                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1661
                              Filed March 23, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KEITH TERELL BASS SR.,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Scott County, Mark J. Smith,

Judge.



      Keith Bass Sr. appeals his conviction for sexual abuse. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kevin Cmelik and Sharon K. Hall,

Assistant Attorneys General, for appellee.




      Considered by Vogel, P.J., and Vaitheswaran and Bower, JJ.
                                             2



BOWER, Judge.

       Keith Bass Sr. appeals his conviction for sexual abuse in the third degree,

claiming the district court erred in denying his motion to suppress statements he

made to law enforcement. We affirm.

       On April 25, 2014, the State filed a trial information charging Bass with

sexual abuse in the third degree in violation of Iowa Code sections 709.1(1),

709.4(1) or (4), 702.17, and 703.1 (2013). Following a jury trial, Bass was found

guilty. The district court sentenced him to a term of imprisonment not to exceed

ten years, a fine, and lifetime probation.

       On appeal Bass claims law enforcement obtained statements from him on

three occasions, which violated his privilege against compulsory self-

incrimination under the United States and Iowa Constitutions.      Therefore, he

claims the trial court erred in overruling his oral motion to suppress those

statements. Law enforcement did interview Bass on three occasions regarding

the sexual abuse investigation.      Bass was in jail on unrelated drug charges

during the interviews.

       Our review of constitutional issues is de novo. State v. Lowe, 812 N.W.2d

554, 566 (Iowa 2012).

       After hearing the parties’ statements on Bass’s motion to suppress, the

district court ruled:

               Given what I’ve heard and my knowledge of the case law in
       this regard, it is a statement of a party opponent. It does apply to
       the fact that the defendant admitted he had sex with the alleged
       victim, which is an element of the offense.
               The issue of the Miranda warning is an issue as to whether
       or not he was under a custodial arrest for this offense. Given the
                                          3



       testimony, the Court finds that he was not under custodial arrest for
       this offense and he had the right by simply pushing the button to
       leave the cell—leave the interview room and return to his cell.
               The other thing is the statements appear to be initiated by
       the defendant as opposed to in the form of interrogation by the
       officer—or by the detective and, therefore, the Court finds that
       those statements were voluntarily made by the defendant without
       the—without the detective interrogating the defendant in regard to
       the issues at hand. So, therefore, for those reasons, the Court
       overrules the motion—the oral motion to suppress.

       Miranda warnings are required only when the defendant is in custody or is

otherwise deprived of his freedom of action in a significant way.      Miranda v.

Arizona, 384 U.S. 436, 444 (1966). Incarceration does not automatically render

an inmate in custody for purposes of Miranda. Leviston v. Black, 843 F.2d 302,

304 (8th Cir. 1988); Bradley v. State, 473 N.W.2d 224, 228 (Iowa Ct. App. 1991).

       In the prison context there must be some added restriction on the inmate’s

freedom of movement stemming from the interrogation itself to find custody.

Leviston, 843 F.2d at 304; State v. Deases, 518 N.W.2d 784, 789 (Iowa 1994)

(considering custodial interrogation in the prison setting).     The focus is on

whether a reasonable person in the inmate’s position would understand himself

to be in custody. Leviston, 843 F.2d at 304. “Relevant factors in making this

determination include the language used to summon the individual, the purpose,

place and manner of the interrogation, the extent to which the defendant is

confronted with evidence of his guilt, and whether the defendant is free to leave

the place of questioning.”    Deases, 518 N.W.2d at 789.       Upon our de novo

review, we find no constitutional violation.

       Additionally, as the State notes, a party’s voluntary statements, obtained

in violation of Miranda, are admissible for impeachment when the party takes the
                                         4



stand and gives inconsistent testimony. See State v. McCoy, 692 N.W.2d 6, 30–

31 (Iowa 2005) (“[T]he State may use illegally obtained evidence to impeach if

the defendant testifies, ‘provided of course that the trustworthiness of the

evidence satisfies legal standards.’” (citing Harris v. New York, 401 U.S. 222, 224

(1971))). Even if the Bass’s statements were made in violation Miranda, the

statements were voluntarily made and the State properly used the statements to

impeach Bass once he made inconsistent statements at trial.

       We affirm the district court’s ruling without further opinion pursuant to Iowa

Court Rule 21.26(1)(a), (c), and (e).

       AFFIRMED.

       Vogel, P.J., concurs; Vaitheswaran, J., dissents.
                                         5



VAITHESWARAN, Judge. (dissenting)

       I respectfully dissent.   I believe officers subjected Bass to a custodial

interrogation without affording him Miranda warnings, in violation of his Fifth

Amendment rights under the United States Constitution.

       The pertinent facts are as follows. During the investigation of this crime,

Davenport Detective Karl Drezek met with Bass three times at the Scott County

jail. Bass was in jail on unrelated drug charges. According to Drezek, Bass

denied any sexual contact during the first interview. During the second interview,

Bass changed his story and admitted to consensual sex. During the third

interview, Bass demanded an attorney, provided DNA samples, and again stated

he had consensual sex.

