STATE OF IOWA, Plaintiff-Appellee, vs. RYAN RAY WICHHART, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-478 / 06-1207
Filed October 24, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
RYAN RAY WICHHART,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Des Moines County, John G. Linn
and R. David Fahey, Judges.
Ryan Wichhart appeals his judgment and sentence for first-degree
murder. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney
General, Patrick C. Jackson, County Attorney, and Lisa Taylor, Assistant County
Attorney, for appellee.
Considered by Huitink, P.J., and Zimmer and Vaitheswaran, JJ.
2
VAITHESWARAN, J.
Ryan Wichhart appeals his judgment and sentence for first-degree
murder. Iowa Code §§ 707.1, 707.2(1) and 707.2(2) (2005). He argues (1) the
district court should have granted his motion to suppress a videotaped
confession, and (2) trial counsel was ineffective.
I. Background Facts and Proceedings
Wichhart was a patient at Alcohol and Drug Dependency Services
(ADDS), a substance abuse and alcohol treatment facility in Burlington. Kathi
Mertens was an employee of ADDS, working the midnight to eight a.m. shift.
Early one morning, Wichhart accosted Mertens in the medication room, struck
her, and choked her. Mertens died. Wichhart stole some medication from the
room and left the facility.
Police discovered Mertens’s body at the facility. They also found Wichhart
the next morning and arrested him on a charge of public intoxication. The police
transported Wichhart to the police station, where he was allowed to sleep for
approximately seven hours. A detective with the Burlington police department
and an agent of the Department of Criminal Investigation then interrogated
Wichhart in a room equipped with a camera. Before beginning the substantive
questioning, the detective administered Miranda 1 warnings and had Wichhart
sign a written waiver of his Miranda rights. During the interrogation, Wichhart
1
See United States v. Miranda, 384 U.S. 436, 469-70, 86 S. Ct. 1602, 1625-26, 16 L.
Ed. 2d 694, 722 (1966) (holding person subject to custodial interrogation must be
advised that “he has a right to remain silent, that any statement he does make may be
used as evidence against him, and that he has a right to the presence of an attorney,
either retained or appointed”).
3
confessed to killing Mertens. He was arrested on an additional charge of firstdegree murder.
Prior to trial, Wichhart moved to suppress his videotaped confession. The
district court denied the motion after adducing testimony on the issue. The case
proceeded to trial and a jury found Wichhart guilty as charged. This appeal
followed.
II. Suppression Ruling
A Miranda waiver must be made knowingly, intelligently, and voluntarily,
and must not be induced by intimidation, coercion or deception. State v. Hajtic,
724 N.W.2d 449, 453 (Iowa 2006). 2 Wichhart maintains he did not voluntarily
waive his Miranda rights. 3 He claims his answers to questions about his rights
and his written waiver of those rights “were given while he was in a drug-induced
fog.” Our review of this issue is de novo. State v. Turner, 630 N.W.2d 601, 606
(Iowa 2001).
There are two components to an analysis of whether a Miranda waiver is
coerced.
First the relinquishment of the right must have been voluntary in the
sense that it was the product of a free and deliberate choice rather
than intimidation, coercion, or deception. Second, the waiver must
have been made with a full awareness both of the nature of the
right being abandoned and the consequences of the decision to
abandon it. Only if the “totality of the circumstances surrounding
the interrogation” reveal both an uncoerced choice and the requisite
2
Miranda warnings need only be given when a person is in police custody and subject to
interrogation. State v. Peterson, 663 N.W.2d 417, 423 (2003). The State concedes
these predicates are satisfied.
3
In his motion, Wichhart also contended his statement to police was involuntary.
Wichhart appears to have abandoned this argument on appeal.
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level of comprehension may a court properly conclude that the
Miranda rights have been waived.
