Opinion
No. 2-571 / 01-0830
Filed November 15, 2002
Appeal from the Iowa District Court for Hancock County, STEPHEN P. CARROLL, Judge.
The defendant appeals from his convictions for first-degree murder and first-degree sexual abuse. AFFIRMED.
Alfredo Parrish of Parrish, Kruidenier, Moss, Dunn, Boles Gribble, L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Karen Kaufman, County Attorney, and Todd Holmes, Assistant County Attorney, for appellee.
Heard by VOGEL, P.J., and ZIMMER and HECHT, JJ.
Brad Erdahl appeals from his convictions for first-degree murder and first-degree sexual abuse. He contends (1) the trial court erred by denying his motion for judgment of acquittal on both offenses, (2) he was denied the effective assistance of trial counsel, (3) the trial court erred by denying his motion to suppress, (4) the trial court erred in denying his motion for a new trial, and (5) the cumulative effect of the trial court's constitutional errors denied him the right to a fair trial. We affirm.
I. BACKGROUND FACTS.
Viewing the evidence in the light most favorable to the State, the jury could have found the following facts.
Jackie Folkerts, a nineteen-year-old waitress, was last seen alive at 4:20 a.m. on the morning of Sunday, January 24, 1999. Her body was found in her home in Britt during the afternoon of January 25, 1999. She had been sexually abused and brutally murdered. She was found naked on her living room floor. Her assailant stabbed her in both eyes. Her throat was cut from one side to the other and she had been stabbed sixteen times in her chest, twenty times in her abdomen, and twenty times in her thigh. She had bruises on the left side of her jaw, and she had what appeared to be bite marks on her body. One nipple was severed from her breast.
The police recovered semen from Folkerts's vagina, rectum, and shin. During their investigation of Folkerts's death, law enforcement authorities requested voluntary saliva samples from 118 men who knew or associated with the victim. Approximately a year after the rape and murder, Erdahl provided a saliva swab sample. All of the 118 people except Erdahl were eliminated because their DNA did not match the profile of the sperm found in Folkerts's vagina. Erdahl's DNA, however, was a match.
DCI agent Melvin McClearly traveled to Fort Gordon, Georgia, where Erdahl was stationed in the Army, to interview Erdahl. Erdahl confessed to the crimes. He admitted he raped Folkerts by having vaginal and possibly anal sex with her. He stated he bit off her left nipple. He also admitted he stabbed her "[t]oo many times." Pursuant to a consent search of Erdahl's personal property in Georgia, FBI agent Michael Varacalli found a knife. The knife was an anniversary gift from Erdahl's wife. It was consistent with the knife used to murder Folkerts, and her blood was found on it.
The State charged Erdahl with first-degree murder and first-degree sexual abuse. Erdahl was convicted by a jury of the charged offenses. He was sentenced to two terms of life imprisonment. He filed a motion for new trial, alleging in part that the verdict was contrary to the evidence. The district court denied his motion. Erdahl appeals.
II. MOTION TO SUPPRESS.
Erdahl contends the trial court erred by denying his motion to suppress. He maintains he was subject to a custodial interrogation, his consent to the custodial interrogation was not knowing and was not voluntarily obtained, and Agent McClearly continued to question him after he had unequivocally invoked his right to silence.
A. Scope of review. Our review of a district court's ruling on a motion to suppress statements allegedly made in violation of constitutional guarantees is de novo. See State v. Countryman, 572 N.W.2d 553, 557 (Iowa 1997). We "make an independent evaluation of the totality of the circumstances as shown by the entire record." State v. Howard, 509 N.W.2d 764, 767 (Iowa 1993). We give deference to the findings of fact by the district court due to its opportunity to assess the credibility of witnesses, but we are not bound by those findings. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001).
The Fifth Amendment to the United States Constitution provides in part, "No person . . . shall be compelled in any criminal case to be a witness against himself . . ." U.S. Const. amend. V. This right against self-incrimination is incorporated into the Due Process Clause of the Fourteenth Amendment and thus applies to the states. See Malloy v. Hogan, 378 U.S. 1, 6-11, 84 S.Ct. 1489, 1492-95, 12 L.Ed.2d 653, 658-61 (1964).