       At trial, the State expressed an intent to have Drezek testify.      Bass’s

attorney objected and questioned Drezek outside the presence of the jury for

purposes of making an objection. Following the questioning, he asserted, in part,

“[T]hese statements . . . were taken in violation of the defendant’s rights against

self-incrimination under the Fifth Amendment of the Federal Constitution as well

as the Iowa Constitution and the Sixth Amendment right to counsel.”

       The State countered that Bass’s statements were admissions of a party

opponent. The State failed to challenge defense counsel’s Fifth Amendment

objection on the ground that it should have been raised in a pretrial motion to

suppress and was waived for failure to follow this procedure. See Iowa R. Crim.

P. 2.11, (3), (4) (requiring motions to suppress to be filed “no later than 40 days

after arraignment”).
                                        6



       The district court questioned the timeliness of counsel’s objection as

follows:

       [T]the appropriate manner of addressing this is in a motion to
       suppress to allow the Court time to research the issue and come to
       a conclusion based on that research. Given the fact that this is an
       oral motion at this time, the Court is prevented from doing that. We
       have had a jury waiting since 9:00 to have this matter completed
       and, therefore, the Court is unwilling to take additional time out of
       the jury’s life to address this issue.

Nonetheless, the court overruled the Fifth Amendment objection on the merits,

after concluding Bass was not subjected to custodial interrogation.        Drezek

testified in open court, summarizing the evidence and statements obtained from

Bass during the investigation.

       On appeal, the State begins with a procedural argument in favor of

avoiding the Fifth Amendment issue. The State asserts, “Bass should not be

permitted to ignore the mandatory rule [on suppression motions] and put both the

prosecution and the court at a disadvantage in having to respond and rule on the

spot without prior notice of the alleged constitutional violations.”    The State

concedes, however, that the prosecutor never raised the timeliness issue in the

district court. This omission precludes the State from raising the issue on appeal.

See DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002) (“[W]e will not consider a

substantive or procedural issue for the first time on appeal, even though such

issue might be the only ground available to uphold a district court ruling.”). In

addition, the State acknowledges an Iowa Supreme Court opinion finding no

abuse of discretion where the district court considered a belated suppression

motion on the merits, when the failure to file a meritorious timely motion would
                                            7



have constituted ineffective assistance of counsel.          See State v. Ortiz, 766

N.W.2d 244, 249-50 (Iowa 2009) (“To avoid additional litigation in this matter the

court did the proper thing by considering the motion rather than waiting for its

merits to be determined in a postconviction relief proceeding. Accordingly, the

district court did not abuse its discretion in hearing the motion under the

circumstances of this case.”).1 Based on this precedent, I believe the district

court and majority appropriately reached the merits of Bass’s Fifth Amendment

objection to Drezek’s testimony. See State v. Grady, No. 10-1532, 2012 WL

1611964, at *2 n.3 (Iowa Ct. App. May 9, 2012) (“Because the State did not

object to the timeliness of the motion and the district court considered the matter

and ruled on the merits, we need not review this as an ineffective-assistance-of-

counsel claim.”).

       I now turn to the merits.        I am obligated to view the totality of the

circumstances when a constitutional violation is alleged.

       The Fifth Amendment states, “No person . . . shall be compelled in any

criminal case to be a witness against himself.” U.S. Const. amend. V. To protect

the Fifth Amendment privilege against self-incrimination from the “inherently

compelling pressures” of questioning by the police, a Miranda warning is to be

given before custodial interrogations. Miranda v. Arizona, 384 U.S. 436, 467

1
   I recognize precedent stating “[e]ven though the State did not resist the motion in the
district court as untimely and unexcused for good cause, we will uphold the ruling on the
admissibility of the evidence on this or any other ground appearing in the record,
whether urged or not.” See State v. Terry, 569 N.W.2d 364, 368 (Iowa 1997). In
DeVoss, the Iowa Supreme Court reaffirmed this language with respect to evidentiary
rulings. DeVoss, 648 N.W.2d at 63. However, in Ortiz, 766 N.W.2d at 250, the court
cited Terry but declined to follow its precept. Reading these cases in tandem, I believe
the State had an obligation to challenge the objection as an untimely suppression motion
if it wished to rely on this ground in its appeal brief.
                                        8



(1966). Custodial interrogation means “questioning initiated by law enforcement

officers after a person has been taken into custody or otherwise deprived of . . .

freedom of action in any significant way.” Id. at 444. The officer must advise the

suspect of the suspect’s right to remain silent, that any statement made may be

used as evidence against the suspect, and the right to the presence of an

attorney, either retained or appointed. Id. at 444-45. The interrogation must

cease if the suspect invokes the right to counsel. See State v. Peterson, 663

N.W.2d 417, 425 (Iowa 2003).

       “Incarceration does not automatically render an inmate in custody for

purposes of Miranda.” State v. Deases, 518 N.W.2d 784, 789 (Iowa 1994).

