State of Iowa v. Kenneth Lee Madsen , 813 N.W.2d 714 ( 2012 )

IN THE SUPREME COURT OF IOWA
No. 09–1500
Filed April 20, 2012
STATE OF IOWA,
Appellee,
vs.
KENNETH LEE MADSEN,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Webster County, Kurt L.
Wilke, Judge.
Defendant appeals his convictions on two counts of second-degree
sexual abuse and one count of lascivious acts with a child. COURT OF
APPEALS DECISION VACATED; JUDGMENT OF DISTRICT COURT
AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED.
Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger and
Susan R. Krisko, Assistant Attorneys General, and Ricki L. Osborn,
County Attorney, for appellee.
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WATERMAN, Justice.
In this case, we review our promise-of-leniency doctrine and
related issues to determine the admissibility of the confessions of
defendant, Kenneth Lee Madsen. A Webster County jury that heard part
of his confessions found him guilty on two counts of sexual abuse in the
second degree in violation of Iowa Code section 709.3(2) (2007) and one
count of lascivious acts with a child in violation of Iowa Code section
709.8. Madsen argues the district court erred in failing to suppress his
confessions because (1) his first of two interviews was not recorded
electronically, and (2) his confessions were involuntary under the
constitutional totality-of-the-circumstances test due to the detective’s
threat to make him late for work in the first interview and promise in the
second interview that if Madsen told him everything he could thereby
keep his name out of the local newspaper and put the matter behind
him. The district court ruled police are not required to videotape or
audiotape noncustodial interviews and Madsen’s confessions were
voluntary and admissible. On appeal, Madsen also claims his trial
counsel was ineffective for not attempting to suppress his confession
under our common law evidentiary test for promises of leniency. In
response, the State invited our court to abandon the evidentiary test in
favor of the totality-of-the-circumstances test.
We transferred the case to the court of appeals, which affirmed
Madsen’s convictions and rejected his ineffective-assistance claim based
on its conclusion no promise of leniency was made. On further review,
we decline to require audio or video recording of noncustodial interviews,
and we decline to abandon our evidentiary test for promises of leniency.
We conclude Madsen’s trial counsel breached an essential duty by failing
to move to suppress his confessions under that test. We hold the
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interrogating officer made promises of leniency that require suppression
of part of Madsen’s confession, but Madsen’s self-incriminating
statements made before those promises remain admissible. As a result,
Madsen is entitled to a new trial on one count of second-degree sexual
abuse, but his two remaining convictions are affirmed based on lack of
prejudice. The decision of the court of appeals is vacated, and the
district court convictions and sentences are affirmed in part and reversed
in part.
I. Background Facts and Proceedings.
Madsen met the victim, D.M.K., when the child was in
kindergarten after the boy’s family moved into Madsen’s Fort Dodge
neighborhood. D.M.K. began spending time with Madsen when D.M.K.
was about seven years old. D.M.K. visited Madsen’s apartment,
sometimes alone and sometimes with his brother, D.K., and other young
boys. Madsen had a Nintendo 64 at his apartment the boys used for
computer games. Madsen took the boys bowling and on walks in wooded
parks. Madsen had a police radio scanner and sometimes took the boys
“cop scanning”—going to the scenes of accidents and police calls. D.M.K.
occasionally spent the night at Madsen’s apartment.
In the summer of 2008, D.M.K., D.K., and their older sister were
sitting on the front porch of their house with other children. The
conversation turned to sex, and D.K. said to D.M.K., “Why don’t you tell
about you and Kent [Madsen].” D.M.K. said D.K. was “lying” and went
into the house. The sister confronted D.M.K. alone to inquire, saying she
needed to know what happened. D.M.K. began to cry. D.M.K. told her
that Madsen had measured his penis with a ruler he called a “peter
meter” and that D.M.K. slept naked at Madsen’s home. The sister told
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their mother, who contacted the Iowa Department of Human Services
(DHS).
In July, Jodie Keller, a child protective worker with DHS, called
Madsen and asked if they could meet to discuss child abuse allegations.
Madsen had previously completed a sixteen-week course of study at the
Fort Lauderdale, Florida Police Academy and graduated from that
program. He admitted he learned at the Academy that a person has a
right to leave an interview if he is not in custody. Madsen agreed to meet
at the DHS office in Fort Dodge. Because of the possibility of criminal
charges, Keller invited Fort Dodge police detective Jody Chansler to
attend the interview. At the DHS interview, which was conducted
without audio or video recording, Madsen admitted he had used a ruler
to measure the penises of several boys who were eight to ten years old.
Madsen also admitted at this unrecorded interview the boys had
masturbated at his apartment a number of times and that he had not
told their parents. Madsen does not claim he was in custody for the DHS
interview.
Detective Chansler followed up with a second interview of Madsen
on August 6. Madsen agreed to meet in an interview room at the
Fort Dodge police station. This time the interview was recorded by
audiotape and by videotape with sound. A transcript of the audiotape is
included in the court record. The video recording begins with Chansler
opening and closing the door to show it remained unlocked. The
interview began with this exchange:
[DETECTIVE CHANSLER]: You are here on your own
free will.
[MADSEN]: Yes.
Q. You can get up and leave at any time, do you agree
to that? A. Yes.
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Chansler then referred back to Madsen’s interview at the DHS office
several weeks earlier and reviewed the names of the five boys who had
spent time at his apartment, including D.M.K. and D.K. Chansler then
noted, “When we spoke to you last you gave us the information . . . about
the measuring of the penises.” Madsen stated, “That was poor judgment
on my part but . . . I don’t feel I really did anything all that wrong.” The
interview continued as follows:
Q. Okay. Run me back through that so I know what
you did and why you think that wasn’t wrong? A. Uh going
back to those . . . thinking the night they had done it . . . I
think that was one of the nights when [D.M.K.] was there.
