                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1233
                            Filed December 24, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KIRK RILEY LEVIN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Sac County, Timothy J. Finn,

Judge.



      A defendant appeals his convictions for first-degree murder and third-

degree kidnapping. AFFIRMED.



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

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney

General, Ben Smith, County Attorney, and Douglas Hammerand, Assistant

County Attorney, for appellee.



      Heard by Vogel, P.J., and Vaitheswaran and Potterfield, JJ.
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VOGEL, P.J.

       Kirk Levin appeals his convictions for first-degree murder and third-degree

kidnapping. Although Levin requests State v. Morgan, 559 N.W.2d 603 (Iowa

1997), be overturned, we are not at liberty to do so with Iowa supreme court

precedent.    We conclude the district court correctly determined Levin’s

statement, “I might (inaudible) myself a lawyer,” was inadequate to invoke the

requirement that the officers stop their interrogation and the court properly denied

his motion to suppress.     In light of this conclusion, we do not address the

harmless error arguments raised by the parties. We affirm Levin’s convictions.

       I.     Background Facts & Proceedings

       On January 3, 2013, Gary Schramm stopped to help a car that was stuck

in a ditch in rural Sac County. A woman, J.V., ran from the car, stating the driver,

Levin, had kidnapped her.      When J.V. approached Schramm for assistance,

Levin ran away. He was apprehended a few hours later and arrested.

       Levin signed a written waiver of his Miranda rights. During questioning,

the following exchange occurred:

              Q. What happened with [J.V.]? A. I don’t know what
       happened, why it happened.
              Q. What’s that? A. I don’t know why it happened.
              Q. Well, tell me what happened. A. I don’t think it is smart
       for me to do that. I might (inaudible) myself a lawyer.

The officers proceeded with questioning Levin. Eventually, Levin stated he was

acquainted with J.V. He stated he had gone to her apartment that morning and

asked her for a ride because he was having car trouble, which was a pretext to

get her to come with him. Levin had J.V. drive him to the farmstead where he

was living with his mother. He took J.V. into a shed, where he tied her hands,
                                        3


and then put her into her vehicle. He later admitted he had a fantasy about

having sex with somebody while they were tied up or kidnapped. Shortly after he

left the farmstead in J.V’s vehicle, he drove the car off the road and was stuck in

a ditch when the occupants of a passing vehicle stopped to offer assistance.

      After the first interrogation of Levin, officers went out to the farmstead and

found the body of Levin’s mother, Marilyn Schmitt, in the house. She had been

stabbed eighty-eight times and strangled with a leather belt.      In the trunk of

Schmitt’s vehicle officers found two garbage bags filled with blood-stained

clothing and towels. Schmitt’s DNA was discovered on these items. Additionally,

bloodstains containing Levin’s DNA were discovered on the driver’s side window

of the vehicle. His DNA was also detected in bloodstains on the outside screen

door handle of the house. The knife blade used to kill Schmitt was found in a

garbage bag in the vehicle.

      After the discovery of Schmitt’s body, officers again informed Levin of his

Miranda rights and questioned him about what had happened. Levin stated he

and his mother had been the only ones in the home. After a period of discussion,

when an officer stated, “But you know it was you,” Levin responded, “It had to

have been.” He made a written statement, “I had to have killed my mother. I

can’t explain why, or what I was thinking when I did it. I remember walking into

her room. I remember choking her.”

      Levin was charged with murder in the first degree and kidnapping in the

third degree.   He filed a motion to suppress, claiming that during the first

interrogation he had invoked his constitutional right to counsel and all of his

subsequent statements should be suppressed. After a hearing, the district court
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denied the motion to suppress.      The court found Levin’s statement, “I might

(inaudible) myself a lawyer,” did not rise to the level of being an unambiguous

and unequivocal request for a lawyer. The court determined Levin’s statement

was inadequate to invoke the requirement that the officers stop their

interrogation.

       The case proceeded to trial and a jury found Levin guilty of first-degree

murder and third-degree kidnapping. The court denied his motion in arrest of

judgment and motion for new trial. Levin was sentenced to life in prison on the

murder charge and ten years in prison on the kidnapping charge, to be served

concurrently. He now appeals his convictions.

       II.       Overruling Precedent

       Levin asks to overturn the holding of State v. Morgan, 559 N.W.2d 603

(Iowa 1997). He asserts the Iowa Constitution should be interpreted to provide

that officers be required to ask clarifying questions or cease questioning a

suspect when the person makes an equivocal request for counsel during

custodial interrogation.    This court, however, is not at liberty to overrule

controlling Iowa supreme court precedent. State v. Beck, 854 N.W.2d 56, 64

(Iowa Ct. App. 2014). Therefore, we do not further address his request.

