                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-1188
                           Filed September 12, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ROGELIO PABLO MORALES,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Woodbury County, Jeffrey L.

Poulson, Judge.



      Rogelio Morales appeals from the denial of his motion to suppress.

AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee.




      Considered by Danilson, C.J., and Vogel and Tabor, JJ.
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DANILSON, Chief Judge.

         Rogelio Morales was convicted of second-degree murder. He appeals from

the denial of his motion to suppress statements he made to police officers. Under

the totality of the circumstances, we find Morales knowingly and voluntarily waived

his Miranda rights.1 We affirm.

         On April 19, 2015, Sioux City Police Officer Joshua Tyler was dispatched

on a report of an unconscious party. Upon his arrival, Officer Tyler found Officer

William Enockson administering CPR to Margarita Morales. Officer Tyler then was

advised by a bystander he should speak with Rogelio Morales. Officer Tyler

approached Morales, who was sitting on the front steps of the house and crying.

Officer Tyler asked Morales what had happened. Morales replied that he and

Margarita had been arguing and Margarita had said she had slept with someone

else. Morales told Officer Tyler he had “lost it” and blacked out. After speaking

with Morales, Officer Tyler placed him into custody. During the walk to the patrol

car, Officer Tyler read Morales his Miranda rights.

         Morales was placed into an interrogation room at 1:06 a.m. Detectives Nick

Thompson and Mike Simons entered the room at 2:22 a.m. Detective Thompson

read Morales his Miranda rights and asked Morales if he understood those rights.

Morales slightly nodded affirmatively. Detective Thompson then asked if he was

willing to speak to the detectives.       Morales again affirmatively nodded.   The

detectives questioned Morales for about an hour and a half. Morales answered

the detectives’ questions without asking to stop or speak to an attorney.



1
    See Miranda v. Arizona, 384 U.S. 436, 444-45 (1966).
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      Morales was charged with first-degree murder after Margarita died. In

district court, Morales moved to suppress the video of the custodial interrogation,

arguing there was no showing by the State he voluntarily and knowingly waived

his Miranda rights. He asserted the video shows that after being read his Miranda

rights, Morales made a minor head gesture and no verbal affirmative statement.

No express written or verbal waiver was obtained by the detectives before they

questioned him.

      After a hearing, the district court found:

      Morales responded to questions of both his understanding of his
      Miranda rights and his willingness to speak to the detectives with a
      nod. This is clearly seen in the video of the interview. Detective
      Thompson delivered the rights and questions in a conversational
      tone. There were no threats or promises or intimidation in the
      conversation. Morales had his head down during the recitation and
      questions, but there was no indication that he not listening or was
      confused. He responded to questions in a logical manner at the
      appropriate times without prompting. Finally, Morales offers no
      alternative explanation to contradict the nods being interpreted as
      affirmative responses to Detective Thompson’s questions.
              Morales cites several additional factors that he argues
      diminish his ability to knowingly, intelligently, and voluntarily waive
      his Miranda rights, including his age, his military service, his lack of
      a prior criminal record, the location of the interview, the length of wait
      prior to interrogation, the length of interrogation, the number of law
      enforcement officers present, his emotional state, deprivation of
      sleep, and the detectives’ request that he disrobe. When evaluating
      the totality of the circumstances, the court does not find these
      persuasive. Morales presents no evidence to support how these
      factors might have altered his ability to understand or waive his
      Miranda rights. Several of these, in fact, occurred after Morales’s
      waiver, including the length of the interrogation and the detectives’
      request that he disrobe. None of these factors alter Morales’s
      knowing, intelligent, and voluntary waiver of his Miranda rights.

      On appeal, Morales argues the Iowa Constitution requires an express

waiver of a suspect’s rights before he may be subjected to custodial interrogation.

He asks that we overrule State v. Davis, 304 N.W.2d 432, 435 (Iowa 1981) (“We
                                         4


hold an express waiver is not a requirement of the Iowa Constitution. Thus we

must examine this defendant’s words and actions, after he was informed of his

Miranda rights, to determine if in fact a waiver occurred.”). As has been noted

before, the task of overruling precedent is for our supreme court. See State v.

Miller, 841 N.W.2d 583, 584 n.1 (Iowa 2014) (“While we reverse the judgment of

the district court and vacate the decision of the court of appeals, we acknowledge

both courts properly relied on our applicable precedent. Generally, it is the role of

the supreme court to decide if case precedent should no longer be followed.”);

State v. Eichler, 83 N.W.2d 576, 578 (Iowa 1957) (“If our previous holdings are to

be overruled, we should ordinarily prefer to do it ourselves.”); State v. Hastings,

466 N.W.2d 697, 700 (Iowa Ct. App. 1990) (“We are not at liberty to overturn Iowa

Supreme Court precedent.”).