The United States Supreme Court has stated that before an individual who is in custody can be subjected to any interrogation, he must be advised of his constitutional rights to remain silent and to counsel prior to any questioning. Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694, 726 (1966). This requirement is not triggered "unless there is both custody and interrogation." State v. Davis, 446 N.W.2d 785, 788 (Iowa 1989). Despite the fact that the State conceded at the trial court level that Erdahl was in custody at the time he was questioned by Agent McClearly, both parties have argued the custody issue on appeal. Furthermore, because we may affirm on any ground in determining the admissibility of evidence, whether raised before the trial court or not, see DeVoss v. State, 648 N.W.2d 56, 62-63 (Iowa 2002), we will address the initial question of whether Erdahl was in custody at the time he was interrogated.
B. Custody. We utilize an objective test in determining whether a defendant was in custody at the time inculpatory statements were made. State v. Scott, 518 N.W.2d 347, 350 (Iowa 1994). We consider all circumstances surrounding the interrogation. Id. Specifically, we consider the following four factors: (1) the language used to summon a person for questioning, (2) the purpose, place, and manner of the interrogation, (3) the extent to which a person is confronted with evidence of his or her guilt, and (4) whether the person is free to leave the place of questioning. See State v. Deases, 518 N.W.2d 784, 789 (Iowa 1994) (citations omitted).
We conclude Erdahl was in custody when he was interrogated. He was subject to military restrictions on the army base. He was escorted by military police to the interrogation room in handcuffs, although they were removed during questioning. He was informed of the subject of the questioning. He was in a small interview room with a desk, two chairs, and a two-way glass mirror. He was confronted with his guilt. In considering these and the other circumstances surrounding the interrogation, we conclude Erdahl was in custody when he made incriminating statements.
C. Waiver of Miranda rights. Erdahl contends the State has failed to satisfy its heavy burden that he knowingly, voluntarily, and intelligently waived his rights to remain silent and to counsel. He specifically argues the State deliberately prevented the creation of corroboration of his waiver of Miranda.
The State bears the burden to prove by a preponderance of the evidence that a defendant knowingly, intelligently, and voluntarily waived his or her Miranda rights. State v. Vincik, 398 N.W.2d 788, 789 (Iowa 1987). A Miranda waiver is involuntary only when it is the product of police misconduct or overreaching. Countryman, 572 N.W.2d at 559. An express waiver is not required. State v. Davis, 304 N.W.2d 432, 435 (Iowa 1981). Rather, the validity of the wavier is based on particular facts and circumstances surrounding the giving of the Miranda warnings. State v. King, 492 N.W.2d 211, 214 (Iowa Ct.App. 1992).
We find the totality of the circumstances demonstrates Erdahl's waiver of his Miranda rights was voluntary, knowing, and intelligent. Erdahl had prior contacts with law enforcement, suggesting he was familiar with his rights and police procedures. He was twenty-one years old, and had completed his GED. He was a member of the United States Army. Erdahl appeared to be sober and alert. Agent McClearly and Erdahl went over the form containing the Miranda rights together, and Erdahl read the form out loud. Erdahl stated he understood his rights, and he agreed to speak with Agent McClearly willingly.
D. Voluntariness of confession. Erdahl further contends the State has failed to prove that his confession was voluntary. The State must prove the voluntariness of a defendant's confession by a preponderance of the evidence, as a prerequisite to its admission in evidence. State v. Reid, 394 N.W.2d 399, 402 (Iowa 1986). Where the State fails to meet this burden, the defendant's inculpatory statements and confession must be suppressed and may not be admitted into evidence. Id. The test of voluntariness of an inculpatory statement or confession is "whether the defendant's will was overborne by the police officers," considering "the totality of the circumstances." Id. (quoting State v. Coburn, 315 N.W.2d 742, 745 (Iowa 1982)). Factors relevant to this assessment include:
[T]he defendant's knowledge and waiver of his Miranda rights; the defendant's age, experience, prior record, level of education and intelligence; the length of time defendant is detained and interrogated; whether physical punishment was used, including the deprivation of food or sleep; defendant's ability to understand the questions; the defendant's physical and emotional condition and his reaction to the interrogation; whether any deceit or improper promises were used in gaining the admissions; any mental weakness the defendant may possess. State v. Hodges, 326 N.W.2d 345, 348 (Iowa 1982) (citations omitted); see also State v. Coburn, 315 N.W.2d 742, 745 (Iowa 1982) (other factors bearing on voluntariness are the defendant's awareness of the alleged crime and his ability to understand his constitutional rights and the consequences of waiving them). Evidence that an accused was "threatened, tricked or cajoled" into waiving constitutional rights indicates a waiver was not voluntary.Reid, 394 N.W.2d at 404.
