IN THE SUPREME COURT OF IOWA
No. 13–0346
Filed June 10, 2016
Amended September 1, 2016
STATE OF IOWA,
Appellee,
vs.
ZYRIAH HENRY FLOYD SCHLITTER,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Linn County, Marsha M.
Beckelman, Judge.
Defendant seeks further review of a court of appeals decision
affirming convictions for child endangerment resulting in death and
involuntary manslaughter by commission of public offense. DECISION
OF COURT OF APPEALS AFFIRMED IN PART AND VACATED IN
PART; DISTRICT COURT JUDGMENT AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED.
Mark C. Smith, State Appellate Defender, Shellie L. Knipfer,
Assistant Appellate Defender, and Zyriah Schlitter, pro se, for appellant.
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Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant
Attorney General, Jerry Vander Sanden, County Attorney, and Nicholas
Maybanks and Lisa Epp, Assistant County Attorneys, for appellee.
CADY, Chief Justice.
In this appeal from convictions of involuntary manslaughter by
commission of public offense and child endangerment resulting in death,
we primarily consider a claim of ineffective assistance of trial counsel
based on the failure to challenge the sufficiency of evidence to support
the submission of all four alternative means of committing the crime of
child endangerment. On our review, we conclude trial counsel was
ineffective, and a new trial must be granted. We affirm the decision of
the court of appeals in part and vacate in part, reverse the judgment and
sentence of the district court, and remand the case for a new trial.
I. Background Facts and Proceedings.
Zyriah Schlitter met Nicole King in 2006 and they entered into a
relationship. They began sharing a residence and eventually had a
daughter, K.S., on September 23, 2008. The relationship ended in late
2009. In February 2010, Schlitter and King agreed that Schlitter would
be the temporary primary custodian of K.S. Schlitter was living with his
grandparents at the time. He was also dating a woman named Amy
Parmer. Schlitter would often stay overnight at Parmer’s apartment.
Parmer had two children.
On March 1, 2010, Schlitter took K.S. to a medical clinic for a
health checkup required for admission to a day-care center. A clinic
nurse updated K.S.’s vaccines and found her to be in good health.
K.S. was accepted by the day-care facility on March 2 and attended
day care for the remainder of the workweek. Schlitter and K.S. then
stayed with Parmer and her children at her apartment over the weekend.
3
Parmer cared for K.S. on Sunday evening while Schlitter attended a
financial management class at church for a couple of hours.
On Monday morning, March 8, Schlitter dropped K.S. off at the
day-care center. Later that morning, a day-care worker observed a
bruise on K.S.’s forehead and around one eye. She also saw marks on
the side of K.S.’s chin and discovered makeup had been applied to cover
up the bruises. Parmer stopped by the day-care center during the
afternoon to check on K.S. and was asked about the injuries. Parmer
said K.S. bruised her eye from a fall and was accidentally struck on the
forehead by a Pack’n Play® falling out of a closet.
Schlitter did not take K.S. to the day-care center on March 9. K.S.
had a fever, and Schlitter took her to the medical clinic. He told a nurse
that K.S. had not been sleeping well and had little appetite. The nurse
inquired about the bruise on her forehead. Schlitter responded that K.S.
fell into a coffee table. K.S. was diagnosed with conjunctivitis and
prescribed Motrin® and eyedrops.
Over the next few days, Schlitter’s father and grandparents
provided day care for K.S. K.S. would cling to Schlitter when he was
present. On March 10, K.S. had a fever of 104°. Schlitter called the
clinic to report the fever. He was told to continue the Motrin® and
eyedrops and to call the next day if there was no improvement. On
March 11, Schlitter called the clinic to report that K.S. vomited. He also
reported the Motrin® would only briefly keep her fever under control, and
an appointment was scheduled for the next day. Schlitter took K.S. to
the clinic on March 12. Medical providers diagnosed K.S. with an ear
infection and prescribed an antibiotic. No new bruising was observed.
On March 13, her temperature returned to normal.
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Schlitter and K.S. again stayed at Parmer’s apartment on the
weekend. King exercised visitation with K.S. for a period of time. She
did not notice any bruises on her face or body.
Schlitter dropped K.S. off at the day-care center on Monday,
March 15. Workers at the center again observed bruising on her
forehead and face. K.S. acted listless and sad. She slept more than
normal, did not play, and did not want to interact. When Schlitter was
asked about the new facial bruises, he responded that K.S. liked to beat
on herself. Workers at the day-care center reported their observations to
the Iowa Department of Human Services (DHS). An investigator for the
DHS met with Schlitter on March 16. Schlitter admitted to spanking
K.S. and told the investigator that K.S. listened better to Parmer. K.S.
was not removed from Schlitter’s care.
On March 17, K.S. spent the day with King. K.S. was detached
and often cried. Schlitter called the medical clinic on March 18 to report
that K.S. was very sleepy. The next day, her condition seemed to
improve.
Schlitter and K.S. again spent the weekend with Parmer. On
Sunday, March 21, K.S. was sleepy, and she often cried. She also clung
to Schlitter. At 5:15 p.m., Schlitter left K.S. in the care of Parmer so he
could attend the Sunday evening financial management class.
At 7:45 p.m., Parmer called 911 and reported that K.S. was barely
breathing. An ambulance arrived at the apartment and transported K.S.
to a hospital in Cedar Rapids. Medical personnel at the hospital found
her in a decorticate posture. Her pupils were fixed and dilated. The
doctor observed hemorrhages in her eyes. She exhibited limited reaction
to pain stimuli. After the doctors told Schlitter that her injuries were
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likely the result of child abuse, he entered the room where K.S. was
being treated and told her “I’m sorry.”
K.S. was promptly airlifted to the University of Iowa Hospitals &
Clinics. Family members gathered to be with her and tension surfaced
between King and Schlitter. King blamed Parmer for the injuries, and
Schlitter blamed the day care.
Medical tests and scans of K.S.’s brain showed significant swelling.
Despite extensive medical efforts, K.S.’s condition continued to
deteriorate. She remained in a coma, which doctors believed would likely
never change. K.S. was kept alive by a ventilator and a feeding tube. On
Sunday, March 28, King and Schlitter agreed to the removal of life
support systems. K.S. died.
On July 11, 2011, the State charged Schlitter and Parmer with
murder in the first degree and child endangerment resulting in death.
The trials were severed, and Schlitter went to trial on December 3, 2012.
The medical testimony at trial described the injuries to K.S. as
nonaccidental or abusive trauma. The medical professionals generally
agreed that K.S. had suffered multiple head trauma events. The
testimony came from the emergency room doctors and nurses at both
hospitals, as well as neurologists, pathologists, an ophthalmologist,
radiologist, doctors in the pediatric intensive care unit, and the head of
the child protection team.
The external injuries included bruises on K.S.’s cheeks and under
her chin; scrapes or red marks on her left shoulder, the nape of her
neck, her left ear and cheek, upper right portion of her chest, and her
right underarm area; contusions on her right upper arm and left and
right inner thighs; and an infected lesion on her left labia. K.S.’s internal
injuries included subdural hematomas in the brain and around the
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spinal cord, as well as other brain injuries. An MRI revealed that K.S.
suffered a massive stroke on the left side of her brain, but revealed no
evidence that K.S.’s injuries were caused by strangulation.
Multiple doctors testified that the bruises on K.S.’s face and body
were different colors, indicating they had occurred at different times.
The retinal hemorrhages, brain blood clots, and subdural membranes
indicated injuries that could be up to a few weeks old. The blood found
in her brain showed signs of fresh bleeding, older bleeding that had
happened over two days before the recent injury, and a recent bleeding
within hours of K.S. becoming symptomatic. Moreover, with repeated
injuries to the same part of the brain, some of the new injury clouded
evidence of the older injury.
The time frames suggested by the different doctors’ testimonies
sometimes conflicted. The estimates ranged from minutes to hours,
within a day, a twelve- to twenty-four-hour period estimate, and an
“hours to days” time frame. One doctor stated she could not accurately
estimate the timing, but that she had not seen any child awake with the
kinds of injuries found in K.S. Almost all the medical professionals were
clear that a specific time of the injuring event could not be pinpointed
due to individual-specific rates of healing, the age of the patient, an
unknown rate of bleeding, and uncertainty concerning the number and
frequency of injuries.
Dr. Resmiye Oral, the head of the child protection team, specializes
in treating and consulting in cases of child abuse. She met with a
statewide multidisciplinary team made up of the physicians, law
enforcement, DHS employees, and medical examiners involved in K.S.’s
case. Dr. Oral collected all of the reports of the physicians and
examiners to make a final medical determination regarding K.S.’s
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injuries. Dr. Oral concluded that K.S. suffered at least two separate
episodes of injury. She pinpointed the first injury as likely occurring one
or two weeks before K.S. entered the hospital, and the second injury as
inflicted from minutes up to six hours before K.S. was brought to the
hospital, noting the shorter time frame was more likely than the longer.
The doctor stated it must have been an acute and forceful trauma to
explain the injuries found.
The paramedic who responded to the 911 call on March 21
testified to statements made by Parmer in response to questioning about
the condition of K.S. Parmer said she found K.S. unresponsive and
struggling to breathe. She told a paramedic K.S. had a fever earlier in
the week, but was unaware of any falls or injuries.
Law enforcement investigators conducted several interviews with
Schlitter and Parmer. Schlitter gave one interview at an Iowa State
Patrol Office on March 30, 2010. During the interview, Schlitter
acknowledged he was rough on K.S. at times in his discipline of her and
was probably incriminating himself by maintaining that Parmer was a
good caretaker and would not have harmed K.S. On another occasion,
Schlitter told one investigator that while at the hospital, he had
researched head trauma symptoms and that K.S. had exhibited some of
the symptoms during the period of time prior to her hospitalization.
Prior to trial, Schlitter had moved to suppress his statements made to
law enforcement investigators during the March 30 interview at the state
patrol office. The district court denied the motion, and the interview was
entered into evidence.
Investigators also discovered Parmer had made inculpatory
statements to two people. On one occasion, Parmer made a spontaneous
statement to a coworker that she “might have killed a kid.” Another
8
time, Parmer was in her apartment with the coworker and a man she
was dating. Parmer suddenly started crying and told the man, “You
don’t want to get involved with me.” She then explained that she had
taken an eighteen-month-old’s life. She further explained that the child
was K.S., and it involved a head injury.
At the close of all the evidence at trial, trial counsel for Schlitter
moved for a judgment of acquittal. The motion, however, was limited to
the sufficiency of the evidence to support the crime of first-degree
murder. The trial court overruled the motion.
