State v. Hoeck, 94-1035

• Decision Date: 28 February 1996
• Docket Number: No. 94-1035,94-1035
• Citation: 547 N.W.2d 852
• Parties: STATE of Iowa, Appellee, v. Anthony Allen HOECK, Appellant.
• Court: Iowa Court of Appeals

Page 852

547 N.W.2d 852

STATE of Iowa, Appellee, v. Anthony Allen HOECK, Appellant.

No. 94-1035.

Court of Appeals of Iowa.

Feb. 28, 1996.

Linda Del Gallo, State Appellate Defender, and Patricia A. Reynolds, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, William E. Davis, County Attorney, and Michael Walton and Realff Ottesen, Assistant County Attorneys, for appellee.

Heard by HAYDEN, P.J., and HABHAB and CADY, JJ.

HAYDEN, Presiding Judge.

Justin Voelkers, Jason Means, Anthony Hoeck, Shawn Shewmake, Christopher Felgenhauer, and Joe Hager were taken to the police station for questioning in connection with the death of Michelle Jensen, a seventeen-year-old high school student who was found shot to death on a country road in the early hours of August 29, 1993. Voelkers and Means made videotaped statements in which they admitted to their parts in Jensen's death. Both statements implicated Hoeck, the appellant in this case.

Hoeck, Voelkers, Means, Shewmake, Felgenhauer, and Hager were charged with robbery in the first-degree, kidnaping in the first-degree, criminal gang participation, and conspiracy. Hoeck, Voelkers, Means, Shewmake, and Felgenhauer were charged with first-degree murder. Hoeck, Voelkers, and Means were further charged with possession of an offensive weapon. Although Hoeck was originally charged with sex abuse in the first degree, the charge was later dropped. Shewmake, Felgenhauer, and Hager plead guilty to lesser charges and later testified for the State. The other three defendants, including Hoeck, went to trial.

Hoeck and his codefendants sought a change of venue due to the extensive media coverage of Jensen's death and gang activity. The district court denied the motion. The motion was renewed on the second day of voir dire because a local newspaper ran a story which included the defendants' criminal histories and several potential jurors were seen with a paper. The district court again denied motion for change of venue.

Voelkers and Means motioned to suppress their statements made to police officers. Both motions were denied. Hoeck motioned in limine to redact from these statements any reference to him. Although this motion was initially denied, the interviews were later redacted to exclude any mention of Hoeck's name from the video tapes and the transcript given the jury to read while viewing the videos. Hoeck, citing Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987), then objected to the admission of the confessions alleging the codefendants' statements as redacted violated his right to confront and cross-examine the witnesses against him. Hoeck argued, although the tapes had been edited to omit any mention of his name, they were improperly redacted and inferentially incriminated him. The objection was overruled, and the tapes were admitted as redacted by the State. Neither Means nor Voelkers took the witness stand.

At trial, evidence indicated the defendants were members of the Conservative Vice Lords gang and had intended to rob a convenience store in order to get money to start a drug selling business. They wanted to use Jensen's vehicle for the purpose of robbing the store. Jensen and others were at a party at Hoeck's home. Jensen became intoxicated, but resisted when an attempt was made to take her car keys. Hoeck ordered Felgenhauer to strike Jensen with an electric fan and knock her unconscious. The ensuing assault did not leave Jensen unconscious. Hoeck then told Means to "get Bud" referring to a sawed-off shotgun Hoeck kept in his room. Hoeck later told Means and Voelkers to "take care of business." Means and Voelkers drove Jensen to a country road where Voelkers shot her. The two men then fled the scene and returned to meet the others, including: Hoeck, Shewmake, Felgenhauer, and Hager. Means and Voelkers informed them of the shooting. The group, with the exception of Felgenhauer, then left in Jensen's car in order to rob the convenience store. The plans were abandoned, however, because the store was "too busy."

Hoeck was found guilty of second-degree murder and otherwise guilty as charged with the exception of the sexual abuse charges which were dropped. The district court imposed a life sentence on the kidnaping conviction and consecutive sentences on the other convictions. Hoeck now appeals. He argues the admission of the videotapes violated his right to confront and cross-examine witnesses; insufficient evidence existed to sustain his convictions; and, the district court abused its discretion in overruling his motion for change of venue. Lastly, he argues his trial counsel was ineffective in failing to motion for a severance of the trials. Although Hoeck's counsel initially filed a motion to sever, the motion was later withdrawn.