He had told [S.] you know . . . he showed them the ruler and
said you know why don’t you measure your dick. . . . And
uh . . . [D.M.K.] had an erection and he turned around and
he kind of stuck it up and he was showing you know
everybody how he was doing it. And he didn’t think he was
doing it right so he had asked me if I would help him and
show him how to do it. I said well I’d rather not and he goes
come on just . . . you know I don’t know if I’m doing this
right. I tried to explain it to him . . . and he goes here just
do it. So I went over and I slid it in and tried to sit and
measure it, and I told him how big it was and I went and sat
the ruler down. So then everybody else started you know
measuring theirs and I went back and sat on the bed
watching TV.
The video at this point of the interview includes gestures indicating
Madsen had placed his hand on D.M.K.’s penis to hold the ruler against
it. Madsen continued to describe how he had helped five different boys
measure their penises on six different days or nights.
Chansler then referred back to the DHS interview at which they
discussed how boys masturbated at his home and walked in on Madsen
masturbating. The boys that masturbated included D.K. and D.M.K.
Madsen admitted D.M.K. masturbated “a lot” at Madsen’s residence.
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Madsen made these self-incriminating statements during the
videotaped interview before Detective Chansler made the following
promises of leniency at issue:
Q. Okay. You want this to go away right? A. Well
yeah.
Q. Because you have a good job, you have a life, and
you . . . A. I made a poor choice.
Q. And you want this to be done with . . . this . . . A. I
thought it was over. I thought the decision was made . . .
I’m waiting for the other shoe to basically drop right now.
Q. Well here is what I need from you okay and I’ve
explained to you once when we spoke before . . . you’ve got
. . . in order for this case to get wrapped up, in order for you
to go along with your life I have to know everything. A.
Yeah.
Q. And there is more information that I know that
happened that you haven’t told me about so that’s going to
keep the investigation open until I get everything and I’m
satisfied with. I mean you don’t want this in the Messenger
[the Fort Dodge daily newspaper] do you? A. No.
Q. You don’t want your family . . . your job to open the
Messenger and see your photograph and see my name saying
that you’re under investigation for this, this, this . . . you want
it over with now, right? A. Yes. I’m trying.
Q. Well you’ve got to . . . you’ve got to come clean on
everything. A. That’s what I’m doing.
Q. Okay. So tell me about [S.] . . . the whole anal
thing . . . I know there was . . . A. The whole what?
Q. Okay at any time did any of the boys asked [sic]
you for help or anything with like anal sex . . . and before
you answer that think about what I just said about this
investigation getting wrapped up and getting over with so
you can move on with your life. I need you to tell me
everything that went on in that apartment. I’m not arresting
you today. I’ve already explained that . . . these boys have
already had . . . they’ve already been down to Des Moines . . .
they’ve already been interviewed by different people that
specialize in this thing. Okay there is so much evidence . . .
so much . . . uh . . . I got all kinds of videos, statements,
evidence . . . and my last piece is you telling us the truth or
this investigation is not going to be open and I’m just going
to keep going and keep going so . . . I need you to make it
over with. I can’t make it over with you unless [you] help
out. A. Well I can’t tell you anymore . . . it didn’t happen. I
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mean you know . . . well maybe you don’t know . . . I don’t
have any problem with cooperating with police, I always
have.
Q. I agree with that.
(Emphasis added.)
The interview then continued with more than twenty minutes of
Madsen being evasive and denying specific allegations of sexual conduct
while acknowledging the boys took baths at his home and that he helped
them bathe. About twenty-four minutes after Chansler’s comment about
the Messenger, Madsen admitted D.M.K. had grabbed his [Madsen’s]
penis, which got hard. Madsen then talked about D.M.K. playing with
his erect penis for minutes, but denied ejaculating.
Both Chansler and Madsen remained calm and conversational
throughout the entire interview. No voices were raised. Both men
remained seated during their dialogue. Chansler never made a
threatening gesture or movement towards Madsen. Madsen described
his conduct with the boys in a matter-of-fact tone.
Under further prompting by Chansler, Madsen described
attempted anal sex by D.M.K. and J. in Madsen’s presence. Madsen
offered the boys lubricant and used his hands to “stage them.” Madsen
said he told D.M.K. and J. to cease the anal sex if it was painful.
Madsen told Chansler that helping the boys attempt anal sex made him
uncomfortable because Madsen himself had been raped when he was a
teenager. Madsen volunteered that “everyone kind of experimented at
some point in time in life” and attributed the anal sexual activity as the
boys’ “kind of experimentation stage.” Moments later, Detective Chansler
turned off the audio tape recorder while the video recording captured
their final dialogue:
A. So where do we go from here?
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Q. At this point in time, Kent, all I’m doing is, is
compiling a report okay? The county attorneys look it over
and they will deem whether or not they want to do anything
with it okay? That’s it. A. So they still could issue a
warrant at this point?
Q. They could, yes. That’s possible. A. Wonderful.
Q. But, I’m not saying that’s going to happen and I’m
not saying it isn’t going to happen. I don’t know. They have
to look over all the evidence, all the paperwork. It’s not going
to happen anytime soon. I’ll let you know if it does. But
they will have to review it. Okay? Anything else you want to
discuss . . . ?
Madsen displayed no sense of surprise or betrayal when told the county
attorney could charge him. He calmly walked out of the interview room.