We conclude the State has proven the voluntariness of Erdahl's confession by a preponderance of the evidence. As noted above, his waiver of his Miranda rights was valid. Erdahl was twenty-one years old at the time of the interview, and he was in the United States Army. The interview occurred during normal business hours, commencing at 10:40 a.m. He had prior contact with police, both as a juvenile and as an adult. He was offered a drink and a break during the interview, which he declined. Furthermore, the record is devoid of any suggestion that police resorted to physical pressure, abusive interrogation tactics, threats, promises, or deceit.
E. Invocation of right to remain silent. If a person either before or during questioning invokes his or her Fifth Amendment privilege against self-incrimination, the questioning must cease. Miranda, 384 U.S. at 473-74, 86 S.Ct. at 1627-28, 16 L.Ed.2d at 723. This right to cut off questioning must be scrupulously honored. State v. Snethen, 245 N.W.2d 308, 314 (Iowa 1976).
Prior to the half hour break during the interrogation, Erdahl made no incriminating statement. When questioning resumed, Agent McClearly told Erdahl that he was not being honest and told him of the DNA evidence linking him to the crimes. McClearly then questioned Erdahl about his family relationships, particularly about his troubled relationship with his father. Erdahl became very emotional. At that time, he said "I don't want to talk about it." McClearly had been talking specifically about Erdahl's relationship with his father. McClearly then asked him, "You are sorry, though, aren't you?" Erdahl commented that he was sorry. He then proceeded to confess to the sexual abuse, stabbing, and mutilation of Folkerts.
In considering the totality of the circumstances surrounding Erdahl's statement, "I don't want to talk about it," we conclude he did not invoke his right to remain silent. Erdahl's statement cannot be divorced from its context. His statement came during questioning about his father. Erdahl answered the question following his alleged invocation of his right to remain silent, and then confessed to the crimes. His alleged invocation did not come directly after the Miranda warnings.
Even if we were to determine Erdahl's inculpatory statements were obtained after he invoked his right to remain silent, we need not reverse his conviction if the State has shown this error was harmless beyond a reasonable doubt. Turner, 630 N.W.2d at 609. "If substantially the same evidence is in the record, erroneously admitted evidence is not considered prejudicial." Id. (quoting State v. Deases, 518 N.W.2d 784, 791 (Iowa 1994)). This harmless-error assessment requires consideration of the evidence actually considered by the jury and the relative probative force of that evidence and the evidence erroneously admitted. State v. Astello, 602 N.W.2d 190, 196 (Iowa Ct.App. 1999).
Here, the jury considered strong DNA evidence linking Erdahl to the crimes. His semen was found in Folkerts's vagina and on her body. His knife, found in his possession, had Folkerts's blood on it and was consistent with the weapon used to murder her. The probative value of this evidence is highly significant. We also note that Erdahl's confession is substantial probative evidence. However, under the circumstances of this case, we conclude that any error resulting from the admission of Erdahl's incriminating statements was harmless beyond a reasonable doubt.
We affirm the trial court's ruling denying Erdahl's motion to suppress.
III. MOTION FOR JUDGMENT OF ACQUITTAL.
Erdahl contends the trial court erred by denying his motions for judgment of acquittal as to both first-degree murder and first-degree sexual abuse. The State argues that Erdahl has failed to preserve error on his claim as to first-degree sexual abuse or the element of premeditation on the murder charge. Erdahl maintains that if he failed to preserve error on any part of this claim, we should consider it an ineffective-assistance-of-counsel claim.
