IN THE COURT OF APPEALS OF IOWA
No. 14-1608
Filed December 23, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
COREY ALLEN TROTT,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Calhoun County, Thomas J. Bice,
Judge.
Corey Trott appeals from a jury verdict finding him guilty of first-degree
murder, contending the district court erred in denying his motion to suppress.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Jean C. Pettinger, Assistant
Attorney General, for appellee.
Heard by Potterfield, P.J., and Doyle and Tabor, JJ.
2
DOYLE, Judge.
Corey Trott appeals from a jury verdict finding him guilty of first-degree
murder. He contends the district court erred in denying his motion to suppress
statements he made to a law enforcement officer during a police interview,
asserting his constitutional rights were violated. We affirm.
I. Background Facts and Proceedings.
On September 13, 2013, Corey Trott shot and killed Rockwell City Police
Department Officer Jamie Buenting. Relevant here are the events following the
shooting, which are generally undisputed.
Trott surrendered himself to Iowa State Patrol Trooper Kevin Krull, and
Trott was handcuffed and placed on the ground. At approximately 5:36 a.m.,
while surrounded by officers with their weapons out, Trooper Krull read Trott his
rights as set out in Miranda v. Arizona, 384 U.S. 436 (1966), from a card issued
by the Iowa Department of Public Safety. The front side of that card, titled
“Miranda Warning,” states:
1. You have the right to remain silent.
2. Anything you say can and will be used against you in a court of
law.
3. You have the right to talk to a lawyer and have him present with
you while you are being questioned.
4. If you cannot afford to hire a lawyer, one will be appointed to
represent you before any questioning, if you wish.
5. You can decide at any time to exercise these rights and not
answer any questions or make any statements.
The reverse side of the card, titled “Waiver,” states:
After the warning and in order to secure a waiver, the following
questions should be asked and an affirmative reply secured to each
question.
1. Do you understand each of these rights I have explained to
you?
3
2. Having these rights in mind, do you wish to talk to us now?1
Trooper Krull read the “Miranda Warning” side of the card to Trott. The
trooper then asked Trott if he “understood each of these rights” he explained to
Trott, to which Trott answered, “Yes.” The trooper next asked Trott the second
question as stated on the card: “Having these rights in mind, do you wish to talk
to us now?” Trott answered, “No.” The trooper then stopped talking to Trott and
made no further attempts to question Trott. Trott made no further statements at
that point.
Calhoun County Chief Deputy Scott Anderson arrived at the scene to take
Trott into custody. At that time, Trott was handcuffed and face down on the
ground. The deputy placed Trott into the back seat of his patrol car, and Trott
was re-cuffed and shackled. Chief Deputy Anderson then read to Trott the five
statements of rights set forth above from a copy of the same “Miranda Warning”
card. After reading this to Trott, the deputy asked Trott if he understood, and
Trott verbally responded, “Yes, I understand.” The deputy did not ask Trott the
second “waiver” question—if Trott wished to talk—but the deputy did not have
any further conversation with Trott.
Trott was transported to the Sac County jail. Around 7 a.m., Agent John
Turbett, a special agent with the Iowa Division of Criminal Investigation, arrived
at the jail to interview Trott. Agent Turbett knew the Miranda warning had been
previously read to Trott but was “told [Trott] had not invoked any of his rights.”
Shortly after arriving, Agent Turbett went to the jail’s interrogation room to
1
Although the reverse side of the card is entitled “Waiver,” none of the questions
ask if the suspect wishes to waive the rights expressed on the front of the card.
4
wait for Trott, and the subsequent interview was recorded. A deputy then
brought Trott to the room and left. The agent first asked Trott if he needed
anything to eat or drink or to use the restroom, to which Trott answered, “No.”
Thereafter, the following exchange between the agent and Trott occurred:
[AGENT]: . . . I’m an officer, a police officer as well and, and
I know this was a really a, a tough morning and I know there’s,
there’s been some buildup for you with this and, and some things
going on in your life. At least that’s what I understand and, and,
uhm, Corey, if you’re okay what I’d like to do is maybe just sit down
and talk to you a little bit about what’s been going on, uhm, and, uh,
maybe, maybe you’d like somebody to, to maybe talk to right now
and, and, and help make some sense of things and I’d, I’d love to
be that guy right now.