The jury found Schlitter guilty of involuntary manslaughter by
commission of public offense (child endangerment) and child
endangerment resulting in death. A general verdict was returned, and
the jury did not identify the alternative theories relied upon to support
the guilty verdict for child endangerment. Schlitter moved for a new trial
and arrest of judgment. After a hearing on February 20, 2013, the trial
court denied Schlitter’s motions and sentenced Schlitter. The court
merged the sentences for the two charges under the one-homicide rule.
It imposed a mandatory indeterminate fifty-year sentence for child
endangerment resulting in death and ordered $150,000 restitution to be
paid to Nicole King. Although the State requested a thirty-year minimum
sentence before parole eligibility, the court declined to require a
minimum sentence before parole eligibility, leaving that question to the
board of parole.
Schlitter appealed and raised four claims of error. First, he
claimed the district court erred in failing to suppress his statements
made during the interrogation on March 30. Second, he claimed his trial
counsel was ineffective for failing to challenge the sufficiency of evidence
to support the lesser included offense of involuntary manslaughter to the
9
charge of first-degree murder and the alternative theories to the crime of
child endangerment. Third, he claimed his trial counsel was ineffective
for failing to timely object to improper comments by the prosecuting
attorney during closing argument. Finally, he claimed his trial counsel
was ineffective for failing to investigate properly.
We transferred the case to the court of appeals. It affirmed the
judgment and sentence of the district court. It found Schlitter was not in
custody during the interrogation on March 30, and the law enforcement
officers were not required to give Schlitter his Miranda warnings. It also
found Schlitter failed to preserve error on his secondary claim that the
statements were involuntary. The court of appeals further found that
trial counsel was not ineffective because sufficient evidence was
presented to support all the charges. It also found trial counsel was not
ineffective because, even if the prosecutor’s statements amounted to
misconduct, no prejudice resulted. Finally, it found trial counsel was not
ineffective for failing to conduct a proper investigation.
Schlitter sought, and we granted, further review. The only issue
Schlitter raised was that his trial counsel was ineffective for failing to
move for a judgment of acquittal for the crimes for which he was
convicted.
II. Scope of Review.
Ineffective-assistance-of-counsel claims are reviewed de novo.
State v. Tompkins, 859 N.W.2d 631, 636 (Iowa 2015). Ineffective-
assistance-of-counsel claims require a showing by a preponderance of
the evidence both that counsel failed an essential duty and that the
failure resulted in prejudice. Anfinson v. State, 758 N.W.2d 496, 499
(Iowa 2008). We review sufficiency-of-the-evidence challenges for
10
correction of errors at law. State v. Neiderbach, 837 N.W.2d 180, 190
(Iowa 2013).
We review constitutional issues, including Miranda violations,
de novo. See State v. Kooima, 833 N.W.2d 202, 205 (Iowa 2013). We
examine the totality of the circumstances in the entire record in our
evaluation. State v. Baldon, 829 N.W.2d 785, 789 (Iowa 2013).
III. Analysis.
The right to effective assistance of counsel stems from the general
right to counsel under the Sixth Amendment to the United States
Constitution and article I, section 10 of the Iowa Constitution. State v.
Ambrose, 861 N.W.2d 550, 556 (Iowa 2015). “To succeed on a claim of
ineffective assistance of counsel, a claimant must establish by a
preponderance of the evidence: ‘(1) his trial counsel failed to perform an
essential duty, and (2) this failure resulted in prejudice.’ ” State v.
Thorndike, 860 N.W.2d 316, 320 (Iowa 2015) (quoting State v. Adams,
810 N.W.2d 365, 372 (Iowa 2012)). The claimant must establish both
elements of the claim. Dempsey v. State, 860 N.W.2d 860, 868 (Iowa
2015).
For the first element, we presume the attorney performed
competently, requiring the claimant to rebut the presumption with
evidence the attorney performed outside the standard of a reasonably
competent practitioner. Id. To prove prejudice for the second element,
the claimant needs to show the attorney’s errors functionally deprived
the defendant of a fair trial and further show by a reasonable probability
that the result of the proceeding would have been different without the
errors by the attorney. State v. Ross, 845 N.W.2d 692, 698 (Iowa 2014).
A. Failure to Move for Judgment of Acquittal on Child-
Endangerment Alternatives. “To preserve error on a claim of
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insufficient evidence[, a] defendant must make a motion for judgment of
acquittal at trial . . . .” State v. Truesdell, 679 N.W.2d 611, 615 (Iowa
2004). The motion must be made after the evidence on either side of the
case has been presented. Iowa R. Crim. P. 2.19(8)(a).
When presented with a motion for acquittal, courts must view “the
evidence in the light most favorable to the State and draw[] all fair and
reasonable inferences from it, taking all the evidence into consideration,
both direct and circumstantial.” State v. Duncan, 312 N.W.2d 519, 522
(Iowa 1981) (citations omitted). This standard requires courts to assume
the truth of the evidence offered by the prosecution. Nguyen v. State,
707 N.W.2d 317, 327 (Iowa 2005). The evidence must be sufficient to
convince a rational fact finder that the defendant is guilty beyond a
reasonable doubt. State v. Shanahan, 712 N.W.2d 121, 134 (Iowa 2006).
A fair inference of guilt is necessary, not merely suspicion, speculation,
or conjecture. State v. Geier, 484 N.W.2d 167, 171 (Iowa 1992).
Counsel for Schlitter did not challenge the sufficiency of the
evidence to support any of the alternative theories of guilt for a finding of
child endangerment. We must consider if he failed to perform within “the
range of normal competency” by determining if a competent attorney
would have challenged the sufficiency of the evidence. State v. Graves,
668 N.W.2d 860, 881 (Iowa 2003). If counsel failed to raise a meritorious
issue a normally competent attorney would have raised, and such failure
cannot “be attributed to reasonable trial strategy, then we can conclude
the defendant has established that counsel failed to perform an essential
duty.” Id. at 870.
In its case against Schlitter, the State presented four alternatives
of guilt to the jury on the charge of child endangerment. The trial court
instructed on each alternative. The jury was told they could find
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Schlitter committed child endangerment if they found he had done any of
the following alternatives:
a. Knowingly acted in a manner that created a
substantial risk to [K.S.]’s physical health or safety; or
b. By an intentional act or series of intentional acts used
unreasonable force that resulted in bodily injury or
was intended to cause serious injury; or
c. Willfully deprived [K.S.] of necessary supervision or
medical care appropriate to her age, being reasonably
able to make such necessary provisions, which
deprivation substantially harmed [K.S.]’s physical
health; or
d. Knowingly permitted the continuing physical abuse of
[K.S.].
Counsel did not move for judgment of acquittal on any of the alternatives
presented based on insufficient evidence but, rather, conceded to a jury
question on the child endangerment charge. Thus, if the evidence
presented by the State at trial was insufficient to support any alternative,
Schlitter’s trial counsel would have provided ineffective assistance by
failing to raise the issue and permit the trial court to enter a judgment of
acquittal on any alternative not supported by sufficient evidence.
We often do not address ineffective-assistance-of-counsel claims on
direct appeal because a record is needed to fully develop the claim and
identify the existence of any trial strategies that may have influenced the
actions or inactions of trial counsel. See State v. Ondayog, 722 N.W.2d
778, 786 (Iowa 2006) (“[P]ostconviction proceedings are often necessary
to discern the difference between improvident trial strategy and
ineffective assistance.”). However, no reasonable trial strategy could
permit a jury to consider a crime not supported by substantial evidence.
See State v. Brubaker, 805 N.W.2d 164, 174 (Iowa 2011) (holding counsel
ineffective for failing to move for judgment of acquittal based on
insufficient evidence to support a necessary element of the charged crime
13
and noting such a failure “is not a trial strategy”). Therefore, we must
review each alternative theory of the crime of child endangerment to
determine if a reasonable trial counsel would have moved for judgment of
acquittal on any of the four alternatives.
1. Knowingly acted in a manner that created substantial risk to
physical health or safety. We first consider the sufficiency of evidence to
support a finding that Schlitter knowingly acted in a manner that created
a substantial risk to the physical health or safety of K.S. The term
“knowingly” not only refers to the act, but also the creation of a
substantial risk to physical health or safety. State v. James, 693 N.W.2d
353, 355–57 (Iowa 2005). Additionally, “the definition of ‘substantial
risk’ in the context of child endangerment” means “[t]he very real
possibility of danger to a child’s physical health or safety.” State v.
Anspach, 627 N.W.2d 227, 233 (Iowa 2001). The risk does not have to be
likely, just real or identifiable. Id. at 232–33. The evidence offered by the
State at trial targeted Schlitter either as the abuser or complicit in abuse
inflicted by Parmer by failing to intervene to stop or prevent it.
The State presented an abundance of evidence that K.S. sustained
bruises to her head on separate occasions in the weeks leading up to her
death. A number of people noticed bruises the week of March 8—
including family members, day-care workers who saw her every day, and
a nurse practitioner. Evidence was presented that either Schlitter or
Parmer used makeup to cover bruising around K.S.’s eye and forehead.
One week later, a new bruise appeared on K.S.’s forehead in the same
location as the previous bruise.
Construing the evidence in favor of the State, a reasonable jury
could find beyond a reasonable doubt that, even if Parmer was the
abuser instead of Schlitter, he knew that K.S. was at risk of physical
14
injury while in the sole care of Parmer. The jury could have also found
Schlitter knowingly acted in a manner that created a substantial risk to
the physical health or safety of K.S. by leaving her in the care of Parmer.
2. By an intentional act or series of intentional acts used
unreasonable force that resulted in bodily injury or was intended to cause
serious injury. To prove the second alternative, the State must present
sufficient evidence that Schlitter either committed an act resulting in the
injury or had sole care of K.S. during the time in which the injury
occurred. See Neiderbach, 837 N.W.2d at 219. The evidence presented
at trial clearly supported a finding that a series of intentional acts of
unreasonable force were inflicted on K.S. and that these acts resulted in
the bodily injury she suffered. However, the evidence does not
reasonably support a finding either that Schlitter committed the violent
acts or that he had sole care of her when the injuries were sustained.
During the period of time prior to discovery of the first bruises on K.S.,
numerous people other than Schlitter had cared for her. These
caretakers included Parmer, day-care providers, King, and several
members of Schlitter’s family. Likewise, K.S. had been in the care of
several people prior to the time the second set of bruises was discovered.
Additionally, K.S. had been in the care of both Schlitter and Parmer prior
to the injuries that led to K.S.’s hospitalization and death. Finally,
Schlitter was not with K.S. during the two hours prior to the 911 call.
There was no testimony that Schlitter had ever inflicted unreasonable
force on K.S. in the past or that he had ever shaken her. To the
contrary, the evidence was consistent that Schlitter may have yelled at
her when frustrated, but he typically would leave the room to cope with
his frustration.