Madsen was charged with multiple counts of sexual abuse in the
second degree and lascivious acts with four boys. The district court
granted his motion for separate trials. Madsen moved to suppress his
confessions at both interviews as involuntary and on grounds the first
interview was not recorded electronically. Madsen alleged Detective
Chansler used “various statements and tactics to override [his] will by
making promises and threats.” And he claimed the detective’s tactics
rendered his confession involuntary under the Fifth and Fourteenth
Amendments of the United States Constitution and article I, section 8 of
the Iowa Constitution. In his brief supporting the motion, Madsen cited
state and federal cases applying a totality-of-the-circumstances
voluntariness test and performed a totality-of-circumstances analysis.
The district court found Madsen’s statements were voluntary under the
totality of the circumstances, and the failure to record the first interview
did not require suppression. D.M.K.’s case proceeded to jury trial.
The jury heard testimony from D.M.K. and his brother, D.K., and
heard Madsen’s confessions. Madsen testified and denied any sexual
contact with D.M.K. Madsen explained that he made admissions to
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Detective Chansler to avoid public humiliation and loss of his job if he
did not cooperate. D.K. testified he saw Madsen “jacking off” with his
hand on D.M.K.’s penis and that Madsen used a ruler to measure his
penis and his brother’s. D.M.K. testified Madsen would pull down his
pants to measure his penis and that Madsen wore no clothes when
D.M.K. was at his apartment. D.M.K. described Madsen as masturbating
while touching D.M.K.’s penis, that Madsen would touch D.M.K.’s penis
“pretty often,” and that Madsen put his mouth on D.M.K.’s penis.
The jury acquitted Madsen on the count alleging oral sex—an act
Madsen never admitted in his confessions. The jury found Madsen guilty
on two counts of second-degree sexual abuse and one count of lascivious
acts with a child. The district court denied Madsen’s motion for a new
trial and sentenced him to twenty-five-year terms of imprisonment for
each count of second-degree sexual abuse and a ten-year term for the
lascivious acts with a child. The terms are to be served consecutively.
Madsen appealed, and his appeal was transferred to the court of
appeals. On appeal, Madsen argues the district court erred in refusing
to suppress evidence as a result of the State’s failure to record his
noncustodial first interview and erred in finding his confession was
voluntary under the totality of the circumstances. Madsen also claims
his trial counsel was ineffective for not attempting to suppress his
confession in the second interview pursuant to the nonconstitutional,
evidentiary promise-of-leniency test favored in State v. McCoy, 692
N.W.2d 6, 28–29 (Iowa 2005).
A three-judge panel of the court of appeals unanimously affirmed
Madsen’s convictions, concluding electronic recording is not required and
that Madsen’s confessions in both interviews were voluntary. The
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appellate court rejected Madsen’s claim his confession was induced by
threats or a promise of leniency:
Detective Chansler made statements and asked
questions some of which when viewed individually or in
some combinations might arguably be considered to be
promises of leniency. However, the exchanges between
Chansler and Madsen that we have quoted, when taken as a
whole, demonstrate that Chansler intended, and Madsen
understood, that Chansler was referring to his investigation
and was indicating only that when he became satisfied
Madsen had disclosed everything relevant to the
investigation that had transpired, then the investigation
would be concluded. Chansler’s statements and questions
gave no assurance that by cooperating with the investigation
Madsen might gain in some manner relating to possible
charges or punishment. We find no error in the district
court’s determination that Madsen’s statements in the
second interview were voluntarily made and therefore should
not be suppressed.
We granted Madsen’s application for further review.
II. Scope of Review.
We review de novo Madsen’s constitutional challenges to the
admissibility of his confessions. We give deference to the district court’s
fact-findings because of its ability to assess the credibility of the
witnesses, but we are not bound by those findings. State v. Crawford,
659 N.W.2d 537, 541 (Iowa 2003). We review de novo Madsen’s claim his
trial counsel was ineffective. State v. Fannon, 799 N.W.2d 515, 520 (Iowa
2011).
III. Failure to Electronically Record the First Interview.
Madsen first made incriminating admissions when he was
interviewed by DHS employee Keller at her office with Detective Chansler
present. This interview was not videotaped or audiotaped. Madsen
contends the “failure to electronically record interrogations should render
them inadmissible.” We disagree. The district court correctly rejected
Madsen’s argument, stating, “While the fact that the interview was not
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recorded is bothersome to this court, it is not of such an egregious or
suspicious nature to require suppression of defendant’s statements.”
Madsen on appeal relies on our statement in State v. Hajtic, “We
believe electronic recording, particularly videotaping, of custodial
interrogations should be encouraged, and we take this opportunity to do
so.” 724 N.W.2d 449, 456 (Iowa 2006) (emphasis added). In Hajtic, a
videotape of the confession assisted our de novo review in which we
rejected the defendant’s arguments that his self-incriminating
statements were made involuntarily due to his difficulty understanding
English. The videotape enabled our court to observe the defendant’s
responses to questions in a manner that made clear he understood them.
Id. We did not say in that case that unrecorded confessions were
inadmissible, and we decline Madsen’s invitation to take that step now.
As the court of appeals observed:
The Hajtic decision, specifically refers to custodial
interrogation. It is clear that Madsen was not in custody at
the time of the first interrogation. Keller, an employee of
DHS telephoned Madsen and left a voice message. Madsen
returned her call and they set up an appointment at DHS
offices in Fort Dodge. The interview was described as
“pleasant,” and lasted about one hour. Madsen was free to
leave, and left at the end of the interview. Madsen was not
deprived of his freedom in any significant way. While it
would have been better if the interview had been recorded,
we conclude that information obtained as a result of the
interview was not inadmissible due to the lack of electronic
recording.
(Citations omitted.)
