STATE OF IOWA, Plaintiff-Appellee, vs. MICHAEL JOSEPH TEBBE, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-614 / 06-2060
Filed September 19, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MICHAEL JOSEPH TEBBE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Jackson County, Hobart
Darbyshire (motion to suppress), Patrick J. Madden (plea), David H. Sivright
(sentencing), Judges.
Defendant appeals the district court’s denial of his motion to suppress
evidence and his conviction for operating while intoxicated, second offense.
AFFIRMED.
Mark R. Lawson of Mark R. Lawson, P.C., Maquoketa, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney
General, and Phil Tabor, County Attorney.
Considered by Sackett, C.J., and Zimmer and Eisenhauer, JJ.
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SACKETT, C.J.
Defendant, Michael J. Tebbe, was charged with operating while
intoxicated, second offense, in violation of Iowa Code sections 321J.2(1)(a) and
321J.2(2)(b) (2005). Tebbe contends that a deceptive statement and conduct of
the arresting officer invalidated his waiver of constitutional rights. We affirm.
I.
BACKGROUND.
Tebbe filed a motion to suppress contending certain evidence was
obtained in violation of his privilege against self-incrimination because the officer
who advised him of his Miranda rights was deceptive in having him sign a waiver
of rights form at the Maquoketa Law Center. The motion to suppress came on
for hearing before district court Judge Hobart Darbyshire who noted that Tebbe
argues that because the officer did not read that portion of
the rights form to the defendant before having him sign it,
the Court should suppress any inculpatory statement,
admissions or videos of the defendant’s processing at the
Maquoketa Law Center.
Judge Darbyshire then denied the motion finding nothing the officer did could be
characterized as deceptive.
The matter then came on for trial before district court Judge Patrick J.
Madden. Tebbe waived a jury trial and agreed to the court taking judicial notice
of the minutes of testimony filed in the case. The only reference in the minutes to
what might be a specific statement made by Tebbe at the Law Enforcement
Center is that Officer Joel Driscoll “will testify that he read the Implied Consent
Advisory to the Defendant; that the Defendant refused a BAC test on the NPAS
DataMaster cdm at the Maquoketa Law Center.”
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Judge Madden noted Tebbe did not claim any information in the minutes
of testimony was incorrect for the purpose of the bench trial, and based on the
minutes of testimony, found Tebbe guilty of operating while intoxicated, second
offense.
Tebbe appeals his conviction claiming the district court erred in denying
his motion to suppress. He requests that we reverse the district court’s ruling on
the motion and remand for a new trial without the allegedly inadmissible
evidence.
II.
FIFTH AMENDMENT VIOLATION.
The right to Miranda warnings is only triggered when there is both custody
and interrogation.
State v. Countryman, 572 N.W.2d 553, 557 (Iowa 1997).
“Custodial interrogation is defined as ‘questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise deprived of his
freedom of action in any significant way.’” State v. Simmons, 714 N.W.2d 264,
274 (Iowa 2006) (quoting State v. Turner, 630 N.W.2d 601, 607 (Iowa 2001)).
The minutes of testimony make no reference to statements made by Tebbe in
response to custodial interrogation. Tebbe’s brief fails to set forth what custodial
interrogation he seeks to suppress.
We need not address Tebbe’s contention that his waiver was involuntary.
Constitutional
errors,
including
violations
of
the
Fifth
and
Fourteenth
Amendments, do not require reversal of a conviction if the error was harmless.
State v. Peterson, 663 N.W.2d 417, 430-31 (Iowa 2003). This requires the State
to prove beyond a reasonable doubt that the error did not contribute to the
4
verdict. Id. at 431. We analyze the actual basis used to reach the verdict rather
than speculating what could have been used. Id. In other words,
“Harmless-error review looks . . . to the basis on which ‘the jury
actually rested its verdict.’” Sullivan v. Louisiana, 508 U.S. 275,
279, 113 S. Ct. 2078, 2081, 124 L. Ed. 2d 182, 189 (1993) (quoting
Yates v. Evatt, 500 U.S. 391, 404, 111 S. Ct. 1884, 1893, 114 L.
Ed. 2d 432, 449 (1991)) (emphasis added). The inquiry is not
whether, in a trial that occurred without the error, a guilty verdict
would surely have been rendered, but whether the guilty verdict
actually rendered in this trial was surely unattributable to the error.
Sullivan, 508 U.S. at 279, 113 S. Ct. at 2081, 124 L. Ed. 2d at 189.
Peterson, 663 N.W.2d at 431. We are to determine what evidence the fact-finder
considered and then “weigh the probative force of that evidence against the
erroneously admitted evidence standing alone.” Id. (citing Yates, 500 U.S. at
404, 111 S. Ct. at 1893, 114 L. Ed. 2d at 449).
Tebbe makes no claim that any specific statements in the minutes of
testimony were statements he made in violation of his constitutional rights.
Furthermore, he did not claim at trial any information in the minutes of testimony
was incorrect for purpose of the bench trial. Judge Madden included the minutes
of testimony by reference as the findings of fact upon which his decision was
based and, based on the minutes he found Tebbe operated a motor vehicle in
Jackson County, Iowa, under the influence of alcohol. The only conclusion we
can draw is that the State has proved beyond a reasonable doubt that Tebbe has
not suffered any prejudice.
AFFIRMED.
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