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In our careful consideration of all the evidence in the light most
favorable to the State, we cannot conclude that a reasonable jury could
find Schlitter inflicted the force on K.S. that resulted in her injuries.
Such a finding could only be based on speculation. Speculation and
conjecture cannot be used to support a verdict. See State v. Webb, 648
N.W.2d 72, 76 (Iowa 2002) (“The evidence must raise a fair inference of
guilt and do more than create speculation, suspicion, or conjecture.”).
Thus, the second alternative could not support a guilty verdict for child
endangerment, and Schlitter’s counsel was ineffective for failing to move
for a judgment of acquittal on this alternative. The jury should not have
been instructed to consider this alternative in considering Schlitter’s
guilt, and Schlitter’s trial counsel failed to perform an essential duty by
failing to object to the submission of the alternative to the jury.
Furthermore, we also find from this record that prejudice resulted to
Schlitter when his trial counsel failed to move for a judgment of acquittal
on this alternative. It is not possible to know whether or not the jury
relied on this alternative in reaching its verdict. See State v. Tyler, 873
N.W.2d 741, 753–54 (Iowa 2016) (holding we reverse a general verdict
when not all theories are supported by sufficient evidence).
Consequently, there is no way to know if the jury refrained from relying
on this alternative in reaching their verdict.
Accordingly, Schlitter must be given a new trial based on
ineffective assistance of counsel. A new trial cannot include the second
alternative theory for the crime of child endangerment.
3. Willfully deprived K.S. of necessary supervision or medical care.
We now proceed to consider the sufficiency of the evidence to support the
remaining two alternatives of child endangerment. If insufficient
16
evidence was not presented, the alternative cannot be submitted at the
new trial.
The third alternative required proof that Schlitter willfully deprived
K.S. of necessary supervision or medical care he was reasonably able to
provide and the deprivation substantially harmed her physical health.
“Willfully” is defined either as “said or done deliberately or intentionally”
or “established by proof of intentional and deliberate conduct undertaken
with a bad purpose, in disregard for the rights of another, or contrary to
a known duty.” State v. Leckington, 713 N.W.2d 208, 214 (Iowa 2006)
(quoting State v. Tippett, 624 N.W.2d 176, 178 (Iowa 2001) (first quote))
(finding either definition appropriate for this subsection of the child
endangerment statute in that particular case). In Leckington, the
defendant saw an intoxicated minor suffer an injury, left him alone in an
unsupervised location without healthcare, and then tried to remove him
from her house while he was unconscious and foaming from the mouth
rather than call for help in an effort to avoid a criminal investigation. Id.
at 214–15. We found the delay and the seriousness of the minor’s
condition satisfied the requirement of willful deprivation of medical care.
Id. at 215.
In this case, there was evidence that K.S. exhibited numerous
signs of abuse and head trauma. On the other hand, she also exhibited
signs of more normal childhood illness or infection. Schlitter took K.S. to
the doctor on numerous occasions and called the medical clinic several
times. He also administered medication prescribed by the doctor.
Schlitter, however, did not seek medical care for K.S.’s most serious
symptoms. The doctors testified at trial that the symptoms of head
trauma would have been obvious to anyone. In particular, Dr. Oral
testified that the symptoms exhibited by K.S., such as lethargy,
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decreased appetite, pulling hair, nightmares, multiple bruises from
distinct time periods, and lack of playfulness even after she had healed
from the conjunctivitis and ear infection, combined with the repeated
injuries to her forehead were far enough outside normal child behavior
that a reasonable caretaker would have sought medical care.
We conclude a reasonable jury could have found that Schlitter
knew of the abuse occurring to K.S. and chose not to seek medical
attention for the resulting injuries, such as facial bruising and other
abnormal symptoms. A reasonable jury could have found Schlitter
willfully deprived K.S. of medical care despite the ongoing symptoms of
excessive sleep and failure to eat. It could have further found that
Schlitter purposely did not take K.S. in for treatment to avoid the risk of
exposure and an investigation, a risk he knew was possible after the
March 16 visit with DHS regarding the bruise on K.S.’s forehead.
4. Knowingly permitted the continuing physical abuse of K.S.
Finally, we consider the alternative that Schlitter committed child
endangerment by knowingly permitting the continuing physical abuse of
K.S. In State v. Watkins, we held that continuous proximity to a child
abused by a person was sufficient to find a defendant knowingly
permitted the continuing physical abuse of the child. 659 N.W.2d 526,
536–37 (Iowa 2003). To make its case, the State had to show Schlitter
actually knew Parmer was abusing K.S., not just that K.S. always ended
up with odd, significant bruises after her care, even if plausible
explanations for the bruises existed.
Construing the evidence in a light most favorable to the State, this
alternative was supported by sufficient evidence. Schlitter’s explanations
for the origin of the forehead bruises were not consistent, and he
provided no reason for his inconsistencies. Further, a reasonable jury
18
could find he knew the bruising on March 8 was covered with makeup in
an attempt to hide the injury. A jury could also reasonably believe a
parent would not seek to hide bruises on a toddler with makeup.
Construing the evidence in the light most favorable to the State, the jury
could have inferred that K.S. was being abused and that Schlitter
knowingly permitted the abuse to continue by failing to take action to
remove her from the care of the abuser.
B. Failure to Move for Judgment of Acquittal on the Lesser
Included Offenses of Murder. Schlitter also claims his trial counsel
should have sought an acquittal on the lesser offense to murder of
involuntary manslaughter by public offense because the State failed to
establish sufficient evidence to prove the public offense of child
endangerment. Even if we recognized a duty to move for judgment of
acquittal on lesser included offenses after denial of a motion to acquit on
the greater offense, because we find sufficient evidence to support three
of the alternatives of child endangerment, this claim must fail.
C. Claim of Error by Prosecutor. We proceed to consider other
issues raised by Schlitter on appeal to determine if they will impact the
retrial. Because a new trial will be necessary, we will exercise our
authority to promote efficiency and judicial economy by addressing those
issues raised on appeal that will likely reoccur at the retrial.
During closing argument, the prosecutor made an emotional
appeal to the jurors by telling them that the jury system gives control to
“citizens to hold each other accountable for criminal behavior.” He also
told the jurors that they had the “sacred duty of protecting the safety of
the public and of the innocent by judging those that commit brutal acts
of abuse and neglect against fellow humans to be guilty when it’s been
shown beyond a doubt that’s reasonable.” Additionally, the prosecutor
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informed the jurors that they had an “important honor” to “protect the
rights of citizens and acknowledge those rights and find [offenders]
accountable through the rest of us.”
Counsel for Schlitter objected to these statements after
deliberations had begun. The district court ultimately found the
statements did not amount to prosecutorial misconduct. Based on this
ruling, Schlitter raised a claim of prosecutorial misconduct on appeal.
At the outset, we observe that the term “prosecutorial misconduct”
has gained a specialized meaning within the law:
to describe conduct by the government that violates a
defendant’s rights whether or not that conduct was or
should have been known by the prosecutor to be improper
and whether or not the prosecutor intended to violate the
Constitution or any other legal or ethical requirement.
ABA House of Delegates, Recommendation 100B, at 1 (2010),
http://www.americanbar.org/content/dam/aba/directories/policy/2010
_am_100b.pdf [hereinafter ABA Recommendation]. We have followed this
approach by broadly describing trial conduct of a prosecutor in a
criminal case that is claimed to deprive the defendant of a fair trial to be
prosecutorial misconduct. See Graves, 668 N.W.2d at 870. The range of
trial conduct by prosecutors falling into the category of claims referred to
as “prosecutorial misconduct” includes questioning witnesses about
others’ deceit, distorting testimony, making unsupported statements
during closing argument, stating the defendant lied during testimony,
diverting the jury from deciding the case based on the evidence, making
other inflammatory or prejudicial statements about the defendant, and
more. State v. Musser, 721 N.W.2d 734, 754–55 (Iowa 2006) (referring to
improper closing argument that urges the jury to decide the case on
something other than the evidence as prosecutorial misconduct); State v.
20
Carey, 709 N.W.2d 547, 552 (Iowa 2006) (referring broadly to claims of
improper closing argument by the prosecutor as claims of misconduct);
Graves, 668 N.W.2d at 870–71 (collecting cases). While some of the
conduct in these cases may have been intentional, other conduct can be
the result of mistake or error during the heat of trial.
The problem with describing all claims as prosecutorial
misconduct is that the term tends to conflate prosecutorial misconduct
with professional misconduct as controlled by our Iowa Rules of
Professional Conduct. ABA Recommendation, at 1; Shawn E. Minihan,
Measuring Prosecutorial Actions: An Analysis of Misconduct versus Error,
Prosecutor, Dec. 2014, at 22, 23 [hereinafter Minihan]; see also Iowa R.
Prof’l Conduct 32:8.4 (defining professional misconduct). The two
phrases are not only similar in their language, but tend to connote
similar meanings. Yet, professional misconduct generally applies to
intentional misbehavior on the part of the attorney, while prosecutorial
misconduct is not always intentional. Iowa R. Prof’l Conduct 32:8.4;
ABA Recommendation, at 2. In 2010, the American Bar Association
(ABA) adopted a recommendation urging courts to be careful in
distinguishing between prosecutorial misconduct and prosecutorial error
and to attach different levels of culpability for each. ABA
Recommendation, at 2–3.
One author has offered helpful guidance on how to distinguish
between prosecutorial misconduct and prosecutorial error. 1 Minihan, at
24–25. Prosecutorial misconduct includes those statements “where a
1Minihan based distinction between prosecutorial misconduct and error on an
analytical framework developed by the Office of Professional Responsibility for the
United States Department of Justice. Minihan, at 24–25; Office of Prof’l Responsibility,
U.S. Dep’t of Justice, Analytical Framework (2005), https://www.justice.gov/sites/
default/files/opr/legacy/2006/03/15/framework.pdf.
21
prosecutor intentionally violates a clear and unambiguous obligation or
standard imposed by law, applicable rule or professional conduct,” as
well as “those situations where a prosecutor recklessly disregards a duty
to comply with an obligation or standard.” Id. Prosecutorial error occurs
“where the prosecutor exercises poor judgment” and “where the attorney
has made a mistake” based on “excusable human error, despite the
attorney’s use of reasonable care.” Id. at 25. This distinction also
conforms to the general definitions for misconduct and a trial error.
Compare Misconduct, Black’s Law Dictionary (10th ed. 2014) (defining
misconduct as “[a]n attorney’s dishonesty or attempt to persuade a court
or jury by using deceptive or reprehensible methods”), with Trial Error,
Black’s Law Dictionary (defining trial error as “[a] mistake in or deviation
from proper trial procedure during the presentation of a case to a jury”).
