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IN THE COURT OF APPEALS OF IOWA

No. 5-936 / 04-1785

Filed February 1, 2006

STATE OF IOWA,

Plaintiff-Appellee,

vs.

THOMAS ANTHONY MILLER,

Defendant-Appellant.

Appeal from the Iowa District Court for Des Moines County, Mary Ann Brown (motion to suppress) and William L. Dowell (trial), Judges.

Thomas Anthony Miller appeals his conviction, following a jury trial, for murder in the second degree. AFFIRMED.

Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Thomas Tauber and Robert J. Glaser, Assistant Attorneys General, Patrick C. Jackson, County Attorney, and Amy K. Beavers, Assistant County Attorney, for appellee.

Heard by Zimmer, P.J., and Miller and Hecht, JJ.


MILLER, J.

Thomas Anthony Miller appeals his conviction, following a jury trial, for murder in the second degree. He contends the trial court erred in denying his motion for mistrial, failing to allow evidence vital to his theory of defense, and not suppressing the videotape of his interview by the police. He also claims his trial counsel was ineffective for failing to object to an impermissible comment on his credibility. We affirm.

I. BACKGROUND FACTS AND PROCEEDINGS.

The record reveals the following facts. On October 24, 2003, Thomas Miller’s (Miller) brother, Joe Miller (Joe), showed up at Miller’s apartment at about 5:00 p.m. They talked, ordered pizza, and drank some beer. Miller estimated he drank three to four beers while with his brother. At approximately 10:30 or 11:00 p.m. Miller, Joe, and Joe’s girlfriend, Krystal Dickenson, left Miller’s apartment and went to a local bar called Hot Toddies. While there Miller talked with friends and sang karaoke. He also talked to and danced with Janet McCammant. Joe and Dickenson stated they had never seen Miller and McCammant together before. Miller estimated he had five to seven beers while at Hot Toddies.

Around midnight Miller and McCammant left Hot Toddies together in a cab. The cab driver, who knew both Miller and McCammant, thought they were both intoxicated when he picked them up at the bar. The cab dropped both Miller and McCammant off at Miller’s apartment. Miller called Joe and Dickenson around 1:00 a.m. and asked them to get some more beer. They bought some beer and arrived with it at Miller’s apartment around 1:30 a.m. Joe testified at trial that he and Dickenson remained at Miller’s apartment until about 2:00 a.m. and then went to their own residence which is about two blocks away. Joe stated he saw Miller drink one beer during the time he was there. Both Joe and Dickenson believed Miller was intoxicated when they left his apartment at 2:00 a.m.

Around 4:00 or 4:10 a.m. Miller called his brother Joe and said that he had killed McCammant with a knife. Around that same time Miller left a message on Joe’s cell phone in which he said, “I stabbed her” and “My hands are all red.” He also called his other brother, Ted Miller, around 4:20 a.m. leaving a very upset message on Ted’s answering machine to the effect that he thought he had killed someone. Miller also called his mother between 4:00 and 4:30 a.m. and told her he had killed someone by stabbing them.

Dickenson arrived at Miller’s apartment shortly after the incident and found McCammant on the kitchen floor bleeding. Miller was on the floor beside McCammant crying and apparently trying to stop the bleeding with his hand. Dickenson told Miller he should do CPR on McCammant and he told her he had until he heard her take her last breath. Miller told Dickenson not to call the police and when she tried to leave Miller stepped in front of her and would not let her leave. She eventually got away, went home, and told Joe that Miller had killed McCammant.

Joe went to Miller’s apartment and saw the body on the floor. Miller told Joe it was self-defense. Joe said he should call 911 but Miller would not let him make the call and they argued about calling. Miller did call Ricky Hartman, his supervisor at work, and told him he had killed someone. Hartman asked Miller if he had called 911 and Miller said he had not and that he was scared. Hartman also spoke with Joe who told him Miller would not let him call 911. Hartman told Joe he had to call 911. Joe then called 911 and reported the stabbing. After the call Miller and Joe struggled as Joe attempted to keep Miller from leaving, but Miller pushed Joe down and fled the apartment. During their struggle Miller said he was going to kill himself.