A. Scope of review. Because a jury verdict is binding on this court when supported by substantial evidence, appellate review of Erdahl's sufficiency-of-the-evidence argument is for the correction of errors at law. State v. Speicher, 625 N.W.2d 738, 740 (Iowa 2001). Evidence is substantial if a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. State v. Casady, 597 N.W.2d 801, 804 (Iowa 1999). The jury was entitled "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). "Direct and circumstantial evidence are equally probative." Iowa R.App.P. 14(f)(16). This court reviews the evidence in a light most favorable to the State. Casady, 597 N.W.2d at 804. This includes all legitimate inferences that may fairly and reasonably be deduced from the evidence. Id. B. Error preservation. We have serious reservations as to whether Erdahl has preserved error on his claims. On appeal, he claims that there was insufficient evidence to support his convictions for both crimes, and he particularly points to the elements of premeditation and deliberation as regards first-degree murder. However, he did not specifically mention these elements in his motions for judgment of acquittal. See State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996) (holding that defendant failed to preserve error where his attorney failed to mention elements of crime in motion for judgment of acquittal that he was specifically raising on appeal). Furthermore, he did not refer directly to the crime of sexual abuse in his motions. However, because we conclude there is substantial evidence to support both of his convictions, we will discuss them despite our reservations regarding error preservation.
C. Merits. First, we determine there is substantial evidence that Erdahl committed first-degree sexual abuse, even without his incriminating statements. Erdahl's DNA matched the semen taken from Folkerts's vagina and other areas of her body. There was physical evidence that the sexual intercourse was forceful. Folkerts suffered four recent, small tears in her vaginal cavity as the result of inappropriate lubrication, suggesting the use of force in intercourse. The chief pathologist at Mercy Medical Center North Iowa in Mason City testified that an altercation occurred, based on certain injuries to Folkerts's body, including bruising to her face.
"A person commits sexual abuse in the first degree when in the course of committing sexual abuse the person causes another serious injury." Iowa Code § 709.2 (1999). Sexual abuse is a sex act that "is done by force or against the will of the other [person]." Id. § 709.1(1).
Furthermore, we conclude there is substantial evidence that Erdahl's act of stabbing and mutilating Folkerts occurred as part of the entirety of a continuous series of acts involving the sexual abuse. See State v. Carter, 602 N.W.2d 818, 822 (Iowa 1999) (holding that under Iowa Code section 709.2 the serious injury need not occur simultaneously with the commission of the sexual abuse in order to constitute first-degree sexual abuse, but instead it is sufficient if the serious injury precedes or follows the sexual abuse as long as the injury and sexual abuse occur as part of an unbroken chain of events or as part of one continuous series of acts connected with one another). It is a fair inference from the record that Erdahl raped the victim and then mutilated her upon completing the sex acts.
Second, we find there is substantial evidence to support the trial court's ruling on the first-degree murder conviction. First-degree murder requires proof of malice, deliberation, and premeditation. State v. Reeves, 636 N.W.2d 22, 25 (Iowa 2001). Deliberation and premeditation may be shown by circumstantial evidence in one of three ways: evidence of planning activity of the defendant which was directed toward the killing, evidence of motive which might be inferred from prior relationships between the defendant and the victim, and evidence regarding the nature of the killing. State v. Wilkens, 346 N.W.2d 16, 20 (Iowa 1984). Premeditation and deliberation need not exist for any particular length of time. Id. The use of a deadly weapon accompanied by an opportunity to deliberate, even for a short time, is evidence of malice, deliberation, and premeditation. State v. Frazer, 267 N.W.2d 34, 39 (Iowa 1978).
"A person commits murder in the first degree when the person . . . willfully, deliberately, and with premeditation kills another person." Iowa Code § 707.2(1).
Erdahl was found in possession of a knife with Folkerts's blood on it. The knife was consistent with that used to stab her. It is a fair inference from the evidence that Erdahl used the knife to mutilate and stab Folkerts numerous times following his rape of her. The jury could reasonably conclude from the evidence in the record that Erdahl had a sufficient opportunity to weigh in his mind, contemplate, and consider the consequences before stabbing Folkerts.
