STATE OF IOWA, Plaintiff-Appellee, vs. JAMES CARSON EFFLER, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-824 / 06-1417
Filed April 9, 2008
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JAMES CARSON EFFLER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Artis Reis, Judge.
James Carson Effler appeals from his conviction following a jury trial for
one count of first-degree kidnapping. REVERSED AND REMANDED.
Angela Campbell of Dickey & Campbell Law Firm, P.L.C., Des Moines, for
appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney
General, John P. Sarcone, County Attorney, and Jeff Noble and Frank Severino,
Assistant County Attorneys, for appellee.
Heard by Mahan, P.J., and Eisenhauer and Baker, JJ.
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MAHAN, P.J.
James Carson Effler appeals his conviction for first-degree kidnapping.
He contends the district court erred in denying his motion to suppress, arguing
his incriminating responses to police questions were made after he had made an
unequivocal request for counsel. We reverse and remand.
I. Background Facts and Prior Proceedings
Melissa Martin was baby-sitting two-year-old J.M. on the morning of
October 4, 2005. J.M. could walk, but she was only able to say a handful of
words. Martin took J.M. to the Des Moines Central Library. Martin sat down at
an Internet work station while J.M. stood beside her. The library manager saw
J.M. drop a toy and then saw Effler pick up the toy and hand it back to J.M.
Martin did not know Effler and did not see him interacting with J.M. 1
After a few minutes, Martin realized J.M. had disappeared. Martin began
to call out J.M.’s name. The library manager joined in the search and went with
Martin to check the men’s restroom. When they arrived at the small restroom,
they found the door bolted shut.
Martin called out J.M.’s name and two
“bloodcurdling” screams emanated from behind the door.
Martin and the
manager pounded on the door and demanded it be opened, but the occupant
refused to open the door. Staff members from other parts of the library heard the
child’s screams and came to render assistance. A maintenance person used a
screwdriver to open the door. When the door opened, multiple witnesses saw
Effler, shirtless, kneeling next to a naked J.M. Martin rushed in and pulled J.M.
out of the bathroom. Effler tried to flee, but members of the library staff closed
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J.M.’s mother also testified she did not know Effler.
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the door so he could not leave the bathroom. Two men held the door closed until
police officers arrived and wrestled Effler to the ground as he tried to escape.
J.M. was sent to the hospital so that a doctor that specialized in sexually
abused children could examine her. This doctor conducted a visual exam of
J.M.’s genitals and found nothing remarkable, but did note her labia were “a little
bit red.”
Effler was transported to the police station and placed in a small interview
room.
A detective activated a video camera to tape the conversation.
The
detective noted that Effler smelled strongly of alcohol and “clearly had been
drinking.” 2
The detective first asked questions about Effler’s address. Effler
answered the questions with a very pronounced slur in his speech. Effler asked
the detective if he was a lawyer. The detective said “No” and went on to explain
he was a detective whose job it was “to make sure you don’t get railroaded” and
also that he was “somebody that’s not sitting in judgment on you.” Moments
later, the following exchange took place between Effler and the detective:
EFFLER: They said that I’m only being booked for intox in
the public right now.
DETECTIVE: Oh.
EFFLER: Is that true?
DETECTIVE: I don’t know that, you’re not actually booked
even yet, I mean, there’s no booking been done.
EFFLER: So I’m being released?
DETECTIVE: [mumbled response] Well if they book you for
intox, then you got to, you know, you’re not going to get released.
EFFLER: That would be overnight?
DETECTIVE: Usually it’s overnight, the judge will usually let
you out in the morning I suppose, huh?
EFFLER: Yeah.
DETECTIVE: You know what your rights are?
2
A urine specimen later revealed that his blood alcohol level was .094.
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The officer then began to read Effler information from a Miranda waiver
form. Seconds after the officer read the phrase “I do not want a lawyer at this
time,” Effler interrupted and said, “I do want a court-appointed lawyer.”
