. They read him his rights, showed him the advisory rights form, and Woodworth read and signed the form.
Furthermore, at the time of the interview Woodworth was thirty-four years old. He was a high school graduate who had completed a semester of college and operated his own computer construction, sale, and service business. He had been in jail for eight months before on a prior charge. The interview lasted a total of three hours and fifteen minutes, during which time Woodworth did not request water, food, a cigarette, or a bathroom break. He did not request an attorney, or to speak to anyone else, during the questioning. Woodworth does not claim he suffered any mental weakness or any other disability that prevented him from understanding and responding appropriately to questions, and the evidence indicates he did understand and appropriately respond.
Upon our de novo review we, like the district court, find Smith's and Keefe's testimony as to what occurred during the interview to be more credible and reliable than that of Woodworth. After considering credibility as well as the other relevant factors set forth above we conclude the State met its burden to show Woodworth's confession was voluntary. The court did not err in denying Woodworth's motion to suppress his confession.
D. Motion to Compel.
Finally, Woodworth contends the trial court erred in not compelling the State to produce Head's alleged handwritten statement. In his motion to compel Woodworth claimed that although Head had testified in a deposition that he had made a handwritten statement for the prosecution, the State refused to produce the document. The portion of Head's deposition which was attached to Woodworth's motion to compel did state that the typed statement he signed was based on a handwritten statement he had previously provided. At the hearing on the motion to compel Detective Smith testified he never saw a handwritten statement from Head. The only statement he had ever seen was the one that was typed by Erica Felder, a special officer who worked at the county attorney's office. The county attorney made a professional statement to the court that she was not aware of any handwritten statement from Head. The only statement she had seen was the typewritten one which Felder typed based on a verbal statement given by Head. She also stated she had asked Felder if she had a handwritten statement and Felder stated she did not.
The court ruled that it believed the State's representations it was not in possession of such a handwritten statement, but that did not prevent Woodworth from exercising his power of discovery, investigation, and depositions of any individuals that might have knowledge of the handwritten document.
Woodworth's claim that the district court erred by not compelling the State to produce the document in question raises a constitutional issue of due process of law. Our review of the court's ruling is therefore de novo. State v. Robertson, 494 N.W.2d 718, 722 (Iowa 1993).
Although the record is not entirely clear whether a handwritten statement from Head ever existed, based on the State's representations to the court at the hearing on the motion to compel, we find the State did not possess such a document at the time of the hearing and was unaware of such a document having existed. It appears that any such handwritten statement that may have initially existed had long-since been replaced by and was encompassed within Head's typewritten statement, which the State had provided to Woodworth.
Based on our de novo review we, like the district court, conclude the State did not have within its possession, custody, or control any handwritten statement from Head. The court did not commit error by not compelling the State to produce something it did not have.
III. CONCLUSION.
The district court did not err in denying Woodworth's motion for judgment of acquittal. Woodworth's trial counsel was not ineffective for not requesting Woodworth's proposed amendments to the marshaling instructions for first and second-degree arson. The district court did not err by denying Woodworth's motion to suppress his confession or by not compelling the State to produce a document it did not have. Woodworth's convictions are affirmed.