author: NEUMAN, Justice.

text:
    STATE of Iowa, Appellant, v. TRIGON, INC. and Karl Thompson, Appellees.
    No. 02-0213.
    Supreme Court of Iowa.
    Feb. 26, 2003.

      Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, and David C. Thompson, County Attorney, for appellant.
    Matthew Nagle and Patrick J. O’Connell of Lynch, Dallas, Smith & Harman, P.C., Cedar Rapids, for appellees.
   NEUMAN, Justice.

On a windy December day, nineteen-year old Dan Ross fell sixty feet to his death while working on a telecommunication tower being built by defendant Trigon, Inc. Following an investigation, the corporation and its president, defendant Karl Thompson, were charged with willfully violating Iowa’s Occupational Health and Safety Act (IOSHA), a serious misdemeanor. See Iowa Code §§ 88.5, 88.14(5) (1999).

Thompson moved to suppress statements made by him to an IOSHA inspector shortly after the accident. The district court suppressed the statements on the ground they were secured in violation of Thompson’s rights under the Fifth Amendment. We granted the State’s application for discretionary review.

Given the constitutional implications of the case, our review is de novo. State v. Deases, 518 N.W.2d 784, 789 (Iowa 1994). Because the record reveals neither a custodial interrogation nor admissions that were coerced or otherwise involuntary, we reverse the district court’s suppression order and remand for further proceedings.

I. Background.

The fatality at Trigon’s work site prompted the Iowa Department of Labor to send a senior industrial hygienist, Jeff Ellis, to perform an inspection and investigate the facts surrounding Ross’s fall from the tower. Ellis is not a peace officer. He carries no badge or firearm and has no authority to arrest, or even issue citations, for workplace hazards. His job is to perform scheduled IOSHA inspections and investigate workplace accidents.

On the day following the accident, Ellis met Trigon’s president, Karl Thompson, at the company’s office near Cedar Rapids. Ellis’s appearance was not prearranged, but neither was it unexpected. Ellis characterized the meeting as a routine “opening conference” in which he explained the nature of the investigation, requested the opportunity to talk with employees familiar with the accident, and inquired about the company’s safety and health programs and policies. The discussion, described by both men as business-like but friendly, lasted roughly ninety minutes.

By Ellis’s account, Thompson spoke “quite freely” concerning the Ross incident. The fatal fall occurred on Ross’s first day on the job, and Thompson admitted knowing little about his new employee. Ellis asked to see copies of Trigon’s safety and health program, including training documentation for Ross. Thompson advised that most of the materials were in a van headed to a job site in Minnesota. When asked what safety training Ross had received before scaling the tower, Thompson reportedly replied that it was his practice to “train after we can see if they can hack it.”

Thompson recalled (and Ellis did not dispute) that no Miranda warnings preceded their conversation. Thompson, mindful of the seriousness of any work-related fatality, asked Ellis whether he “needed an attorney present.” Ellis reportedly answered “no.” When asked about this conversation, Ellis acknowledged Thompson’s inquiry but said that, as in all such IOSHA investigations, he advised Thompson it was the employer’s decision whether to have a lawyer present. Both men agreed that no further discussion on the point occurred.

Further facts will be detailed as they pertain to the issue on appeal.

II. Issue on Appeal.

Based on the testimony sketched above, the district court suppressed all statements made by Thompson to Ellis, reasoning that Thompson had “requested an attorney” and so “all further interrogation should have been suspended until the Defendant had an opportunity to contact an attorney.” The State assails this conclusion on appeal. It claims that exclusion under this record is neither compelled by Miranda nor otherwise required under the Fifth Amendment’s guarantee that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const, amend. V. For the reasons that follow, we agree.

A. Miranda. In Miranda v. Arizona, the Supreme Court held that an individual taken into custody or otherwise significantly deprived of his freedom must, before questioning begins, be advised of certain now-familiar rights to (1) remain silent, and (2) the representation of counsel, retained or appointed. Miranda, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694, 726 (1966). In the absence of proof that such warnings have been given, or that the person interrogated has knowingly and intelligently waived those rights, “no evidence obtained as a result of interrogation can be used against him.” Id. at 479, 86 S.Ct. at 1630, 16 L.Ed.2d at 726; accord State v. Davis, 446 N.W.2d 785, 787-88 (Iowa 1989). For purposes of applying Miranda’s prophylactic rule, the status of the interrogating official is not determinative. Deases, 518 N.W.2d at 790. “[W]hen a state official conducts a custodial interrogation that would require a Miranda warning if undertaken by a police officer, then the official is similarly required to give a Miranda warning.” Id.