Colorado v. Spring, 479 U.S. 564, 573, 107 S. Ct. 851, 857, 93 L. Ed. 2d 954,
965 (1987) (quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1141,
89 L. Ed. 2d 410, 421 (1986)).
The testimony elicited at the suppression hearing and at trial reveals
Wichhart ingested several prescription and over-the-counter drugs before he was
apprehended.
This testimony, viewed in isolation, might support Wichhart’s
assertion of involuntariness. However, the record also includes the videotaped
confession.
This videotape exemplifies the saying that “a picture is worth a
thousand words.”
It shows that Wichhart was tired but lucid enough to
appropriately answer questions concerning his constitutional rights. His answers
were not simply “yes” or “no.”
The detective specifically asked Wichhart to
explain each of the constitutional rights contained in the Miranda warning and
Wichhart did so. The following exchange is instructive:
Q. Okay. This is what I need to . . . the . . . before I ask you
these questions about your . . . your intox arrest, I got . . . I need
you to understand something. Okay. Um, before you answer any
questions or make any statement, you must fully understand your
rights. Okay. You have the right to remain silent. Do you
understand that? A. (Nods head yes.)
Q. Can you tell me what that means to you? A. It means if I
don’t want to incriminate myself (UNINTELLIGIBLE) . . . I can keep
quiet.
Q. Okay. Anything you say can and will be used against
you in a court of law. Do you understand that? A. (Nods head
yes.)
Q. What does that mean to you? A. If I say something that
can be used in court then . . . then they can use it.
Q. Okay. You have the right to counsel . . . or consult with a
lawyer before you answer any questions or make any statements
and to have a lawyer present during questioning. Do you
understand that? A. Yeah.
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Q. I’m sorry? A. Yes.
Q. You do understand that. Okay, what does that mean to
you? A. Um, it just means if I wanted a lawyer here to help me. I
guess that’s all I really get out of that one.
Q. Okay, do you understand the fact that . . . that, uh, you
can request an attorney? A. Yeah.
Q. Okay, if you cannot afford a lawyer, one will be appointed
for you before questioning or at any time during questioning if you
so desire. Do you understand that? A. Mm hmm.
Q. Okay. Do you understand what that means to you? A.
Yeah.
Q. If you answer questions or make any statement . . . If you
answer questions or make any statement without consulting a
lawyer or without having a lawyer present during questioning, you
will have the right to stop answering questions or making any
statement until you consult with a lawyer or have a lawyer present
during further questioning. Do you understand that? A. Yeah.
Q. What does that mean to you? A. I don’t know but I’m
clear on what it means.
Q. You’re clear on what it means? A. Yeah.
Q. Can you explain to me what it means? A. No.
Q. I’ll read it to you one more time. If you answer any
questions or make any statement without consulting a lawyer or
without having a lawyer present during questioning, you will have
the right to stop answering questions or making any statement until
you consult with a lawyer or have a lawyer present during further
questioning. A. Okay.
Q. Got that? A. Yeah.
Q. Okay. What does that mean to you? A. It means that if
I don’t have a lawyer here and you guys are asking me all sorts of
questions then I don’t have to answer it until I get a lawyer.
Q. Okay. And you can . . . you can stop answering
questions at any time if you want to, you understand that? A.
Yeah.
Q. Okay. What I’m gonna do here is I’m gonna sign this
that I’ve advised you of your rights. Okay. Now what I’d like you to
do . . . do you understand the English language? A. Yeah.
Q. Can you read? A. Yes.
Q. Okay. What I’d like you to do is read this paragraph and
place your signature there please.
After this colloquy, Wichhart read and signed the written waiver.
During this exchange, Wichhart’s answers were responsive and his
demeanor conveyed an engagement in the interrogation process. Although he
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dozed off during later breaks in the questioning, the officers were absent during
those breaks.
When they returned, he woke up.
At worst, he did not
immediately respond to a few questions and those questions had to be repeated.
Wichhart’s answers were responsive to the repeated questions.
