IN THE COURT OF APPEALS OF IOWA
No. 3-724 / 02-1520
Filed November 26, 2003
STATE OF IOWA,
JASON MATTHEW HIVELEY,
Appeal from the Iowa District Court for Hancock County, Stephen P.
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
Heard by Sackett, C.J., and Huitink and Hecht, JJ.
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
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
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
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
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.