State of Iowa v. Keith Terell Bass Sr.

IN THE COURT OF APPEALS OF IOWA
No. 14-1661
Filed March 23, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
KEITH TERELL BASS SR.,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark J. Smith,
Judge.
Keith Bass Sr. appeals his conviction for sexual abuse. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Kevin Cmelik and Sharon K. Hall,
Assistant Attorneys General, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and Bower, JJ.
2
BOWER, Judge.
Keith Bass Sr. appeals his conviction for sexual abuse in the third degree,
claiming the district court erred in denying his motion to suppress statements he
made to law enforcement. We affirm.
On April 25, 2014, the State filed a trial information charging Bass with
sexual abuse in the third degree in violation of Iowa Code sections 709.1(1),
709.4(1) or (4), 702.17, and 703.1 (2013). Following a jury trial, Bass was found
guilty. The district court sentenced him to a term of imprisonment not to exceed
ten years, a fine, and lifetime probation.
On appeal Bass claims law enforcement obtained statements from him on
three occasions, which violated his privilege against compulsory self-
incrimination under the United States and Iowa Constitutions. Therefore, he
claims the trial court erred in overruling his oral motion to suppress those
statements. Law enforcement did interview Bass on three occasions regarding
the sexual abuse investigation. Bass was in jail on unrelated drug charges
during the interviews.
Our review of constitutional issues is de novo. State v. Lowe, 812 N.W.2d
554, 566 (Iowa 2012).
After hearing the parties’ statements on Bass’s motion to suppress, the
district court ruled:
Given what I’ve heard and my knowledge of the case law in
this regard, it is a statement of a party opponent. It does apply to
the fact that the defendant admitted he had sex with the alleged
victim, which is an element of the offense.
The issue of the Miranda warning is an issue as to whether
or not he was under a custodial arrest for this offense. Given the
3
testimony, the Court finds that he was not under custodial arrest for
this offense and he had the right by simply pushing the button to
leave the cell—leave the interview room and return to his cell.
The other thing is the statements appear to be initiated by
the defendant as opposed to in the form of interrogation by the
officer—or by the detective and, therefore, the Court finds that
those statements were voluntarily made by the defendant without
the—without the detective interrogating the defendant in regard to
the issues at hand. So, therefore, for those reasons, the Court
overrules the motion—the oral motion to suppress.
Miranda warnings are required only when the defendant is in custody or is
otherwise deprived of his freedom of action in a significant way. Miranda v.
Arizona, 384 U.S. 436, 444 (1966). Incarceration does not automatically render
an inmate in custody for purposes of Miranda. Leviston v. Black, 843 F.2d 302,
304 (8th Cir. 1988); Bradley v. State, 473 N.W.2d 224, 228 (Iowa Ct. App. 1991).
In the prison context there must be some added restriction on the inmate’s
freedom of movement stemming from the interrogation itself to find custody.
Leviston, 843 F.2d at 304; State v. Deases, 518 N.W.2d 784, 789 (Iowa 1994)
(considering custodial interrogation in the prison setting). The focus is on
whether a reasonable person in the inmate’s position would understand himself
to be in custody. Leviston, 843 F.2d at 304. “Relevant factors in making this
determination include the language used to summon the individual, the purpose,
place and manner of the interrogation, the extent to which the defendant is
confronted with evidence of his guilt, and whether the defendant is free to leave
the place of questioning.” Deases, 518 N.W.2d at 789. Upon our de novo
review, we find no constitutional violation.
Additionally, as the State notes, a party’s voluntary statements, obtained
in violation of Miranda, are admissible for impeachment when the party takes the
4
stand and gives inconsistent testimony. See State v. McCoy, 692 N.W.2d 6, 30–
31 (Iowa 2005) (“[T]he State may use illegally obtained evidence to impeach if
the defendant testifies, ‘provided of course that the trustworthiness of the
evidence satisfies legal standards.’” (citing Harris v. New York, 401 U.S. 222, 224
(1971))). Even if the Bass’s statements were made in violation Miranda, the
statements were voluntarily made and the State properly used the statements to
impeach Bass once he made inconsistent statements at trial.
We affirm the district court’s ruling without further opinion pursuant to Iowa
Court Rule 21.26(1)(a), (c), and (e).
AFFIRMED.
Vogel, P.J., concurs; Vaitheswaran, J., dissents.
5
VAITHESWARAN, Judge. (dissenting)
I respectfully dissent. I believe officers subjected Bass to a custodial
interrogation without affording him Miranda warnings, in violation of his Fifth
Amendment rights under the United States Constitution.
The pertinent facts are as follows. During the investigation of this crime,
Davenport Detective Karl Drezek met with Bass three times at the Scott County
jail. Bass was in jail on unrelated drug charges. According to Drezek, Bass
denied any sexual contact during the first interview. During the second interview,
Bass changed his story and admitted to consensual sex. During the third
interview, Bass demanded an attorney, provided DNA samples, and again stated
he had consensual sex.