We reiterate our admonition in Hajtic encouraging videotaping of
custodial interrogations. Since Hajtic was decided, “the use of video
recordings as evidence at trial has become a common practice . . . to
further the truth-seeking process.” People v. Kladis, 960 N.E.2d 1104,
1110 (Ill. 2011) (also recognizing videotape “objectively document[s] what
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takes place by capturing the conduct and the words of both parties”). We
also encourage electronic recording of noncustodial interviews when it is
practical to do so. But, because noncustodial interrogations occur under
a variety of circumstances, we decline at this time to adopt a per se rule
requiring electronic recording. Madsen concedes his interview at the
DHS office was noncustodial. We hold the failure to electronically record
Madsen’s first interview does not render his confessions inadmissible.
IV. Detective Chansler’s Alleged Threat to Make Madsen Late
For Work.
Madsen argues he made involuntary admissions in his first
interview to avoid being late for work after Detective Chansler threatened
to keep him there all day until he told him what he wanted to hear. The
district court heard the testimony of Detective Chansler and DHS
employee Keller denying any pressure to continue the interview. Madsen
came and left voluntarily and departed ahead of the time he said he
needed to leave for work. The district court found Madsen’s admissions
in the first interview were voluntary and not the product of any threat or
coercion. We agree. It defies common sense that Madsen would confess
to class B felonies to avoid getting in trouble for being late for work. We
are not inclined to suspend disbelief in our de novo review of the record.
See United States v. Jacques, 784 F. Supp. 2d 48, 56 (D. Mass. 2011)
(finding confession voluntary because “it defies credulity to think that
Trooper Mazza told Defendant, and that Defendant believed, that
confessing to an arson would result in his immediate release from
custody”).
V. Madsen’s Constitutional Voluntariness Claim.
Madsen moved to suppress his statements to Detective Chansler in
the second interview as “involuntary” and “obtained in violation of . . .
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the 5th and 14th Amendments to the Constitution of the United States
and, the Constitution of Iowa, Article I, Section 8.” We will apply the
same analysis to each constitutional provision. See In re Det. of Garren,
620 N.W.2d 275, 280 n.1 (Iowa 2000) (refusing to deviate from federal
analysis in considering state constitutional claim because appellant
“ha[d] suggested no legal deficiency in the federal principles . . . nor ha[d]
he offered an alternative test or guidelines”).
For the reasons set forth in the next division of this opinion, we are
reviewing the promise-of-leniency claim under our common law
evidentiary test. Because we hold Madsen’s confession that followed the
promise of leniency must be suppressed under that test, we do not
decide whether that part of his confession was involuntary under the
totality-of-the-circumstances test. We will address Madsen’s claim that
his confession which preceded the promise of leniency was involuntary
under the totality test, and we confine this analysis to the earlier part of
his confession.
Under a constitutional totality-of-the-circumstances voluntariness
analysis, statements are voluntary if the defendant’s will is not overborne
or his capacity for self-determination is not critically impaired. State v.
Bowers, 661 N.W.2d 536, 541 (Iowa 2003).
A number of factors help in determining voluntariness.
Among them are: defendant’s age; whether defendant had
prior experience in the criminal justice system; . . . 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; whether
physical punishment, including deprivation of food and
sleep, was used.
State v. Payton, 481 N.W.2d 325, 328–29 (Iowa 1992) (citations omitted).
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The district court viewed the videotaped confession in ruling on
Madsen’s motion to suppress. The court ruled the videotaped confession
was admissible:
This court’s impression was that Defendant discussed his
involvement in the facts of the case in a matter-of-fact
manner with the belief that he had done nothing wrong and
was perfectly willing to voluntarily continue the
conversation. This court concludes that Defendant’s
statements at this interview were voluntary and should not
be suppressed.
The district court reached the same conclusion after the jury
convicted Madsen and the court denied his motion for new trial:
In reviewing the videotape of the interview, this Court was
struck, not by any indication that the Defendant was under
duress, but most by the fact that the Defendant appeared
much at ease and that his statements to Detective Chansler
were clearly voluntary. This Court likened the August 6,
2008 interview to two men having a conversation on a park
bench. For those reasons, this Court found no substance to
the Defendant’s motion to suppress and the Defendant’s
statements were deemed admissible at trial.
Our own review of the videotape persuades us that Madsen’s
confession that preceded the promise of leniency was voluntary under
the totality of the circumstances. Madsen was thirty-five years old and a
graduate of a sixteen-week course at the Fort Lauderdale Police
Academy. He admittedly knew he was not in custody and was free to
leave or remain silent. Madsen remained calm throughout his interview.
The video does not depict a man whose will was overborne or whose
capacity for self-determination was impaired. Accordingly, Madsen was
not entitled to suppression of the part of his confession that preceded the
promise of leniency. We next consider whether Madsen’s confession that
followed the promise of leniency should have been suppressed under the
common law evidentiary test if his trial counsel had raised that issue.
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VI. Madsen’s Ineffective-Assistance-of-Counsel Claim.
On appeal, Madsen argues his trial counsel rendered ineffective
assistance by not attempting to suppress his recorded statements under
the nonconstitutional, evidentiary promise of leniency prohibition favored
in McCoy. 692 N.W.2d at 28–29. The motion to suppress cited
constitutional authority and did not cite McCoy or otherwise develop the
evidentiary standard, nor did the district court address the evidentiary
test. The evidentiary standard was not preserved for direct appeal and
can only be reached under the ineffective-assistance framework. See
State v. Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011) (“Ineffective-
assistance claims are an exception to our normal rules of error
preservation.”).
