                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-2029
                            Filed November 8, 2017


STATE OF IOWA,
   Plaintiff-Appellee,

vs.

ROBERT CHARLES STERN,
   Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Dubuque County, Michael J.

Shubatt, Judge.



      The defendant appeals from his conviction for first-degree murder.

AFFIRMED.



      Mark C. Smith, Appellate Defender, and Maria L. Ruhtenberg, Assistant

Appellate Defender, for appellant.

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

Attorney General, for appellee.



      Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
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POTTERFIELD, Judge.

      Robert Stern appeals from his conviction for first-degree murder, pursuant

to Iowa Code section 707.2(1)(a) (2015). Stern maintains the district court erred

when it denied his motion to suppress his confession after finding the waiver of

his rights was knowingly, voluntarily, and intelligently given. He also argues the

court erred when it refused to give the requested jury instruction for voluntary

manslaughter.

I. Background Facts and Proceedings.

      On July 9, 2015, police officers responded to a 911 call made by Stern.

After arriving at his home, officers found Stern seated in a recliner in the living

room and Stern’s daughter in a back bedroom; she was recently deceased from

gunshot wounds. When asked if he would be willing to go to the police station to

be interviewed, Stern agreed to go. Officers helped him stand and locate shoes,

and he walked under his own power to the officers’ vehicle and got in the

backseat. Stern asked if he could lie down during the ride and then proceeded to

do so. Officer Kate Avenarius was making small talk with Stern during the drive

when she noticed that he had stopped responding and his eyelids were flickering

while closed. Officer Kurt Horch, who was driving the vehicle, then took Stern to

the hospital rather than to the police department.

      Dr. Anna Lorence and a nurse, Katie Harris, met the police vehicle in the

ambulance bay. When asked questions by Dr. Lorence, Stern did not respond

verbally, but he was able to follow her commands to step out of the vehicle,

stand, pivot, and sit down in a waiting wheelchair. Stern’s eyes remained closed,

and when Dr. Lorence asked him to open them, he did not do so. She attempted
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to manually open Stern’s eyes, and he squeezed them shut so she could not.

She testified that was not a medical response but rather that “it seemed like he

didn’t want his eyes open.” The doctor concluded there was not an immediate

emergent threat to Stern’s life or health; he was taken into the emergency room

and the hospital began running standard tests. Results from a drug test showed

Stern had some opiates in his system, which the doctor testified was consistent

with the pain medication Stern had been previously prescribed for some chronic

health issues.

       While he was in the emergency room, medical personnel asked Stern a

number of questions, such as his name and medical history, and he repeatedly

responded, “I don’t know.”     When lab technicians came to draw blood, they

needed him to confirm his name and birthdate in order to take the blood; Stern

stated he did not know a few times before ultimately providing the correct

answer. When testifying at the suppression hearing, Nurse Harris noted Stern

had reported he did not know his name, but both the officers and medical

personnel had been using it with him and in front of him the entire time he was at

the hospital, and he had been responding appropriately. Harris testified “there

was [no] medical reason for him to behave that way that [she] could observe” and

opined Stern may have been faking. She also testified that his vital signs were

normal while he was in the emergency room other than his heart rate, which was

a little faster than normal.

       While Stern was at the hospital awaiting results on various tests, Officers

Avenarius and Horch began speaking with Stern. About forty-five minutes into

the interview, Stern stated he “did something very bad.”      Officer Horch then
                                          4

advised Stern of his Miranda rights;1 Stern stated he understood his rights and

he “didn’t have anything to hide.” He then told the officers his daughter made

him so mad and she “pushed his buttons and he lost it.” He also stated that he

shot her and then got another gun and maybe a third gun and shot her again. At

some point later, when Officer Horch asked Stern questions about how his wife

had died, Stern ended the conversation.

       Stern was charged with murder in the first degree. He entered a plea of

not guilty and filed a motion to suppress the statements he made to the police

officers at the hospital, arguing his waiver of his rights was not knowingly,

intelligently, and voluntarily given.2

       At the hearing on the motion to suppress Officer Avernarius testified she

and Officer Horch were with Stern for approximately three or four hours in the

hospital talking (after the medical personnel had finished their evaluation of

Stern) and Stern answered questions appropriately throughout that time and did

not appear to have difficulty understanding the questions. The officers testified

Stern was in custody but denied he was ever handcuffed or physically coerced.

