               IN THE SUPREME COURT OF IOWA
                           No. 32 / 03-1481

                        Filed December 1, 2006


STATE OF IOWA,

      Appellee,

vs.

ARIF HAJTIC,

      Appellant.


      Appeal from the Iowa District Court for Black Hawk County, James L.

Beeghly and Todd A. Geer, Judges.



      Defendant appeals from judgment and sentence for three counts of

third-degree burglary under Iowa Code section 713.6(A) (2001) and one

count of first-degree robbery under Iowa Code section 711.2. AFFIRMED.



      James A. Benzoni of Benzoni Law Firm, Des Moines, for appellant.



      Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant

Attorney General, Thomas J. Ferguson, County Attorney, and Joel

Dalrymple, Assistant County Attorney, for appellee.
                                      2

LARSON, Justice.

      Arif Hajtic was convicted of three counts of third-degree burglary

under Iowa Code section 713.6A (2001) and one count of first-degree

robbery under Iowa Code section 711.2.        On appeal, Hajtic claims his

statements to the police were improperly admitted, the trial court abused its

discretion in consolidating his robbery and burglary trials, and the court

erred in denying his motion for judgment of acquittal. We reject all of these

arguments, but preserve Hajtic’s separate ineffective-assistance-of-counsel

claim for possible postconviction relief proceedings.

      I. Facts and Prior Proceedings.

      Arif Hajtic was arrested in the early morning hours of December 19,

2002, and taken to the Waterloo Police Department for questioning on a

series of burglaries and a robbery. Because Hajtic was only seventeen at

the time, the police contacted his mother to inform her that he was in

custody, in accordance with Iowa Code section 232.11(2). Hajtic and his

family were from Bosnia and had been in the United States only about six

years. His mother spoke little English, so the police used Hajtic’s fourteen-

year-old sister, Evlijana, to translate the discussions between the police and

Hajtic’s mother concerning the mother’s consent to Hajtic’s waiver of his
rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d

694 (1966). Hajtic’s mother signed a consent form, and Hajtic signed a

waiver form. Hajtic confessed to his participation in the burglaries and

robbery. According to him, the crimes had been planned and carried out in

conjunction with other similar crimes orchestrated by Eric Miller, who

testified against Hajtic. On appeal, Hajtic argues that his mother’s consent

to his Miranda waiver was invalid because his sister, as interpreter, lacked

an understanding of the concepts of the Miranda warning and was therefore

unable to convey the information necessary to validate the mother’s consent
                                     3

to Hajtic’s waiver. Also, according to Hajtic, his own Miranda waiver was

invalid. The State counters that the mother’s consent to Hajtic’s Miranda

waiver was not required because he was over sixteen. Further, the State

argues, Hajtic’s own waiver was valid because it was knowingly, voluntarily,

and intelligently made. We first address the issue of the mother’s consent.

      II. The Mother’s Consent.

      Because Hajtic was a juvenile (seventeen years and eleven months

old), he was entitled to the protection of our juvenile laws regarding his

right to counsel in the burglary cases. (The robbery charge is a forcible

felony and, therefore, not subject to the juvenile code. See Iowa Code

§§ 232.8(1)(c), 702.11; State v. Harris, 589 N.W.2d 239, 244 (Iowa 1999).)

One of the protections accorded most juveniles is the requirement that a

parent consent to a juvenile’s waiver of Miranda rights. See Iowa Code

§ 232.11(2). The State argues that the mother’s consent to Hajtic’s waiver

was not required because he was over sixteen. Iowa Code section 232.11(1)

provides:

      A child shall have the right to be represented by counsel at the
      following stages of the proceedings within the jurisdiction of
      the juvenile court . . . :
            a. From the time the child is taken into custody for any
      alleged delinquent act that constitutes a serious or aggravated
      misdemeanor or felony under the Iowa criminal code, and
      during any questioning thereafter by a peace officer or
      probation officer.