Going forward, we adopt the ABA’s recommendation on our review of
prosecutorial behavior and distinguish between incidences of
prosecutorial error and prosecutorial misconduct. A prosecutor who has
committed error should not be described as committing misconduct.
We discussed the role of the prosecutor in criminal cases in
Graves, 668 N.W.2d at 870. We also identified a multifactor test to
evaluate the statements made during closing arguments in determining if
there was misconduct and if that misconduct was prejudicial. Id. at
877–78. These same factors easily translate to an evaluation of
prosecutorial error.
In this case, the claim raised by Schlitter was actually describing
error by the prosecutor, not prosecutorial misconduct. It is unnecessary,
however, for us to apply the Graves factors to this claim or to address the
additional claim whether trial counsel was ineffective for failing to lodge a
timely objection to the closing argument of the prosecutor. The claim of
22
error by the prosecutor based on the statements made during closing
argument rests with the unique and particular choice of words, as well
as the particular surrounding circumstances. It is unlikely the
prosecutor will make the same choice of words or that the same
circumstances will be repeated during the retrial. Accordingly, we do not
resolve the issue, but remind counsel on retrial to be mindful of the
scope of closing arguments described in Graves.
D. Miranda Violation. Schlitter was interviewed by law
enforcement officers on several occasions, including an interview at a
state patrol office on March 30, 2010. He moved to suppress statements
made to officers during this interview because he was not given the
Miranda warnings and because his statements were involuntary based
on promises of leniency. In particular, at the suppression hearing,
Schlitter’s objections to the March 30 interview centered on two areas.
First, he objected to the nature of the interrogation. Second, he objected
because the officers continued to question him after he asked them to
stop once they began to graphically describe the possible ways K.S. could
have received her injuries. On appeal, however, Schlitter primarily
objected to the admission of his statements from the interview describing
his frustration with K.S., the possibility that he had picked up K.S.
roughly, and his implicit defense of Parmer.
The district court found the officers made no statements that
resembled any promise of leniency. It also found Schlitter was not in
custody during the interview, and the officers were not required to give
him the Miranda warnings. The court held Schlitter was not in custody
because he was allowed to and did leave the interview at his own will.
This issue will be raised again on retrial, and we proceed to resolve it on
this appeal. In doing so, we agree the record does not disclose any
23
promises of leniency. Thus, we proceed to decide if Schlitter was in
custody at any time during the interview.
We begin by recognizing that Schlitter raised the Miranda issue
under both the United States and Iowa Constitutions. He did not
propose, however, that we consider a different standard for determining
whether he was in custody under the Iowa Constitution than followed
under the federal caselaw. As a result, with respect to the Iowa
constitutional claim, we apply the prevailing federal standard, but
reserve the right to apply that standard in a different fashion from the
federal caselaw. See State v. Becker, 818 N.W.2d 135, 150 (Iowa 2012).
Law enforcement officers are required to give Miranda warnings
when a suspect is in custody and subjected to interrogation. State v.
Tyler, 867 N.W.2d 136, 171 (Iowa 2015) (discussing the warnings police
must give based on Miranda v. Arizona, 384 U.S. 436, 471, 478–79, 86
S. Ct. 1602, 1626, 1630, 16 L. Ed. 2d 694, 722, 726 (1966)). “[C]ustody
must be determined based on how a reasonable person in the suspect’s
situation would perceive [the] circumstances.” Yarborough v. Alvarado,
541 U.S. 652, 662, 124 S. Ct. 2140, 2148, 158 L. Ed. 2d 938, 950
(2004). Custody occurs “upon formal arrest or under any other
circumstances where the suspect is deprived of his or her freedom of
action in any significant way.” State v. Ortiz, 766 N.W.2d 244, 251 (Iowa
2009). This standard seeks to apply the Miranda requirements to
coercive atmospheres, not just coercive places. It uses a case-by-case
evaluation of all the circumstances existing at the time of the
interrogation. The factors used to determine custody include
(1) the language used to summon the individual; (2) the
purpose, place, and manner of interrogation; (3) the extent to
which the defendant is confronted with evidence of her guilt;
24
and (4) whether the defendant is free to leave the place of
questioning.
State v. Countryman, 572 N.W.2d 553, 558 (Iowa 1997).
In a Miranda claim, interrogation consists of the express
questioning and words and actions beyond those normally part of arrest
and custody “that the police should know are reasonably likely to elicit
an incriminating response from the suspect.” State v. Miranda, 672
N.W.2d 753, 761 (Iowa 2003) (quoting State v. Peterson, 663 N.W.2d 417,
424 (Iowa 2003)). The State has not separately addressed whether an
interrogation occurred and so has waived any argument to the contrary.
See id. Therefore, if we determine Schlitter was in custody then the
officers would have been required to inform him of his Miranda rights.
We first consider the circumstances concerning how the individual
was summoned to the interrogation. Countryman, 572 N.W.2d at 558.
An officer called Schlitter and asked if he would be willing to come to his
office at the state patrol office on a later date to answer some more
questions. The officer did not physically approach Schlitter, bring him to
the station in a police vehicle, or otherwise force Schlitter to the interview
but rather made a request and arrangements for Schlitter to come in
another day. Cf. State v. Bogan, 774 N.W.2d 676, 680–81 (Iowa 2009)
(finding custody when principal pulled student out of class and walked
him to the office followed by officers, and the student did not volunteer or
acquiesce to speaking with police). There is no indication Schlitter
attempted to decline the request or showed any reluctance to attend the
interview.
We next consider the purpose, place, and manner of interrogation.
Countryman, 572 N.W.2d at 558. With respect to the manner of
questioning, we consider how long it lasted, “the number of persons
25
conducting the questioning, the number of breaks taken during the
questioning, the availability of restroom breaks or other breaks, and the
type of questioning in which those conducting the interview engage.”
Tyler, 867 N.W.2d at 172–73. In Tyler, we noted that even a three-hour
interview was not necessarily custodial. Id. at 172. On the other hand,
even brief interviews that the individual knows will continue until the
desired answer is given can be custodial. Miranda, 672 N.W.2d at 760.
Interrogation at a police station is generally a more coercive environment
than questioning a suspect away from the station, but “merely because
questioning takes place at the police station” does not necessarily
implicate custody. State v. Smith, 546 N.W.2d 916, 922 (Iowa 1996).
The purpose of the encounter in this case was to get Schlitter to
confess to being the perpetrator of the physical injuries suffered by K.S.
or to get him to implicate Parmer. Schlitter was a focus of the
interrogation, but so was another person. Schlitter suspected he and
Parmer were targets of the investigation, as did others, including family
members. Schlitter had talked with law enforcement investigators on
several occasions prior to the March 30 encounter and had consistently
denied any responsibility for the injuries inflicted on K.S. The
questioning took place in an interview room and lasted about one hour
and twenty minutes. The officers did not call Schlitter to the patrol office
with the intent to detain or arrest him, nor did they indicate any such
intent to Schlitter.
During the interview, Schlitter sat in a chair against a wall
between a desk and a table. A camera was located directly in front of
him. Two officers were in the room during the interview, but only one
asked Schlitter questions. The officers wore plain clothes. One officer
was behind a desk, and the interviewing officer sat in a chair by the table
26
facing Schlitter. This arrangement placed the officer between Schlitter
and the door. He inched closer to Schlitter throughout the questioning,
moving from around two feet away to nearly knee-to-knee, then moving
back by the table.
It is clear the officers applied forceful verbal pressure on Schlitter
as the questioning progressed. The pressure included a strong and
graphic description of the injuries inflicted on K.S. The officer implied
Schlitter inflicted the injury and confronted Schlitter with the
inconsistency between his denial of any responsibility and his
declaration that Parmer was a good mother and never violent. The type
and amount of pressure used by the officers tended to make the
atmosphere coercive. The pressure was not just for Schlitter to implicate
Parmer but also for him to confess in the alternative. Schlitter thought
the aggressive pressure was unfair and asked the officer several times to
stop.
The officers also asked Schlitter if he would consent to a polygraph
examination. Schlitter said he would consent to a polygraph test but
wanted to take it the following day because it was getting close to
dinnertime. After the officers pressed for Schlitter to immediately take
the test, he requested to talk to his lawyer. When Schlitter was unable to
reach his lawyer by phone, the officers again pressed for him to take the
test, but then agreed it could be done the following day. Schlitter told
the officers that he would come back the next day, stating, “[I]f that’s
when you want me here.”
The third factor looks at “the extent to which the defendant is
confronted with evidence of [his] guilt.” Countryman, 572 N.W.2d at 558.
During this interview, the officer described the actions that could have
caused K.S.’s injuries, such as striking her head, shaking her violently,
27
or dropping her. The officer continued to describe each of those
scenarios in more detail. He told Schlitter that abused children cling to
their abuser and do not run away from the one abusing them. The
officer then continued asking if Schlitter somehow hit K.S.’s head on
anything while carrying her or lifting her. He implied that Schlitter
picked K.S. up too fast and squeezed her hard enough to cause the
bruising without realizing the hold was too rough or accidentally
squeezed her out of frustration. The officer asked to trace Schlitter’s
hand, suggesting it could help identify the source of bruising to K.S.’s
face. The officer told Schlitter his explanations were not credible and
pointed out the bruising on K.S. only began after he became the
custodial parent.
The amount of evidence of Schlitter’s guilt as the perpetrator
presented to him during the interview was not significant. Schlitter did
not make a confession, nor did the officer present any evidence to him
showing Schlitter was directly responsible for K.S.’s injuries. Although
the atmosphere became highly accusatory at a point, the evidence
presented to Schlitter was circumstantial and speculative in nature.
The final factor considered to establish custody is whether the
individual was free to leave the place of questioning. Id. One element of
this is the degree of physical restriction placed on the individual. Smith,
546 N.W.2d at 925. Schlitter’s path to the exit was partially blocked by
the interviewing officer. Additionally, the officers did not open the
interview by telling Schlitter he was free to leave when he wanted.
However, when the officers left the room, Schlitter had free access to the
door. He was not handcuffed at any point during the interview, and the
door to the room was not locked. He drove himself to the station and
was not dependent on the officers to drive him home. See Tyler, 867
28
N.W.2d at 174 (finding no custody even when the individual had been
brought by officers to the police station when the individual was told she
was free to leave and that she would be given a ride). Although Schlitter
became upset during the interview, at no time did his demeanor indicate
he felt he would not be allowed to leave. In fact, when Schlitter told the
officers towards the end of the interview that he could not remain long
enough to take a polygraph examination because he needed to leave for
dinner with his family, they attempted to talk him into staying for the
test, but allowed him to leave without doing so. See Countryman, 572
N.W.2d at 558 (finding no custody when individual was not restrained,
never asked to leave, and officer testified he would have tried to talk her
out of leaving but would have allowed it). Importantly, this exchange
indicated Schlitter did not consider himself to be in custody, but free to
leave to have dinner with his family.
