State v. Oliver

• Decision Date: 23 November 1983
• Docket Number: No. 68664,68664
• Citation: 341 N.W.2d 25
• Parties: STATE of Iowa, Appellee, v. Debra OLIVER, Appellant.
• Court: Iowa Supreme Court

Page 25

341 N.W.2d 25

STATE of Iowa, Appellee, v. Debra OLIVER, Appellant.

No. 68664.

Supreme Court of Iowa.

Nov. 23, 1983.

Clark L. Holmes, Des Moines, for appellant.

Thomas J. Miller, Atty. Gen. and Roxann M. Ryan, Asst. Atty. Gen., for appellee.

Considered by UHLENHOPP, P.J., and HARRIS, McCORMICK, LARSON, and SCHULTZ, JJ.

LARSON, Justice.

This defendant appeals from her conviction of second-degree murder, Iowa Code section 707.3. She alleges error in (1) admitting a confession made by her during and after a polygraph examination, contending it was the product of deception; (2) admitting evidence seized from her apartment on the ground it was illegally seized; and (3) admitting photographs, bloody clothing and other items of evidence allegedly so gruesome and inflammatory as to be inadmissible. We affirm.

The body of Charles Leon Kimsey, Jr., was discovered in his apartment at about 11 a.m. on April 2, 1981. The victim's hands and feet were tied with telephone cord, a fact which became pertinent in later proceedings. A blanket covered most of the body, and a butcher knife was stuck in the upper back of the body protruding through the front. There was a gag in the victim's mouth and a shoestring around his neck. The investigating officers found an I.O.U. in the victim's apartment which eventually led to Terrance Oliver, this defendant's brother. A witness told police that Debra Oliver often accompanied her brother. The victim's car was found approximately seven blocks from Debra's apartment.

Police records showed an outstanding arrest warrant for Debra Oliver on an unrelated theft charge. She was arrested at her apartment at about 4 p.m. on April 3, 1981, on the basis of the arrest warrant. She was also questioned at that time regarding the murder.

I. The Confession.

Following her arrest, Oliver was taken to the police station, given Miranda warnings, and questioned. She denied any knowledge of the victim or the murder. She claimed she had not even been with her brother that night. Because the police had reason to suspect she was lying, based upon their interrogation of other persons, they asked her if she would be willing to take a polygraph examination. She agreed. Officer Leeper administered the test, beginning with obtaining Oliver's signature on a document that instructed her that the test was voluntary and that she could leave the room at any time. It also included Miranda warnings. A pretest procedure (asking Oliver to pick one of five cards, then answer "no" each time Leeper asked if this one was the one she had picked), indicated that Oliver would be difficult to test. Leeper was, however, able to tell which card was picked, demonstrating to Oliver that the machine worked. Leeper then asked Oliver, in five separate questions, which of five objects had been used to tie the victim. In contrast to the "truthful" reaction he received on mentioning the other four objects, he obtained an "inconclusive" reaction when the telephone cord (which he knew had been used) was mentioned.

Leeper then went around the desk, beside Oliver, and talked to her. There is some dispute about exactly what was said. Leeper claims he said that "there are problems with the test" and that Oliver may have concluded from that statement that she had failed the test. Oliver claims he told her the machine "went haywire" and that he knew she had lied. In any event, Oliver broke down, cried, and then confessed. Leeper took her back to the detectives who obtained, after another round of Miranda warnings, a full confession on tape.

Oliver attacks the confession on the ground the polygraph examination, which she claims had been administered in a deceptive way, had the effect of coercing her confession. Specifically, she claims the operator misled her by claiming the test had conclusively shown she lied when denying knowledge of the telephone cord, where in fact the test was merely "inconclusive" on that question. Oliver seeks to strengthen her claim of involuntariness by asserting that her fear of her brother and her emotional state at the time made her especially susceptible to psychological coercion, and that this vulnerability heightened the coercive effect of the police use of the polygraph examination.

In response, the State argues the statements were voluntary and therefore admissible. First, it claims there were four sets of Miranda warnings given to the defendant and testimony established her to be an intelligent person, capable of understanding the warnings and knowingly waiving her rights. Second, the State argues, there was no deception. From the investigating officers, Leeper knew that a telephone cord had been used. From an earlier polygraph examination of Lori Avon, Oliver's roommate, Leeper knew that Oliver had told Avon that Terry had tied Kimsey with telephone cord and then stabbed him. Therefore, when Leeper told Oliver there were problems with the test and that he didn't believe her he was not lying. He had independent support for his doubts, which he simply did not disclose. The State contends that even if there was deception, it is not the kind of deception that renders the confession in this case involuntary, as deception is only one factor used in determining voluntariness.