I. Constitutional Right to Confront and Cross-Examine Witnesses.

Hoeck claims his Sixth Amendment right to confront and cross-examine witnesses against him was violated when the videotaped confessions of Means and Voelkers, which implicated Hoeck, were admitted at trial without either codefendant taking the witness stand. Hoeck argues the video tapes and transcripts were not properly redacted. Hoeck contends, although his name was eliminated from the video tapes and the transcripts, it was obvious Means and Voelkers were referring to Hoeck.

Our review of Hoeck's Sixth Amendment claim is de novo. State v. Puffinbarger, 540 N.W.2d 452, 455 (Iowa App.1995). When constitutional safeguards are involved, we are obliged to make our own evaluation of the totality of the circumstances. Id.

In this case, as in the typical Bruton scenario, the respective confessions of the two codefendants (Means and Voelkers) are admissible into evidence against each individually because the confessions are admissions by party opponents under 801(d)(2)(A). Id. at 457 (citing Bruton v. United States, 391 U.S. 123, 129 n. 3, 88 S.Ct. 1620, 1624 n. 3, 20 L.Ed.2d 476, 480 n. 3 (1968)). However, no exception to the hearsay rule allows the statements to be used against the other codefendant, Hoeck. See id. (citing Bruton, 391 U.S. at 129 n. 3, 88 S.Ct. at 1624 n. 3, 20 L.Ed.2d at 480 n. 3). Unfortunately, once the jury hears the codefendants' (Means and Voelkers) confessions, they may be inclined to use them against Hoeck. See id. To avoid such a result, the Bruton rule holds a nontestifying codefendant's confession incriminating the other defendant is barred by the confrontation clause from admission into evidence at their joint trial. Id. (citing Bruton, 391 U.S. at 137, 88 S.Ct. at 1628, 20 L.Ed.2d at 485). This is true even if the jury is instructed to consider the confession only against the confessing codefendant. United States. v. Donahue, 948 F.2d 438, 443 (8th Cir.1991) (citing Richardson v. Marsh, 481 U.S. 200, 201-02, 107 S.Ct. 1702, 1704-05, 95 L.Ed.2d 176, 182 (1987)). This narrow exception to the general rule that the jury is conclusively presumed to follow the court's instructions was created in Bruton. Id.

The Supreme Court has been reluctant to expand this exception. Id. It has held no constitutional violation occurs if, with a proper limiting instruction, the codefendant's confession is sufficiently redacted to eliminate not only the defendant's name, but any reference to his or her existence. Richardson, 481 U.S. at 211, 107 S.Ct. at 1709, 95 L.Ed.2d at 188; see also United States. v. Comeaux, 955 F.2d 586, 590 (8th Cir.1992) (The confrontation clause is not violated by the admission of a nontestifying codefendant's confession when the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence). It has also been held the Bruton rule is not violated merely because other evidence allows the jury to infer a link between a codefendant's redacted confession and the defendant. United States v. Long, 900 F.2d 1270, 1279 (8th Cir.1990). Provided the redacted confession itself contains no reference to the defendant, an instruction to the jury to avoid inferring any link between the statement and the defendant should suffice to protect the defendant's Sixth Amendment rights. Id.

The Supreme Court has left open the issue of the admissibility of a confession in which the defendant's name was replaced with a symbol or neutral pronoun. Richardson, 481 U.S. at 211 n. 5, 107 S.Ct. at 1709 n. 5, 95 L.Ed.2d at 188 n. 5 ("We express no opinion on the admissibility of a confession in which the defendant's name has been replaced with a symbol or neutral pronoun"). As such, courts have distinguished cases where presentation of the redacted statement draws the jury's attention to the fact a name was omitted inviting the jury to fill in the blank, and cases where the redacted statement does not invite speculation. Long, 900 F.2d at 1280. The Eighth Circuit deals with this issue on a case-by-case basis. Donahue, 948 F.2d at 443-44 n. 4. In some instances, courts have held Bruton was violated because, although the name was redacted, the jurors could tell who was being implicated. Long, 900 F.2d at 1280 (reference to "someone" violative of Bruton because the reference "led the jury straight to" the defendant); United States v. Payne, 923 F.2d 595, 597 (8th Cir.1991) (reference to "someone" violative of Bruton where "everyone at the trial knew who the 'someone' was").

We determine, under the facts and circumstances of this case, the Bruton rule was violated. Hoeck's name was redacted from the confessions and replaced with a gap of silence. The two confessions also made several references to "everyone" and "he." This case is similar to Long, 900 F.2d at 1280, and Payne, 923 F.2d at 597, where the Eighth Circuit held Bruton was violated because the jury was invited to speculate as to the identity of the "someone" referred to in the redacted statements and the jury could easily determine the "someone" was the...