       III.      Request for Counsel

       In the alternative, Levin argues he made a sufficiently clear request for an

attorney and officers should have ceased questioning him.          He asserts his

statement, “I might (inaudible) myself a lawyer,” would have been considered by

a reasonable officer as a request for counsel. He contends that taken in context

with his statement that it would not be very smart for him to tell the officers what
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happened, his statement was a request for an attorney. Levin asserts that all of

his statements made after he requested an attorney should be suppressed. Our

review of this constitutional issue is de novo. See State v. Lowe, 812 N.W.2d

554, 566 (Iowa 2012).

      The United States Supreme Court has stated:

      Invocation of the Miranda right to counsel “requires, at a minimum,
      some statement that can reasonably be construed to be an
      expression of a desire for the assistance of an attorney.” But if a
      suspect makes a reference to an attorney that is ambiguous or
      equivocal in that a reasonable officer in light of the circumstances
      would have understood only that the suspect might be invoking the
      right to counsel, our precedents do not require the cessation of
      questioning.
              Rather, the suspect must unambiguously request counsel.
      As we have observed, “a statement either is such an assertion of
      the right to counsel or it is not.” Although a suspect need not
      “speak with the discrimination of an Oxford don,” he must articulate
      his desire to have counsel present sufficiently clearly that a
      reasonable police officer in the circumstances would understand
      the statement to be a request for an attorney. If the statement fails
      to meet the requisite level of clarity, Edwards [v. Arizona, 451 U.S.
      477, 484-85 (1981),] does not require that the officers stop
      questioning the suspect.
              We decline petitioner’s invitation to extend Edwards and
      require law enforcement officers to cease questioning immediately
      upon the making of an ambiguous or equivocal reference to an
      attorney.

Davis v. United States, 512 U.S. 452, 459 (1994) (citations omitted). The Court

concluded the petitioner’s statement, “Maybe I should talk to a lawyer,” was not

an unambiguous request for counsel. Id. at 462.

      Our Iowa supreme court applied the ruling in Davis in the case of Morgan,

559 N.W.2d at 608, where the defendant stated he “might need a lawyer.” The

court found this statement was analogous to the statement found in Davis.
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Morgan, 559 N.W.2d at 608. The court concluded Morgan did not successfully

invoke his right to counsel. Id.

       This issue was again raised in State v. Effler, 769 N.W.2d 880, 884 (Iowa

2009), where the defendant stated he wanted a lawyer “if I go to jail.”            Our

supreme court was evenly split, and thus, the decision of the district court was

affirmed as a matter of law.        Effler, 769 N.W.2d at 882; see Iowa Code

§ 602.4107 (providing that when the Iowa supreme court is equally divided, “the

judgment of the court below shall stand affirmed, but the decision of the supreme

court is of no further force or authority”). Thus, Effler does not provide precedent

for this court to vary from the Morgan standard.1 See Dier v. Peters, 815 N.W.2d

1, 6 (Iowa 2012) (noting an order affirming a decision by operation of law was a

nonprecedential order).

       In following the precedent found in Davis and Morgan, we can conclude

Levin’s statement, “I might (inaudible) myself a lawyer,” was not an unambiguous

request for counsel. Rather, it is similar to the statements found in Davis and

Morgan that were determined to be insufficient to invoke a defendant’s right to

counsel. See Davis, 512 U.S. at 462; Morgan, 559 N.W.2d at 608. We conclude

the district court correctly determined Levin’s statement was inadequate to

invoke the requirement that the officers stop their interrogation and the court

properly denied his motion to suppress.




1
  Levin points out a special concurrence in Effler, 769 N.W.2d at 896-97 (Appel, J.,
specially concurring), questioned the continued vitality of Morgan and asserted it was
“wobbly precedent that may not survive a direct attack.” As noted above, however, Effler
has no force or authority as precedent because the Iowa supreme court was evenly split.
Iowa Code § 602.4107; Dier, 815 N.W.2d at 6.
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      IV.    Harmless Error

      In addition to asserting he was denied his constitutional right to counsel

when officers continued their questioning of him after he stated, “I might

(inaudible) myself a lawyer,” Levin claims he was prejudiced by the admission of

the statements. He claims the admission of his statements was not harmless

error because he was prejudiced by the statements. See State v. Peterson, 663

N.W.2d 417, 434 (Iowa 2003). Because we have determined the district court

properly concluded Levin’s statements after he made an equivocal statement

regarding counsel were admissible, there is no need for us to address the

harmless error arguments made by the parties.

      We conclude the district court properly denied Levin’s motion to suppress.

We affirm his convictions for first-degree murder and third-degree kidnapping.

      AFFIRMED.
