Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
No. 06–1417
STATE OF IOWA,
Appellee,
vs.
Appellant.
Appeal from the Iowa District Court for Polk County, Artis J. Reis,
Judge.
appellant.
Attorney General, John Sarcone, County Attorney, and Jeff Noble and
Central Library and sexually abusing her. Effler appealed his conviction,
further review.
presented, the justices are equally divided on the issue of whether the
STREIT, Justice.
I would affirm the district court’s ruling the confession was valid.
This case is simple. Effler said that he wanted a lawyer “if I go to jail.”
Since he did not go to jail before he confessed, he was not deprived of his
request for counsel. Effler’s request for counsel was conditional and
ambiguous under the standard set forth in Davis v. United States, 512
U.S. 452, 459, 114 S. Ct. 2350, 2355, 129 L. Ed. 2d 362, 371 (1994),
right to counsel.
1Chief Justice Ternus and Justices Cady and Streit would vacate the decision of
the court of appeals and affirm the judgment of the district court. Justices Wiggins,
Hecht, and Appel would affirm the decision of the court of appeals and reverse the
judgment of the district court. Justice Baker takes no part.
3
I. Background Facts.
a two-year-old girl, for the first time. Martin took J.M. to the Des Moines
J.M. stood beside her leg. A few minutes later, Martin noticed J.M. was
no longer there and began calling out her name. One of the librarians
began a search for the child and remembered seeing Effler handing a toy
Martin and the librarian rushed over to the men’s bathroom. The
librarian tried to open it with her key, but it was locked from inside.
They started pounding on the door calling the child’s name. They heard
staff to call the maintenance man, who pried the lock open with a
next to J.M., who was completely naked. Martin picked up J.M. and ran
out. Staff members slammed the door shut, preventing Effler from
escaping. Two men held the door shut until the police arrived. The
police wrestled Effler to the floor, handcuffed him, and took him to the
Des Moines Police Station.
interview room. The detective videotaped the entire interview. See State
v. Hajtic, 724 N.W.2d 449, 456 (Iowa 2006) (encouraging the videotaping
DETECTIVE: Okay. I’ll tell you what, did they tell you what
your rights were, James? Do they call you Jim, James?
4
EFFLER: James.
DETECTIVE: James.
DETECTIVE: Oh.
DETECTIVE: Well if they book you for intox then you got to
you know you are not gonna get released.
EFFLER: Yeah.
EFFLER: Yes.
DETECTIVE: Okay.
5
EFFLER: If I go to jail.
DETECTIVE: No, let me finish this and then we’ll talk, okay?
Okay, I got one more sentence. No promises or threats have
been made to me and no pressure or coercion of any kind
has been used against me. So if you want to talk to me . . .
....
Effler then signed a waiver of his Miranda rights, and the two left the
detective asked Effler some questions, and Effler confessed to taking J.M.
to the bathroom and locking the door. He described how he took off her
clothes, licked and rubbed her genitals, masturbated, and tried to put
degree sexual abuse, and failure to register as a sex offender after a 2002
conviction for sexual assault in Texas. Prior to trial, Effler filed a motion
to suppress the confession on the ground the State violated his Fifth
finding Effler’s request for counsel “conditioned upon his going to jail.”
6
Effler was found guilty and sentenced to life imprisonment without the
possibility of parole.
Effler appealed, claiming the trial court erred in denying his motion
for his attorney’s failure to challenge the statements under the Iowa
III. Analysis.
384 U.S. 436, 473, 86 S. Ct. 1602, 1627, 16 L. Ed. 2d 694, 723 (1966),
the United States Supreme Court determined the Fifth and Fourteenth
477, 484, 101 S. Ct. 1880, 1884–85, 68 L. Ed. 2d 378, 386 (1981). The
Id. (quoting id. at 476, 114 S. Ct. at 2350, 129 L. Ed. 2d at 382
invoking the right to counsel.” Davis, 512 U.S. at 459, 114 S. Ct. at
2355, 129 L. Ed. 2d at 371. The United States Supreme Court declined
doing so would be a good practice. Id. at 461, 114 S. Ct. at 2356, 129
L. Ed. 2d at 373.
Under the standard set forth in Davis, federal and state courts
Morgan, 559 N.W.2d 603, 608 (Iowa 1997); “You want to arrest me for
stealing a car, then let me call a lawyer and I’ll have a lawyer appointed
1062, 1071 (Ariz. 1996); “Can I have someone else present too, I mean
just for my safety, like a lawyer like y’all just said?”, Commonwealth v.
do it with a lawyer. That’s the way I got to go,” Harris, 741 N.W.2d at 7;
“Can I get an attorney right now, man?”, Alvarez v. Gomez, 185 F.3d 995,
998 (9th Cir. 1999); “Can I get a lawyer in here?”, Hilliard, 613 S.E.2d at
586.