We affirm the trial court's ruling denying his motions for judgment of acquittal. As the State said in its closing argument, "Whoever raped Jacqueline Folkerts . . . used Brad Erdahl's penis. And whoever murdered Jackie Folkerts used Brad Erdahl's knife."
IV. MOTION FOR NEW TRIAL.
Erdahl contends the verdict in this case was contrary to the weight of the evidence, and thus the trial court erred in denying his motion for a new trial. He argues both the witnesses' credibility and the State's theories warrant examination. He maintains many of the State's witnesses and credible defense witnesses testified to facts that do not support the convictions in this case.
A. Scope of review. Trial courts have wide discretion in deciding motions for new trial. State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). Trial courts should exercise this discretion carefully and sparingly when deciding motion for new trial based on the ground that the verdict is contrary to the weight of the evidence. Id. B. Merits. As noted above, Erdahl's DNA matched the semen found on Folkerts's body. He was found in possession of the murder weapon in Georgia. While there was evidence presented that someone other than Erdahl may have committed the crimes, we conclude that the greater weight of credible evidence warrants denial of Erdahl's motion for new trial. We affirm the trial court on this issue.
V. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
Erdahl contends his trial counsel was ineffective in: (1) failing to hire or utilize experts regarding his intoxication; (2) failing to raise the defense of intoxication; (3) telling him not to testify and informing the court it was his decision not to testify; (4) failing to investigate harassing phone calls and the identity of the owner of a white pickup truck; and (5) failing to investigate and obtain weather records related to the snowfall from January 23-26, 1999. He requests these claims be preserved for possible postconviction relief proceedings.
We reviewclaims of ineffective assistance of counsel de novo. State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000). In reviewing such claims de novo, we give weight to the lower court's findings concerning witness credibility. Iowa R.App.P. 6.14(6)(g); Taylor v. State, 352 N.W.2d 683, 687 (Iowa 1984). Erdahl must demonstrate both ineffective assistance and prejudice to prevail on his claim that trial counsel was ineffective. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001) (citations omitted). Both elements must be proven by a preponderance of the evidence. Id. We affirm if either element is lacking. State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999).
To establish the first prong, Erdahl has to prove that his trial attorney performed below the standard demanded of a reasonably competent attorney. Ledezma, 626 N.W.2d at 142. Once ineffective assistance is proven, Erdahl must establish that the error caused prejudice. Id. at 143. To sustain this burden, he is required to demonstrate "`that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984)).
Based on the DNA evidence and Erdahl's possession of the murder weapon, we conclude Erdahl cannot show the requisite prejudice to prevail on his various claims of ineffective assistance of trial counsel. He cannot show that the outcome of the proceeding would have been different even if counsel performed below the standard demanded of a reasonably competent attorney in the particulars he alleges. Thus, we dispose of his ineffective-assistance claims on direct appeal.
VI. RIGHT TO FAIR TRIAL.
Erdahl contends the cumulative effect of the trial court's constitutional errors denied him the right to a fair trial. In alleging cumulative error, he points to two alleged errors in particular: the failure of the State to prove each element of the crimes beyond a reasonable doubt, and the district court denying his motion to suppress. The State contends Erdahl has not preserved error on this claim by not raising it before the district court.
It is not necessary that we determine whether Erdahl has preserved error on his claim, as we find it without merit. We have found no merit to Erdahl's claims that the State failed to prove the elements of first-degree sexual abuse and first-degree murder beyond a reasonable doubt and that the district court erred in denying his motion to suppress. Therefore, we find no merit to Erdahl's claim of cumulative error. See Wainwright v. Lockhart, 80 F.3d 1226, 1233 (8th Cir. 1996) ("Errors that are not unconstitutional individually cannot be added together to create a constitutional violation."); State v. Veal, 564 N.W.2d 797, 812-13 (Iowa 1997) (rejecting cumulative error claim).
VII. CONCLUSION.
We conclude Erdahl's motion to suppress was properly denied. We determine there was substantial evidence supporting the jury verdicts. We find the trial court did not abuse its discretion in denying the motion for new trial. We conclude Erdahl's ineffective-assistance and cumulative-error claims are without merit. We affirm Erdahl's judgment and sentence.