STATE OF IOWA, Plaintiff-Appellee, vs. JASON MATTHEW HIVELEY, Defendant-Appellant.

Download as DOC IN THE COURT OF APPEALS OF IOWA No. 3-724 / 02-1520 Filed November 26, 2003 STATE OF IOWA, Plaintiff-Appellee, vs. JASON MATTHEW HIVELEY, Defendant-Appellant. Appeal from the Iowa District Court for Hancock County, Stephen P. Carroll, Judge. Jason Hiveley appeals his convictions for first-degree murder and first-degree burglary. AFFIRMED. Patrick Vickers of Vickers Law Office, Greene, and Jason Hiveley, pro se, for appellant. Thomas J. Miller, Attorney General, Richard Bennett and Scott Brown, Assistant Attorneys General, and Karen Kaufman, County Attorney, for appellee. Heard by Sackett, C.J., and Huitink and Hecht, JJ. HUITINK, J. I. Background Facts & Proceedings On November 27, 2001, Pamela Awe discovered Dale Kelling's body in the basement of his Corwith home. His throat had been cut; his ankles, wrists, and head were bound with duct tape; and a plastic bag covered his head. Awe summoned police officers and informed them she saw a green Jeep in Kelling's driveway earlier that day. That same night, a police officer located a green Jeep parked in Jolene Johnson's driveway in Clarion. The Jeep was registered to Jason Hiveley. Johnson is Hiveley's mother-in-law. The next day, Hiveley reported his Jeep was stolen. Officers found the Jeep abandoned in a rural area. Hiveley's brother told police he helped Hively dispose of the Jeep. When Hiveley was first questioned by police officers, he stated he did not know anything about Kelling's murder and had not recently been in Corwith. Later, Hiveley admitted he and his brother-in-law, Creig Shelton, had gone to Kelling's house intending to rob him. Hiveley stated he helped tape Kelling's wrists and ankles and had assisted taking Kelling to the basement of his home. Hiveley claimed he then left and waited for Shelton in his Jeep. He stated Shelton eventually came out, returned a pair of gloves to him, and gave him some money. Blood stains were discovered on Hiveley's jeans and a pair of gloves. The blood stains were matched to Kelling's DNA. Hiveley's DNA was also found on a beer can in Kelling's house. Hiveley was charged with murder in the first degree, in violation of Iowa Code sections 707.1 and 707.2 (2001), and robbery in the first degree, in violation of sections 711.1 and 711.2. The district court denied Hiveley's motion to suppress his statements to police officers, rejecting his claim that his statements were made in exchange for promises of leniency. At trial Johnson testified Hiveley was "really nervous" when Hiveley and Shelton returned to her house on November 27, 2001. She also testified Hiveley told her, "we had to kill him because we tried to smother him several times and he wouldn't die" and "[Hiveley] had held the guy's arms above the guy's head while Creig slit the guy's throat." On cross-examination Hiveley sought to impeach Johnson by asking whether Shelton ever told her he killed Kelling after Hiveley left Kelling's house. Outside the presence of the jury, Johnson denied that Shelton had told her this. Hiveley then sought to introduce deposition testimony by Kriss Hiveley, Hiveley's father, that Johnson told him that Shelton told her that he killed Kelling after Hiveley left Kelling's house. The district court determined this double-hearsay statement was improper impeachment because it was being offered for the truth of the matter asserted. The jury returned a verdict finding Hiveley guilty of first-degree murder and first-degree robbery. Hiveley filed a motion for new trial, claiming the weight of the evidence did not support his convictions. He also claimed he was entitled to a new trial based on newly discovered evidence. The newly discovered evidence was testimony by his cellmate, Willie Campbell, who was previously Shelton's cellmate. Campbell testified Shelton told him Hiveley only participated in the robbery, not the murder. The district court denied the motion for new trial. Hiveley was sentenced to life in prison, resulting in this appeal. II. Motion to Suppress Hiveley contends the district court should have granted his motion to suppress his inculpatory statements to officers. He claims his statements were not voluntary because they were the result of promissory leniency. During questioning, Department of Criminal Investigation Agent James Wertz told Hiveley: Now, the two people that are in there, maybe one of 'em is not responsible. Maybe one of 'em