                IN THE SUPREME COURT OF IOWA
                             No. 07–0452

                        Filed February 20, 2009

STATE OF IOWA,

      Appellee,

vs.

VINCENT FITZGERALD WALLS,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, Eliza J.

Ovrom, Judge.



      Defendant appeals his criminal convictions contending the district

court erred in denying his motion to suppress testimony obtained in

violation of his Fifth Amendment rights, and the admission of this

testimony at trial was not harmless beyond a reasonable doubt.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT REVERSED AND REMANDED.



      Thomas J. Miller, Attorney General, Karen Doland, Assistant

Attorney General, John P. Sarcone, County Attorney, and Jeff Noble and

Susan Cox, Assistant County Attorneys, for appellee.
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      Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer,

Assistant Appellate Defender, and Vincent Walls, pro se, Anamosa, for

appellant.
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BAKER, Justice.

      A jury convicted the defendant, Vincent Walls, of sexual abuse in

the first degree in violation of Iowa Code sections 709.1 and 709.2,

sexual abuse in the second degree in violation of Iowa Code sections

709.1 and 709.3, willful injury causing serious injury in violation of Iowa

Code section 708.4(1), and kidnapping in the second degree in violation

of Iowa Code sections 902.9 and 902.3 (2004).       Walls appealed these

convictions, contending the interrogating officer failed to honor his

request for counsel in violation of his Fifth Amendment right against self-

incrimination and his right to counsel, and therefore, the district court

erred in denying his motion to suppress the evidence obtained during

this interrogation.   We transferred this case to the court of appeals,

which determined that the district court should have suppressed the

defendant’s statements but that any error in admitting them was

harmless. We granted Walls’ application for further review. We conclude

that the district court should have suppressed Walls’ statements, and

the erroneous admission of those statements was not harmless beyond a

reasonable doubt.

      I. Background Facts and Prior Proceedings.

      Susan Lombard is a substitute teacher from Ankeny, Iowa.          In

2004, Lombard was struggling with alcohol and drug addictions. On the

weekend of May 5, 2004, she came to Des Moines to buy drugs. In the

three days that followed, Lombard met drug dealers, loaned her car out

in exchange for crack cocaine, and attended a drug party in a Des

Moines hotel room.     On Sunday, May 7, Lombard stumbled into the

home of Nancy Pilcher bloody and disoriented. Lombard told Pilcher that

she and another woman had been forcibly held against their will by a
                                     4

man, and that she had been pistol-whipped for refusing his sexual

advances. Responding police were unable to locate the man.

      Vincent Walls was arrested by the Des Moines police and brought

in for questioning regarding Lombard’s assault and kidnapping.           After

explaining the allegations that Lombard and Cathy Riley, the other

victim, had made against Walls concerning the incident, Officer Bender

read Walls his Miranda rights and asked him to sign a waiver.         Walls

responded by asking if Bender could get in contact with Roger Owens,

his attorney. At this point, Bender attempted to clarify Walls’ request for

an attorney by asking, “Is [getting in contact with him] what you’re

wanting me to do?” To this Walls replied, “Yeah, because I’d love to talk

to you but I couldn’t talk to you on that recorder.”

      Instead of terminating the interview, Bender continued talking,

informing Walls that their conversation was being taped in order to

create a record and protect the rights of both parties.           After this

explanation, Bender asked Walls to once again clarify his request for an

attorney before Bender proceeded with the interrogation.         Walls never

clearly answered Bender’s second request for clarification; instead, he

stated, “[s]ee, and then I’ve got to sign this paper.”       Bender again

proceeded   with    the   interrogation,   questioning   Walls   about    his

involvement in Lombard’s kidnapping and assault.

      During the interrogation that followed, Walls confessed to some of

the allegations.   The State subsequently charged Walls with first- and

second-degree sexual abuse, second-degree kidnapping, first-degree

robbery, and willful injury causing serious injury. Prior to trial, Walls’

attorney moved to suppress his confession on the ground that Officer

Bender continued to question Walls after he asked for an attorney. The

district court denied the motion. At trial, the confession was admitted,
                                     5

and the jury found Walls guilty of both counts of sex abuse, kidnapping,

willful injury, and assault, a lesser included offense of robbery.