The
detective said, “Okay” and then Effler said, “If I go to jail.”
The detective
responded by saying, “let me finish this and then we’ll talk.”
The detective
finished reading the form, and Effler started making numerous requests for a
cigarette. The detective told him he might be able to have a cigarette later. The
detective then left to retrieve something from another room.
When he returned, the detective stated: “Here’s all those things I talked to
you about, the right to remain silent and all that, you remember? Well you know
most of them. Do you want to read this, James?” Effler responded by stating “I
already know them.” The detective said, “Okay, if you want to talk then sign
there, then we’ll get a smoke and then we’ll talk a minute.” Effler signed the
Miranda waiver form, and the two left the room so Effler could have a cigarette.
When they returned, Effler answered the detective’s questions and described
how he took J.M.’s hand and walked her to the bathroom. He also described
how he locked the bathroom door, took off all of her clothes, licked her “pussy,”
and rubbed it with his fingers. He also told the detective he had masturbated and
tried to place his penis inside J.M.’s vagina.
Effler was charged with the crimes of first-degree kidnapping, seconddegree sexual abuse, and failure to register as a sex offender.
Prior to trial, Effler’s counsel filed a motion to suppress, requesting that the
videotaped confession and all statements Effler made to the detective be
suppressed because his right to counsel had been violated. The district court
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denied the motion, finding Effler’s request for counsel had been “conditioned
upon his going to jail.”
Trial on this matter was held in August 2006.
After hearing the
aforementioned evidence, a jury found Effler guilty of first-degree kidnapping.
The court sentenced Effler to the custody of the department of corrections for the
remainder of his life without the possibility of parole.
On appeal, Effler claims the trial court erred in denying his motion to
suppress. Effler also claims he was denied effective assistance of counsel. The
State contends Effler’s request for counsel was conditional, and also claims any
potential error was harmless.
II. Standard of Review
In assessing an alleged violation of a constitutional right, we review de
novo the totality of the circumstances as shown by the entire record. State v.
Breuer, 577 N.W.2d 41, 44 (Iowa 1998).
III. Merits
A. Invocation of the Right to Counsel
The fighting issue in this case is whether Effler requested an attorney prior
to his confession.
The Fifth and Fourteenth Amendments to the United States Constitution
require police to clearly inform a suspect of the right to counsel during a custodial
interrogation. 3 Miranda v. Arizona, 384 U.S. 436, 473, 86 S. Ct. 1602, 1627, 16
L. Ed. 2d 694, 723 (1966). In the landmark decision of Miranda v. Arizona, the
United States Supreme Court determined an individual in custody
3
The State does not dispute that Effler was in custody at the time of the interview.
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must be warned prior to any questioning that he has the right to
remain silent, that anything he says can be used against him in a
court of law, that he has the right to the presence of an attorney,
and that if he cannot afford an attorney one will be appointed for
him prior to any questioning if he so desires.
Id. at 479, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726. The Court went on to state:
If the individual states that he wants an attorney, the interrogation
must cease until an attorney is present. At that time, the individual
must have an opportunity to confer with the attorney and to have
him present during any subsequent questioning. If the individual
cannot obtain an attorney and he indicates that he wants one
before speaking to police, they must respect his decision to remain
silent.
Id. at 474, 86 S. Ct. at 1628, 16 L. Ed. 2d at 723. The Court also established
that, absent a valid waiver of the right to remain silent and the right to the
presence of an attorney, any statement made by an individual in response to
custodial interrogation is inadmissible, and that, if a suspect requests counsel,
the police must suspend interrogation until counsel is made available. Id. at 47376, 86 S. Ct. at 1627-29, 16 L. Ed. 2d at 723-25; accord Edwards v. Arizona, 451
U.S. 477, 484-85, 101 S. Ct. 1880, 1885, 68 L. Ed. 2d 378, 386 (1981). “If the
interrogation continues without the presence of an attorney and a statement is
taken, a heavy burden rests on the government to demonstrate that the
defendant knowingly and intelligently waived his . . . right to retained or appointed
counsel.” Miranda, 384 U.S. at 475, 86 S. Ct. at 1628, 16 L. Ed. 2d at 724.