Miranda warnings need not be given, however, unless the record establishes both custody and interrogation. State v. Countryman, 572 N.W.2d 553, 557 (Iowa 1997); Deases, 518 N.W.2d at 789. Only the question of custody is at issue here. On that issue this court looks at four factors:

(1) the language used to summon the individual; (2) the purpose, place, and manner of interrogation; (3) the extent to which the defendant is confronted with evidence of [his] guilt; and (4) whether the defendant is free to leave the place of questioning.

Countryman, 572 N.W.2d at 558; see also Deases, 518 N.W.2d at 789.

The record before us yields no support for the conclusion that Thompson’s interview with Ellis was custodial in nature. We begin by addressing the first and fourth factors together. Thompson was not “summoned” to meet with Ellis at some official location. Their meeting, though initiated by Ellis, took place during normal business hours in Thompson’s office. Ellis chatted sociably with Thompson’s staff and, by all accounts, their meeting was cordial. And while Thompson understandably harbored a reluctance to leave while the questioning was in process, his .subjective views are not controlling on the question of custody. We are obliged to examine the “objective circumstances of the interrogation.” Countryman, 572 N.W.2d at 557. Here an objective view of the facts reveals that Thompson was interviewed in his own place of business, was not restrained in any way, and was never told he could not leave at his election. Ellis had no weapon, no badge, and no authority to arrest Thompson, restrain him or even issue a citation. In short, factors one and four suggest this was a non-custodial interrogation. See, e.g., United States v. Helmel, 769 F.2d 1306, 1320 (8th Cir.1985) (interrogation conducted on defendant’s “own turf’ not indicative of inherently coercive setting normally accompanying custodial investigation).

As for the purpose, place and manner of the interrogation, only its purpose is seriously debated by the parties. Ellis’s mission was to gather facts about the fatal accident and, essentially, to determine whether the fatality resulted from a lapse in safety procedures and devices that would put other employees at risk of injury unless abated. Both he and Thompson were aware of, and discussed, the range of possible civil penalties that could be imposed if IOSHA violations were found. But no objective view of the suppression motion record would lead a reasonable person to believe that Ellis thought he was mounting a criminal investigation. The purpose of an “opening conference” was not to gather incriminating evidence. In his seventeen years with the agency, no IOSHA violation had ever resulted in a criminal prosecution. At this preliminary stage, the likelihood that his inquiry would lead to the filing of criminal charges was highly remote.

Finally, Thompson was never confronted with evidence of his “guilt” because guilt was not the focus of Ellis’s questions. In short, nothing about Ellis’s initial encounter with Thompson suggests that the interrogation that followed was custodial in nature. Thus, Ellis had no duty to precede his questioning with Miranda warnings. See McKune v. Lile, 536 U.S. 24, 47, 122 S.Ct. 2017, 2033, 153 L.Ed.2d 47, 67 (2002) (O’Connor, J., concurring) (no Miranda warnings required for non-custodial police questioning); Helmel, 769 F.2d at 1321 (same). The district court erred when it suppressed Thompson’s statements on this ground.

B. Voluntariness. Even if Miranda warnings were not required, Thompson’s statements would still be subject to suppression at the criminal trial if those statements were not made voluntarily. Davis, 446 N.W.2d at 788 (“[A]ny use in a criminal trial of an involuntary statement is a denial of due process requiring automatic reversal.”) This privilege against compelled self-incrimination applies to questions posed in civil proceedings, formal or informal, if the answers might later be used in a criminal prosecution. In re E.H., III, 578 N.W.2d 243, 249 (Iowa 1998).

The burden of proving volun-tariness rests on the State. State v. Hodges, 326 N.W.2d 345, 348 (Iowa 1982).