      Walls appealed the jury’s verdict, challenging the trial court’s

denial of his motion to suppress his confession. The court of appeals

affirmed his conviction, concluding that the State violated Walls’ Fifth

Amendment right against self-incrimination but that the district court’s

denial of his motion to suppress was harmless error.         Walls filed an

application for further review with this court, requesting that his

conviction be reversed and he be given a new trial. We granted further

review.

      II. Scope of Review.

      We review constitutional issues de novo.       State v. Peterson, 663

N.W.2d 417, 423 (Iowa 2003). In assessing the validity of a defendant’s

Miranda waiver, the State bears the heavy burden of proving by a

preponderance of the evidence that the waiver was made knowingly,

intelligently, and voluntarily without intimidation, coercion, or deception.

State v. Hajtic, 724 N.W.2d 449, 453 (Iowa 2006) (citing State v. Morgan,

559 N.W.2d 603, 606 (Iowa 1997)). Our review of the record is de novo,

and we will make our own evaluation of the circumstances. Id.

      III. Fifth Amendment Violation.

      The Fifth Amendment to the federal constitution provides that no

person “shall be compelled in any criminal case to be a witness against

himself.”   U.S. Const. amend. V.        The Due Process Clause of the

Fourteenth Amendment to the federal constitution makes this right

binding on the states. Malloy v. Hogan, 378 U.S. 1, 6, 84, S. Ct. 1489,

1492, 12 L. Ed. 2d 653, 658 (1964).        According to the United States

Supreme Court’s ruling in Miranda v. Arizona, 384 U.S. 436, 444, 86 S.

Ct. 1602, 1612, 16 L. Ed. 2d 694, 706–07 (1966), pursuant to the Fifth
                                      6

Amendment, a person “taken into custody or otherwise deprived of his

freedom of action in any significant way” must first be warned by police

that “he has a right to remain silent, that any statement he does make

may be used as evidence against him, and that he has a right to the

presence of an attorney, either retained or appointed.” If at that point,

the person indicates that he wants an attorney, the interrogation must

cease until an attorney is present. Id. at 473–74, 86 S. Ct. at 1627–28,

16 L. Ed. 2d at 723. The Miranda Court dictated that:

             If the individual indicates in any manner, at any time
      prior to or during questioning, that he wishes to remain
      silent, the interrogation must cease. . . . If the individual
      states that he wants an attorney, the interrogation must
      cease until an attorney is present.        At that time, the
      individual must have an opportunity to confer with the
      attorney and to have him present during any subsequent
      questioning. . . . [The police] must respect his decision to
      remain silent.

Id.

      In Edwards v. Arizona, 451 U.S. 477, 484–85, 101 S. Ct. 1880,

1884–85, 68 L. Ed. 2d 378, 386 (1981), the Court further clarified that

when an individual expresses a desire for counsel, the authorities must

cease any further interrogation until counsel is present or the accused

individual has initiated further communication with the police.          The

State carries the burden of proving that the individual “knowingly and

intelligently   waived”   these   privileges   afforded   under   the   Fifth

Amendment. Miranda, 384 U.S. at 475, 86 S. Ct. at 1628, 16 L. Ed. 2d

at 724.

      After being read his Miranda rights by Bender, Walls stated, “Roger

Owens. Can you get in contact with him? That’s my attorney.” To this

Bender asked, “Is that what you’re wanting me to do?” To which Walls

responded, “Yeah.” This is clearly a request for an attorney. Bender was
                                         7

then required to cease all interrogation until an attorney was present.

Edwards, 451 U.S. at 484–85, 101 S. Ct. at 1884–85, 68 L. Ed. 2d at

386; Miranda, 384 U.S. at 473–74, 86 S. Ct. at 1627–28, 16 L. Ed. 2d at

723. Bender’s decision to proceed with the interrogation was in violation

of Walls’ Fifth Amendment rights against self-incrimination and to

counsel.     The district court erred in not granting Walls’ motion to

suppress his interrogation testimony.

      IV. Harmless Error.

      Most    federal   constitutional       errors,   including   the   erroneous

admission of evidence in a criminal trial in violation of a defendant’s

Fifth, Sixth, and Fourteenth Amendment rights, do not require reversal if

the error is harmless. State v. Harris, 741 N.W.2d 1, 10 (2007) (citing

Peterson, 663 N.W.2d at 430). Harmless-error analysis looks to the basis

on which the jury’s verdict actually rested. Peterson, 663 N.W.2d at 431.