Considering the totality of the circumstances, we conclude
Schlitter was not in custody at the time he entered the interrogation
room of the patrol office. He cooperatively talked to officers in the days
preceding the interview and, under the circumstances, would not have
been alarmed to learn they wanted to talk to him again. He voluntarily
went to the patrol office. The request to meet at the patrol office and to
go into the interview room could not be viewed reasonably as a
significant restraint on Schlitter’s freedom of movement. The difficult
question is whether the circumstances that followed deprived Schlitter at
any point of his freedom to a degree similar to a formal arrest. See
Miranda, 672 N.W.2d at 759 (noting Miranda safeguards apply as soon
as the person is deprived of freedom to the level of a formal arrest). A
coercive environment, whether by formal arrest or otherwise, gives rise to
custody, which requires the protections of Miranda. See id.
29
The strength of Schlitter’s claim of custody is found in the
aggressive and accusatory nature of the questioning. The approach
taken by the investigating officers was consistent with the type of
circumstances that can make suspects feel a coercive atmosphere of
custody. The more an interrogating officer discloses evidence of guilt to a
suspect and the more force the officer uses to express guilt to a suspect,
the greater likelihood the suspect will be in custody for purposes of
Miranda. Cf. Tyler, 867 N.W.2d at 173–74 (distinguishing between
accusatory and truth-seeking questioning); Smith, 546 N.W.2d at 925
(noting questions about conflicting stories was to find information rather
than to confront the defendant with evidence of guilt); see also United
States v. Griffin, 922 F.2d 1343, 1348 (8th Cir. 1990) (“[T]he fact that the
individual has become the focus of the investigation is relevant ‘to the
extent that the suspect is aware of the evidence against him’ and this
awareness contributes to the suspect’s sense of custody.” (quoting United
States v. Carter, 884 F.2d 368, 370 (8th Cir. 1989))). Yet, Schlitter
understood the officers were asking him either to acknowledge his guilt
or implicate Parmer. Even during the aggressive questioning, Schlitter
understood the officers were looking at one or the other as the guilty
party. Thus, if the officers wanted Schlitter to implicate Parmer, a
necessary inference would be the officers lacked evidence of his guilt.
Likewise, the request to trace his hand and to take a polygraph
examination did not support custody under the circumstances, but
confirmed the ongoing nature of the investigation and the ongoing search
for more evidence. Even though the officers wanted to press on with the
questioning and with the polygraph test when Schlitter wanted to end
the encounter, the questioning did promptly end, and Schlitter did agree
to return the next day. Schlitter indicated he did not believe the
30
interview had evolved into a custodial setting by telling the officers near
the end of the interview he would need to take the requested polygraph
examination another time because he needed to be leaving for dinner.
Under all the circumstances, and balancing all four factors, we conclude,
as did the district court, the interrogation did not restrict Schlitter’s
freedom to the point that it rendered him in custody for purposes of
Miranda.
IV. Conclusion.
We conclude the district court did not err in denying the motion to
suppress. However, we conclude insufficient evidence was presented at
trial to support a conviction for child endangerment under the theory
that Schlitter used unreasonable force that resulted in bodily injuries to
K.S. As a result, trial counsel for Schlitter was ineffective for failing to
preserve error. We therefore reverse and remand for a new trial. In light
of the need for a new trial, it is unnecessary to address further the other
issues raised by Schlitter on appeal. We allow the decision of the court
of appeals to stand as a final decision on the claim of ineffective
assistance of counsel relating to the failure to investigate.
DECISION OF COURT OF APPEALS AFFIRMED IN PART AND
VACATED IN PART; DISTRICT COURT JUDGMENT AFFIRMED IN
PART, REVERSED IN PART, AND REMANDED.
All justices concur except Wiggins, J., who concurs in part and
dissents in part, and Appel, J., who files a separate opinion concurring in
part and dissenting in part in which Wiggins and Hecht, JJ., join.
31
#13–0346, State v. Schlitter
WIGGINS, Justice (concurring in part and dissenting in part).
I join Justice Appel’s opinion that concurs in part and dissents in
part to the majority opinion. However, I am compelled to write further on
the use of special interrogatories in criminal cases. I see too many
judges not using them when appropriate.
As demonstrated by this case and State v. Tyler, 873 N.W.2d 741,
753–54 (Iowa 2016), a new trial is required when the evidence is
insufficient to support a guilty verdict on an alternative theory of
criminal liability submitted to a jury and the jury returned a general
guilty verdict. Appropriate use of special interrogatories can avoid new
trials.
Under limited circumstances, our present law allows jurors to
unanimously convict a defendant even when they do not agree on a
single theory of criminal liability. See State v. Bratthauer, 354 N.W.2d
774, 776–77 (Iowa 1984). So long as the alternative means of
committing an offense submitted to the jury are consistent with and not
repugnant to each other, the jury can convict a defendant without
agreeing to the precise means by which the defendant committed the
offense. Id. When the district court submits consistent alternate
theories of liability to the jury, it may submit special interrogatories that
will permit it to determine which jurors agree on each alternative theory,
but it is not required to do so.
In contrast, juror unanimity as to the means by which an offense
was committed is required to sustain a conviction when the alternative
means submitted to the jury are inconsistent, repugnant, or conceptually
distinguishable from each other. See Tim A. Thomas, Annotation,
Requirement of Jury Unanimity as to Mode of Committing Crime Under
32
Statute Setting Forth the Various Modes By Which Offense May Be
Committed, 75 A.L.R. 4th 91, 105 (1990). In such cases, jurors must
reach unanimity as to the means by which the defendant committed the
offense. Thus, the district court must submit special interrogatories to
the jury to convict the defendant when the alternative means submitted
to the jury are inconsistent, repugnant, or conceptually distinguishable
from each other.
Therefore, to determine whether special interrogatories are
necessary, a district court must make two distinct legal determinations.
Bratthauer, 354 N.W.2d at 776. First, the court must determine if the
legislature intended the relevant statute to define “a single offense that
may be committed in more than one way or instead defines multiple
offenses.” Id. Second, the court must apply a constitutional test and
determine if the alternative means for committing the offense are
inconsistent, repugnant, or are conceptually distinguishable. Id.
Only after a district court has completed this two-step analysis will
it be in the position to decide what type of special interrogatories, or
instructions, if any, it may need to give the jury in regards to its verdict. 2
2The model jury instructions published by the Iowa State Bar Association
include the following instruction:
Where two or more alternative theories are presented, or where two or
more facts would produce the same result, the law does not require
each juror to agree as to which theory or fact leads to his or her verdict.
It is the verdict itself which must be unanimous, not the theory or facts
upon which it is based.
Iowa State Bar Ass’n, Iowa Criminal Jury Instruction 100.16 (2015).
It appears the present practice among district courts is to give this instruction
when the alternative means submitted to the jury are not inconsistent, repugnant, or
conceptually distinguishable from each other. Again, the court may want to consider
submitting some form of interrogatories to avoid a retrial in case an appellate court
finds the evidence was insufficient to submit one of the alternative ways to commit an
offense.
33
#13–0346, State v. Schlitter
APPEL, Justice (concurring in part and dissenting in part).
I concur with the balance of the majority opinion but dissent on
the question of whether Schlitter was subjected to an unwarned
interrogation contrary to Miranda v. Arizona under the United States and
Iowa Constitutions. 384 U.S. 436, 444–45, 86 S. Ct. 1602, 1612, 16
L. Ed. 2d 694, 706–07 (1966).
I. Factual and Procedural Background.
The record reveals that law enforcement officers requested Schlitter
to come to the state patrol office for questioning in connection with the
death of his daughter. Schlitter drove himself to the station. He was
then escorted to an interrogation room. The interrogation room had two
steel desks. Schlitter sat in a chair with his back to the wall between the
two desks. Two officers were in the interrogation room seated between
Schlitter and the door. The door of the interrogation room was not
locked. Schlitter was not advised at any time during the interrogation
that the door was not locked, that he was not under arrest, or that he
was free to go.
The interrogation began with basic background information. After
a few minutes of questioning, however, the interrogation became
accusatory. The interrogating officer asked about bruises on Schlitter’s
daughter, stating that “none of the bruising shows up until she’s in your
custody” and that Schlitter’s answer of “I don’t know” to questions about
how the injuries occurred “doesn’t cut it.” The officer described the
injuries and asked, “[H]ow does that happen . . . did you do those
things?” The officer repeatedly stressed, “[W]e’re down to two people, you
and Amy (Schlitter’s girlfriend),” as responsible for the injuries to his
daughter. And the officer also stressed that Schlitter had told them that
34
“Amy’s a good mother [and he’d] never seen her be violent.” Schlitter
grasped the point stating, “So, I’m pretty much incriminating myself.”
For several minutes, the video recording of the interrogation
reveals that the interrogating officer repeatedly confronted Schlitter and
pressed him to admit responsibility for the injuries to his daughter.
Under persistent questioning focusing on his responsibility for the
injuries to his daughter, Schlitter finally declared, “Can you just stop?”
The officer did not stop. He pressed on. He responded by aggressively
stating, “But, but something happened. Okay? Something happened to
your daughter.” Schlitter responded, “You’re getting too graphic and
you’re getting . . . .” But he was not allowed to finish his sentence when
the officer interjected, “Something happened to your daughter and
whatever happened to her, killed her.” Schlitter declared, “I don’t
appreciate this!”
At this point, Schlitter asked, “Do I need my lawyer? Cause I don’t
appreciate this.” The officer ignored him and observed, “We’re just trying
to find out . . . what happened.” Schlitter again declared he did not
appreciate the questioning and for a second time announced, “We need
to stop!” To this the officer responded, “One of two people did [it].”
Schlitter for the third time stated, “I, we need to stop. Please.” The
officer again ignored him and pressed on noting, “One of two people
know what happened.”
At this point, Schlitter backed off his previous unqualified denials
of any involvement in his daughter’s injuries. When asked once again
whether he hurt his daughter, Schlitter now responded, “No. Not that I
know of.” When asked what he meant by that, Schlitter responded with
the phrase, “Not purposely trying to hurt my daughter.” When asked
whether Schlitter became frustrated with his daughter on the day she
35
went to the hospital with severe injuries, Schlitter now stated that his
daughter was not eating lunch and that he “picked her up to set her
down on her mat a few times, ‘cause she kept getting up.” Schlitter then
stated, “[I]t wasn’t hard or extremely forceful. I picked her up, sat her
down, and, uh, she did that enough times I had to take a break. Amy
watched her for a few minutes.”