We recognize that Wichhart exhibited certain lapses in memory.
For
example, during the questioning about Mertens’s death, Wichhart misidentified
ADDS, referring to it more than once by the name of another facility. However,
he explained that he used that name because of his past association with the
other facility. It is also true that Wichhart could not recall where he was or what
he did for several hours after he left ADDS. However, he provided a detailed
timeline of what happened before he left ADDS—a timeline independently
corroborated with facility records. He also remembered other details such as the
color of the suitcase he took with him and when and where he graduated from
high school. We conclude Wichhart’s isolated lapses in memory did not render
his waiver of Miranda rights involuntary.
We now turn to the conduct of the law enforcement officers. Spring, id. at
573, 107 S. Ct. at 857, 93 L. Ed. 2d at 965.
courteous.
Both officers were calm and
During the Miranda-related questioning, the detective rephrased
sentences in laypersons’ terms and asked follow-up questions to calibrate
Wichhart’s understanding of the constitutional rights being read to him.
His
questions were direct and non-confrontational during this portion of the colloquy.
While the detective conceded he later misled Wichhart by suggesting
Wichhart did not intend to commit the crime, “deception standing alone does not
render a waiver of constitutional rights involuntary as a matter of law unless the
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deceiving acts amount to a deprivation of due process.” State v. Jacoby, 260
N.W.2d 828, 833 (Iowa 1977). We believe the demeanor of the officers and of
Wichhart, together with certain other factors, outweigh the effect of the
detective’s misleading statements.
Examining those other factors, police allowed Wichhart to sleep before the
interrogation, offered him drinks during the two-hour interrogation, gave him a
soda, afforded him lengthy breaks, asked him if he was okay when they found
him asleep after one of the breaks, (to which he nodded his head affirmatively
and straightened up), and took him to the restroom. Based on the videotape, we
agree with the district court that Wichhart’s waiver of his Miranda rights was
voluntary.
III. Ineffective-Assistance-of-Counsel
A.
Sexual Evidence and Comments.
At trial, the State introduced
evidence pointing to a possible sexual assault of Mertens by Wichhart. During
closing arguments, the prosecutor commented on this evidence, suggesting it
provided a motive for the crime. Defense counsel did not object to the testimony
or argument.
On appeal, Wichhart argues both “were irrelevant” and “were
offered to prejudice and inflame the trier of fact.” He appears to acknowledge
that error was not preserved and, alternately, raises the issue under an
ineffective-assistance-of-counsel rubric.
We agree error was not preserved. Wichhart filed a pre-trial motion in
limine seeking to exclude the sexual comments. The district court overruled the
motion, stating: “[T]he Court’s ruling on the pending Motions in Limine should not
be construed as a definitive or unequivocal holding concerning the admissibility
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or exclusion of evidence.” In light of this ruling, defense counsel was obligated to
object to the sexual evidence if he wished to preserve error. State v. Alberts, 722
N.W.2d 402, 406 (Iowa 2006). He did not do so. Therefore, the appropriate
vehicle for review of this assertion is as an ineffective-assistance-of-counsel
claim.
We do not find the claim too general to address or preserve, as the State
contends. We preserve this claim for postconviction relief proceedings to afford
defense counsel an opportunity to respond to the assertions. State v. Martinez,
679 N.W.2d 620, 626 (Iowa 2004).
B. Limiting Instruction. During the videotaped interview, the officers
made statements implying that Wichhart sexually assaulted Mertens.
The
officers also questioned Wichhart about why his bed sheets from his bed at
ADDS were missing. Wichhart argues the jury should have been instructed that
statements made by the officers could not be used as evidence of the truth of the
statements made. As error was not preserved, Wichhart asks that this claim also
be reviewed under an ineffective-assistance-of-counsel rubric.
We agree it
should be reviewed in this fashion and, like the previous claim, we preserve this
claim for postconviction relief proceedings. Id.
AFFIRMED.
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