The crimes with which Hajtic was charged, robbery and burglary, fall under

category “a.” However, a subsequent provision allows for a juvenile’s waiver

of counsel without parental consent in some cases.           Under section

232.11(2),

      [t]he child’s right to be represented by counsel under
      subsection 1, paragraphs “b” to “f” of this section shall not be
      waived by a child of any age. The child’s right to be
      represented by counsel under subsection 1, paragraph “a” [the
                                      4
      class in which this case falls] shall not be waived by a child
      less than sixteen years of age without the written consent of
      the child’s parent, guardian, or custodian. The waiver by a
      child who is at least sixteen years of age is valid only if a good
      faith effort has been made to notify the child’s parent, guardian,
      or custodian that the child has been taken into custody and of the
      alleged delinquent act for which the child has been taken into
      custody, the location of the child, and the right of the parent,
      guardian, or custodian to visit and confer with the child.

(Emphasis added.)

      When a juvenile is over sixteen, section 232.11 does not require a

parent’s consent to the juvenile’s Miranda waiver, but only a good-faith

effort to inform the parent (1) that the child is in custody, (2) the nature of

the act charged, (3) the location of the child, and (4) the right of the parent

to confer with the child. See Iowa Code § 232.11(2); State v. Nelson, 435

N.W.2d 344, 348 (Iowa 1989); State v. Means, 547 N.W.2d 615, 620 (Iowa

Ct. App. 1996).

      Following a call by the police to Hajtic’s home, Hajtic’s mother, his

fourteen-year-old sister, and a younger brother came to the police station.

An officer informed Hajtic’s sister of the nature of the charges, so she could

translate the information to Hajtic’s mother in their Bosnian language.

Hajtic’s mother was permitted to talk with him before he signed his Miranda

waiver. This was all captured on a videotape.

      The police provided Hajtic’s mother with all of the information

required by section 232.11(2). The police officer’s use of Hajtic’s sister to

convey to the mother the necessary information constituted a good-faith

effort to inform the mother, as required by section 232.11(2). Despite

Hajtic’s argument that his sister was unable to accurately translate the fine

points of a Miranda warning, it is clear that his mother was informed that

Hajtic was in custody, the nature of the act charged, where Hajtic was being

held, and the mother’s right to confer with him. Hajtic’s mother obviously

knew he was in custody because she was there with him. In fact, Hajtic’s
                                      5

mother testified at the suppression hearing, with the aid of an interpreter,

that the Waterloo Police Department had informed her that they had Arif in

their custody, and that he was suspected of the crimes of burglary and

robbery. She further testified that, during the time he was at the police

department, she was permitted to talk with him.

      In summary, even if Hajtic is correct that his sister did not accurately

translate the contents of the Miranda warning to his mother, this was not

fatal to the State’s use of his confession because his mother was given all

the information required by Iowa Code section 232.11(2).

      III. The Miranda Waiver.

      Hajtic claims his statements to the police were inadmissible because

the State failed to show they were made knowingly, intelligently, and

voluntarily and that they were not induced by intimidation, coercion, or

deception. See Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1141,

89 L. Ed. 2d 410, 420-21 (1986); State v. Countryman, 572 N.W.2d 553, 559

(Iowa 1997). In assessing the validity of a defendant’s Miranda waiver, the

State bears the burden of proving these factors by a preponderance of the

evidence. State v. Morgan, 559 N.W.2d 603, 606 (Iowa 1997); Means, 547

N.W.2d at 621.     Our review of the record on the voluntariness of a
confession is de novo, and we make our own evaluation of the

circumstances. Morgan, 559 N.W.2d at 606; State v. Vincik, 398 N.W.2d

788, 789 (Iowa 1987).

      In Miranda, the Court held that a suspect’s waiver of his Fifth

Amendment privilege against self-incrimination is valid only if it is made

voluntarily, knowingly, and intelligently. 384 U.S. at 444, 86 S. Ct. at 1612,

16 L. Ed. 2d at 706-07. The inquiry into whether a waiver is valid “has two

distinct dimensions.”    Moran, 475 U.S. at 421, 106 S Ct. at 1141, 89

L. Ed. 2d at 420-21.
                                       6
      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. Only if the
      “totality of the circumstances surrounding the interrogation”
      reveal both an uncoerced choice and the requisite level of
      comprehension may a court properly conclude that the
      Miranda rights have been waived.