“To establish harmless error, the State must ‘prove beyond a reasonable

doubt that the error complained of did not contribute to the verdict

obtained.’ ” Id. (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.

Ct. 824, 828, 17 L. Ed. 2d 705, 710 (1967)).

      To determine whether the State has met its burden under the

harmless-error standard, the court employs a two-step analysis.                Id.

(citing Yates v. Evatt, 500 U.S. 391, 404, 111 S. Ct. 1884, 1893, 114 L.

Ed. 2d 432, 449 (1991)). First, the court asks what evidence the jury

actually considered in reaching its verdict. Id. Second, the court weighs

the probative force of that evidence against the probative force of the

erroneously admitted evidence standing alone. Id. This step requires the

court to ask “whether the force of the evidence is so overwhelming as to

leave it beyond a reasonable doubt that the verdict resting on that
                                      8

evidence would have been the same without the erroneously admitted

evidence.” Id.

         A. Evidence Jury Actually Considered. In this case, the State

was required to prove the elements of five separate counts: (1) sexual

abuse in the first degree, (2) sexual abuse in the second degree, (3) willful

injury causing serious injury, (4) kidnapping, and (5) assault. Besides

Walls’    erroneously   admitted   testimony,   the   State   presented   four

witnesses.

         Susan Lombard testified in detail regarding the incident. She told

the jury that she was an alcoholic and crack addict, and had come to

Des Moines to get drugs. She testified that on the morning of May 7,

Walls jumped into the backseat of her car, was “very angry,” and kept

yelling about his stolen money and drugs. Lombard testified that he told

her to drive down an alleyway, that he pulled a gun on her, and that he

dragged Riley into the backseat, forced her to strip, and put her in the

trunk. Then Lombard testified that Walls asked her to perform a sex act,

and when she refused, he attempted to force her to do the act, pistol-

whipped her several times, stomped on her hand, and attempted to place

her in the trunk with Riley. She also testified about her escape to Nancy

Pilcher’s house, the extent of the injuries she suffered due to the

incident, and that she denied being sexually abused at the hospital

because she felt the staff was treating her horribly.

         Cathy Riley testified that she too was a drug addict. She testified

that she had met Lombard the day before the alleged incident through a

drug dealer, John Cameron, and that she and Lombard had been

drinking beer and smoking crack. Riley also testified that Walls got into

Lombard’s car, that he was very angry, and that after parking in the

alley, he grabbed Riley’s hair, pulled her into the backseat, made her
                                     9

strip, hit her, and put her in the trunk naked.        Riley testified that

although she could hear Walls hit Lombard and say, “we’re not going to

stop until you get it right,” and Lombard begging for him to stop, she did

not see Walls attempting to rape Lombard. Riley stated that she kicked

through the trunk into the backseat, but when she stuck her head

through the opening Walls pointed the gun at her and she retreated. She

testified that when Walls opened the trunk to put Lombard inside, she

escaped.

      Nancy Pilcher testified that Lombard came running into her house

“all bloody and physically hurt.”    She then stated that Lombard ran

around her house looking for a place to hide and stated, “call 911; he’s

going to kill me,” before collapsing in her entryway. Pilcher also testified

that Lombard said that she was an alcoholic, that she had come to Des

Moines to get drugs, and that she had been pistol-whipped by a man

after she refused his sexual advances.

      Alycia Peterson, a Des Moines police officer, testified that when she

arrived at Pilcher’s home Lombard was in “pretty bad shape.” Peterson

testified that Lombard said she had been pistol-whipped by a man after

refusing to perform a sex act. The police recovered physical evidence of

the attack, including prints, bloodstains, discarded clothing, and took

pictures of the broken backseat.     The police also obtained a partially

corroborating statement from Riley before she was able to discuss the

incident with Lombard.

      During the course of his interrogation with Officer Bender, Walls

made statements concerning three of the five charges against him. He

admitted that he got into the backseat of Lombard’s car and forced

Lombard to drive him to an alley near Tenth Street and Franklin. Walls

also admitted he wanted to interrogate the women and threatened them
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with a gun. He further stated that he made Riley swallow some crack,

forced her to take off all her clothes, and put her in the trunk.