The officers continued the interrogation. They ultimately asked to
trace Schlitter’s hand, suggesting that this technique would allow them
to determine who caused bruising to his daughter’s face. In apparent
reference to other bruises, Schlitter stated that he picked her up a lot
“like that” but never violently. When asked if his actions would cause
bruising, he stated, “Shouldn’t have been.”
The interrogation continued for several minutes. The interrogating
officer stated, “[I]t’s you and Amy,” “it’s down to you two,” and “it’s down
to you and Amy.”
At this point, the officers asked Schlitter if he would be willing to
take a polygraph test. Schlitter asked if he could do it tomorrow, and the
officers responded that they would prefer he do it that same day. When
Schlitter answered, “I’m supposed to be having dinner soon,” an officer
responded, “I think this is a bit more important than dinner right now.”
In response to the request for a polygraph test, Schlitter stated, “I
wanna talk to my lawyer, too.” The officers allowed Schlitter to call his
attorney. Schlitter could not reach her, however, and left a voice mail
message. After learning that Schlitter could not contact his attorney, the
officers continued questioning. An officer pressed the polygraph issue,
stating that “the choice is really yours.” Schlitter repeated, “I just wanna
talk to my lawyer first . . . about everything that is going on here.”
36
The officers continued to press for the polygraph. One officer
stated, “You can walk out of here knowing that, you know, we don’t think
that you’re, you’re our person anymore . . . .” Ultimately the officers and
Schlitter agreed that he would come back the next day for the polygraph.
An officer asked Schlitter, “Okay. I have your, your word?” and Schlitter
responded, “Yeah, if that’s when you want me here, I’ll come back.”
Schlitter stated that Amy was “too nice of a person to hurt any kid.” The
officer emphasized, “[U]ntil we can polygraph you and, and talk with Amy
. . . it won’t be over.” The interrogation then ended.
II. State and Federal Claims.
In this case, Schlitter raises his Miranda claim under both the
United States Constitution and the Iowa Constitution. Although the
Iowa Constitution does not contain an explicit right against compelled
self-incrimination, we have found such a right under the due process
clause of the Iowa Constitution. State v. Iowa Dist. Ct., 801 N.W.2d 513,
518 n.2 (Iowa 2011) (citing State v. Height, 117 Iowa 650, 659, 91 N.W.
935, 938 (1902)).
In the aftermath of Miranda, the United States Supreme Court has
embraced its core holding but generally limited the potentially protean
scope of the case. State supreme courts have not consistently followed
the Supreme Court’s later caselaw under Miranda in the interpretation of
their state constitutions. 3
3See, e.g., State v. Ketchum, 34 P.3d 1006, 1021–25 (Haw. 2001) (elaborating on
a more expansive definition of custody under article I, section 10 of the Hawaii
Constitution); People v. Griggs, 604 N.E.2d 257, 268 (Ill. 1992) (rejecting Moran v.
Burbine, 475 U.S. 412, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986), under the Illinois
Constitution); Commonwealth v. Smith, 593 N.E.2d 1288, 1295 (Mass. 1992) (declining
to follow Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985), on
state law grounds in Massachusetts); State v. Smith, 834 S.W.2d 915, 919 (Tenn. 1992)
(explaining that the Tennessee Constitution provides more protection than the Federal
Constitution under Miranda); see also State v. Tyler, 867 N.W.2d 136, 186–87 (Iowa
37
In this case, however, Schlitter does not suggest that we should
apply a different framework under the Iowa Constitution than is
generally applied by the United States Supreme Court. As a result, we
must apply the federal framework for the purpose of this case, but we
reserve the right to apply the federal framework in a more restrictive
manner. See State v. Short, 851 N.W.2d 474, 491 (Iowa 2014). Under
these circumstances, this case does not stand for the proposition that
departures from federal precedent will be rejected, but only that they
have not been presented and therefore have not been ruled upon in the
case presented.
Thus, the posture presented in this case is similar to State v. Pals,
805 N.W.2d 767 (Iowa 2011). In Pals, we considered the application of a
totality-of-the-circumstances test to determine whether an individual had
consented to a search. Id. at 777. Pals did not argue for a departure
from the federal totality-of-the-circumstances test under the Iowa
Constitution. Id. at 779–80. Consequently, we utilized the federal test,
but applied it in a fashion more stringent than federal law. Id. at 782.
Similarly, here we are faced with another totality-of-the-circumstances
test under federal law. We apply the test, but may do so in a fashion at
variance with federal law.
_________________________
2015) (Appel, J., concurring part and dissenting in part) (citing state constitutional
cases that decline to follow Elstad); Claudia R. Barbieri, Oregon v. Elstad Revisited:
Urging State Court Judges to Depart from the U.S. Supreme Court’s Narrowing of
Miranda, 4 U. Dist. Colum. L. Rev. 63, 69–74 (1998); Arthur Leavens, Prophylactic Rules
and State Constitutionalism, 44 Suffolk U. L. Rev. 415, 429–38 (2011); Katherine E.
McMahon, “Cat-Out-of-the-Bag” & “Break-in-the-Stream-of-Events”: Massachusetts’
Rejection of Oregon v. Elstad for Suppression of Warned Statements Made After a
Miranda Violation, 20 W. New Eng. L. Rev. 173, 201–08 (1998).
38
III. Legal Framework for Evaluation of Custody Under United
States Constitution.
As noted by the majority, the United States Supreme Court has
established a totality-of-the-circumstances test to determine if a person
is in custody or if freedom is deprived “in any significant way.” 4 Miranda,
384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706. Whether a
person is in custody or has been deprived of freedom in any significant
way is determined by examination of “all of the circumstances
surrounding the interrogation.” Stansbury v. California, 511 U.S. 318,
322, 114 S. Ct. 1526, 1528–29, 128 L. Ed. 2d 293, 298 (1994). The
Supreme Court has stated that relevant circumstances include, but are
not limited to: the language used in summoning the interrogatee,
Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S. Ct. 2140, 2149, 158
L. Ed. 2d 938, 951 (2004); the location of the questioning, see Maryland
v. Shatzer, 559 U.S. 98, 114, 130 S. Ct. 1213, 1225, 175 L. Ed. 2d 1045,
1059 (2010); its duration, Berkemer v. McCarty, 468 U.S. 420, 437–38,
104 S. Ct. 3138, 3149, 82 L. Ed. 2d 317, 333 (1984); statements made
during the interrogation, Oregon v. Mathiason, 429 U.S. 492, 495, 97
S. Ct. 711, 714, 50 L. Ed. 2d 714, 719 (1977) (per curiam); the presence
or absence of physical restraints during the questioning, New York v.
Quarles, 467 U.S. 649, 655, 104 S. Ct. 2626, 2631, 81 L. Ed. 2d 550,
556 (1984); and whether the interrogatee is released at the end of the
questioning, California v. Beheler, 463 U.S. 1121, 1124, 103 S. Ct. 3517,
3519, 77 L. Ed. 2d 1275, 1278–79 (1983) (per curiam).
4The expansive language is broad enough to prevent law enforcement from
circumventing the Miranda requirements by conducting interrogations in places such
as hotel rooms or squad cars. See Orozco v. Texas, 394 U.S. 324, 326–27, 89 S. Ct.
1095, 1097, 22 L. Ed. 2d 311, 314–15 (1969).
39
Following the lead of the United States Supreme Court, several
circuit courts have developed nonexclusive criteria for consideration. See
United States v. Kim, 292 F.3d 969, 974 (9th Cir. 2002) (including “(1) the
language used to summon individual; (2) the extent to which the
defendant is confronted with evidence of guilt; (3) the physical
surroundings of the interrogation; (4) the duration of the detention; and
(5) the degree of pressure applied to detain the individual” (quoting
United States v. Hayden, 260 F.3d 1062, 1066 (9th Cir. 2001))); United
States v. Griffin, 922 F.2d 1343, 1349 (8th Cir. 1990) (including “whether
the suspect was informed at time of questioning that the questioning was
voluntary, that the suspect was free to leave or request officers to do so,
or that the suspect was not considered under arrest”; “whether the
suspect [had] unrestrained freedom of movement during questioning”;
“whether the suspect initiated the contact with authorities or voluntarily
acquiesced to official requests to respond to questions”; “whether strong
arm tactics or deceptive stratagems were employed during the
questioning”; “whether the atmosphere of the questioning was police
dominated”; or “whether the suspect was placed under arrest at the
termination of the questioning”). We have also utilized nonexclusive
criteria for determination of custody. State v. Miranda, 672 N.W.2d 753,
759 (Iowa 2003) (including “language used to summon the person”;
“purpose, place, and manner of interrogation”; “extent to which the
person is confronted with evidence of guilt”; and “whether the person is
free to leave the place of questioning”).
An individual is in custody when freedom of movement is
restrained to the degree comparable to formal arrest. Beheler, 463 U.S.
at 1125, 103 S. Ct. at 3520, 77 L. Ed. 2d at 1279. The question of
custody is sometimes phrased as whether there are circumstances that
40
objectively present “a serious danger of coercion”—coercion of a degree
associated with formal arrest. Howes v. Fields, 565 U.S. ___, ___, 132
S. Ct. 1181, 1189, 182 L. Ed. 2d 17, 27 (2012); Tammy R. Pettinato, The
Custody Catch-22: Post-Interrogation Release as a Factor in Determining
Miranda Custody, 65 Ark. L. Rev. 799, 818 n.115 (2012); Bryan Taylor,
You Have the Right to Be Confused! Understanding Miranda After 50
Years, 36 Pace L. Rev. 160, 180–81 (2015).
As noted by the United States Supreme Court, coercion inherent in
custodial interrogations “derives in large measure from an interrogator’s
insinuations that the interrogation will continue until a confession is
obtained.” Minnesota v. Murphy, 465 U.S. 420, 433, 104 S. Ct. 1136,
1145, 79 L. Ed. 2d 409, 423 (1984); see also State v. Muntean, 12 A.3d
518, 525 (Vt. 2010) (finding custody is present when individual is not “at
liberty to terminate the interview and leave”). As observed by one
authority, custody “implies a situation in which the suspect knows he is
speaking with a government agent and does not feel free to end the
conversation.” Stephen E. Arthur & Robert S. Hunter, The Miranda
Rights, in 1 Federal Trial Handbook: Criminal § 30:8 (4th ed.), Westlaw
(database updated Dec. 2015).