              In the prison context there must be some added restriction
       on the inmate’s freedom of movement stemming from the
       interrogation itself. The focus is on whether a reasonable person in
       the inmate’s position would understand himself to be in custody.
       Relevant factors in making this determination include the language
       used to summon the individual, the purpose, place and manner of
       the interrogation, the extent to which the defendant is confronted
       with evidence of his guilt, and whether the defendant is free to
       leave the place of questioning.

Id. (citations omitted).

       As noted, Bass had three encounters with police during the investigation

of this matter. During all three encounters, he was in custody for another crime.

Accordingly, there needed to be some added restriction rendering the

confinement custodial. In my view there was.

       Detective Drezek stated Bass did not have the ability to leave the county

jail. Drezek declined to give Bass Miranda warnings during any of the three

encounters.
                                       9



      During the first encounter, Drezek informed Bass “he was the suspect in a

sexual offense” and Drezek “would like to . . . get a statement from him.” Bass

denied having sexual contact.

      The second encounter took place in a small room. A deputy from central

control had to buzz the door to allow entry into or exit from the room. While

Drezek stated he lacked the ability to prevent the button from being pushed, the

power to push the button was clearly not in the hands of Bass, even if Bass’s

hands were free. They were not; Bass was in handcuffs.

      During the second encounter, Drezek served Bass with an order to

provide a DNA sample. The order enumerated certain rights possessed by Bass,

including a statutory right to an attorney. See Iowa Code § 810.8 (2013); Curtis

v. State, No. 06-1045, 2008 WL 3916446, at *3 (Iowa Ct. App. Aug. 27, 2008);

State v. Nagel, 458 N.W.2d 10, 12 (Iowa Ct. App. 1990). Drezek did not read the

order to Bass but informed him of his right to an attorney. According to Drezek,

Bass asked him questions and he responded with answers and information.

Drezek admitted to confronting Bass with his prior denial of sexual contact.

While he asserted Bass could have stopped the conversation and asked to

leave, he conceded he did not tell Bass he was free to go.           During the

conversation, Bass admitted to consensual sex.

      The purpose of the third encounter was to obtain the DNA samples. See

Iowa Code § 810.12 (requiring service of order “not later than twelve hours prior

to the time of the person’s required participation”).    At this meeting, Bass

requested an attorney.   Detective Drezek responded that if Bass wanted an
                                         10



attorney he would have to make his own arrangements.         Bass said he was

unable to contact an attorney while in the county jail.

       I believe Detective Drezek’s encounters with Bass were custodial and

Drezek interrogated Bass during the interviews. In my view, Miranda warnings

were required. Because none were given, I would conclude Bass’s statements

and DNA samples were obtained in violation of his Fifth Amendment right against

self-incrimination.

       The next question is whether admission of the evidence amounted to

harmless error. See Peterson, 663 N.W.2d at 430-31. To establish harmless

error in this context, “the State must prove beyond a reasonable doubt that the

error complained of did not contribute to the verdict obtained.” Id. at 431. This

requires an inquiry into the evidence the jury actually considered and a weighing

of the probative force of all the evidence against the probative force of the

erroneously admitted evidence standing alone. See id.

       The State presented testimony from the following witnesses: (1) the

woman claiming to have been sexually assaulted; (2) the woman’s daughter, who

described her mother’s emotional state; (3) a Davenport police officer who

contacted the woman and obtained evidence; (4) a crime scene technician, who

described the evidence; (5) a nurse, who recounted what the woman said to her

at the hospital and described her examination of the woman; (6) a criminalist,

who found DNA evidence to be “consistent with the known DNA profile of Keith

Bass, Sr.”; and (7) the testimony of Drezek as discussed above. The defense,

offered Bass as a witness. He testified to consensual sex with the woman.
                                            11



       To uphold the district court’s ruling, I would have to 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”

Bass’s conviction. Id. at 434. I cannot reach this conclusion.

       Drezek obtained the DNA samples from Bass after Bass requested

counsel.2 Without these DNA samples, the criminalist would not have had a

known profile of Bass with which to compare the DNA evidence obtained in the

woman’s apartment. After Bass testified, the State recalled Drezek to the stand

and elicited the statements Bass made during the custodial interrogations. While

the record already contained Bass’s admission to consensual sex, it did not

contain the contradictory statements Bass made before and after being

confronted with the State’s evidence.         Because the standard only requires a

reasonable possibility rather than a reasonable probability that the erroneously-

admitted evidence contributed to the finding of guilt, I would conclude the error in

admitting the evidence was not harmless and requires reversal. See State v.

Cullen, 357 N.W.2d 24, 28 (Iowa 1984) (“The difference between a possibility

and a reasonable probability is significant.”), abrogated on other grounds by

Ryan v. Arneson, 422 N.W.2d 491 (Iowa 1988); see also State v. Neiderbach,

837 N.W.2d 180, 226 (Iowa 2013) (“[A] reasonable probability lies somewhere

between ‘mere possibility’ and ‘more likely than not.’” (citation omitted)).




2
  I do not analyze the statutory right to counsel or whether this right is co-extensive with
the Sixth Amendment right to counsel. Instead, my analysis flows from the Fifth
Amendment.