Id. (quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S. Ct. 2560, 2572, 61

L. Ed. 2d 197, 212 (1979)). A written waiver of constitutional rights is not

sufficient on its own to establish the waiver as knowing, intelligent, and

voluntary. Vincik, 398 N.W.2d at 789. However, it is strong proof of its

validity. Fryer v. State, 325 N.W.2d 400, 409 (Iowa 1982).

      Courts use an objective standard to determine whether a defendant’s

waiver is voluntary, knowing, and intelligent. Pettyjohn v. United States, 419

F.2d 651, 654-55 (D.C. Cir. 1969).         Factors bearing on voluntariness

include the defendant’s age, experience, prior record, level of education, and

intelligence; the length of time the defendant is detained or interrogated;

whether physical punishment was used, including deprivation of food or

sleep; the 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.

Hodges, 326 N.W.2d 345, 348 (Iowa 1982).           Obviously, a defendant’s

alienage and unfamiliarity with the American legal system should be

included among these objective factors, given that the ultimate

determination of whether a waiver is knowing, intelligent, and voluntary

must rest on the totality of the circumstances. Fare, 442 U.S. at 725, 99

S. Ct. at 2572, 61 L. Ed. 2d at 212.
                                       7

      We are aided in our de novo review of this case by a complete

videotape and audiotape of the Miranda proceedings and the interrogation

that followed. The videotape shows the officer with his side or back to the

camera and Hajtic facing the officer and the camera. Hajtic’s sister sat

about an arms’ length to his right. Their mother and Hajtic’s six-year-old

brother sat behind them in the interrogation room. The officer read out

loud a Miranda waiver form, and Hajtic read it for himself. Hajtic said he

understood his rights and that he had no questions. He signed the waiver

form, which stated that he could “read and understand the English

language.”     His ability to understand English was confirmed by the

videotape of the Miranda proceedings and the questioning that followed. He

showed no reluctance to ask questions if he did not understand. When the

officer asked a question confusing to Hajtic, he asked the officer to clarify it,

and the officer did so. For the most part, however, the officer’s questions

were answered responsively and without any reliance for interpretation by

his sister. In fact, during the interview, Hajtic appeared almost oblivious to

his sister’s presence. Judging by Hajtic’s actions and responses to the

questions, he clearly understood the questions asked.

      This case illustrates the value of electronic recording, particularly
videotaping, of custodial interrogations. One authority has observed that

      [o]ne way to satisfy the burden [of voluntary waiver] is an audio
      or video recording of the warning, any waiver, and any
      questioning made in response, but this is not required as a
      matter of federal constitutional law and few state courts have
      made such a requirement.

1 Charles Alan Wright, Federal Practice & Procedure § 76.3, at 224 (1999)

[hereinafter Wright].

      At least two states have required electronic recording of such

proceedings.    See, e.g., Stephan v. State, 711 P.2d 1156, 1160 (Alaska
                                      8

1985); State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994). The eighth

circuit has also discussed this practice favorably.         See Hendricks v.

Swenson, 456 F.2d 503, 505-07 (8th Cir. 1972).

      The eighth circuit

      suggest[ed] that a videotape is protection for the accused. If he
      is hesitant, uncertain, or faltering, such facts will appear. If he
      has been worn out by interrogation, physically abused, or in
      other respects is acting involuntarily, the tape will corroborate
      him in ways a typewritten statement would not. Instead of
      denying a defendant his rights, we believe it is a modern
      technique to protect a defendant’s rights.

Id. at 506.

      The Alaska Supreme Court went so far as to adopt an exclusionary

rule for confessions obtained without electronic recordation, based on the

due process provisions of its state constitution. It did so because law

enforcement officials and lower courts had not heeded the court’s

suggestion in earlier cases that custodial interrogations should be recorded

when feasible. It stated:

      Such recording is a requirement of state due process when the
      interrogation occurs in a place of detention and recording is
      feasible. We reach this conclusion because we are convinced
      that recording, in such circumstances, is now a reasonable and
      necessary safeguard, essential to the adequate protection of the
      accused’s right to counsel, his right against self incrimination
      and, ultimately, his right to a fair trial.

Stephan, 711 P.2d at 1159-60 (footnotes omitted).