The United States Supreme Court has not addressed the issue of
whether a conditional request, such as Effler’s, constitutes a clear and
unequivocal request for a lawyer. There are, however, a few state court
Gonzalez, 104 P.3d 98, 106 (Cal. 2005), the Supreme Court of California
polygraph test, Gonzalez replied, “if for anything you guys are going to
charge me I want to talk to a public defender too, for any little thing.”
reasonable police officer would have understood only that “the suspect
Id. at 106 (quoting Davis, 512 U.S. at 459, 114 S. Ct. at 2350, 129
L. Ed. 2d at 371).
9
The side that would reverse the trial court relies on Gonzalez to
questioning Gonzalez knew and what the officer questioning Effler knew.
not make that decision. Id. at 106. Here the side that would reverse the
trial court asserts the police officer knew for certain Effler was going to
questioning Effler, and, therefore, the condition had been fulfilled. There
what the police officer knew here. In both situations, the suspect did not
statement “I already told you everything and if this is gonna continue I’ll
just wait for a lawyer” was not an unequivocal invocation of the suspect’s
right to counsel. State v. Genter, 872 So. 2d 552, 571 (La. Ct. App.
2004).
a lawyer was insufficient to invoke his right to counsel. The side that
would reverse the trial court fails to recognize the inherent ambiguity in
Effler’s statement. There are a few different ways to interpret the
jail. At the time of the interrogation and at the time Effler made that
statement, he was not in jail, and no charges had been filed against him.
pop. His statement did not indicate he wanted a lawyer at that moment.
As the condition of going to jail had not been fulfilled, the conditional
going to jail after the interrogation. Effler thought he was being booked
for public intoxication, and the detective told him “well if they book you
for intox, then . . . you’re not going to get released.” However, the
detective also indicated he was not sure whether Effler was going to be
booked for public intoxication. It could be argued the condition “if I’m
going to jail” had been satisfied at the time Effler requested counsel,
since Effler was indeed going to jail after the conclusion of the interview.
11
jail) had been satisfied requires changing the word “go” to “going.” Such
The very fact that we have to dissect Effler’s statement and engage
request for an attorney. Id. at 461–62, 114 S. Ct. at 2356, 129 L. Ed. 2d
at 373. Thus, Effler did not effectively invoke his Fifth Amendment right
Effler.
According to the interpretation of the side that would reverse the
trial court, Effler’s statement means, “If you think I’m going to jail, I want
States Supreme Court and other state supreme courts have held
ambiguous. See, e.g., Davis, 512 U.S. at 462, 114 S. Ct. at 2357, 129
at 6 (“If I need a lawyer, tell me now.”); Spears, 908 P.2d at 1071 (“You
12
want to arrest me for stealing a car, then let me call a lawyer and I’ll have
613 S.E.2d at 585 (“Can I have someone else present too, I mean just for
my safety, like a lawyer like y’all just said?”). The side that would reverse
the trial court would have the police become mentalists and interpret
did not meet the standard of clarity set forth in Davis, he did not invoke
the Miranda waiver form are admissible. I would vacate the court of
prejudice resulted.” State v. Lane, 743 N.W.2d 178, 183 (Iowa 2007).
“We recognize that an attorney need not be a ‘crystal gazer’ who can
N.W.2d 67, 73 (Iowa 1982); see also Snethen v. State, 308 N.W.2d 11, 16
(Iowa 1981) (holding counsel was not ineffective for failing to raise an
(Iowa 1997).
requirement that police must ask clarifying questions when faced with an
that may be argued pro and con as [a] matter[] of public policy. We are
they are.
had been published criticizing Davis. See State v. Hoey, 881 P.2d 504,
Const. art. 1, § 10. However, the right to counsel under article 1, section
the Iowa Constitution, “In all criminal prosecutions . . . the accused shall
the United States Constitution. Compare Iowa Const. art. 1, § 10, with
U.S. Const. amend. VI; see also Doerflein v. Bennett, 259 Iowa 785, 790,
to counsel have been decided under the Fifth Amendment and its state
equivalents, not the Sixth Amendment and its state equivalents. See,
e.g., Hoey, 881 P.2d at 523; State v. Risk, 598 N.W.2d 642 (Minn. 1999).