In a very detailed ruling, the trial court found the confession to be voluntary. Essentially adopting the State's argument, the court concluded that this deception, to the extent it was deception, would not invalidate the confession in the absence of other factors.

Because constitutional rights are involved, our review is de novo; we make an independent evaluation of the totality of the circumstances as shown by the entire record. State v. Hodges, 326 N.W.2d 345, 347 (Iowa 1982); State v. Aldape, 307 N.W.2d 32, 38 (Iowa 1981); State v. Jump, 269 N.W.2d 417, 423 (Iowa 1978); State v. Cullison, 227 N.W.2d 121, 127 (Iowa 1975). Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), was a fourth amendment case; nevertheless, it looked to confession cases under the fifth amendment in determining "voluntariness" of a search consent. Id. at 223, 93 S.Ct. at 2045, 36 L.Ed.2d at 860-61. The Court, acknowledging a need for balancing the societal interests of successful crime investigation and the rights of an accused, said

"[V]oluntariness" has reflected an accommodation of the complex of values implicated in police questioning of a suspect. At one end of the spectrum is the acknowledged need for police questioning as a tool for the effective enforcement of criminal laws.... Without such investigation, those who were innocent might be falsely accused, those who were guilty might wholly escape prosecution, and many crimes would go unsolved. In short, the security of all would be diminished.... At the other end of the spectrum is the set of values reflecting society's deeply felt belief that the criminal law cannot be used as an instrument of unfairness, and that the possibility of unfair and even brutal police tactics poses a real and serious threat to civilized notions of justice. "[I]n cases involving involuntary confessions, this Court enforces the strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will." Blackburn v. Alabama, 361 U.S. 199, 206-207, 80 S.Ct. 274, 279-280, 4 L.Ed.2d 242.

(Citations omitted). Bustamonte, 412 U.S. at 224-25, 93 S.Ct. at 2046-2047, 36 L.Ed.2d at 861.

When a defendant challenges a confession as involuntary, the State must show voluntariness by a preponderance of the evidence. State v. Cooper, 217 N.W.2d 589, 595-96 (Iowa 1974). See Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 627, 30 L.Ed.2d 618, 627 (1972) ("at least" a preponderance of evidence required).

Language in Miranda ("any evidence that the accused was threatened, tricked, or cajoled into a waiver [of fifth amendment privilege] will, of course, show that the defendant did not voluntarily waive his privilege") Miranda v. Arizona, 384 U.S. 436, 476, 86 S.Ct. 1602, 1629, 16 L.Ed.2d 694, 725 (1966), and in Cooper ("Deception of any nature by representatives of the state cannot be condoned") 217 N.W.2d at 597, indicates disapproval of deceptive interrogation tactics. No per se rule of exclusion, however, has been adopted; deception is merely considered as one of the factors in considering the overall question of voluntariness. Id.

In the present case, the polygraph operator virtually conceded deception in the administration of the test. While he did not recall telling Oliver that the machine "went haywire" on her response to the telephone cord question, he admitted that he might have done so. A reasonable interpretation of the evidence, we believe, must lead to the conclusion that, to the extent the inculpatory effect of the polygraph was overstated to Oliver, she was misled. She contends that the polygraph test, with its aura of infallibility, coupled with her own susceptibility to coercion, require exclusion of the confession which followed. A psychologist testified to the effect of the polygraph:

Here we have electronic instrumentation taking recordings of physiological measurements, respiration rate, plethysmograph rate, galvanic skin response. Typically, the individual is hooked up to the machine. It certainly has all the--the trappings of scientific measurement. It has been widely held out, I think, to the laity that it's a highly valid--and again I hate to belabor a word, but virtually infallible means of detecting deception against which the individual is well-nigh powerless, you see, to resist or withhold, and therein lies its, in my judgment, coercive power effect.

It appears from the transcript of Oliver's confession that the results of the polygraph examination weighed heavily in her decision to confess. In answer to the officer's question as to why s...