At trial, the State expressed an intent to have Drezek testify. Bass’s
attorney objected and questioned Drezek outside the presence of the jury for
purposes of making an objection. Following the questioning, he asserted, in part,
“[T]hese statements . . . were taken in violation of the defendant’s rights against
self-incrimination under the Fifth Amendment of the Federal Constitution as well
as the Iowa Constitution and the Sixth Amendment right to counsel.”
The State countered that Bass’s statements were admissions of a party
opponent. The State failed to challenge defense counsel’s Fifth Amendment
objection on the ground that it should have been raised in a pretrial motion to
suppress and was waived for failure to follow this procedure. See Iowa R. Crim.
P. 2.11, (3), (4) (requiring motions to suppress to be filed “no later than 40 days
after arraignment”).
6
The district court questioned the timeliness of counsel’s objection as
follows:
[T]the appropriate manner of addressing this is in a motion to
suppress to allow the Court time to research the issue and come to
a conclusion based on that research. Given the fact that this is an
oral motion at this time, the Court is prevented from doing that. We
have had a jury waiting since 9:00 to have this matter completed
and, therefore, the Court is unwilling to take additional time out of
the jury’s life to address this issue.
Nonetheless, the court overruled the Fifth Amendment objection on the merits,
after concluding Bass was not subjected to custodial interrogation. Drezek
testified in open court, summarizing the evidence and statements obtained from
Bass during the investigation.
On appeal, the State begins with a procedural argument in favor of
avoiding the Fifth Amendment issue. The State asserts, “Bass should not be
permitted to ignore the mandatory rule [on suppression motions] and put both the
prosecution and the court at a disadvantage in having to respond and rule on the
spot without prior notice of the alleged constitutional violations.” The State
concedes, however, that the prosecutor never raised the timeliness issue in the
district court. This omission precludes the State from raising the issue on appeal.
See DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002) (“[W]e will not consider a
substantive or procedural issue for the first time on appeal, even though such
issue might be the only ground available to uphold a district court ruling.”). In
addition, the State acknowledges an Iowa Supreme Court opinion finding no
abuse of discretion where the district court considered a belated suppression
motion on the merits, when the failure to file a meritorious timely motion would
7
have constituted ineffective assistance of counsel. See State v. Ortiz, 766
N.W.2d 244, 249-50 (Iowa 2009) (“To avoid additional litigation in this matter the
court did the proper thing by considering the motion rather than waiting for its
merits to be determined in a postconviction relief proceeding. Accordingly, the
district court did not abuse its discretion in hearing the motion under the
circumstances of this case.”).1 Based on this precedent, I believe the district
court and majority appropriately reached the merits of Bass’s Fifth Amendment
objection to Drezek’s testimony. See State v. Grady, No. 10-1532, 2012 WL
1611964, at *2 n.3 (Iowa Ct. App. May 9, 2012) (“Because the State did not
object to the timeliness of the motion and the district court considered the matter
and ruled on the merits, we need not review this as an ineffective-assistance-of-
counsel claim.”).
I now turn to the merits. I am obligated to view the totality of the
circumstances when a constitutional violation is alleged.
The Fifth Amendment states, “No person . . . shall be compelled in any
criminal case to be a witness against himself.” U.S. Const. amend. V. To protect
the Fifth Amendment privilege against self-incrimination from the “inherently
compelling pressures” of questioning by the police, a Miranda warning is to be
given before custodial interrogations. Miranda v. Arizona, 384 U.S. 436, 467
1
I recognize precedent stating “[e]ven though the State did not resist the motion in the
district court as untimely and unexcused for good cause, we will uphold the ruling on the
admissibility of the evidence on this or any other ground appearing in the record,
whether urged or not.” See State v. Terry, 569 N.W.2d 364, 368 (Iowa 1997). In
DeVoss, the Iowa Supreme Court reaffirmed this language with respect to evidentiary
rulings. DeVoss, 648 N.W.2d at 63. However, in Ortiz, 766 N.W.2d at 250, the court
cited Terry but declined to follow its precept. Reading these cases in tandem, I believe
the State had an obligation to challenge the objection as an untimely suppression motion
if it wished to rely on this ground in its appeal brief.
8
(1966). Custodial interrogation means “questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise deprived of . . .
freedom of action in any significant way.” Id. at 444. The officer must advise the
suspect of the suspect’s right to remain silent, that any statement made may be
used as evidence against the suspect, and the right to the presence of an
attorney, either retained or appointed. Id. at 444-45. The interrogation must
cease if the suspect invokes the right to counsel. See State v. Peterson, 663
N.W.2d 417, 425 (Iowa 2003).
“Incarceration does not automatically render an inmate in custody for
purposes of Miranda.” State v. Deases, 518 N.W.2d 784, 789 (Iowa 1994).
In the prison context there must be some added restriction
on the inmate’s freedom of movement stemming from the
interrogation itself. The focus is on whether a reasonable person in
the inmate’s position would understand himself to be in custody.