“Ineffective-assistance-of-counsel claims have their basis in the
Sixth Amendment to the United States Constitution.” State v. Vance,
790 N.W.2d 775, 785 (Iowa 2010). To establish an ineffective-assistance-
of-counsel claim, a claimant must prove by a preponderance of the
evidence “(1) his trial counsel failed to perform an essential duty, and
(2) this failure resulted in prejudice.” State v. Straw, 709 N.W.2d 128,
133 (Iowa 2006) (citing Strickland v. Washington, 466 U.S. 668, 687–88,
104 S. Ct. 2052, 2064–65, 80 L. Ed. 2d 674, 693 (1984)). The claimant
must prove both elements by a preponderance of the evidence. King v.
State, 797 N.W.2d 565, 571 (Iowa 2011).
A. Failure to Perform Essential Duty. To satisfy the first prong
of the Strickland test, Madsen must show that “counsel’s representation
fell below an objective standard of reasonableness.” Strickland, 466 U.S.
at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. In evaluating the
objective reasonableness of trial counsel’s conduct, we examine
“whether, in light of all the circumstances, the identified acts or
16
omissions were outside the wide range of professionally competent
assistance.” Id. at 690, 104 S. Ct. 2066, 80 L. Ed. 2d at 695. We
evaluate the attorney’s performance against “ ‘prevailing professional
norms.’ ” Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001) (quoting
Strickland, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694).
1. The evidentiary test for promises of leniency. We have held
counsel breaches an essential duty when he does not attempt to
suppress a confession under our evidentiary test and the confessions
were induced in violation of that test. McCoy, 692 N.W.2d at 29
(“[C]ounsel’s failure to [file a motion to suppress] constituted a breach of
an essential duty.”). We find the record adequate to resolve Madsen’s
claim on direct review. As noted in McCoy, there is “no strategic or
tactical reason for not filing the motion.” Id. at 27. This prong turns on
whether Detective Chansler induced Madsen’s statements in violation of
our evidentiary test for promises of leniency.
In McCoy, we found officers impermissibly promised the defendant
leniency under our evidentiary test. 692 N.W.2d at 29. We
distinguished the evidentiary test from the constitutional test and cited
to our cases that applied the evidentiary approach. Id. at 27–28 (citing
State v. Quintero, 480 N.W.2d 50, 52 (Iowa 1992); State v. Mullin, 249
Iowa 10, 14, 85 N.W.2d 598, 600 (1957)). We recently applied this
evidentiary test in State v. Polk, 812 N.W.2d 670, 674 (Iowa 2012).
Under our evidentiary test, a “ ‘confession can never be received in
evidence where the prisoner has been influenced by any threat or
promise.’ ” McCoy, 692 N.W.2d at 27 (quoting Mullin, 249 Iowa at 14, 85
N.W.2d at 600).
2. The State’s invitation to abandon the evidentiary test. The
federal courts use the totality-of-the-circumstances test to review
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promise of leniency issues. See Arizona v. Fulminante, 499 U.S. 279,
285, 111 S. Ct. 1246, 1251–52, 113 L. Ed. 2d 302, 315 (1991). The
State in this appeal urges us to use that approach for consistency and
for policy reasons:
Iowa’s courts should rely on the constitutional “totality
of the circumstances” test for several reasons. Under the
evidentiary test, a confession may be excluded even if not
induced by the officer’s improper promises. “A confession is
like no other evidence. Indeed, the defendant’s own
confession is probably the most probative and damaging
evidence that can be admitted against him.” Arizona v.
Fulminante, 499 U.S. 279, 296, 111 S. Ct. 1246, 1257, 113
L. Ed. 2d 302, 322 (1991). The jury should not be denied
the use of such evidence without a real inquiry into the
actual effect of any promise of leniency that may have been
made.
Although it may be difficult to “measure the force of
the influence used or decide upon its effect on the mind” of a
defendant, State v. Mullin, 85 N.W.2d 598, 600 (Iowa 1957),
the court should be able to sift the evidence and determine
whether an alleged promise of leniency actually led the
defendant to confess. . . .
Use of the evidentiary approach in connection with
allegations of promissory leniency can lead to
inconsistencies. Such an approach places Iowa courts at
odds with federal courts, in which the constitutional “totality
of the circumstances” test is used and a promise of leniency
is only one factor to be considered in determining whether a
defendant’s statement is voluntary. See, e.g., United States
v. Coleman, 208 F.3d 786, 791 (9th Cir. 2000); United States
v. Larry, 126 F.3d 1077, 1079 (8th Cir. 1997). The legal
standards applicable to a particular defendant’s case
therefore would depend on whether he or she is charged in
federal or state court. In addition, within Iowa’s court
system, the legal standard applicable to a defendant’s claim
of involuntariness would depend on whether he or she
alleged promissory leniency or another type of compulsion,
such as physical brutality or deprivation of food, water, or
sleep. When a defendant claims that his or her confession
has been extracted by compulsion, the legal framework
applicable to the claim should not depend on the specific
type of compulsion at issue.
Because application of the evidentiary approach can
lead to both exclusion of highly probative evidence that may
not have been obtained through compulsion and
inconsistencies in how claims of involuntariness are treated,
18
Iowa’s courts should employ the constitutional totality of the
circumstances test.
We agree these are good reasons for using the totality-of-the-
circumstances test in lieu of the evidentiary, common law per se
exclusionary rule. But, we note the evidentiary rule has the advantage of
clarity and is a better deterrent against police misuse of threats and
promises of leniency to obtain confessions. Courts and commentators
have long recognized promises of leniency can induce false confessions
leading to wrongful convictions of the innocent. In Mullin, we observed:
Wigmore says . . . the query is, “Was the inducement such
that there was any fair risk of a false confession?” Were the
statements made to the accused strong enough so that it
could in reason be determined that the prisoner would lie
and say he was guilty when he was not, so as to gain some
special favor?