was there to rob the man, and things went to hell. That person was there not to do anything, just to rob 'em, maybe even thinkin' the guy's not even home, and get in, and uh- oh, he's home. But they have to do somethin', and things go really bad. Now, one of those two people, again, did not want things to go bad, did not want him to be there, didn't think things would go bad, and knowing, but thought it would be easy, thought it would be easy to get the money, and go. But the other person that was with them, is not so nice of a person, okay? Not so nice of a person. And the other person is a decent person. One of those two people may be the only one responsible for that death. [pause] If you didn't have anything to do with hurting the man, you need to tell me now. You need to tell me now. This is your chance. This is your chance. You were there. You were there. Hiveley claims these statements led him to believe he would receive some benefit from the prosecutor if he admitted he was involved in the crime. In reviewing a defendant's claim that his inculpatory statements were involuntary, we make an independent, de novo review of the totality of the relevant circumstances. State v. Rhiner, 352 N.W.2d 258, 262 (Iowa 1984). The State has the burden to show by a preponderance of the evidence that an accused's inculpatory statement was voluntary. State v. Nolan, 390 N.W.2d 137, 142 (Iowa Ct. App. 1986). The Iowa Supreme Court has consistently forbidden the use of confessions which are obtained through promises or assurances that the accused would receive better treatment, less severe punishment, or more mercy by confessing guilt. Id. The supreme court has stated: An officer can ordinarily tell a suspect that it is better to tell the truth. The line between admissibility and exclusion seems to be crossed, however, if the officer also tells the suspect what advantage is to be gained or is likely from making a confession. Ordinarily the officer's statements then become promises or assurances, rendering the suspect's statements involuntary. State v. Hodges, 326 N.W.2d 345, 349 (Iowa 1982) (citing State v. Mullin, 249 Iowa 10, 16-17, 85 N.W.2d 598, 601-02 (1957)). We determine Agent Wertz's statements do not constitute a promise or assurance of leniency. The statements do not show Hiveley was promised any benefit if he confessed. Cf. Rhiner, 352 N.W.2d at 264 (finding statements involuntary where officers stated other charges might be filed against defendant unless he cooperated); Hodges, 326 N.W.2d at 349 (finding statements involuntary when defendant was told he might receive a lesser offense if he talked); State v. Ware, 205 N.W.2d 700, 703 (Iowa 1973) (finding statements involuntary where defendant was told "it would go easier" for him if he confessed). Hiveley also claims Agent Wertz told him he would inform the prosecutor if Hiveley was honest and forthcoming. An investigating officer's offer to inform the prosecutor of a defendant's cooperation is not tantamount to an offer of leniency. State v. Whitsel, 339 N.W.2d 149, 153 (Iowa 1983). An officer may permissibly inform a defendant that he will tell the county attorney the defendant was cooperative. Nolan, 390 N.W.2d at 143. We conclude the district court properly denied Hiveley's motion to suppress his inculpatory statements. III. New Trial A. Hiveley contends he is entitled to a new trial because the weight of the evidence did not support his conviction. In particular, he claims the court should have permitted him to impeach Johnson's statements. Hiveley asserts the statements he intended to use to impeach Johnson were not hearsay because they were not being offered for the truth of the matter asserted. He believes that if Johnson's statements that he participated in the murder were impeached, there was little other evidence to connect him with the crime. A motion for new trial is addressed to the discretion of the court. State v. Adney, 639 N.W.2d 246, 253 (Iowa Ct. App. 2001). A new trial should be granted if the district court determined the verdict is contrary to the weight of the evidence. State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998). A verdict is contrary to the weight of the evidence where a greater amount of credible evidence supports one side of an issue or cause than the other. Id. at 659. Hearsay issues are reviewed for correction of errors at law. State v. Ross, 573 N.W.2d 906, 910 (Iowa 1998). The statements Hiveley sought to use were double hearsay, being