Officer Horch testified he advised Stern of his Miranda rights and Stern “told me

he understood, he wanted to talk to me, he wanted to help us out. He knew what

his rights were. He made that clear.” Officer Horch also testified that Stern

became more coherent the longer they were at the hospital but noted there was

one time while they were interviewing Stern that he appeared to be confused;


1
 Miranda v. Arizona, 384 U.S. 436, 444 (1966).
2
 At the hearing on the motion to suppress, Stern also asked the court to determine
whether Miranda was actually read to Stern. The court found that it was, and Stern has
not challenged that ruling on appeal.
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when Horch asked Stern how many kids he had, Stern named four names but

later in the interview he reported those four people were his siblings.

       Following the hearing, the court denied Stern’s motion, ruling:

               Horch and Avenarius both testified credibly that Defendant
       became cooperative approximately 30 minutes into the interview
       and made substantive admissions after he had been advised of his
       Miranda rights. He understood the questions that were being
       asked of him and responded to them rationally and appropriately.
       There is no evidence that Defendant was threatened or coerced,
       nor was there any evidence that he was promised anything in
       exchange for his cooperation. Nurse Katie Harris was in the room
       when Defendant admitted to shooting his daughter and testified that
       at that time Defendant did not appear to be in any physical, mental
       or emotional distress.
               The defense’s theory seems to be that since Defendant
       presented as having some kind of episode that required police to
       bring him to the hospital, he lacked the requisite faculties to
       knowingly, intelligently and voluntarily waive his rights.     The
       problem with this theory is that there is no evidence in the record
       that Defendant was having any true physical issue.            Even
       assuming, for the sake of argument, that he had a genuine mental
       episode on the way to the hospital, there is no evidence that the
       episode persisted or ever reached the point where it warranted
       psychiatric evaluation or treatment.
               The Court makes no finding as to whether the symptoms
       exhibited by Defendant on his arrival to the hospital were genuine,
       because in the end analysis it does not matter. Defendant’s
       faculties were intact by the time he was advised of his rights and
       chose to answer Horch’s questions. Accordingly, the State has met
       its burden as to this issue.

       The matter proceeded to a jury trial in September 2016 and lasted for

several days. Before the matter was submitted to the jury, Stern asked the court

to include the jury instruction for voluntary manslaughter, arguing the State’s

evidence—using Stern’s own statements against him—that his daughter “had the

ability to push his buttons” met the standard for a sudden, violent, or irresistible

passion. The court denied Stern’s request for the instruction.
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        The jury convicted Stern of first-degree murder with premeditation and

malice aforethought.

        He appeals.

II. Discussion.

        A. Motion to Suppress.

        Stern filed a motion to suppress his confession to police officers; he claims

his waiver of his Miranda rights was not made knowingly, voluntarily, and

intelligently. We review the district court’s denial of a motion to suppress de

novo.    In re Pardee, 872 N.W.2d 384, 390 (Iowa 2015).              We make “an

independent evaluation of the totality of the circumstances as shown by the

entire record.” Id. (citation omitted). “We give deference to the district court’s

fact findings due to its opportunity to assess the credibility of witnesses, but we

are not bound by those findings.” Id. (citation omitted).

        “Once the issue of the validity of an alleged waiver of constitutional rights

is raised, the State must prove by a preponderance of the evidence that the

waiver was knowingly, intelligently, and voluntarily given.” State v. Countryman,

572 N.W.2d 553, 559 (Iowa 1997). Here, Stern claims the waiver of his rights

was not valid “because of his physical and emotional condition at the time.”

Stern focuses on the fact that officers took him to the hospital as the basis that

his condition had deteriorated to the point where he could not make a knowing

and voluntary waiver.

        But as the district court noted, even if Stern had a legitimate medical

incident that resulted in the officers bringing Stern to the hospital, there is no

evidence such a condition existed at the time he waived his rights and
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confessed. The medical personnel had been allowed full access to Stern and

had already completed the medical steps they believed were necessary. The

nurse testified that Stern’s vitals were normal though his heart rate was slightly

raised. Officer Horch indicated one time when he thought Stern may have been

confused—when Stern provided the officers four names of his children but later

indicated those people were his siblings. According to the testimony of Officers

Avernarius and Horch, Stern was otherwise coherent and tracking their

questions.

      Additionally, in determining whether Stern’s statements were voluntary, we

consider whether his “will is not overborn or his capacity for self-determination

not critically impaired.” State v. Madsen, 813 N.W.2d 714, 722 (Iowa 2012).