Peterson, 663 N.W.2d 417, 426 (Iowa 2003); see also State v. Johnson,
318 N.W.2d 417, 432 (Iowa 1982). In Iowa, an information or indictment
4 (2). “An arrest by itself, with or without a warrant, falls far short of an
318 N.W.2d at 434 (quoting Lomax v. Alabama, 629 F.2d 413, 416 (5th
Cir. 1980)). The right to counsel under the Iowa Constitution also
attaches after the accused has received counsel. See State v. Newsom,
does not require police to ask clarifying questions, Effler was not denied
his statements under the Iowa Constitution. I would affirm the judgment
IV. Conclusion.
I would vacate the court of appeals and affirm the trial court.
counsel.
WIGGINS, Justice.
State v. Ortiz, ____ N.W.2d ____, _____ (Iowa 2009) (quoting United States
v. San Juan-Cruz, 314 F.3d 384, 389 (9th Cir. 2002)) (citations omitted).
The side writing to affirm the district court decision applies Miranda as a
how they made this a simple case. Such an approach fails in my view to
apply the proper analysis under the specific facts of this case—whether
United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 2355, 129 L. Ed. 2d
16
362, 371 (1994). A proper analysis leads to only one conclusion: this
I. Analysis.
Arizona, 451 U.S. 477, 484–85, 101 S. Ct. 1880, 1885, 68 L. Ed. 2d 378,
opinion written to affirm the district court, I believe that opinion omits
knew from his investigation that the witnesses had found Effler shirtless,
kneeling next to the naked two-year old in the locked bathroom at the
library. When he began the interview, the detective also knew Effler was
ended.
requests for counsel under the Davis analysis. People v. Gonzalez, 104
the murder of a police officer. Id. at 101. After waiving his rights, the
defendant denied he shot the officer. Id. The detectives then asked the
denial with the evidence the defendant was involved with the shooting.
Id. At that point, the defendant said,
“That um, one thing I want to ask you to that, if for anything
you guys are going to charge me I want to talk to a public
defender too, for any little thing. Because my brother-in-law
told me that if they’re trying to charge you for this case you
might as well talk to a public defender and let him know
cause they can’t [Untranslatable].”
defendant that they were going to book him for the murder and continue
was not involved in the murder, the detective would let the defendant go.
18
prosecution; you hear me?’ ” Id. The defendant responded, “ ‘Yes, sir.’ ”
Id. The next day the defendant admitted he shot the officer. Id.
regarding shooting the officer because the detectives took his statements
told him “if ‘he was charged with a crime, did he want to have the
arrested and being charged with a crime. Id. None of the detectives
Id. (quoting Davis, 512 U.S. at 459, 114 S. Ct. at 2355, 129 L. Ed. 2d at
request for counsel after the detectives explained to him the difference
between being arrested and being charged in deciding the defendant did
19
is the fact that Effler and the detective were involved in a conversation.
They were not exchanging pithy telegrams. As anyone who has ever read
ordinarily more polite and less emphatic than is the case with written
incorporate what the other party has previously said when continuing
before Effler made his request he asked the detective if he was going to
be released. In response to that question the detective told Effler that in
would have been obvious to a reasonable police officer that Effler used
added words “If I go to jail,” was expressing the view that a court-
previous statement about jail, would believe that Effler was just building
his right to counsel. In Gonzalez, the court held that the purportedly
charge the defendant with murder. Id. In this case, however, the
detective told Effler that he was going to be held in jail at least overnight.
time Effler made the statement, the detective knew that after the
interview he was going to book Effler and send him to jail for the crimes
officer knew that Effler was going to jail. Accordingly, I would find the
violated, the State must “ ‘prove beyond a reasonable doubt that the
Walls, 761 N.W.2d 683, 686 (Iowa 2009) (quoting State v. Peterson, 663
N.W.2d 417, 431 (Iowa 2003) (quoting Chapman v. California, 386 U.S.
prove Effler guilty of kidnapping in the first degree, the State must show
at trial was that the child was discovered naked in the bathroom and the
defendant did not have his shirt on. While the child was confined in the
sexual abuse assessment did not reveal that the child was sexually
wearing a diaper, or trauma could have caused the redness. She was
that the State proved beyond a reasonable doubt that Effler’s improperly
admitted confession that he took off her clothes, licked and rubbed her
genitalia, masturbated, and tried to put his penis inside her vagina did
reach this issue because I would find the violation of his Fifth
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II. Conclusion.