      In discussing the efficacy of videotaping custodial interrogations, one

Alaska appeals court judge observed:

      [C]laims [of Miranda violations] invariably produce a swearing
      contest in which defendants claim that they were not afforded
      their constitutional rights and the police officers claim that
      they were. Since defendants are interrogated in custody,
      isolated from anyone other than police officers, they cannot
      provide independent corroboration of their own testimony
      regarding what occurred during the interrogation. In a sense
      then, a tape recording provides an objective means for
                                      9
      evaluating what occurred during interrogation. It also provides
      the defendant with a means of “cross-examining” his
      confession . . . . The importance of such a tape recording lies
      in the fact that trial courts and appellate courts tend to trust
      police officers’ recollections of what occurred at the expense of
      the criminal defendant’s account. Thus, in the absence of a
      tape recording, the prosecuting authorities invariably win the
      swearing contest. The heavy burden of proving compliance
      established by Miranda becomes, in practice, no burden at all.

Harris v. State, 678 P.2d 397, 414 (Alaska Ct. App. 1984) (Singleton, J.,

concurring and dissenting) (citation omitted), overruled by Stephan v. State,

711 P.2d 1156 (Alaska 1985).

      As noted by the Alaska Supreme Court, advantages of videotaping go

beyond protection of the defendant’s rights:

             The recording of custodial interrogations is not, however,
      a measure intended to protect only the accused; a recording
      also protects the public’s interest in honest and effective law
      enforcement, and the individual interests of those police
      officers wrongfully accused of improper tactics. A recording, in
      many cases, will aid law enforcement efforts, by confirming the
      content and the voluntariness of a confession, when a
      defendant changes his testimony or claims falsely that his
      constitutional rights were violated. In any case, a recording
      will help trial and appellate courts to ascertain the truth.

Stephan, 711 P.2d at 1161.

      The Minnesota Supreme Court adopted a rule requiring electronic

recording under its supervisory jurisdiction to assure fair trials. Scales, 518

N.W.2d at 592. Commentators, and the American Bar Association, have

advocated videotaped recording of custodial interrogations. See Steven A.

Drizin & Marissa J. Reich, Heeding the Lessons of History: The Need for

Mandatory Recording of Police Interrogations to Accurately Assess the

Reliability and Voluntariness of Confessions, 52 Drake L. Rev. 619, 619-46

(2004). As these authors have stated,

      failing to record police interrogations may no longer be a luxury
      that police officers can afford. We live in a video age, an age
      when satellites can track our every movement and when
      cameras are in our banks, in our stores, on our roads, and in
                                      10
      our homes. Most of the citizens who make up the jury pool
      either have or will soon have video or digital cameras of their
      own. In this context, it is becoming increasingly difficult for
      jurors to accept the assertions of police officers that they did
      not tape interrogations because it was not their policy to do so.
      In the post-DNA age, when every wrongful conviction is front-
      page news, and police officers and prosecutors are being asked
      to explain what went wrong in each of these cases, police
      officers may have to start recording interrogations as a matter
      of self-preservation. Their failure to do so will, as the reformers
      suggested, breed distrust in their methods and cause a strain
      in their relations with the public.

Id. at 638-39.

      In addition, the American Bar Association has endorsed the concept

of videotaping. The official ABA policy states:

            RESOLVED, That the American Bar Association urges all
      law enforcement agencies to videotape the entirety of custodial
      interrogations of crime suspects at police precincts,
      courthouses, detention centers, or other places where suspects
      are held for questioning, or, where videotaping is impractical,
      to audiotape the entirety of such custodial interrogations.
            FURTHER RESOLVED, That the American Bar
      Association urges legislatures and/or courts to enact laws or
      rules of procedure requiring videotaping of the entirety of
      custodial interrogations of crime suspects at police precincts,
      courthouses, detention centers, or other places where suspects
      are held for questioning, or, where videotaping is impractical,
      to require the audiotaping of such custodial interrogations, and
      to provide appropriate remedies for non-compliance.

American Bar Association Report to the House Delegates (Feb. 2004),

available                                                                   at
http://www.abanet.org/leadership/2004/recommendations/8a.pdf.

      We believe electronic recording, particularly videotaping, of custodial

interrogations should be encouraged, and we take this opportunity to do so.