The United States Supreme Court has emphasized that in
determining the custody issue, the question must be approached from
the viewpoint of a reasonable person in the presence of the police officer,
not from the viewpoint of police officers themselves. Yarborough, 541
U.S. at 663, 124 S. Ct. at 2148–49, 158 L. Ed. 2d at 950–51; Thompson
v. Keohane, 516 U.S. 99, 112, 116 S. Ct. 457, 465, 133 L. Ed. 2d 383,
394 (1995); Stansbury, 511 U.S. at 323, 114 S. Ct. at 1529, 128
L. Ed. 2d at 298; Berkemer, 468 U.S. at 442, 104 S. Ct. at 3151, 82
L. Ed. 2d at 336. The subjective and undisclosed views of police officers
41
conducting the interrogation are irrelevant. Stansbury, 511 U.S. at 324,
114 S. Ct. at 1529–30, 128 L. Ed. 2d at 299–300. The views of officers
are relevant only to the extent conveyed, by word or deed, to the
individual being questioned. Id. at 325, 114 S. Ct. at 1530, 128
L. Ed. 2d at 300.
IV. Application of Totality-of-the-Circumstances Test of
Custody.
A. Language Used to Summon: The Question of Implied
Obligation. We begin by discussing the first nonexclusive factor often
cited in determining custody or restraint: the language used by the police
to summon an individual to interrogation. Yarborough, 541 U.S. at 664,
124 S. Ct. at 2149, 158 L. Ed. 2d at 951. As has been noted by a leading
authority, “ ‘invitations’ or ‘requests’ to come to the police station for
questioning may be ambiguous.” William E. Ringel et al., Searches and
Seizures, Arrests and Confessions, § 27.5 (2d ed.), Westlaw (database
updated Mar. 2016).
Here, however, the record does not provide the language used to
summon Schlitter. The officer testified at the suppression hearing only
that a request was made that Schlitter come to the patrol office and that
he voluntarily complied. There was no evidence the officer specifically
advised Schlitter that his decision was up to him, that he could leave at
any time during the interrogation if he chose, or that he was not under
arrest. Yet, it is clear under the caselaw that even when a person
appears to have voluntarily traveled to a police station to submit to
interrogation, this fact does not in and of itself establish lack of custody
or restraint for a number of reasons.
First, a request to appear at the police station “may easily carry an
implication of obligation, while the appearance itself, unless clearly
42
stated to be voluntary, may be an awesome experience for the ordinary
citizen.” Jefferson v. State, 459 S.E.2d 173, 177 (Ga. Ct. App. 1995)
(quoting Dunaway v. New York, 442 U.S. 200, 207 n.6, 99 S. Ct. 2248,
2253 n.6, 60 L. Ed. 2d 824, 832 n.6 (1979)) (noting an officer’s request
for a person to come to the station may easily be an offer that cannot be
refused, depending on the circumstances); State v. Menne, 380 So. 2d 14,
17 (La. 1980); State v. Bleyl, 435 A.2d 1349, 1357 (Me. 1981); People v.
Dross, 551 N.Y.S.2d 1016, 1020 (Supp. Ct. 1989). The United States
Supreme Court recognized the concern in Dunaway, where the Supreme
Court recognized that individuals may not view requests to come to the
station as something that they may easily refuse. 442 U.S. at 207 n.6,
99 S. Ct. at 2253 n.6, 60 L. Ed. 2d at 832 n.6. Thus, even an apparently
voluntary appearance may mask coercive features.
Second, many of the cases finding the manner of arrival at the
police station significant combine the voluntary nature of the summons
with other facts that reinforce a finding of lack of custody or restraint.
That was the case in Mathiason. In Mathiason, the defendant was told
upon his arrival at the police station that he was not under arrest. 429
U.S. at 493, 495, 97 S. Ct. at 713, 714, 50 L. Ed. 2d at 718, 719. This
key limiting feature of Mathiason—namely, that other facts supported a
finding of lack of custody beyond the apparently voluntary arrival of the
person at the place of interrogation—has not gone unnoticed. For
example, in Muntean, a defendant who voluntarily arrived at the place of
interrogation was nevertheless found to be in custody when he was not
told that he was free to leave at any time, he was confronted immediately
with evidence of guilt, the detective indicated that he was certain of his
guilt, and the interrogation took place in a small, windowless polygraph
room. 12 A.3d at 524.
43
Similarly, in Moore v. Ballone, the United States Court of Appeals
for the Fourth Circuit noted the fact that the police emphasized that the
individual was not under arrest at the station before the interrogation
commenced in Mathiason limited the scope of the case. 658 F.2d 218,
225 (4th Cir. 1981). Along the same line of reasoning, the court in
United States v. Harrold noted that although courts have held that an
individual who voluntarily arrived at the police station was not in
custody for purposes of Miranda, the defendants “in those cases were
also told that they were not under arrest or were not restrained at the
police station.” 679 F. Supp. 2d 1336, 1345 (N.D. Ga. 2009) (emphasis
added). Further, as has been observed by one federal court, the repeated
reminder that the suspect is free to leave is perhaps the most significant
fact for determining if the interrogation is noncustodial. United States v.
Crawford, 372 F.3d 1048, 1060 (9th Cir. 2004). Notably, here there was
no Mathiason reminder, let alone repeated Crawford reminders that
Schlitter was not under arrest or was free to leave the interrogation
location.
Finally, an interrogation that commences as a noncustodial
interrogation can morph into a situation that a reasonable person would
conclude involves custody or significant restraint. The usual fact pattern
involves an interrogation that begins in a low-key manner but then
escalates into a confrontation suggesting the defendant’s guilt. In these
situations, an interrogation may be voluntary at the beginning but may
develop into a confrontation that would give rise to a reasonable belief
that the defendant cannot leave until the interrogation is completed.
See, e.g., United States v. IMM, 747 F.3d 754, 766 (9th Cir. 2014) (noting
voluntary initial contact is significant but does not end custody inquiry);
People v. Algien, 501 P.2d 468, 470–71 (Colo. 1972); People v. Mrozek,
44
367 N.E.2d 783, 787 (Ill. App. Ct. 1977); Commonwealth v. Magee, 668
N.E.2d 339, 343 (Mass. 1996); State v. Payne, 149 S.W.3d 20, 33–34
(Tenn. 2004).
Under the thin record of this case, the conclusory testimony that
Schlitter voluntarily came to the station mildly supports a finding of lack
of custody. The lack of evidence of the specific language used, however,
and the failure of the record to show that Schlitter was told he could
voluntarily leave or end the interrogation substantially minimizes the
importance of this factor. Further, as will be seen below, developments
at the interrogation substantially overpower the voluntary nature of the
original summons.
B. Ensuring Voluntariness: Statement That the Individual Is
Free to Leave. A second factor often considered in determining whether
an interrogation is custodial is whether the interrogatee has been told
that he is not under arrest or that he is free to go at any time. The
authorities discussed above demonstrate the importance of these
admonitions. The Eighth Circuit has observed that
abundant advice of freedom to terminate the encounter
should not be treated merely as one equal factor in a multi-
factor balancing test designed to discern whether a
reasonable person would have understood himself to be in
custody. That a person is told repeatedly that he is free to
terminate an interview is powerful evidence that a
reasonable person would have understood that he was free
to terminate the interview.
United States v. Czichray, 378 F.3d 822, 826 (8th Cir. 2004).
Here, however, the transcript and the audio recording of Schlitter’s
interrogation reveal no such declarations. Although not necessarily
determinative, the lack of a statement that Schlitter was not under arrest
and was free to terminate the interrogation at any time is a factor cutting
45
in favor of custody. See United States v. Conder, 529 F. App’x 618, 623
(6th Cir. 2013).
Even in cases when a person is advised that he or she is free to
terminate the interrogation at any time, such declarations are not
determinative of the custody issue when the interrogation turns strongly
accusatorial. California v. Aguilera, 59 Cal. Rptr. 2d 587, 593–94 (Ct.
App. 1996) (holding that although the interrogatee was told he was not in
custody, repeated disbelief expressed by the interrogators indicated that
the individual would not be released so long as the individual continued
denials). While police in this case made no statement at the time of the
interrogation suggesting that Schlitter was not under arrest or was free
to leave, they did repeatedly question him in a way that demonstrated
disbelief, a factor cutting in favor of a finding of custody. See, e.g., Jones
v. People, 711 P.2d 1270, 1276 (Colo. 1986); State v. Rogers, 760 N.W.2d
35, 56–57 (Neb. 2009).
C. Place of Interrogation: Is It Police Dominated? A third
factor considered in determining whether an interrogation is custodial is
the place of interrogation. As noted in Miranda, “compulsion to speak in
the isolated setting of the police station may well be greater than in
courts or other official investigations, where there are often impartial
observers to guard against intimidation or trickery.” 384 U.S. at 461, 86
S. Ct. at 1621, 16 L. Ed. 2d at 716. According to Miranda, in the
investigator’s office, the investigator possesses all the advantages; “[t]he
atmosphere suggests the invincibility of the forces of the law.” Id. at 450,
86 S. Ct. at 1615, 16 L. Ed. 2d at 709. As a result, courts have noted
that stationhouse interrogations should be scrutinized with great care.
United States v. Jacobs, 431 F.3d 99, 105 (3rd Cir. 2005); Steigler v.
Anderson, 496 F.2d 793, 799 (3rd Cir. 1974).
46
Here, the interrogation not only occurred at the patrol office, but in
a room specially designed for that purpose. Schlitter was positioned with
his back to the wall, surrounded by two steel desks, with two officers in
front of him. A review of the videotaped interrogation shows that the
physical characteristics of the interrogation room and the placement of
the officers plainly tends to promote the type of police dominated
atmosphere that animated the concerns of Miranda.
The State notes that the door to the room was unlocked. Yet, there
is nothing in the record that suggests that Schlitter was told that fact.
See United States v. Rogers, 659 F.3d 74, 76 (lst Cir. 2011) (describing
how police told the suspect that the door was unlocked and he was free
to leave the interview room); People v. Vargas, 971 N.Y.S.2d 624, 625
(App. Div. 2013) (noting that the suspect was told that the doors were
unlocked and she could leave whenever she wanted). In any event, two
officers in a small room blocking access to the door minimizes the fact
that the door was unlocked. See Payne, 149 S.W.3d at 33 (noting that
police officers blocked access to the door of interrogation room); see also
People v. Elmarr, 181 P.3d 1157, 1163–64 (Colo. 2008) (stating the fact
that the suspect was “interrogated in a small, closed-door interview
room” by police officers contributed to a finding of custody); Ramirez v.
State, 739 So. 2d 568, 574 (Fla. 1999) (finding custody established when
accused was, among other things, questioned “in a small room in the
police station by two detectives”). In Harrold, the district court noted the
fact that the door to the interrogation room was unlocked, but did not
give this factor much weight under circumstances similar to those
presented in this case. 679 F. Supp. 2d at 1344.