[TROTT]: Okay.
[AGENT]: And sit down and talk to ya, uhm, if I can do that.
Uhm, uh, I know, I think somebody had, had, uh, gone over some,
some things with you, some, some rights earlier, and you
understand—
[TROTT]: Right.
[AGENT]: —those?
[TROTT]: Right.
[AGENT]: Okay. Okay. Uhm, I’ve got those here, too, and
I’ll just, I’ll just read through those with you—
[TROTT]: Okay.
[AGENT]: —real quick, just so you know . . . real quick, just
so you know I know you’ve been read, I’ve got a little card here.
You have the right to remain silent. Anything you say can and will
be used against you in a court of law. You have a right to consult
with a lawyer before you answer any questions or, uh, make any
statement, and have a lawyer present during questioning. And if
you can’t afford one, one will be provided for you free of cost.
That’s the same thing that somebody else had—
[TROTT]: Right.
[AGENT]: —read you earlier? Okay. Great. Uhm, and you
understand that?
[TROTT]: Right.
[AGENT]: Okay. Okay. And you’re cool talking to me for a
little bit?
[TROTT]: Yeah.
[AGENT]: I appreciate it. Thank you.
Agent Turbett then continued his interview with Trott.
5
The interview lasted a little over two hours, not including the fifteen-minute
break Trott was given during the interview. Trott never expressed before, during,
or at the end of the interview that he wished to invoke his right to a lawyer. Trott
never gave the agent any indication he did not want to speak with the agent and
remain silent, nor did Trott “take any steps” to end or cut off the interview.
However, Trott was never asked to sign a written waiver of his Miranda rights,
nor was he explicitly orally asked if he wished to waive his Miranda rights. Trott
was not advised, other than the Miranda warning read to him, the “consequences
of giving [the agent] the statement.” Beyond asking Trott at the jail if he would
speak to Agent Turbett, Trott was not badgered or further coerced by law
enforcement officials to waive his Miranda rights and speak with the agent.
Trott was subsequently charged with first-degree murder. Trott later filed
a motion to suppress the statements he made to Agent Turbett after the above
quoted exchange, arguing his rights under the Fifth, Sixth, and Fourteenth
Amendments of the United States Constitution and Article I sections Nine and
Ten of the Iowa Constitution were violated. Trott specifically asserted he
was advised his rights under Miranda and he unequivocally invoked
his right to remain silent during his first encounter with the police.
[Trott’s] invocation of his rights was ignored by the agents/officers
and [Trott] was placed in a room under guard until he was
interviewed by [Agent Turbett].
The State resisted, and a hearing was subsequently held.
At the hearing, after hearing the testimony of the three law enforcement
officials that read Trott his Miranda rights, the parties made arguments to the
court. The State asserted that under existing Supreme Court Miranda
jurisprudence, Trott’s invocation of his right to remain silent was “scrupulously
6
honored” and Miranda not violated. The court asked the State, “Isn’t the factual
record here, as indicated by Trooper Krull, that after he read from the card, the
Miranda warnings to [Trott], he asked him if you want to waive and his answer
was unequivocally, ‘No’?” The State disagreed with that characterization of the
record, noting Trott was not asked if he wished to waive his rights, but rather
whether he wanted to talk, and Trott’s “no” answer was invoking only his right to
remain silent. The court stated it was “concerned about [Trott’s] understanding of
the consequences of waiving and giving that statement,” and the State pointed
out that Trott’s motion only related to Trott’s invocation of his right to remain
silent. Trott responded to the State’s argument, asserting Trott’s answer “no”
was an unequivocal invocation of both his right to remain silent and his right to an
attorney but did not argue the point any further.
Thereafter, the district court entered its order denying Trott’s motion. The
court found the totality of the circumstances “clearly indicate[] that [Trott] waived
his Miranda rights in giving his statement to the [agent]” because Trott
was “Mirandized” three times, his statement given after the
passage of significant time after [his] arrest, the statement was
offered after the Miranda rights were again given and
acknowledged, the statement was given to an officer other than the
arresting officer, and the statement was given at a [different]
location.