At 4:25 a.m. police and paramedics were dispatched to Miller’s apartment. Joe met them there and showed them McCammant’s body in the kitchen. The murder weapon, a knife, was lying near her feet. When McCammant’s body was found her jeans were unsnapped and pulled down to her hips. No seminal fluid was found in or on her body but three unopened condoms were found on the kitchen table and one under the table. The condoms were the type sold in the bathrooms at Hot Toddies. Joe Miller said the condoms were not there when he left Miller’s apartment around 2:00 a.m. Further investigation determined the cause of McCammant’s death was a stab wound to the abdomen which penetrated the abdominal wall, the liver, the diaphragm, and the inferior vena cava before striking her spine. She also had a defensive knife wound on the palm of her left hand.

After the police arrived at Miller’s apartment Joe, Dickenson, and Hartman went with them to the police station to give statements. Miller had gone to Joe’s residence, broken in, and called several relatives. He called his sister and told her he had killed somebody. He also left a message on her answering machine in which he said he had stabbed someone and repeatedly predicted he would go to prison because of it. He also called his brother Dan, his father, and his mother more than once. At 7:39 a.m. Joe and Dickenson arrived back at their house with police officers because the police wanted to hear the messages Miller had left on their answering machine. Miller was there drinking a beer. He was calm and did not try to flee from the police. The answering machine messages were gone and Miller volunteered that he had erased them. He told one of the officers “it was self-defense” and made a stabbing motion, but that he was going to go to jail anyway. Miller was arrested for the murder of McCammant.

At 8:27 a.m. Detective William Venvertloh began a videotaped interview with Miller. Miller first said he called a cab for McCammant, the driver took her home, and then returned to Hot Toddies and took him home. He quickly changed his story and said they left together in a cab around midnight and went to Miller’s apartment. Miller stated that McCammant stayed at his apartment for a while, then left in a cab between 12:30 and 1:00 a.m., and he then went to bed. He stated that after what he estimated was about forty-five minutes or a “short time” he had been awakened by the sound of someone coming into his apartment. Miller told Venvertloh that without turning on a light he grabbed the knife he kept by his bed, with the knife in hand he walked out of the bedroom asking who was there, and threatened to call the police or kill the intruder. He stated that as he was looking for the intruder in the dark he turned quickly and accidentally stabbed McCammant. Miller told Venvertloh that he then turned on the light, saw it was McCammant, and tried to perform CPR and stop the bleeding with his hand.

During the interview Miller did not mention the fact that Joe and Dickenson had been at his apartment between 1:30 and 2:00 a.m. Nor did he give an explanation, according to his time line, of how or why McCammant was in his apartment at 4:00 a.m. in the morning, why her pants were partially pulled down, or why there were four condoms near her body in the kitchen.

On November 3, 2003, the State charged Miller, by trial information, with murder in the first degree in violation of Iowa Code sections 707.1 and 707.2(2) (2003). After his arrest, Miller’s letters from jail indicated he was then claiming he had impulsively grabbed a large kitchen knife and announced his intent to commit suicide to McCammant by cutting his wrists. He asserted that McCammant had tried to stop him and was accidentally stabbed in the struggle.

Miller had attempted suicide in the past. Miller later told Dr. Gersh and Dr. Taylor this same version of events, that he attempted to commit suicide on the night in question. To explain why he did not tell the “attempted suicide” story to his family or Detective Venvertloh immediately after the stabbing occurred, Miller sought to show that he had been raised Catholic and the Catholic Church regarded suicide as a grave sin. He alleged he did not want his family to know he had contemplated suicide. Miller proposed to present evidence of the teachings of the Catholic Church through the testimony of Sister Nadine Meyer.

The case proceeded to jury trial and the jury found Miller guilty of the lesser included charge of murder in the second degree, in violation of Iowa Code section 707.3. Miller was sentenced to an indeterminate term of incarceration not to exceed fifty years.