However, in order for a suspect to invoke his right to counsel, that
suspect’s request for counsel must be unambiguous and unequivocal. Davis v.
United States, 512 U.S. 452, 461-62, 114 S. Ct. 2350, 2357, 129 L. Ed. 2d 362,
373 (1994). “If the suspect’s statement is not an unambiguous or unequivocal
request for counsel, the officers have no obligation to stop questioning him.” Id.
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at 461-62, 114 S. Ct. at 2356, 129 L. Ed. 2d at 373. For example, a suspect’s
statement that he “might need a lawyer” is insufficient to invoke the right to
counsel.
State v. Morgan, 559 N.W.2d 603, 608 (Iowa 1997).
Likewise, a
suspect’s question, “Is my lawyer here?” is also insufficient to invoke the right to
counsel. State v. Brown, 589 N.W.2d 69, 72-73 (Iowa Ct. App. 1998), overruled
on other grounds by State v. Reeves, 636 N.W.2d 22, 25 (Iowa 2001).
Recently, our supreme court addressed a similar situation where a
defendant claimed he was denied his constitutional right to counsel when police
officers ignored his requests to speak with an attorney. In State v. Harris, 741
N.W.2d 1, 4 (2007), Kevin Harris was detained and questioned about his role in
the death of man found inside a burned vehicle.
Harris verbally agreed to
answer questions without counsel present, but declined to provide a written
waiver of his Miranda rights.
Harris, 741 N.W.2d at 6.
The supreme court
focused on two exchanges between Harris and the questioning detective.
First, after being questioned for one hour, Harris said, “If I need a lawyer,
tell me now.” Id. The detective responded, “That’s completely up to you” and
continued to question Harris. Id. On appeal, Harris argued this statement was a
request for counsel and that the detective should have stopped the interrogation.
Id. at 4. The supreme court disagreed, concluding this statement was not
sufficient because “[o]fficers have no obligation to stop questioning an individual
who makes an ambiguous or equivocal request for an attorney.” Id. at 6.
However, the court found Harris’s statements during the following
exchange were neither ambiguous nor equivocal. Id. at 7. Ten minutes after the
first exchange, Harris once again referenced his right to counsel when asked to
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explain his side of the story. Id. Harris told the detective, “I don’t want to talk
about it. We’re going to do it with a lawyer. That’s the way I got to go.” Id. The
detective replied, “What do you mean?” Id. Harris answered, “You got all these
trick questions. I don’t understand.” Id. The detective said, “You want to do it
with a lawyer, is that what you’re saying?” Id. Harris replied, “Yeah, because I
don’t understand all these questions.” Id. The detective kept Harris talking, and
eventually Harris revealed he had poured gasoline over the dead body and
started the fire. Id. at 7-8.
The supreme court found Harris’s second series of statements was a clear
and unequivocal request for counsel. Id. at 7. The courted noted that “[w]hile it
is good practice to clarify an ambiguous request, it is not appropriate to ask a
suspect to justify his unequivocal decision to have an attorney present.”
Id.
Ultimately, the court reversed the conviction and ordered a new trial. Id. at 11.
In the present case, it is indisputable Effler’s first statement—“I do want a
court-appointed lawyer”—was an unambiguous and unequivocal request for
counsel. The State argues Effler’s next statement—“If I go to jail”—made this
request conditional and that the temporal aspect of Effler’s request made it
ambiguous because, arguably, Effler did not want counsel until he had actually
arrived in jail. We disagree.