While it is hard to believe that a person would admit
false facts showing his guilt without greater assurance than
is sometimes held sufficient to make inadmissible alleged
confessions, the courts feel compelled to go to the extreme to
protect the weak or confused innocent party who may feel
his chances of establishing his innocence are too remote to
turn down what appears to be an assurance of leniency if he
will confess to the crime of which he is accused. It seems
more reasonable to assume that before an accused would
falsify bad conduct for good conduct, he would demand some
fairly specific assurance or promise of leniency, which is the
obvious reason for the many decisions that a mere statement
by an officer that it would be better or wiser to tell the truth,
is not such an assurance or inducement as to make a
statement by accused inadmissible. However, when the
officer or officers go further and explain just how it will be
better or wiser for the accused to speak, these statements
may suddenly become more than an admonishment and
assume the character of an assurance or promise of special
treatment which may well destroy the voluntary nature of
the confession in the eyes of the law.
249 Iowa at 16, 85 N.W.2d at 601–02 (quoting 3 Wigmore on Evidence
§§ 823–24 (3d ed. 1940)).
In McCoy, we also reiterated that “ ‘the law cannot measure the
force of the influence used, or decide upon its effect upon the mind of the
19
prisoner, and therefore excludes the declaration if any degree of
influence by force or other inducement has admittedly been exerted upon
him.’ ” 692 N.W.2d at 27 (quoting Mullin, 249 Iowa at 14, 85 N.W.2d at
600 (internal quotation marks omitted)). The use of a per se
exclusionary rule eliminates the need for the court to attempt to read the
mind of defendant to determine if his confession, in fact, was induced by
or made in reliance upon the promise of leniency.
The State previously invited us to abandon the evidentiary test in
McCoy, and we declined to do so. In McCoy, we noted the district court
had applied the evidentiary test and “the State filed no post-hearing
motion asking the [district] court to employ the federal totality-of-the-
circumstances test.” Id. at 28. Thus, the issue was not preserved. The
State faces no such obstacle here: the district court used the totality-of-
the-circumstances test in ruling that Madsen’s confession was
admissible, and it was Madsen’s trial counsel that failed to argue for the
evidentiary test in district court. On balance, however, we favor the
evidentiary test as the better deterrent against promises of leniency that
can lead to wrongful convictions. 1
Accordingly, we decline the State’s invitation to abandon the
evidentiary test in favor of the totality-of-the-circumstances test.
3. Application of the evidentiary test. Our court has not previously
addressed whether a threat of adverse publicity in the newspaper or a
promise to avoid newspaper coverage would render a subsequent
1District courts should first employ the evidentiary test to determine the
admissibility of confessions challenged on grounds of a promise of leniency. If
application of the evidentiary test requires suppression of the confession, the district
court need not also apply a totality-of-the-circumstances test. If the district court finds
the evidentiary test does not require exclusion, it should still employ the totality-of-the-
circumstances test to ensure the State has met its burden of establishing that
defendant’s confession was voluntary.
20
confession involuntary. In this case, Chansler’s statements about
newspaper coverage were combined with statements including, “you
want this to go away . . . you want this to be done with.” Chansler
thereby implicitly conveyed the message that by confessing Madsen could
avoid public charges against him.
In Polk, we held “the [officer] crossed the line by combining
statements that county attorneys ‘are much more likely to work with an
individual that is cooperating’ with suggestions [the defendant] would not
see his kids ‘for a long time’ unless he confessed.” 812 N.W.2d at 676.
In McCoy, we required a new trial because the defendant confessed after
the detective told him twenty-five times that “if he didn’t pull the trigger,
he wouldn’t be in any trouble.” 692 N.W.2d at 28. In Quintero, we held
the police improperly coerced defendant’s confession by threatening that
his sixteen-year-old nephew would be tried as an adult and sent to
prison unless he cooperated. 480 N.W.2d at 50, 52. In State v. Kase, we
reversed a conviction because the defendant confessed after a Division of
Criminal Investigation agent told her “that if she told him what she knew
about Vaughn’s death and signed a consent to search her apartment no
criminal charges would be filed against her; otherwise, she was told, she
would be charged with murder.” 344 N.W.2d 223, 226 (Iowa 1984). In
State v. Hodges, we held that defendant’s confession was inadmissible
when he was told “that a lesser charge would be much more likely if he
gave ‘his side of the story.’ ” 326 N.W.2d 345, 349 (Iowa 1982). In
Hodges, we offered some parameters:
An officer can ordinarily tell a suspect that it is better
to tell the truth. The line between admissibility and
exclusion seems to be crossed, however, if the officer also
tells the suspect what advantage is to be gained or is likely
from making a confession. Ordinarily the officer’s
21
statements then become promises or assurances, rendering
the suspect’s statements involuntary.
Id. (citing Mullin, 249 Iowa at 16–17, 85 N.W.2d at 601–02).
We find the detective’s interrogation techniques impermissibly
promised Madsen leniency. Detective Chansler suggested to Madsen
that his confession was necessary “for this case to get wrapped up” and
to keep his name out of the newspaper:
Q. Well here is what I need from you okay . . . in order
for this case to get wrapped up, in order for you to go along
with your life I have to know everything.
....
Q. You don’t want your family . . . your job to open
the Messenger and see your photograph and see my name
saying that you’re under investigation for this, this, this . . .
you want it over with now, right?
....
Q. Well you’ve got to . . . you’ve got to come clean on
everything.
The statements threatened Madsen with an adverse newspaper story if
he did not tell Chansler “everything.” Chansler’s statements also
communicated to Madsen there was “an advantage . . . to be gained” if he
confessed. See id. The investigation would “get wrapped up” quickly,
Madsen could “go along with [his] life,” and he could avoid newspaper
publicity that would humiliate him in the community. The statements
flunk our evidentiary test for a promise of leniency.