The court further found its conclusion was “bolstered by the fact that no claim is
made by [Trott] of any intimidation, coercion, or deception on the part of law
enforcement personnel. [Trott] gave his statement to the [agent] knowingly,
voluntarily, and with intelligence after having waived his Miranda rights.” The
court did not address Trott’s assertions that both his rights to silence and to an
7
attorney were violated. Trott did not amend or supplement his motion to
suppress, nor did he file a motion after the court’s ruling seeking the court
address the right-to-an-attorney assertion.
Following a jury trial, Trott was found guilty of first-degree murder.
Thereafter, he filed a motion for a new trial, arguing, among other things, that his
statement to Agent Turbett should have been suppressed “for all the same
reasons set out in the Motion to Suppress and at the Suppression Hearing.” At
the hearing on the motion, Trott’s counsel stated: “I think that we made sufficient
record on those issues during the Motion to Suppress and the pretrial
matters . . . . So I’d rely on the record previously made on those issues.” The
court denied Trott’s motion.
Trott now appeals the district court’s ruling denying his motion to
suppress. Though Trott asserted his claim before the district court under both
the federal and state constitutions, he only cites and argues the federal
constitution on appeal. Consequently, we will only consider Trott’s claim under
the federal constitution. See State v. Pearson, 804 N.W.2d 260, 266 (Iowa
2011).
“We review determinations of whether to suppress . . . statements made in
violation of constitutional guarantees de novo.” State v. Tyler, 867 N.W.2d 136,
152 (Iowa 2015). “This review requires us to make an independent evaluation of
the totality of the circumstances as shown by the entire record, including the
evidence presented at the suppression hearings.” State v. Lowe, 812 N.W.2d
554, 566 (Iowa 2012).
8
II. Discussion.
Trott’s express claim on appeal is that “the district court erred in overruling
the motion to suppress [his] post arrest statements as products of an unlawful
reinitiation of interrogation.” Beyond this statement, Trott sets forth various
concepts of Miranda jurisprudence, but his exact legal arguments are unclear.
Discerning his argument is important, because certain Miranda violations have
different outcomes. We will distinguish these concepts here briefly.
A. Right to Counsel.
In Miranda, the Supreme Court first pronounced the now well-established
rule that, before beginning a custodial interrogation, authorities must advise
suspects of certain rights. See Tyler, 867 N.W.2d at 171 (discussing Miranda,
384 U.S. at 471, 478-79). Specifically, Miranda requires a suspect
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.
384 U.S. at 479. The warning read to Trott from the Miranda Warning card
adequately addressed the requirements of Miranda. Indeed, Trott does not
argue the warning was improperly given or insufficient.
Since Miranda, the Supreme Court has continued to refine and clarify
Miranda, as “informed by the application of Miranda warnings in the whole course
of law enforcement.” Berghuis v. Thompkins, 560 U.S. 370, 383 (2010). The
Court’s developments address many differing facets, such as when the Miranda
warnings must be given to a suspect, see, e.g., Stansbury v. California, 511 U.S.
318, 322 (1994) (discussing “custody”); how a suspect invokes his rights, see,
9
e.g., Berghuis, 560 U.S. at 382 (discussing invocation of right to remain silent);
Davis v. United States, 512 U.S. 452, 459 (1994) (discussing invocation of right
to counsel); what happens if a particular right is invoked, see, e.g., Edwards v.
Arizona, 451 U.S. 477, 485 (1981) (following invocation of right to counsel);
Michigan v. Mosley, 423 U.S. 96, 104 (1975) (following invocation of right to
remain silent); and whether the suspect waived his rights, see, e.g., Berghuis,
560 U.S. at 382 (discussing waiver determination after suspect invoked right to
remain silent).
Relevant here are the Supreme Court’s line of cases concerning a
suspect’s invocation of his right to remain silent and its separate line of cases
concerning a suspect’s invocation of his right to counsel. See State v. Palmer,
791 N.W.2d 840, 845-87 (Iowa 2010) (discussing Edwards, 451 U.S. at 484-85,
and Mosley, 423 U.S. at 103-04). The result of a suspect’s invocation of each of
these rights has different implications and results. See id. at 845-46 (discussing
the differing procedural safeguards upon invocation of the right to remain silent
and the right to counsel as differentiated in Edwards and Mosley); compare
Edwards, 451 U.S. at 485, with Mosley, 423 U.S. at 104.
