State v. Jennett

• Decision Date: 25 November 1997
• Docket Number: No. 96-0320,96-0320
• Citation: 574 N.W.2d 361
• Parties: STATE of Iowa, Appellee, v. Christopher R. JENNETT, Appellant.
• Court: Iowa Court of Appeals

Page 361

574 N.W.2d 361

STATE of Iowa, Appellee, v. Christopher R. JENNETT, Appellant.

No. 96-0320.

Court of Appeals of Iowa.

Nov. 25, 1997.

Linda Del Gallo, State Appellate Defender, and Andi S. Lipman and Shellie L. Knipfer, Assistant State Appellate Defenders, for appellant.

Thomas J. Miller, Attorney General, Susan M. Crawford, Assistant Attorney General, William E. Davis, County Attorney, and Michael Walton, Assistant County Attorney, for appellee.

Decided en banc.

STREIT, Judge.

A defendant contends his confession was obtained by illicit police tactics. Christopher R. Jennett appeals from his conviction of two counts of second-degree sexual abuse in violation of Iowa Code section 709.3(2) (1995). He contends the trial court erred in not suppressing evidence of statements he made because: (1) they were obtained in violation of Miranda they were involuntary under the Fifth and Fourteenth Amendments. We affirm the trial court.

I. Background & Facts.

Christopher R. Jennett's six and eight-year-old daughters related an account of his touching and performing oral sex on them. At the time, in 1995, they were in his care for visitation.

Jennett went to the police station to answer questions. After forty-five minutes of questioning, Jennett confessed to police officer Michael Venema. The trial court heard the case without a jury and considered defendant's video-taped confession.

II. Miranda Issues.

This is a constitutional challenge. We review de novo. See State v. Howard, 509 N.W.2d 764, 767 (Iowa 1993).

We first address defendant's claim the failure of the police detective to advise him according to the dictates of Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706 (1966), rendered his confession inadmissible. There must be an interrogation and custody to invoke Miranda. Miranda, 384 U.S. at 444-45, 86 S.Ct. at 1612, 16 L.Ed.2d at 706-07; see State v. Brown, 341 N.W.2d 10, 16 (Iowa 1983); State v. Cook, 330 N.W.2d 306, 312 (Iowa 1983); State v. Kyseth, 240 N.W.2d 671, 673 (Iowa 1976). Custodial interrogation is the "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom in any way." State v. Davis, 446 N.W.2d 785, 788 (Iowa 1989). ¹

Police detective Venema did not read Jennett his Miranda rights before Jennett was questioned. Jennett argues he was entitled to the mandates of Miranda. Jennett was not taken into custody at any time during the interview. Jennett concedes he was not initially in custody, but contends because the incriminating statement was given after he said he had to go, ² the interrogation turned from a noncustodial to custodial interrogation.

Jennett was not in custody when the statements were given. At the beginning of the interview, Jennett was told he was not under arrest and was free to leave at any time. Although Jennett said he had a job to finish, he made no attempts to leave. Venema testified if Jennett had tried to leave the interview, he would have allowed him to do so. Defendant was not denied food, drink, or bathroom privileges, although he asked for none. He was not physically restrained. The interview lasted approximately forty-five minutes. In keeping with the detective's statement he was not going to arrest him, Jennett left the police station at the close of the interview. The detective did not lie or misrepresent the custodial status of Jennett even if he thought it likely that he would eventually arrest Jennett.

Jennett relies on Kasel as support for his contention. In Kasel, the officer gave the Miranda warning with an assurance the suspect was free to leave, and the State argued because of the assurance the suspect could leave, no Miranda warnings were needed. Kasel, 488 N.W.2d at 708. When the suspect tried to leave, she was retrieved and told the rules had changed. The confession was suppressed.