Miller appeals, contending the court erred in denying his motion for mistrial, failing to allow him to present evidence vital to his theory of defense, and not suppressing the videotape of his interview by the police. He also claims his trial counsel was ineffective for failing to object to impermissible comment on his credibility. We address these issues separately, in a different order.

II. MERITS.

A. Motion to Suppress.

Miller filed an amended and substituted motion to suppress on January 16, 2004, seeking, in part, to suppress his videotaped interview by Detective Venvertloh, arguing his statements were involuntary because he was intoxicated. The district court denied the motion, concluding the totality of the circumstances did not indicate Miller’s will was “overborne by the alcohol or other factors of the interview” or that his mental state was disabled so “as to render him unable to make a voluntary statement.” On appeal Miller claims the court erred in allowing the videotape because as a result of his intoxication his statements were not voluntary. He claims his statements were part of an “intoxicated delusion.”

We review de novo the ultimate conclusion reached by the district court in ruling on a motion to suppress. State v. Heminover, 619 N.W.2d 353, 356 (Iowa 2000), abrogated on other grounds by State v. Turner, 630 N.W.2d 601, 606 n.2 (Iowa 2001). In doing so we independently evaluate the totality of the circumstances shown by the entire record. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). We consider not only the evidence presented at the suppression hearing but also the evidence offered at trial. State v. Carter, 696 N.W.2d 31, 36 (Iowa 2005). “The State bears the burden of proving by a preponderance of evidence that an accused’s confession is voluntary.” State v. Bowers, 661 N.W.2d 536, 541 (Iowa 2003).

The Fifth Amendment to the United States Constitution provides, in relevant part, that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” Any use in a criminal trial of an involuntary statement is a denial of due process requiring automatic reversal. State v. Davis, 446 N.W.2d 785, 788 (Iowa 1989).

The ultimate test in making this determination is whether, under the totality of the circumstances, the statements were the product of an essentially free and unconstrained choice, made by the subject at a time when that person’s will was not overborne or the capacity for self-determination critically impaired.

Bowers, 661 N.W.2d at 541.

Factors bearing on the issue of voluntariness include:

the defendant’s age, experience, prior record, level of education and intelligence; the length of time defendant is detained and interrogated; whether physical punishment was used, including the deprivation of food or sleep; defendant’s ability to understand the questions; the defendant’s physical and emotional condition and his reaction to the interrogation; whether any deceit or improper promises were used in gaining the admissions; [and] any mental weakness the defendant may possess.

State v. Trigon, Inc., 657 N.W.2d 441, 445 (Iowa 2003) (quoting State v. Hodges, 326 N.W.2d 345, 348 (Iowa 1982)). However, being under the influence does not, standing alone, render inculpatory statements involuntary. State v. Edman, 452 N.W.2d 169, 170 (Iowa 1990). “The defendant’s insobriety is merely one factor to be considered in the ‘totality of the circumstances’ surrounding the confession. . . .” Id. Under the totality of the circumstances, including all of the factors listed above, we agree with the district court that Miller’s statements to the police were voluntary.

First, it is not at all clear that Miller was still intoxicated during the interview. The videotape shows Miller was alert, he understood and was able to answer Detective Venvertloh’s questions appropriately, his speech was not slurred, and he had no difficulty expressing himself and relating his version of the events. He remembered his address, date of birth, social security number, personal and work telephone numbers, and his mother’s telephone number. At one point while Venvertloh was taking notes Miller was able to read Venvertloh’s writing upside down, spot his error, and correct it. Miller had no trouble writing or opening a can of soda. He also got up and walked several times during the interview, for various reasons, and did not appear to have any trouble walking. Although he did become upset and cry toward the end of the interview he recovered his composure fairly quickly. Considering what Miller had just experienced in the hours before the interview and the realization of the circumstances he found himself in at that time, it was not at all unusual for him to become upset and that did not necessarily indicate he was intoxicated.