State v. Madsen
| Decision Date | 20 April 2012 |
| Docket Number | No. 09–1500.,09–1500. |
| Citation | 813 N.W.2d 714 |
| Parties | STATE of Iowa, Appellee, v. Kenneth Lee MADSEN, Appellant. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger and Susan R. Krisko, Assistant Attorneys General, and Ricki L. Osborn, County Attorney, for appellee.
In this case, we review our promise-of-leniency doctrine and related issues to determine the admissibility of the confessions of defendant, Kenneth Lee Madsen. A Webster County jury that heard part of his confessions found him guilty on two counts of sexual abuse in the second degree in violation of Iowa Code section 709.3(2) (2007) and one count of lascivious acts with a child in violation of Iowa Code section 709.8. Madsen argues the district court erred in failing to suppress his confessions because (1) his first of two interviews was not recorded electronically, and (2) his confessions were involuntary under the constitutional totality-of-the-circumstances test due to the detective's threat to make him late for work in the first interview and promise in the second interview that if Madsen told him everything he could thereby keep his name out of the local newspaper and put the matter behind him. The district court ruled police are not required to videotape or audiotape noncustodial interviews and Madsen's confessions were voluntary and admissible. On appeal, Madsen also claims his trial counsel was ineffective for not attempting to suppress his confession under our common law evidentiary test for promises of leniency. In response, the State invited our court to abandon the evidentiary test in favor of the totality-of-the-circumstances test.
We transferred the case to the court of appeals, which affirmed Madsen's convictions and rejected his ineffective-assistance claim based on its conclusion no promise of leniency was made. On further review, we decline to require audio or video recording of noncustodial interviews, and we decline to abandon our evidentiary test for promises of leniency. We conclude Madsen's trial counsel breached an essential duty by failing to move to suppress his confessions under that test. We hold the interrogating officer made promises of leniency that require suppression of part of Madsen's confession, but Madsen's self-incriminating statements made before those promises remain admissible. As a result, Madsen is entitled to a new trial on one count of second-degree sexual abuse, but his two remaining convictions are affirmed based on lack of prejudice. The decision of the court of appeals is vacated, and the district court convictions and sentences are affirmed in part and reversed in part.
Madsen met the victim, D.M.K., when the child was in kindergarten after the boy's family moved into Madsen's Fort Dodge neighborhood. D.M.K. began spending time with Madsen when D.M.K. was about seven years old. D.M.K. visited Madsen's apartment, sometimes alone and sometimes with his brother, D.K., and other young boys. Madsen had a Nintendo 64 at his apartment the boys used for computer games. Madsen took the boys bowling and on walks in wooded parks. Madsen had a police radio scanner and sometimes took the boys “cop scanning”—going to the scenes of accidents and police calls. D.M.K. occasionally spent the night at Madsen's apartment.
In the summer of 2008, D.M.K., D.K., and their older sister were sitting on the front porch of their house with other children. The conversation turned to sex, and D.K. said to D.M.K., “Why don't you tell about you and Kent [Madsen].” D.M.K. said D.K. was “lying” and went into the house. The sister confronted D.M.K. alone to inquire, saying she needed to know what happened. D.M.K. began to cry. D.M.K. told her that Madsen had measured his penis with a ruler he called a “peter meter” and that D.M.K. slept naked at Madsen's home. The sister told their mother, who contacted the Iowa Department of Human Services (DHS).
In July, Jodie Keller, a child protective worker with DHS, called Madsen and asked if they could meet to discuss child abuse allegations. Madsen had previously completed a sixteen-week course of study at the Fort Lauderdale, Florida Police Academy and graduated from that program. He admitted he learned at the Academy that a person has a right to leave an interview if he is not in custody. Madsen agreed to meet at the DHS office in Fort Dodge. Because of the possibility of criminal charges, Keller invited Fort Dodge police detective Jody Chansler to attend the interview. At the DHS interview, which was conducted without audio or video recording, Madsen admitted he had used a ruler to measure the penises of several boys who were eight to ten years old. Madsen also admitted at this unrecorded interview the boys had masturbated at his apartment a number of times and that he had not told their parents. Madsen does not claim he was in custody for the DHS interview.