      Regarding Lombard’s assault, Walls told Bender that he hit her

multiple times with his gun, “[b]ecause she wouldn’t tell me what the f___

I wanted to know.     Honestly, she wouldn’t tell me what I wanted to

know.” In response to Bender’s questioning, Walls admitted that he also

intended to put Lombard in the trunk, and that afterwards he tried to

clean the gun with bleach, but was unable to get rid of all the evidence.

He explained how Riley had kicked through the trunk to the backseat

and described in detail Lombard’s attempts to get him to stop beating

her. His recital of the statements made by Lombard during the assault

mirrored her earlier statements to police.

      B. Probative Force of Evidence. In weighing the probative force

of the untainted evidence the jury actually considered against the

probative force of Walls’ erroneously admitted testimony, the key

question for this court is “whether we can conclude the erroneously

admitted statements are so unimportant in relation to everything else the

jury considered that there is no reasonable possibility they contributed to

[the defendant’s] conviction.” Peterson, 663 N.W.2d at 434 (emphasis in

original). It is not enough that the State show that the same result is

probable in the context of a constitutional error. Sullivan v. Louisiana,

508 U.S. 275, 279, 113 S. Ct. 2078, 2081, 124 L. Ed. 2d 182, 189 (1993)

(“The inquiry, in other words, is not whether, in a trial that occurred

without the error, a guilty verdict would surely have been rendered, but

whether the guilty verdict actually rendered in this trial was surely

unattributable to the error.” (Emphasis in original)).     The State must

prove beyond a reasonable doubt that there is “no reasonable possibility”

the falsely admitted statements contributed to Walls’ conviction.
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Peterson, 663 N.W.2d at 434. In explaining this test, we stated: “It is

only when the effect of the incorrectly admitted evidence is comparatively

minimal to this degree that it can be said . . . there is no reasonable

possibility that such evidence might have contributed to the conviction.”

State v. Hensley, 534 N.W.2d 379, 383 (Iowa 1995) (emphasis added).

      Walls’ admissions were detailed confessions to kidnapping, willful

injury, and assault.   In weighing the probative force of the untainted

evidence, however, we note one of the victims admittedly spent three

days drinking and doing drugs, and the second victim was engaged in

similar activities. In addition, the other witnesses saw the victims only

after the assault.

      The State’s assertion on appeal that the effect of the interrogation

is comparatively minimal is belied by its use of the testimony at trial.

The prosecutor emphasized the admissions in the opening statement.

The entire one and a half hour interrogation was played to the jury at the

end of the State’s case, capping its case in chief.        Finally, Walls’

statements became the cornerstone of the State’s closing argument. The

prosecutor used the statements as proof of almost every disputed

element of each crime charged. He played excerpts of the interrogation

at least eight times and commented on each. Quotes were put on slides

and shown to the jury, again with comments. The State certainly did not

believe that the admissions were “unimportant in relation to everything

else.” Peterson, 663 N.W.2d at 434.

      Walls did not admit to the sexual assault, but was nevertheless

convicted of sexual abuse, even in light of Lombard’s denial at the

hospital of being sexually abused and Riley’s testimony that she never

saw the sexual assault. Given the harmful nature of Walls’ statements

corroborating the other charges and their use at trial, we cannot say the
                                    12

effect of these statements is so comparatively weak that there is no

reasonable possibility that such statements might have contributed to

the conviction for sexual abuse.     Further, Walls’ confession virtually

guaranteed his conviction on the remaining charges. Although the same

result may have been probable, it would defy credulity to find that there

was no reasonable possibility the confession contributed to Walls’

conviction. The error was not harmless.

      V.      Disposition.

      We find that the district court should have suppressed Walls’

interrogation testimony and erred in admitting those statements into

evidence during trial. Such error was not harmless beyond a reasonable

doubt.     We therefore vacate the court of appeals decision, reverse the

district court’s judgment of conviction and sentence, and remand the

case for a new trial.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT REVERSED AND REMANDED.

      All justices concur except Cady, J., who dissents.
                                    13

                                                   07–0452, State v. Walls

CADY, Justice (dissenting).

      I agree the custodial statements made by Walls were improperly

admitted into evidence at trial, but I would conclude the error was

harmless.