Accordingly, Madsen’s counsel breached an essential duty by not
moving to suppress statements made after the impermissible promises
under the evidentiary promise-of-leniency test.
B. Prejudice. Madsen must also establish counsel’s deficient
performance prejudiced him. Prejudice exists if “ ‘there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’ ” State v. Graves, 668 N.W.2d
22
860, 882 (Iowa 2003) (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at
2068, 80 L. Ed. 2d at 698). A “reasonable probability” means a
“substantial,” not “just conceivable,” likelihood of a different result. King,
797 N.W.2d at 572. Counsel’s error must “undermine our confidence in
the verdict.” Id. at 575.
Importantly, the State did not admit Madsen’s entire interview into
trial evidence. The State only admitted ten video clips of the interview
ranging from seconds to several minutes. Detective Chansler testified
about the statements contained on the video, the State cross-examined
Madsen as to the video statements, and prosecutors incorporated the
video clips into closing argument. The first two clips contained Madsen’s
admission that he measured D.M.K.’s penis with a ruler. These
statements were properly admitted into evidence because Madsen made
the statements before the detective’s promise of leniency. See Mullin, 249
Iowa at 17, 85 N.W.2d at 602 (requiring threat or promise of leniency to
precede confession). The remaining clips contained admissions made by
Madsen after the detective engaged in improper questioning. Video clips
three through ten contained statements by Madsen that he walked
around naked while D.M.K. was at his apartment, that D.M.K.
masturbated him for several minutes while the two laid in bed watching
TV, that he did not tell the boys’ parents that their sons engaged in
sexual activities at his house, and that the sexual activity at his house
was “something different, something wild.”
We must decide whether the admission of the statements
contained in video clips three through ten prejudiced Madsen. The jury
convicted Madsen on three counts. We review each count separately.
1. Count I. Count I charged Madsen with second-degree sexual
abuse in violation of Iowa Code section 709.3(2), alleging Madsen
23
directed D.M.K. to touch his genitals. Jury Instruction No. 9 required
the jury to find:
1. Between July 1, 2005 and July 31, 2008, the
Defendant did commit a sex act with a child, by engaging in
hand (D.M.K.) to genitalia (Defendant) contact with D.M.K.
2. The Defendant performed the sex act while D.M.K.
was under the age of twelve (12) years old.
“Sex act” is defined as “any sexual contact between two or more persons
by: . . . contact between the finger or hand of one person and the
genitalia or anus of another person.” Iowa Code § 702.17. We have
stated whether a “sex act” has occurred is a fact question for the jury
that can “be determined from the type of contact and circumstances
surrounding it.” State v. Pearson, 514 N.W.2d 452, 455–56 (Iowa 1994).
D.M.K. testified he masturbated Madsen at Madsen’s direction.
D.M.K. stated Madsen “took my hand and jacked himself off” and that
Madsen’s penis was “hard.” This testimony was corroborated by more
than four minutes of impermissible video clips that showed Madsen
explaining how D.M.K. masturbated him. Video clips numbers six,
seven, and eight contain admissions by Madsen that D.M.K.
masturbated him for several minutes while the two watched television.
Madsen admitted his penis was erect.
While the jury may have found D.M.K. to be a credible witness, the
admissions contained in the video clips made conviction for this count
virtually certain. The statements removed any reasonable doubt effective
cross-examination of D.M.K. could create. In fact, Madsen’s counsel did
not even attempt to impeach D.M.K. as to this testimony. Given the
undeniably persuasive value of Madsen’s four-minute confession, we find
there is a “reasonable probability” the jury would have returned a
24
different verdict as to Count I if tapes six, seven, and eight were not
admitted into evidence.
2. Count II. Count II charged Madsen with lascivious acts with a
child in violation of Iowa Code section 709.8(1), for measuring D.M.K.’s
penis with a ruler. Section 709.8(1) makes “it unlawful for any person
sixteen years of age or older” to “[f]ondle or touch the pubes or genitals of
a child” “for the purpose of arousing or satisfying the sexual desires of
either of them.” Jury Instruction No. 10 required the jury to find:
1. Between July 1, 2005 and July 31, 2008, the
Defendant did fondle or touch the genitals of D.M.K., a child,
with or without the child’s consent, by measuring D.M.K.’s
penis with a ruler.
2. The Defendant did so with the specific intent to
arouse or satisfy the sexual desires of the Defendant or
D.M.K.
3. The Defendant was then eighteen (18) years of age
or older.
4. D.M.K. was under the age of fourteen (14) years
old.
D.M.K. testified Madsen just “put [the ruler] up to my penis and
measure[d] it.” D.M.K. testified he did not ask Madsen to measure his
penis and that Madsen “would just pull down my pants.” Madsen had
the ruler at his house and according to D.M.K. called it the “peter meter.”
D.M.K.’s sister testified D.M.K. told her about the “peter meter.” D.M.K.’s
brother, D.K., testified Madsen “would pull down me and my brother’s
pants and he would measure us” and that “he would do it on his own.”
D.K. testified he saw Madsen hold D.M.K.’s penis while he measured it.
The State also admitted two video clips from Madsen’s police interview.
The video clips contain statements Madsen made before Detective
Chansler’s impermissible questioning. The first tape lasted thirty-three
seconds:
25
Q. All right man . . . when we spoke to you last you
gave us the information about the measuring . . . move this
over here so they can hear both of us . . . about the
measuring of the penises . . . . A. I’m saying that was poor
judgment on my part but still I mean . . . .
Q. Okay. A. I don’t feel I really did anything all that
wrong. I mean nothing was . . . I guess it really doesn’t
matter now but . . . .