       The standard of review of a motion to suppress based on federal and state

constitutional grounds is de novo. State v. Lane, 726 N.W.2d 371, 377 (Iowa

2007). We make “an independent evaluation of the totality of the circumstances

based on the entire record.” Id. (citation omitted). We give deference to the trial

court’s factual findings, especially because of its opportunity to assess witness

credibility, but we are not bound by those findings. Id. Our review includes

evidence produced at the suppression hearing and the trial. State v. Gaskins, 866

N.W.2d 1, 5 (Iowa 2015).

       “Miranda holds that a defendant may waive the rights effectuated in the

warnings only if the waiver is made voluntarily, knowingly and intelligently.” State

v. King, 492 N.W.2d 211, 214 (Iowa 1992).
                                           5


       If, however, he indicates in any manner and at any stage of the
       process that he wishes to consult with an attorney before speaking
       there can be no questioning. Likewise, if the individual is alone and
       indicates in any manner that he does not wish to be interrogated, the
       police may not question him. The mere fact that he may have
       answered some questions or volunteered some statements on his
       own does not deprive him of the right to refrain from answering any
       further inquiries until he has consulted with an attorney and thereafter
       consents to be questioned.

Miranda, 384 U.S. at 444-45.

       “The burden is on the State to prove by a preponderance of the evidence

that defendant’s waiver of his Miranda rights was made knowingly, voluntarily and

intelligently.” King, 492 N.W.2d at 214.

       This inquiry has two dimensions: “First, the relinquishment of the
       right must have been voluntary in the sense that it was the product
       of a free and deliberate choice rather than intimidation, coercion, or
       deception. Second, the waiver must have been made with a full
       awareness both of the nature of the right being abandoned and the
       consequences of the decision to abandon it.” Moran v. Burbine, 475
       U.S. 412, 421 (1986).
               However, an express waiver is not required. [Davis, 304
       N.W.2d at 435]. Rather, the validity of the waiver is to be based on
       particular facts and circumstances surrounding the giving of the
       Miranda warnings.

Id. Our supreme court has indicated “[a] number of factors help in determining

voluntariness.” State v. Payton, 481 N.W.2d 325, 328 (Iowa 1992).

       Among them are: defendant’s age; whether defendant had prior
       experience in the criminal justice system; whether defendant was
       under the influence of drugs; whether Miranda warnings were given;
       whether defendant was mentally “subnormal”; whether deception
       was used; whether defendant showed an ability to understand the
       questions and respond; the length of time defendant was detained
       and interrogated; defendant’s physical and emotional reaction to
       interrogation; [and] whether physical punishment, including
       deprivation of food and sleep, was used.

Id. at 328-29 (citations omitted).
                                         6


       Here, the totality of the circumstances demonstrate that Morales made a

knowing and voluntary waiver of his rights. He was twice informed of his Miranda

rights. The first time Morales was informed of his rights was by Officer Tyler on

the way to his patrol car. Officer Tyler testified he asked Morales if he understood

his rights and Morales “acknowledged by two forms. One was basically a head

nod gesture, and the other was simply yes.” According to Officer Tyler, Morales

did not appear to be under the influence of any substances, gave the officer logical

answers or explanations to questions, and appeared to understand the situation.

The second time Morales was given the Miranda warnings was by Detective

Thompson at the police station. Detective Thompson testified that he then asked

Morales if he understood his rights and if he was “okay with talking.” Morales “gave

an affirmative head nod to both of the questions indicating to me that he did

understand.”

       Morales indicated he understood those rights. He talked with the offficers

after being advised he was not required to make any statements. See State v.

Mann, 512 N.W.2d 528, 534 (Iowa 1994) (“Mann’s voluntary decision to talk to the

officer may clearly be implied from the fact that he did so after being advised that

he was not required to.”).

       Evidence that Morales knew and understood his rights is also supported by

his age and experience: he had been a Marine from 2006 to 2014 and was

honorably discharged. He was not discharged for physical disability or injury.

Morales was twenty-eight years old on April 19, 2015, and attending college full-

time. Less than two weeks before this incident, Morales gave a statement to law

enforcement officers after being advised of, given a written copy of, and signing a
                                          7

written waiver of his Miranda rights. The officer in that transaction testified at the

hearing on the instant motion to suppress, stating Morales had no difficulty

understanding the English language or answering the officer’s questions and that

Morales’s responses were appropriate to the questions asked. Officer Tyler’s

observations of Morales’s ability to understand and respond were similar to the

other officer.     Morales was in custody for about two hours before he was

questioned by the detectives. The video shows Morales with his head resting in

his arms for much of this time period. The detectives questioned Morales for about

two hours.       The video shows Morales was emotional and depressed but he

answered the detectives’ questions in a coherent manner. We agree with the

district court that Morales’s nods and subsequent action in answering questions

were sufficient to indicate a knowing and voluntary waiver of his Miranda rights.

We therefore affirm.

       AFFIRMED.