      We recognize the harmless-error doctrine and follow a two-step

analysis in the application of the doctrine to a particular case. State v.

Hensley, 534 N.W.2d 379, 383 (Iowa 1995).        Under this doctrine, the

probative force of the evidence considered by the jury in reaching its

verdict is weighed against the probative force of the evidence that was

improperly admitted.     Id.   The error is harmless if the force of the

properly admitted evidence is so overwhelming that the verdict would

have been the same without the improperly admitted evidence. Id. There

must be no reasonable possibility the improperly admitted evidence

contributed to the verdict. Id.

      The two victims of the crimes in this case, Lombard and Riley,

detailed the actions of Walls in their trial testimony with remarkable

consistency. Essentially, they testified Walls pulled a gun on them while

in Lombard’s car, placed Riley in the trunk of the car after forcing her to

strip naked, and repeatedly beat Lombard while in the car after she

resisted his efforts to obtain oral sex.   The testimony of Lombard and

Riley clearly supported the convictions for sexual abuse, willful injury,

and kidnapping.     A witness who observed the bloody and battered

Lombard immediately after she escaped from the car gave testimony at

trial that was consistent with both victims’ testimony, including an

excited utterance by Lombard that she had been pistol-whipped for

refusing sexual advances. A police officer who arrived at the scene also

provided testimony consistent with the testimony of Lombard and Riley.
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Physical evidence gathered by police was also consistent with the

testimony of Lombard and Riley, including discarded clothing and

evidence Riley tried to escape from the trunk.

      The   improperly    admitted   evidence     essentially   consisted   of

statements by Walls that he entered Lombard’s car, threatened the two

women with a gun, and placed Riley in the trunk of the car after forcing

her to disrobe. He also said he hit Lombard with the gun and later tried

to clean the gun with bleach to destroy any evidence. He also made a

statement that he attempted to place Lombard in the trunk and

corroborated Riley’s testimony that she tried to escape from the trunk.

      The majority essentially concludes the harmless-error test cannot

be met because the improperly admitted statements were emphasized by

the prosecutor in opening and closing arguments and were corroborated

by the testimony of the other witnesses.         The majority believes the

presence of these two factors means the improperly admitted statements

necessarily contributed to the guilty verdict.         This approach is a

misapplication of the harmless-error doctrine and effectively renders it

meaningless    when   applied   to   improperly    admitted     incriminating

statements by an accused.       Nearly all confessions admitted at trial

influence the verdict, and it should come as no surprise that prosecutors

tend to emphasize confessions and that confessions tend to be consistent

with the other evidence offered by the prosecution.        If the doctrine is

inapplicable to improperly admitted confessions, we would not have

applied it in Hensley to find the trial court error harmless. See id. at 384

(holding improperly admitted statement by defendant that he believed

the vehicle was stolen was harmless error in a conviction for vehicle

theft, even though an element of the crime required proof that defendant

knew or had a reasonable belief the vehicle was stolen). The test is not
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whether the improperly admitted evidence was consistent with the

verdict or was emphasized by the prosecutor, but whether the properly

admitted evidence was so strong that the verdict would have been the

same without the improperly admitted evidence. The majority has failed

to properly apply this test by considering the strength of the properly

admitted evidence and has improperly focused on two factors that do not

drive the outcome of the test.

      Applying the harmless-error test in this case, the probative force of

the evidence produced by the State on all four crimes, without

considering   the   improperly   admitted   statements   by   Walls,   was

overwhelming. Each victim presented very similar testimony, which was

consistent with the other evidence offered by the State supporting the

convictions. The majority points out the victims were consuming drugs

and alcohol in the days prior to the incident, but there is no indication

this activity adversely impacted their ability to observe and recall the

incident. On the other hand, the probative force of each statement by

Walls, weighed against the other evidence of guilt, was minimal.       The

force of this evidence was minimal because the testimony of Lombard

was corroborated by the testimony of Riley, and vice versa. Additionally,

the testimony of both women was consistent with the other evidence

offered by the State. Consequently, other than the statement by Walls

that he cleaned the gun with bleach, the improperly admitted statements

were only cumulative, and the outcome of the trial would have been the

same without the statements. The statement by Walls that he cleaned

the gun with bleach was minimal and could not have contributed to the

verdict.