Jennett told detective Venema he had to go finish a job. Venema asked him for five more minutes and said he wanted the interview finished before Jennett left. Jennett contends once he requested to end the interrogation and leave, the court's ruling in Kasel dictates his subsequent statements should have been suppressed. In Kasel, the suspect was stopped when she tried to leave. Here, the interviewer talked Jennett into staying until they were finished with the interview and he acquiesced. ³ Kasel does not support defendant's argument. Defendant was not in custody when he confessed. Defendant's confession was not obtained in violation of Miranda. ⁴

III. Voluntariness of Jennett's Confession.

A. DNA Evidence and Search Warrant. Jennett next contends his statements were involuntary because they were based upon improper promises of leniency and "psychological coercion" by Venema. The State has the burden of establishing by the preponderance of evidence the confession is voluntary. State v. Oliver, 341 N.W.2d 25, 28 (Iowa 1983); State v. Cullison, 227 N.W.2d 121, 127 (Iowa 1975); State v. Payton, 481 N.W.2d 325, 328 (Iowa 1992). 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 court in Davis listed the following as factors in determining voluntariness of confessions:

... the 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. Id. (citations omitted). 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.

Davis, 446 N.W.2d at 789.

Jennett was thirty-five years old at the time of the interview. He has a tenth-grade education and average intelligence. He was questioned for approximately forty-five minutes, no physical punishment was used, and he understood Venema's questions. Although he appeared uncomfortable at being questioned, he was not in an abnormal physical or emotional condition.

Jennett asserts Venema was not truthful when discussing DNA evidence and that he misrepresented he had a search warrant for Jennet's apartment, although he did not. There was no deceit by Venema. This is clear on review of the video tape:

Detective: Have you ever--I am sure you have probably seen some of this testing with the O.J. trial--its been all over the T.V. forever and they are doing a lot of blood samples and things like that. They can also do the same thing with semen and your blood type and your DNA can be drawn from semen and they determine your blood type and they can also run DNA out of that. Same if the girls maybe had like on their skin or on their clothing that they happened to be wearing that was tested after they got home from say this three week visitation. They use a fluoroscope, they can look, and the semen will show up as a bright color under the fluoroscope and if that were tested how do you explain it if some semen were found on the girls--(emphasis added)

Jennett: There is no way I could explain it. There's no way.

Detective: No way to explain it at all?

Jennett: None. None.

Detective: Even if your blood was tested and this all came back together at the end and it showed that this semen had your DNA. Is there anyway we could explain how that could have happened?

Jennett: No. No.

Although Detective Venema acknowledged the DNA statement was deceptive, he did not tell Jennett he had semen linked to Jennett by DNA samples. He asked a hypothetical question. This police tactic is not deceptive.

The legal process was not misrepresented to Jennett. This is clear on review of the context in which the search warrant was referred:

Jennett: Are you having a warrant made up?

Detective: I don't have a warrant for you, okay?

Jennett: A search warrant for my house?

Detective: What's that?

Jennett: A search warrant for my house?

Detective: I have a search warrant for your house, yeah.

Jennett: And is it being served?

Detective: No.

Jennett: Okay.

Jennet inquired whether Venema was having a warrant made up and Venema responded he had one made up for his apartment, but he was not serving it. This was true. It was not a misrepresentation of the legal process. ⁵ At the end of the interview the detective requested and he consented to a search of his apartment.

Even if these tactics were deceptive, the subtle deception-the mere filling out of a warrant application without obtaining the court order-was not the type to render a confession involuntary. Whether deception renders a waiver of constitutional rights involuntary was discussed in State v. Cooper, 217 N.W.2d 589 (Iowa 1974). There, the supreme court summarized the rule where there is evidence of deception as follows:

Deception of any nature by representatives of the state cannot be condoned. However, we conclude deception standing alone does not render a waiver of constitutional rights involuntary as a matter of law unless the deceiving acts amount to a deprivation of due process. Nevertheless, deception becomes a factor to be considered in reviewing the totality of the circumstances in making the determination as to the voluntariness of the waiver even though the act does not per se produce exclusion.

Id. at 597. This standard should be applied to determine the effect any deception has in rendering a confession involuntary. Appellate courts have disapproved of deceptive police practices, but have been reluctant to find confessions involuntary after examining the totality of the circumstances. State v. Oliver, 341 N.W.2d 25, 29 (Iowa 1983). ⁶

The alleged deceptions about DNA and...