In this case, the videotape of Hajtic’s confession and the Miranda warnings

that preceded it clearly show that he understood the Miranda warnings

given to him and the questions asked. Further, there is no indication the

officer made improper promises or threats. Our conclusion that Hajtic
                                     11

understood the nature of the rights waived and the questions asked is

bolstered by other evidence: he lacked only one month of being eighteen

and had been in this country for six years. He had attended Waterloo

schools until the eleventh grade, and he was able to hold down a job. A

jailer who conversed with Hajtic on a daily basis testified he had no trouble

communicating with him. Further, Hajtic testified at the suppression

hearing in a coherent and understanding manner without an interpreter,

although one was in court and available to him.

      On our de novo review of the record, we conclude that Hajtic’s waiver

of his Miranda rights was valid, and his confession was voluntarily,

knowingly, and intelligently made. The confession was therefore properly

admitted, and we affirm on that issue.

      IV. Sufficiency of the Evidence.

      Hajtic argues that, because his confession was not admissible, his

conviction was supported only by the testimony of Eric Miller, an

accomplice. Under Iowa Rule of Criminal Procedure 2.21(3),

      [a] conviction cannot be had upon the testimony of an
      accomplice or a solicited person, unless corroborated by other
      evidence which shall tend to connect the defendant with the
      commission of the offense; and the corroboration is not
      sufficient if it merely shows the commission of the offense or
      the circumstances thereof.

Because we have rejected the underlying premise of Hajtic’s argument, i.e.,

that the confession was inadmissible, we reject this argument. There was

clearly sufficient evidence to support the verdict when we consider the

testimony of Eric Miller together with Hajtic’s confession.

      V. The Consolidation Argument.

      Hajtic complains that the court should not have consolidated his trial

on the burglary and robbery charges.        Under Iowa Rule of Criminal

Procedure 2.6(1),
                                    12
      [t]wo or more indictable public offenses which arise from the
      same transaction or occurrence or from two or more
      transactions or occurrences constituting parts of a common
      scheme     or   plan,    when    alleged    and     prosecuted
      contemporaneously, shall be alleged and prosecuted as
      separate counts in a single complaint, information or
      indictment, unless, for good cause shown, the trial court in its
      discretion determines otherwise. Where a public offense
      carries with it certain lesser included offenses, the latter
      should not be charged, and it is sufficient to charge that the
      accused committed the major offense.

      Our review of a district court’s consolidation order is for abuse of

discretion. See State v. Thornton, 506 N.W.2d 777, 779 (Iowa 1993). To

show the district court abused its discretion in consolidating, a defendant

must prove that his interest in severance was greater than the State’s

interest in judicial economy. State v. Lam, 391 N.W.2d 245, 251 (Iowa

1986).

      A “common scheme or plan” under rule 2.6(1) requires “that all

offenses charged be products of a single or continuing motive.” Lam, 391

N.W.2d at 250. In determining whether the offenses are products of a single

or continuing motive, “we have found it helpful to consider factors such as

intent, modus operandi, and the temporal and geographic proximity of the

crimes.” State v. Oetken, 613 N.W.2d 679, 688 (Iowa 2000). In Lam, we
held there was sufficient evidence that the offenses charged were parts of a

common scheme or plan to burglarize apartments.           We found it was

relevant that the burglaries took place on the same day, in the same general

location, and using the same method of transportation. In Oetken, there

was sufficient evidence of a common scheme or plan with a single

continuing motive when the burglaries were committed on two consecutive

days, using similar methods.

      In this case, the crimes took place within a twenty-four-hour period.

The objectives were similar—to obtain money and/or cigarettes. The same

method of transportation was used, and the businesses targeted were in the
                                    13

same general location. Hajtic’s defense was the same in all the cases—he

was acting under intimidation by Eric Miller, his accomplice.

      We conclude the trial court did not abuse its discretion in

consolidating the trials.

      VI. The Ineffective Assistance of Counsel Issue.

      Hajtic argues that his counsel was ineffective because he failed to

produce expert testimony on the inherent weaknesses in eyewitness

testimony and on Hajtic’s mental state.       The record on this appeal is

insufficient to assess these claims, and they are therefore preserved for

possible postconviction relief proceedings.

      AFFIRMED.

      All justices concur except Hecht, J., who takes no part.