The location and physical circumstances surrounding the
interrogation in this case point in a direction of finding custody or
47
restraint. Yet, though there is an element of compulsion in the setting,
the United States Supreme Court has made clear that the mere fact that
an interrogation occurs at the police station is not, in and of itself,
determinative of the question of custody or restraint. Mathiason, 429
U.S. at 495, 97 S. Ct. at 714, 50 L. Ed. 2d at 719. But nothing in
Mathiason indicates the station house location should not be considered
as a factor in the overall analysis of whether custody or restraint is
present.
D. Nature of Interrogation: Is It Accusatorial? Another
important factor to consider in determining the custody or restraint
question is the nature of the interrogation. In many cases, the evolution
of interrogation from ordinary fact-finding into a highly confrontational
and accusatorial proceeding converts a voluntary encounter into a
custodial interrogation. See Ross v. State, 45 So. 3d 403, 415–16 (Fla.
2010). When interrogation escalates, the key question is whether a
reasonable person would feel at the time of the accusatorial questioning
that they would be free to leave. People v. Payne, 838 N.Y.S.2d 123, 125
(App. Div. 2007).
Illustrative of accusatory questioning is State v. Lynn, 829 S.W.2d
553 (Mo. Ct. App. 1992). In this case, the investigation focused on
defendant and her boyfriend as perpetrators of the crime. Id. at 554.
When the police continued the questioning of the defendant despite her
denials until she confessed, the Missouri court held the defendant
reasonably believed she was not free to go. Id.; see also Mansfield v.
State, 758 So. 2d 636, 644 (Fla. 2000) (finding custody when accused
“was interrogated by three detectives at the police station, he was never
told he was free to leave, he was confronted with evidence strongly
suggesting his guilt, and he was asked questions that made it readily
48
apparent that the detectives considered him the prime, if not the only,
suspect”).
It is clear that an interrogation can be accusatorial even if there is
not probable cause to arrest the individual. In Moore, the Fourth Circuit
noted that even though law enforcement did not have probable cause to
arrest an individual and told him he was free to leave, a persistent
course of interrogation nonetheless produced a coercive environment
sufficient to satisfy the custody requirement of Miranda. Moore, 658 F.2d
at 221; see also State v. Mumbaugh, 491 P.2d 443, 449 (Ariz. 1971)
(stating that a finding of no probable cause does not necessarily mean
there was no “custody” for purposes of Miranda). Probable cause to
arrest and custody are different concepts. Lindsay v. State, 698 P.2d
659, 662–63 (Alaska Ct. App. 1985) (finding the defendant in custody
though no probable cause to arrest); People v. Biggs, 451 N.Y.S.2d 196,
199 (App. Div. 1982) (finding subject in custody in police car though no
probable cause to arrest him). The proper focus is not on the subjective
views of the police or the strength or weaknesses of their case, but is
instead on whether a reasonable person in the shoes of the person being
interrogated would believe he or she could terminate the interrogation
and leave.
Once again, the United States Supreme Court has cautioned that
mere investigatory questioning is not enough to dictate a finding of
custody or restraint. See Berkemer, 468 U.S. at 437–38, 104 S. Ct. at
3149, 82 L. Ed. 2d at 333 (noting that questioning incident to an
ordinary traffic stop is different than custodial questioning). Yet, the
nature of the questioning is an important factor in the analysis. United
States v. Bassignani, 575 F.3d 879, 885 (9th Cir. 2009) (discussing the
difference between confrontational and nonconfrontational interrogation).
49
Here, there is no question the interrogation began in a low-key,
matter-of-fact manner. It also escalated into confrontation. The tone of
the interrogation shifted, and law enforcement repeatedly sought a
confession from Schlitter. Further, when Schlitter unambiguously
demanded the officers to stop the interrogation, they did the opposite.
They persisted. He specifically asked the officers to stop three times and
declared the interrogation inappropriate four times. The officers ignored
his entreaties and plowed ahead. See State v. Roble-Baker, 136 P.3d 22,
29–30 (Or. 2006) (en banc) (noting refusal of police to stop questioning
when requested to do so created the kind of police-dominated
atmosphere that Miranda warnings were intended to counteract).
Ultimately, they pressured Schlitter to qualify his previous
unqualified strong denials by stating that he did not hurt his daughter
“as far as he knew” and declaring that he was frustrated with his
daughter’s behavior and picked her up and down repeatedly during the
time when the injuries might have been inflicted on her. The
accusatorial nature of the interrogation is a factor that cuts in favor of a
finding of custody.
The district court responded to these facts by crediting patrol
officers who testified that they were conducting an interrogation for the
purposes of background information. The district court found that the
officers had no plans to take Schlitter into custody because there was no
evidence with which to charge him with a crime.
The subjective views of the police officers have no direct bearing on
what a reasonable person would conclude from the circumstances.
Stansbury, 511 U.S. at 324, 114 S. Ct. at 1529–30, 128 L. Ed. 2d at 299–
300. Miranda rights are personal to the individual. That is why the test
is what a reasonable person in the shoes of the person being interrogated
50
would believe with respect to the custodial issue. The subjective belief
on custody of the police officer, unless communicated to the individual
being questioned, is of very little value in determining what a reasonable
interrogatee would believe. State v. Murray, 510 N.W.2d 107, 110 (N.D.
1994) (stating the fact that the officer planned to arrest the accused
irrelevant when not communicated to the accused). Here, there was no
such communication and indeed, just the opposite in light of the officer’s
declarations that the bruising occurred when his daughter was in his
care. Thus, the trial court’s focus on the subjective state of mind of
police officers does nothing to mitigate the accusatorial nature of the
interrogation.
E. Honoring Request to Call Attorney About Polygraph
Examination After Conclusion of Interrogation. Another factor in this
case is the significance of the officers honoring Schlitter’s request that he
be allowed to call his attorney when his interrogators wanted to conduct
a polygraph test. Yet, by the time the officers asked for a polygraph test,
the interrogation was essentially over. 5 The officers had achieved all they
could from the interrogation of Schlitter. The question here is whether
Schlitter felt free to leave at the time the questioning turned accusatorial
at the patrol office in the environment in which he found himself. The
fact that he repeatedly asked the interrogators to stop asking him
questions—and their determination to press on—suggests that at the key
point of the interrogation, a reasonable person in Schlitter’s shoes would
not have believed he was free to leave the interrogation room. He
5Schlitter also invoked his right to counsel generally. The law enforcement
officers refused to terminate the questioning, however, giving rise to a potential violation
of Edwards v. Arizona, 451 U.S. 477, 482, 101 S. Ct. 1880, 1883, 68 L. Ed. 2d 378, 384
(1981). This Edwards question was not raised in this case.
51
repeatedly asked the officers to stop, and his requests were repeatedly
not honored. The officers appeared determined to press the
interrogation, and at the accusatorial point of the questioning, a
reasonable person might not have believed they could just get up and
leave until the interrogation was concluded.
F. Departure at Conclusion of Interrogation. Another feature of
this case emphasized by the State is that Schlitter was not arrested at
the conclusion of the interrogation. In Mathiason, the individual who
confessed was not charged at the conclusion of the questioning, a fact
that the Supreme Court found significant. 429 U.S. at 495, 97 S. Ct. at
714, 50 L. Ed. 2d at 719. But in Mathiason, the suspect was told he was
not under arrest at the beginning of the interrogation, confessed within
about five minutes, and there was “no indication that the questioning
took place in a context where respondent’s freedom to depart was
restricted in any way.” Id. at 493, 495, 97 S. Ct. at 713, 714, 50
L. Ed. 2d at 718, 719. Here, a suspect is not told he is not under arrest
or that he can terminate the interrogation, is placed in a confined room
used for interrogations, has his exit blocked by patrol officers, is
confronted with accusatorial questioning, and is subject to repeated and
determined questioning in response to three unheeded demands that the
interrogation “stop!” The facts are obviously in strong contrast to those
in Mathiason.
Further, the fact that Schlitter was not charged for another fifteen
months is of little moment on the question of what Schlitter reasonably
thought at the time of the accusatorial interrogation. Again, the question
is not what the police may have thought after the interrogation was
concluded (or at any time, for that matter): the question is what would a
reasonable person in Schlitter’s position have concluded about his
52
custodial status at the time he faced accusatorial interrogation and made
repeated unheeded demands to stop the interrogation. See State v.
Aynes, 715 N.E.2d 945, 950 (Ind. Ct. App. 1999) (finding despite fact
that defendant drove himself to police station for interrogation and left at
end, interrogation was custodial in light of nature of interrogation and
fact that defendant was never told he was free to leave).
G. Conclusion. In light of the totality of the circumstances, I
conclude that the interrogation here became custodial when law
enforcement officers began focusing in on Schlitter as the possible
perpetrator of the crime in this case. I note in particular the failure of
law enforcement to advise Schlitter that he was not under arrest, the
physical circumstances of the interrogation, the confrontational nature of
the questioning by police, and importantly, the refusal of the officers to
discontinue the questioning when Schlitter repeatedly demanded that
they stop. After his repeated requests to stop were not honored, a
reasonable person would have believed he was not free to terminate the
interrogation. I would thus hold that the district court erred in failing to
suppress statements made beyond that point in the interrogation under
both the United States Constitution and under the due process clause of
article I, section 9 of the Iowa Constitution.
V. Harmless Error.
Constitutional error is harmless only if it may be shown to be
harmless beyond a reasonable doubt. State v. Turner, 630 N.W.2d 601,
609 (Iowa 2012). The record in this case shows, however, that the
prosecutor used Schlitter’s interrogation responses to persuade the jury
of his guilt. An incriminating response is any response, whether
inculpatory or exculpatory, that the prosecution may seek to introduce at
trial. Rhode Island v. Innis, 446 U.S. 291, 297, 100 S. Ct. 1682, 1688,
53
64 L. Ed. 2d 297, 305 (1980). At trial, the prosecutor emphasized
Schlitter’s lack of “outrage” in the interrogation. Further, the prosecutor
additionally emphasized in closing argument to the jury that in the
interrogation Schlitter admitted abusing his daughter when he stated
that he was frustrated with her on Sunday, March 21, because she was
not eating her lunch. The prosecutor also argued that in the
interrogation Schlitter admitted that he might have picked up his
daughter in a rough manner. In a close case like this one, we cannot say
that the admission of evidence from the interrogation was harmless given
the reliance placed on the evidence obtained after the March 30
interrogation turned adversarial by the prosecution. As a result,
Schlitter’s motion to suppress incriminating statements made after the
interrogation turned adversarial should have been granted. 6
Wiggins and Hecht, JJ., join this concurrence in part and dissent
in part.
6As a result of my disposition of the custody issue, it is not necessary to
consider Schlitter’s due process claim that the statements were involuntary.