As Edwards and its progeny hold, subject to a few exceptions not relevant
here, “[o]nce a suspect requests an attorney, all interrogation must cease.”
Lowe, 812 N.W.2d at 580 (discussing Edwards, 451 U.S. at 484-85); see also
Maryland v. Shatzer, 559 U.S. 98, 104 (2010) (discussing Edwards and its
progeny); Palmer, 791 N.W.2d at 845-46 (discussing Edwards). “‘[W]hen an
accused has invoked his right to have counsel present during custodial
interrogation, a valid waiver of that right cannot be established by showing only
10
that he responded to further police-initiated custodial interrogation even if he has
been advised of his rights.’” State v. Harris, 741 N.W.2d 1, 6 (Iowa 2007)
(quoting Edwards, 451 U.S. at 484).
Unlike the invocation of the right to counsel, a suspect’s invocation of his
right to remain silent does not preclude law enforcement from reinitiating
interrogation. See Palmer, 791 N.W.2d at 845-46 (discussing Mosley, 423 U.S.
at 101). Rather, after a suspect has invoked his right to remain silent, under
Mosley and its progeny, it is permissible for law enforcement to resume
questioning if “the suspect’s right to cut off questioning was scrupulously
honored.” Id. at 846. Determining whether “the suspect’s right to cut off
questioning was scrupulously honored” requires examining the totality of the
circumstances by applying factors set out by the Supreme Court in Mosley. See
id.
“Our preservation rule requires that issues must be presented to and
passed upon by the district court before they can be raised and decided on
appeal.” State v. Manna, 534 N.W.2d 642, 644-45 (Iowa 1995). This includes
constitutional questions. See State v. Yates, 243 N.W.2d 645, 650 (Iowa 1976).
Here, the district court did not rule on the issue of whether Trott unequivocally
asserted his right to counsel when he answered “no” to Trooper Krull’s question,
and Trott made no request for the court to enlarge its ruling. Trott does not
advance any claims of ineffective assistance of counsel. See Palmer, 791
N.W.2d at 850 (“Ineffective-assistance-of-counsel claims are the exception to the
general rule requiring a party to preserve error in the district court.”).
Consequently, insofar as Trott predicates error on the issue of whether he
11
invoked his right to counsel, there is nothing for us to review concerning that
issue. See Manna, 534 N.W.2d at 644-45. Trott simply failed to preserve any
alleged error on the invocation-of-his-right-to-counsel issue, and we do not
address the issue further.2
B. Right to Remain Silent.
We therefore turn to the invocation-of-right-to-remain-silent issue, which,
as indicated above, implicates the principles of Mosley. See Palmer, 791 N.W.2d
at 844-47. In Palmer, our supreme court set forth the relevant facts of Mosley:
Mosley was arrested based on an informant’s tip linking him to a
recent string of robberies. The police took Mosley to the fourth floor
of the police department, read him the Miranda warning, and
interrogated him. When the questioning began, Mosley stated he
did not want to answer any questions about the robberies and the
interrogation immediately ceased. Mosley was then transferred to
a cell on the ninth floor of the building. At no point did he indicate a
desire to consult with an attorney. More than two hours later, a
detective brought Mosley to the fifth floor, again advised him of his
Miranda rights, and began to question him about an unrelated fatal
shooting. At first, Mosley denied any involvement in the shooting
but eventually made an incriminating statement implicating himself
in the homicide. At no point during this second interrogation did
Mosley ask to consult with a lawyer or indicate that he did not want
to talk about the homicide. The Supreme Court granted a writ of
2
In view of our holding, we need not address the issue of whether a suspect’s
simple response of, “No,” to the question, “Having these rights in mind, do you wish to
talk to us now?” invokes the right to counsel. It is noted that many cases find a simple
“no” response to whether suspect wished to answer questions is an invocation of both
rights (to remain silent and to counsel), though in most cases, the question presented to
the suspect was different—“Are you willing to answer questions without having an
attorney present?” See 83 A.L.R.4th 443 at §§ 15[a], [b] (discussing McKeamer v.