The second tape contained sixteen seconds of conversation:
Q. . . . And when you said that you helped him you
had mentioned you slid it in . . . how did you do that?
Describe that . . . I mean on the bottom of his penis . . . on
the top . . . I mean . . . A. I put the rule under . . . you know
like this and you know measured it.
Gestures on the video accompanying this discussion make clear Madsen
admitted touching his hand on D.M.K.’s penis while measuring it with
the ruler. This confession preceded the promise of leniency and is
therefore admissible. Mullin, 249 Iowa at 17, 85 N.W.2d at 602.
Overwhelming evidence, therefore, establishes Madsen’s guilt
under Count II. The admissible evidence allowed the jury to find Madsen
measured D.M.K.’s penis with the “specific intent to arouse or satisfy
sexual desires.” D.M.K. and D.K. both testified Madsen pulled D.M.K.’s
pants down to measure D.M.K.’s penis. The boys testified to a sexually
charged atmosphere, each stating Madsen “jacked off” in front of them.
D.M.K.’s sister testified D.M.K. told her he slept naked on Madsen’s
couch. Madsen cannot show suppression of the inadmissible statements
would create a “substantial” likelihood the jury would acquit him on this
count. Counsel’s deficient performance does not undermine our
confidence in the jury’s verdict on Count II.
3. Count III. Count III charged Madsen with second-degree sexual
abuse in violation of Iowa Code section 709.3(2), for touching D.M.K.’s
genitals. Jury Instruction No. 11 required the jury to find:
26
1. Between July 1, 2005 and July 31, 2008, the
Defendant did commit a sex act with a child, by engaging in
hand (Defendant) to genitalia (D.M.K.) contact with D.M.K.
2. The Defendant performed the sex act while D.M.K.
was under the age of twelve (12) years old.
D.M.K. testified to the following exchange:
Q. Did [Madsen] ever touch your wiener? A. Yes.
Q. What did he do? A. Jacked me off.
Q. So he took his hand and put it on your wiener?
A. Yes.
Q. Did he do the same motion that you made earlier?
A. Yes.
Q. When he touched your wiener, did he do that more
than once? A. More than once.
....
Q. Tell me what you mean by more than once?
A. Every time I was over there, he would do it.
Q. So it happened pretty often; right? A. Yes.
Q. After that started happening, did you tell anybody?
A. No.
Q. Why? A. Because I was scared.
None of the eight inadmissible video clips contain admissions by
Madsen that he masturbated D.M.K. We also do not believe the
inadmissible video clips contaminated the jury’s verdict as to this count.
Neither Count III nor Count IV, which alleges oral sex, was corroborated
by the inadmissible statements in the video clips. D.M.K. testified to
both the masturbation and oral sex on direct examination. The jury
acquitted Madsen on Count IV, but convicted Madsen on Count III. The
acquittal resulted from counsel’s effective cross-examination of D.M.K.’s
oral-sex testimony. During cross-examination, D.M.K. admitted he
denied Madsen performed oral sex on him during a deposition and in an
interview with Detective Chansler. The acquittal shows the jury did not
27
rely on the inadmissible evidence to convict Madsen for charges
unrelated to the inadmissible statements.
Madsen’s counsel, however, did not attempt to impeach D.M.K.’s
testimony that Madsen masturbated him. The jury found D.M.K.’s
uncorroborated and unimpeached testimony that Madsen masturbated
him to be credible. The inadmissible statements regarding other acts do
not undermine our confidence in the jury’s verdict for Count III. Madsen
cannot show suppression of the video clips would create a “reasonable
probability” of a different outcome on Count III.
For these reasons, we find Madsen established the requisite
prejudice as to Count I alone. Madsen’s conviction and sentence for
Count I must be reversed. Madsen’s convictions for Counts II and III are
affirmed.
VII. Resentencing.
The district court imposed consecutive sentences of the maximum
twenty-five-year prison term allowed for each of Madsen’s convictions for
sexual abuse in the second degree (Counts I and III) and a ten-year term
for lascivious acts with a child (Count II) for a total sentence of sixty
years. The reversal of his conviction and sentence on Count I would still
leave Madsen sentenced to a twenty-five-year and a ten-year term on the
convictions affirmed on appeal to be served consecutively for a total of
thirty-five years, a punishment within the district court’s discretion.
However, the district court considered the fact Madsen was convicted on
three counts when imposing the consecutive maximum sentences. On
this record, we believe it is appropriate to remand for resentencing on
Counts II and III. See State v. Gibb, 303 N.W.2d 673, 687–88 (Iowa 1981)
(remanding for resentencing upon reversal of one conviction when the
district “court considered the fact of three convictions in imposing all
28
three sentences”); see also State v. Keutla, 798 N.W.2d 731, 735 (Iowa
2011) (noting our discretion to remand for resentencing, even when
sentences are severable, and concluding it is appropriate to do so upon
reversal of part of a combined sentencing arrangement viewed “as an
interconnected package”). “We do not suggest what the sentence should
be as that determination lies within the discretion of the trial court.”
Gibb, 303 N.W.2d at 688. The district court may defer resentencing on
those counts until after the retrial on Count I.
VIII. Disposition.
We affirm Madsen’s convictions for Counts II and III but remand
for resentencing as to those counts. We reverse Madsen’s conviction and
sentence for Count I and remand for a new trial on that count. Costs are
taxed two-thirds to the defendant, one-third to the State.
COURT OF APPEALS DECISION VACATED; JUDGMENT OF
DISTRICT COURT AFFIRMED IN PART, REVERSED IN PART, AND
CASE REMANDED.
All justices concur except Mansfield, J., who takes no part.