Relevant factors in making this determination include the language
used to summon the individual, the purpose, place and manner of
the interrogation, the extent to which the defendant is confronted
with evidence of his guilt, and whether the defendant is free to
leave the place of questioning.
Id. (citations omitted).
As noted, Bass had three encounters with police during the investigation
of this matter. During all three encounters, he was in custody for another crime.
Accordingly, there needed to be some added restriction rendering the
confinement custodial. In my view there was.
Detective Drezek stated Bass did not have the ability to leave the county
jail. Drezek declined to give Bass Miranda warnings during any of the three
encounters.
9
During the first encounter, Drezek informed Bass “he was the suspect in a
sexual offense” and Drezek “would like to . . . get a statement from him.” Bass
denied having sexual contact.
The second encounter took place in a small room. A deputy from central
control had to buzz the door to allow entry into or exit from the room. While
Drezek stated he lacked the ability to prevent the button from being pushed, the
power to push the button was clearly not in the hands of Bass, even if Bass’s
hands were free. They were not; Bass was in handcuffs.
During the second encounter, Drezek served Bass with an order to
provide a DNA sample. The order enumerated certain rights possessed by Bass,
including a statutory right to an attorney. See Iowa Code § 810.8 (2013); Curtis
v. State, No. 06-1045, 2008 WL 3916446, at *3 (Iowa Ct. App. Aug. 27, 2008);
State v. Nagel, 458 N.W.2d 10, 12 (Iowa Ct. App. 1990). Drezek did not read the
order to Bass but informed him of his right to an attorney. According to Drezek,
Bass asked him questions and he responded with answers and information.
Drezek admitted to confronting Bass with his prior denial of sexual contact.
While he asserted Bass could have stopped the conversation and asked to
leave, he conceded he did not tell Bass he was free to go. During the
conversation, Bass admitted to consensual sex.
The purpose of the third encounter was to obtain the DNA samples. See
Iowa Code § 810.12 (requiring service of order “not later than twelve hours prior
to the time of the person’s required participation”). At this meeting, Bass
requested an attorney. Detective Drezek responded that if Bass wanted an
10
attorney he would have to make his own arrangements. Bass said he was
unable to contact an attorney while in the county jail.
I believe Detective Drezek’s encounters with Bass were custodial and
Drezek interrogated Bass during the interviews. In my view, Miranda warnings
were required. Because none were given, I would conclude Bass’s statements
and DNA samples were obtained in violation of his Fifth Amendment right against
self-incrimination.
The next question is whether admission of the evidence amounted to
harmless error. See Peterson, 663 N.W.2d at 430-31. To establish harmless
error in this context, “the State must prove beyond a reasonable doubt that the
error complained of did not contribute to the verdict obtained.” Id. at 431. This
requires an inquiry into the evidence the jury actually considered and a weighing
of the probative force of all the evidence against the probative force of the
erroneously admitted evidence standing alone. See id.The State presented testimony from the following witnesses: (1) the
woman claiming to have been sexually assaulted; (2) the woman’s daughter, who
described her mother’s emotional state; (3) a Davenport police officer who
contacted the woman and obtained evidence; (4) a crime scene technician, who
described the evidence; (5) a nurse, who recounted what the woman said to her
at the hospital and described her examination of the woman; (6) a criminalist,
who found DNA evidence to be “consistent with the known DNA profile of Keith
Bass, Sr.”; and (7) the testimony of Drezek as discussed above. The defense,
offered Bass as a witness. He testified to consensual sex with the woman.
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To uphold the district court’s ruling, I would have to conclude “the
erroneously admitted statements are so unimportant in relation to everything else
the jury considered that there is no reasonable possibility they contributed to”
Bass’s conviction. Id. at 434. I cannot reach this conclusion.
Drezek obtained the DNA samples from Bass after Bass requested
counsel.2 Without these DNA samples, the criminalist would not have had a
known profile of Bass with which to compare the DNA evidence obtained in the
woman’s apartment. After Bass testified, the State recalled Drezek to the stand
and elicited the statements Bass made during the custodial interrogations. While
the record already contained Bass’s admission to consensual sex, it did not
contain the contradictory statements Bass made before and after being
confronted with the State’s evidence. Because the standard only requires a
reasonable possibility rather than a reasonable probability that the erroneously-
admitted evidence contributed to the finding of guilt, I would conclude the error in
admitting the evidence was not harmless and requires reversal. See State v.
Cullen, 357 N.W.2d 24, 28 (Iowa 1984) (“The difference between a possibility
and a reasonable probability is significant.”), abrogated on other grounds by
Ryan v. Arneson, 422 N.W.2d 491 (Iowa 1988); see also State v. Neiderbach,
837 N.W.2d 180, 226 (Iowa 2013) (“[A] reasonable probability lies somewhere
between ‘mere possibility’ and ‘more likely than not.’” (citation omitted)).
2
I do not analyze the statutory right to counsel or whether this right is co-extensive with
the Sixth Amendment right to counsel. Instead, my analysis flows from the Fifth
Amendment.