United States, 452 A.2d 348, 351 (D.C. 1982), and other cases) (emphasis added).
Where the question omitted the attorney part, like here, cases go different ways.
Compare People v. Covington, 532 N.Y.S.2d 36, 38-39 (N.Y. Sup. Ct. 1988) (holding
simple “no” applied to both rights, even though not specifically asked about attorney,
pointing out that this may be a “new police practice tailored” to avoid the above type
holdings), with Dewey v. State, 169 P.3d 1149, 1152-54 (Nev. 2007) (holding suspect
did not invoke her right to counsel when she answered “no” to the question read after
warning if she was willing to speak to law enforcement and never made a “request
whatsoever for an ‘attorney’”).
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certiorari to consider whether, consistent with Miranda, the police
could resume questioning Mosley after he had asserted his right to
remain silent.
Palmer, 791 N.W.2d at 846 (discussing Mosley) (citations omitted). Ultimately,
the Supreme Court
reasoned the right to remain silent protects a suspect’s right to cut
off questioning and thereby control the time at which questioning
occurs, the subjects discussed, and the length of the interrogation.
Thus, the Court concluded a resumption of questioning after a
suspect has invoked his or her right to remain silent was
permissible only when the suspect’s right to cut off questioning was
scrupulously honored.
To determine whether Mosley’s right to cut off questioning
had been scrupulously honored, the Court examined the totality of
the circumstances. Although the Court did not identify any
controlling factors in its analysis, in holding Mosley’s right to cut off
questioning had been scrupulously honored, the court relied on the
following facts in reaching its decision: (1) the police immediately
ceased the interrogation upon Mosley’s invocation of his right to
remain silent, (2) the police resumed questioning only after the
passage of a significant period of time, (3) before resuming
questioning, the police provided Mosley with a fresh set of Miranda
warnings, and (4) a new police officer, in another location, restricted
the second interrogation to a crime that had not been a subject of
the earlier interrogation.
Id. (discussing Mosley) (citations omitted).
To determine whether the State elicited incriminating statements from
Trott in violation of his Fifth Amendment right to remain silent, we must apply
Mosley’s established procedural safeguards. See id. at 848. Consequently,
whether Trott’s statements were elicited in violation of his constitutional rights
rests on whether Agent Turbett “scrupulously honored” Trott’s right to cut off
questioning. See id. Trott argues that Palmer is distinguishable from his case,
pointing out that the time lapse between Palmer’s Miranda warnings and
interview was approximately twenty-four hours, see id. at 842-43, compared to
13
only two hours in Trott’s case. He also notes Palmer was advised of his Miranda
rights orally and in writing and signed a written waiver, see id. at 843; he did not.
It was Palmer that initiated the second interview with law enforcement, see id. at
849, whereas here, it is undisputed that Agent Turbett initiated his interview with
Trott. Finally, Trott notes that he, unlike Palmer, was incarcerated for the same
crime, which was the subject-matter of Agent Turbett’s interview. See id. at 842-
43. While these distinctions are factually correct, we do not find, considering the
totality of the circumstances and Mosley considerations, that Agent Turbett failed
to scrupulously honor Trott’s initial request to remain silent.
Here, like in Palmer and Mosley, after Trott invoked his right to remain
silent, no interrogation immediately followed. See Palmer, 791 N.W.2d at 846
(citing Mosley, 423 U.S. at 97-98, 104-06). Again, like in Palmer and Mosley,
Trott was given the Miranda warning again prior to Agent Turbett’s interview.
See id. While the time period between Trott’s original “no” response to Trooper
Krull’s waiver question was only about two hours, this is the same amount of time
that passed in Mosley, and the Supreme Court found that amount of time was “a
significant period of time.” Finally, though Agent Turbett’s interview with Trott
was related to the crime for which Trott was incarcerated, this is but “one of the
factors to consider under the totality of the circumstances.” Id. at 849. The
Mosley Court “clearly decided the invocation of the right to remain silent did not
‘create a per se proscription of indefinite duration upon any further questioning by
any police officer on any subject, once the person in custody has indicated a
desire to remain silent.’” Id. (citing Mosley, 423 U.S. at 102-03). Given the
14
totality of the circumstances, Trott’s right to remain silent was scrupulously
honored.