Any conditional aspect of this request had already been satisfied. Effler
had been caught in the act of an alleged kidnapping, wrestled to the ground,
handcuffed, and brought to the police station. Effler was clearly detained and
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had started down the inevitable path to a jail cell. 4 The officer’s attempt to avoid
telling Effler he was not going to be released does not change the fact he was
detained and would not be released in the foreseeable future. The only reason
he was not in jail at that moment was because he was being interrogated by this
detective.
We also reject the State’s attempt to inject ambiguity into Effler’s
statement by arguing it was unclear whether Effler wanted counsel now, or when
he arrived at the jail. The United State’s Supreme Court has said “a suspect
need not speak with the discrimination of an Oxford don” when making a request
for counsel. Davis, 512 U.S. at 459, 114 S. Ct. at 2355, 129 L. Ed. 2d at 371.
Instead, the defendant must make “his desire to have counsel present sufficiently
clear[ ] that a reasonable police officer in the circumstances would understand
the statement to be a request for an attorney.” Id.
We find that a reasonable police officer in these circumstances would
have understood Effler’s statement to be an immediate request for counsel.
Effler was clearly intoxicated, yet he was still able to state that he wanted the
assistance of a “court-appointed lawyer.” Instead of honoring this request, the
detective ignored Effler and moved on to other matters. Later, the detective
deftly implied that Effler could have a cigarette if he signed the Miranda waiver
form. Effler signed the form, and was then given a cigarette.
Miranda and its progeny establish that an interrogation must cease once
the suspect requests an attorney. Because the detective ignored Effler’s request
4
During oral argument, the State conceded Effler was going to go to jail once the
interview was over.
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for an attorney and continued to try to have Effler sign the Miranda waiver form,
there was no valid waiver. Consequently, the statements Effler made after he
asked to speak with an attorney should have been suppressed. We find the
court erred when it denied his motion to suppress.
B. Harmless Error
The State argues that even if the district court should have granted Effler’s
motion to suppress, it was harmless error to deny it.
The erroneous admission of evidence in violation of a defendant’s Fifth
Amendment rights does not require reversal if the error was harmless. Harris,
741 N.W.2d at 10. To establish harmless error in this constitutional context the
State must “prove beyond a reasonable doubt that the error complained of did
not contribute to the verdict obtained.” State v. Peterson, 663 N.W.2d 417, 431
(Iowa 2003) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828,
17 L. Ed. 2d 705, 710 (1967)) (emphasis added).
To prove Effler was guilty of kidnapping in the first degree the State had to
prove that, as a consequence of the kidnapping, J.M. suffered serious injury, or
was intentionally subjected to torture or sexual abuse. See Iowa Code § 710.2
(2005). Evidence that J.M. let out two bloodcurdling screams while she was
locked in the bathroom with Effler, that she was naked and Effler did not have his
shirt on when the door was opened, and that her labia were a “little bit red” may
have been enough to convince a jury that J.M. was subjected to sexual abuse
while she was in the bathroom. However, in this constitutional harmless error
analysis, the inquiry “is not whether, in a trial that occurred without the error, a
guilty verdict would surely have been rendered.” Peterson, 663 N.W.2d at 431.
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Instead, the analysis is “whether the guilty verdict actually rendered in this trial
was surely unattributable to the error.” Id. (emphasis added). We find it more
likely the improperly admitted confession describing how Effler licked J.M.’s
vagina, rubbed her vagina with his fingers, and attempted to place his penis
inside her vagina had a profound impact on the jury’s consideration of whether
she was subjected to sexual abuse. We simply cannot conclude Effler’s graphic
confession “did not contribute to the verdict obtained.” See id. Thus, a new trial
is required.
IV. Conclusion
In sum, we conclude Effler’s Fifth Amendment right to an attorney was
violated and the district court erred by not granting Effler’s motion to suppress the
statements he made to officers after he had requested an attorney. In addition,
we conclude such error was not harmless beyond a reasonable doubt. We
therefore reverse the district court’s judgment of conviction and sentence and
remand the case for a new trial.
REVERSED AND REMANDED.
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