out- of-court statements Kriss Hiveley stated Johnson told him that Shelton had made. See State v. Sowder, 394 N.W.2d 368, 371 (Iowa 1986). Generally, a prior, inconsistent, out-of-court statement offered for impeachment purposes falls outside the definition of hearsay. State v. Hill, 243 N.W.2d 567, 570 (Iowa 1976). Evidence that would otherwise be double hearsay cannot be stripped of its hearsay nature, however, by being offered for impeachment purposes. Sowder, 394 N.W.2d at 371. To determine if the statement is admissible, we must consider the purposes for which the alleged hearsay was offered. State v. Horn, 282 N.W.2d 717, 724 (Iowa 1979). A statement is inadmissible hearsay if it is offered for the truth of the matter asserted. Id. The district court concluded Hiveley sought to introduce the double hearsay statements for the truth of the matter asserted, which was that Shelton committed the murder of Kelling while Hiveley was outside the house. We find no error in the district court's conclusion. Hiveley did not merely seek to show that Johnson had made prior inconsistent statements; he wanted to show the substance of those statements. Furthermore, we determine the district court did not abuse its discretion in denying Hiveley's motion for new trial based on the weight of the evidence. The weight of the evidence in this case supported Hiveley's conviction. The murder victim's DNA was found on Hiveley's jeans and gloves. Hiveley admitted he was at Kelling's house near the time of the murder and that he assisted in putting duct tape on the victim's wrists and ankles. Hiveley went with Shelton and Kelling into the basement, where Kelling was murdered. Additionally, Hiveley made statements to Johnson admitting he was involved in the murder. B. Hiveley also sought a new trial based on a claim of newly discovered evidence. At the hearing on the motion for new trial, Campbell testified Shelton had previously told him that Hiveley participated in the robbery, but not the murder. Hiveley asserts he was unable to discover Campbell's testimony prior to the trial. In order to establish he is entitled to a new trial based on newly discovered evidence, a defendant must show (1) the evidence was discovered after the verdicts; (2) the evidence could not have been discovered earlier in the exercise of reasonable diligence; (3) the evidence is material to the issues and not merely cumulative or impeaching; and (4) the evidence probably would have changed the result of the trial. Summage v. State, 579 N.W.2d 821, 822 (Iowa 1998). The district court is in the best position to determine if a new trial is truly warranted. State v. Campiano, 261 Iowa 509, 516, 154 N.W.2d 845, 849 (1967). The district court determined Campbell's testimony could have been discovered earlier through due diligence. Campbell testified Shelton made the statement to him in November 2001. Hiveley's trial was held in May 2002. Hiveley's trial counsel also represented Campbell at that time. The district court also found that if Campbell's testimony had been presented at trial it probably would not have changed the result of the trial. As the court pointed out, Shelton's statement implicates Hiveley in the robbery, and thus does not absolve Hiveley of culpability under the felony- murder rule. Based on these findings, we determine the district court did not abuse its discretion in denying Hiveley's request for a new trial based on newly discovered evidence. IV. Other Issues Hiveley has raised several other issues in a pro se brief. To the extent he raises issues of ineffective assistance of counsel, including a claim of conflict of interest by his trial counsel, we preserve these issues for postconviction proceedings. See State v. Ruesga, 619 N.W.2d 377, 384 (Iowa 2000) (noting that we generally preserve ineffective assistance claims for postconviction proceedings). Hiveley also raises issues which do not involve claims of ineffective assistance of counsel. These claims are: (1) his arrest was insufficient; (2) the trial information was insufficient; (3) there was insufficient evidence of aiding and abetting; and (4) the trial judge was not impartial. These issues were not raised before the district court, and we find they have not been preserved for our review. Generally, we will not address an issue which has not been preserved for our review. See State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. App. 1994). We affirm Hiveley's convictions. AFFIRMED.