C. Waiver of Right to Remain Silent.
Finally, “[e]ven absent the accused’s invocation of the right to remain
silent, the accused’s statement during a custodial interrogation is inadmissible at
trial unless the prosecution can establish that the accused ‘in fact knowingly and
voluntarily waived [Miranda] rights’ when making the statement.” Berghuis, 560
U.S. at 382 (citation omitted); see also Palmer, 791 N.W.2d at 849-50. Trott’s
brief suggests that, should we find his right to remain silent was scrupulously
honored by law enforcement, his statements to Agent Turbett should still be
suppressed because he did not voluntarily or knowingly waive his right to remain
silent. He states that “the district court mentioned several relevant factors
without addressing them,” and he notes that he “had been awake for the entire
previous night” and that his competency was later an issue before trial. The
State argues Trott failed to preserve this argument for our review. However,
given that the district court expressly found Trott knowingly, voluntarily, and
intelligently waived his Miranda rights, we find the issue preserved.
The Supreme Court explained in Berghuis that a waiver is voluntarily
made when a suspect freely and deliberately chooses to waive his or her rights.
See 560 U.S. at 382. It is knowingly and intelligently made when it is “made with
a full awareness of both the nature of the right being abandoned and the
consequences of the decision to abandon it.” Id. at 382-83. The burden of
showing the waiver was given voluntarily, knowingly, and intelligently is on the
State. See id. at 383.
15
“Although Miranda imposes on the police a rule that is both formalistic and
practical when it prevents them from interrogating suspects without first providing
them with a Miranda warning, it does not impose a formalistic waiver procedure
that a suspect must follow to relinquish those rights.” Id. at 385 (internal citation
omitted). Unlike the requirement that a suspect unambiguously and
unequivocally invoke his or her Miranda rights, the suspect’s waiver of those
rights does not have to be explicitly given. See id. at 383-84. Rather, “[a]n
‘implicit waiver’ of the ‘right to remain silent’ is sufficient to admit a suspect’s
statement into evidence.” Id. at 384. Specifically, if “the prosecution shows that
a Miranda warning was given and that it was understood by the accused, an
accused’s uncoerced statement establishes an implied waiver of the right to
remain silent.” Id. Generally, “the law can presume that an individual who, with a
full understanding of his or her rights, acts in a manner inconsistent with their
exercise has made a deliberate choice to relinquish the protection those rights
afford.” Id. at 385.
Here, Trott was given the Miranda warnings three different times, and his
invocation of his right to silence following the first warning evidences he knew
both how to invoke his rights and the consequences of abandoning his rights.
Additionally, while Trott may have been tired when he was interviewed by Agent
Turbett, there is no evidence in the record that Trott was intimidated, coerced, or
deceived into waiving his right to remain silent by the agent or anyone. Though
Trott’s competency was initially challenged—the court found probable cause
Trott was “suffering from a mental disorder which may prevent [him] from
appreciating the charge, understanding the proceedings, or assisting effectively
16
in his defense”—Trott was evaluated and determined to be competent to stand
trial. The evaluating physician specifically found Trott “understands the charges
against him. He is able to work effectively with his defense counsel without
interference of any psychological symptoms even though he has a diagnosis of
paranoid personality disorder. He has a rational and factual understanding of the
court process, including the key personnel and their functions.” There is no
evidence his disorder rendered him incapable of understanding his rights or
waiving his rights. In these circumstances, Trott knowingly and voluntarily made
a statement to the agent, so he waived his right to remain silent. See id. at 387;
see also Palmer, 791 N.W.2d at 849.
III. Conclusion.
Upon our de novo review, we conclude Trott failed to preserve alleged
error on the invocation-of-his-right-to-counsel issue. Because we also conclude,
considering the totality of the circumstances, Trott’s right to remain silent was
scrupulously honored and he knowingly and voluntarily waived the right, we
affirm the district court’s ruling denying his motion to suppress.
AFFIRMED.