Both officers testified—credibly, according to the district court—that Stern was

not handcuffed at the time of the questioning. There were no threats or use of

coercion to get him to speak to the officers. In fact, when the officers asked a

question he did not like about how his wife had died, Stern was the one who

ended the interview.

      The State has proven by a preponderance of the evidence that Stern’s

waiver of his rights following Miranda was knowing, voluntary, and intelligent.

      B. Jury Instruction.

      Stern maintains the district court erred when it did not grant his request to

have the jury instructed on voluntary manslaughter. “Lesser offenses must be

submitted to the jury as included within the charged offense but only if they meet

both the appropriate legal and factual tests.” State v. Thompson, 836 N.W.2d

470, 476 (Iowa 2013) (citation omitted). Because Iowa courts are required to
                                          8


give a requested jury instruction if it correctly states the applicable law and is not

embodied in other instructions, we review the district court’s denial of Stern’s

request for correction of errors at law. See Alcala v. Marriott Int’l., Inc., 880

N.W.2d 699, 707 (Iowa 2016).

       Here, there was no dispute that voluntary manslaughter meets the legal

test. See Thompson, 836 N.W.2d at 477. Rather, the court determined there

was not “a factual basis in the record for submitting the included offense to the

jury.” Id. (citation omitted). Pursuant to Iowa Code section 707.4:

               A person commits voluntary manslaughter when that person
       causes the death of another person, under circumstances which
       would otherwise by murder, if the person causing the death acts
       solely as the result of sudden, violent, and irresistible passion
       resulting from serious provocation sufficient to excite such passion
       in a person and there is not an interval between the provocation
       and the killing in which a person of ordinary reason and
       temperament would regain control and suppress the impulse to kill.

(Emphasis added.)

       Before the district court can give the instruction to the jury, the evidence

presented at trial must meet both an objective and subjective standard.

Thompson, 836 N.W.2d at 477. Subjectively, the defendant must act solely as a

result of the sudden, violent, and irresistible passion. Id. To meet the objective

standard, (1) the passion must result from a serious provocation sufficient to

excite such passion in a reasonable person and (2) there cannot be an interval

between the provocation and the killing in which a person of ordinary reason and

temperament would regain control and suppress the impulse to kill.                 Id.

“Additionally, words alone, historically, have been insufficient to provide a factual

basis for serious provocation.” Id. at 478. In Thompson, our supreme court
                                         9


agreed with the district court that the decedent’s “actions in slapping [the

defendant] and insulting him with obscene gestures fell short of the objectively

serious provocation required to submit a voluntary manslaughter instruction.”

838 N.W.2d at 478.

       When asking the court to give the requested instruction, Stern relied on

testimony from Officers Avernarius and Horch, who each testified about Stern’s

confession. Officer Avernarius testified, “Mr. Stern said that he got mad, was

really upset and lost it, so he took the gun and shot [his daughter] multiple times.”

Reading from her notes, she also testified he stated, “I was very mad and I shot

and killed my daughter.” When Officer Avernarius was asked what made Stern

mad, she testified, “He said [his daughter] maybe said something when he was

sick and went crazy. From what I recall, she pushed his buttons and that’s—and

he lost it and that’s why he shot her.” Officer Horch testified that after Stern

confessed to shooting his daughter, Horch asked him why he had done it, and

“he proceeded to say, you know, that she knew how to push his buttons and that

she made him really mad.” Officer Horch clarified, “But it wasn’t anything recent.

It was when he was sick that she made him mad.”

       Based on the officers’ testimony, the daughter used words to “push

[Stern’s] buttons,” which is not sufficient to find serious provocation. Moreover,

according to Officer Horch, the daughter’s statements to Stern happened

substantially prior in time to the shooting and Stern did not experience a “sudden

passion.” Even if Stern was able to meet the subjective portion of the test, he

cannot establish the objective, reasonable-person portion. The district court did

not err in denying Stern’s request to instruct the jury on voluntary manslaughter.
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III. Conclusion.

       Stern’s waiver of his Miranda rights was knowingly, voluntarily, and

intelligently given, and the district court properly denied his motion to suppress

his confession to the police officers. Additionally, there was not a factual basis in

the record for submitting the voluntary manslaughter instruction to the jury. We

affirm Stern’s conviction for first-degree murder.

       AFFIRMED.