I would reverse the district court and affirm the court of appeals
interrogation ended for the crimes he committed at the library, the court
thoroughly the possibility that this court will approach the Iowa
article in the pages of the Harvard Law Review. See William J. Brennan,
Rev. 489 (1977). In that article, Justice Brennan urged the development
state constitutional law has emerged in which state courts have charted
23
Hans A. Linde, The State and the Federal Courts in Governance: Vive la
Jr., The Bill of Rights and the States: The Revival of State Constitutions as
Guardians of Individual Rights, 61 N.Y.U. L. Rev. 535 (1986).
This court in recent years has been willing to forge its own course
Constitution. See State v. Cline, 617 N.W.2d 277, 285–93 (Iowa 2000),
overruled on other grounds by State v. Turner, 630 N.W.2d 601, 606 n.2
and their lawyers that this court is prepared to depart from the
Court regarding the federal equal protection clause when we were called
upon to apply the equal protection clause under our state constitution.
We have recently stated in plain terms that we jealously guard our right
(Iowa 2008).
from law, logic, and experience. When a defendant has a potential claim
under both the United States and Iowa Constitutions, counsel should
counsel should do more than simply cite the correct provision of the Iowa
best advanced on reasoned argument which has been vetted through the
adversarial process. As a result, because of our prudential concern that
the issue may not be fully illuminated without a developed record and
case is whether this court would today follow the approach of Davis v.
25
United States, 512 U.S. 452, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994),
L. Ed. 2d 694 (1966). Davis, 512 U.S. at 459, 114 S. Ct. at 2355, 129
L. Ed. 2d at 371–72. The majority declined to adopt the position
law enforcement must ask clarifying questions with the sole purpose of
resolving the ambiguity. Id. at 461, 114 S. Ct. at 2356, 129 L. Ed. 2d at
373.
dissent. He wrote that the majority approach would penalize those with
poor English, those who were woefully ignorant, and those who were
61, 129 L. Ed. 2d at 378 (Souter, J., dissenting). Regarding the need for
n.7, 114 S. Ct. at 2363 n.7, 129 L. Ed. 2d at 381 n.7. Justice Souter
the Iowa Constitution in State v. Morgan, 559 N.W.2d 603, 608 (Iowa
26
opinion with no analysis of the underlying issue. It rests solely upon the
basis for decisions under the Iowa Constitution. Since Morgan was
has emerged sharply critical of Davis. The literature suggests that the
See, e.g., David Aram Kaiser & Paul Lufkin, Deconstructing Davis v.
Criminal Law, 38 Law & Soc’y Rev. 229, 249 (2004); Wayne D. Holly,
Ambiguous Invocations of the Right to Remain Silent: A Post-Davis
cogent opinions. See State v. Risk, 598 N.W.2d 642, 648–49 (Minn.
1999); State v. Chew, 695 A.2d 1301, 1318 (N.J. 1997). Some courts,
held that Davis applies only where an accused has first made a valid
waiver, and then sought to retract it. See, e.g., United States v. Cheely,
27
36 F.3d 1439, 1448 (9th Cir. 1994); State v. Collins, 937 So. 2d 86, 92
(Ala. Crim. App. 2005); Freeman v. State, 857 A.2d 557, 572–73 (Md. Ct.
Spec. App. 2004); State v. Leyva, 951 P.2d 738, 745 (Utah 1997).
Counsel below did not claim that Effler’s interrogation violated the
must show that his lawyer failed to perform an essential duty and that
counsel’s competence, Osborn v. State, 573 N.W.2d 917, 922 (Iowa 1998),
N.W.2d 67, 72 (Iowa 1982). At the same time, however, we have also
Graves, 668 N.W.2d 860, 881–82 (Iowa 2003), to determine that counsel
stands for the proposition that a competent lawyer must stay abreast of
legal developments.
28
who would decline to find that counsel was ineffective for failing to
the ground that it applies only where law enforcement first obtains a
supreme courts that have considered the issue, the academic literature
of the proper constitutional balance between the needs of the State and
Davis, 512 U.S. at 461, 114 S. Ct. at 2356, 129 L. Ed. 2d at 373.
requests will lessen the risk of a reversal should a majority of this court
develop its own independent approach that rejects the majority position
29
district court judgment, Ternus, C.J., and Cady and Streit, JJ.; for
affirmance of the court of appeals decision and for reversal of the district
court judgment, Wiggins, Hecht, and Appel, JJ. Baker, J., takes no part.