Detective Chansler followed up with a second interview of Madsen on August 6. Madsen agreed to meet in an interview room at the Fort Dodge police station. This time the interview was recorded by audiotape and by videotape with sound. A transcript of the audiotape is included in the court record. The video recording begins with Chansler opening and closing the door to show it remained unlocked. The interview began with this exchange:
Q. You can get up and leave at any time, do you agree to that? A. Yes.
Chansler then referred back to Madsen's interview at the DHS office several weeks earlier and reviewed the names of the five boys who had spent time at his apartment, including D.M.K. and D.K. Chansler then noted, “When we spoke to you last you gave us the information ... about the measuring of the penises.” Madsen stated, “That was poor judgment on my part but ... I don't feel I really did anything all that wrong.” The interview continued as follows:
Q. Okay. Run me back through that so I know what you did and why you think that wasn't wrong? A. Uh going back to those ... thinking the night they had done it ... I think that was one of the nights when [D.M.K.] was there. He had told [S.] you know ... he showed them the ruler and said you know why don't you measure your dick.... And uh ... [D.M.K.] had an erection and he turned around and he kind of stuck it up and he was showing you know everybody how he was doing it. And he didn't think he was doing it right so he had asked me if I would help him and show him how to do it. I said well I'd rather not and he goes come on just ... you know I don't know if I'm doing this right. I tried to explain it to him ... and he goes here just do it. So I went over and I slid it in and tried to sit and measure it, and I told him how big it was and I went and sat the ruler down. So then everybody else started you know measuring theirs and I went back and sat on the bed watching TV.
The video at this point of the interview includes gestures indicating Madsen had placed his hand on D.M.K.'s penis to hold the ruler against it. Madsen continued to describe how he had helped five different boys measure their penises on six different days or nights.
Chansler then referred back to the DHS interview at which they discussed how boys masturbated at his home and walked in on Madsen masturbating. The boys that masturbated included D.K. and D.M.K. Madsen admitted D.M.K. masturbated “a lot” at Madsen's residence.
Madsen made these self-incriminating statements during the videotaped interview before Detective Chansler made the following promises of leniency at issue:
Q. Okay. You want this to go away right? A. Well yeah.
Q. Because you have a good job, you have a life, and you ... A. I made a poor choice.
Q. And you want this to be done with ... this ... A. I thought it was over. I thought the decision was made ... I'm waiting for the other shoe to basically drop right now.
Q. Well here is what I need from you okay and I've explained to you once when we spoke before ... you've got ... in order for this case to get wrapped up, in order for you to go along with your life I have to know everything. A. Yeah.
Q. And there is more information that I know that happened that you haven't told me about so that's going to keep the investigation open until I get everything and I'm satisfied with. I mean you don't want this in the Messenger [the Fort Dodge daily newspaper] do you? A. No.
Q. You don't want your family ... your job to open the Messenger and see your photograph and see my name saying that you're under investigation for this, this, this ... you want it over with now, right? A. Yes. I'm trying.
Q. Well you've got to ... you've got to come clean on everything. A. That's what I'm doing.
Q. Okay. So tell me about [S.] ... the whole anal thing ... I know there was ... A. The whole what?
Q. Okay at any time did any of the boys asked [sic] you for help or anything with like anal sex ... and before you answer that think about what I just said about this investigation getting wrapped up and getting over with so you can move on with your life. I need you to tell me everything that went on in that apartment. I'm not arresting you today. I've already explained that ... these boys have already had ... they've already been down to Des Moines ... they've already been interviewed by different people that specialize in this thing. Okay there is so much evidence ... so much ... uh ... I got all kinds of videos, statements, evidence ... and my last piece is you telling us the truth or this investigation is not going to be open and I'm just going to keep going and keep going so ... I need you to make it over with. I can't make it over with you unless [you] help out. A. Well I can't tell you anymore ... it didn't happen. I mean you know ... well maybe you don't...
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