In order to establish the voluntariness of a defendant’s inculpatory statements, the State must demonstrate from the totality of circumstances that the statements were the product of an essentially free and unconstrained choice, made by the defendant at a time when his will was not overborne nor his capacity for self-determination critically impaired.

Id. at 347 (quoting State v. Snethen, 245 N.W.2d 308, 315 (Iowa 1976)). Factors bearing on the issue of voluntariness include:

the defendant’s age, experience, prior record, level of education and intelligence; the length of time defendant is detained and interrogated; whether physical punishment was used, including the deprivation of food or sleep; defendant’s ability to understand the questions; the defendant’s physical and emotional condition and his reaction to the interrogation; whether any deceit or improper promises were used in gaining the admissions; [and] any mental weakness the defendant may possess.

Id. at 348 (citations omitted).

Most of these factors weigh against any claim of involuntariness here. From Thompson’s perspective, the circumstances surrounding the questioning could not be described as other than familiar and un-threatening. There was no deprivation or punishment involved. As for Thompson’s ability to understand Ellis’s questions, the record reflects the intelligence, experience, education and mental strength one might expect from a thirty-nine year old president of his own company. By these standards, there is nothing in the record to support, or even suggest, that Thompson’s ' will was overborne or his capacity for self-determination impaired.

Thompson nevertheless contends that his admissions resulted from trickery or deceit committed by Ellis in one of two ways: (1) by discouraging Thompson from seeking the advice of counsel before answering questions, or (2) by implying that if Thompson failed to cooperate more serious repercussions would follow.

Whether or not Ellis told Thompson he did not “need” an attorney, or (as Ellis recalls) merely advised him it was his “call,” the record makes plain that Thompson’s inquiry on the point was equivocal at best. See State v. Morgan, 559 N.W.2d 603, 608 (Iowa 1997) (“[A]n inquiry regarding the need or advisability of speaking with an attorney is not an invocation of the right to counsel.”) Thompson concedes as much on appeal. Moreover, even if we assumed Ellis’s response discouraged Thompson from consulting counsel, the statement could not fairly be characterized as deceptive or designed to coerce incriminating admissions. The record plainly reveals that Ellis was as surprised as Thompson that this investigation led to criminal charges. Given the totality of the circumstances, we do not believe Ellis’s opinion regarding counsel could be said to render involuntary the subsequent statements by Thompson, a corporate executive, while being questioned in his own office.

That brings us to Thompson’s claim that Ellis’s unannounced arrival at his office implied a power to shut down his business if Thompson refused to answer his questions. As this court noted in In re E.H. Ill, “[w]hen the State ‘compels testimony by threatening to inflict potent sanctions unless the constitutional privilege is surrendered, that testimony is obtained in violation of the Fifth Amendment.’ ” In re E.H. Ill, 578 N.W.2d at 249 (quoting Lefkowitz v. Cunningham, 431 U.S. 801, 805, 97 S.Ct. 2132, 2135, 53 L.Ed.2d 1, 7 (1977)). Thompson rightly notes that the Supreme Court has reiterated this principle in compelled-testimony cases involving such “potent sanctions” as termination of employment, loss of professional license, ineligibility for government contracts and loss of right to hold public office. See McKune, 536 U.S. at 48, 122 S.Ct. at 2033, 153 L.Ed.2d at 67 (O’Connor, J., concurring) (describing cases).

Thompson’s reliance on these cases, however, is misplaced. The record before us contains no proof of threatened sanctions, direct or implied. As we observed in Hodges, “[t]he question of voluntariness is a matter of sorting out the impetus for the inculpatory statement.” Hodges, 326 N.W.2d at 348. The evident impetus for Thompson’s candor was his belief that Ellis could shut down his business if he did not answer his questions. This mistaken belief originated with Thompson, not Ellis. Not only did Ellis not have the power to compel Thompson’s cooperation, the record furnishes no proof from which to infer that Ellis encouraged Thompson’s erroneous belief.

Unlike the cases cited above in McKune, no statutory scheme compelled Thompson’s cooperation on pain of losing his business. See, e.g., Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 620,17 L.Ed.2d 562, 567 (1967) (excluding testimony coerced under statute requiring public employees to surrender Fifth Amendment privilege or forfeit employment). This case is more akin to Davis, where the defendant was charged with being a felon in possession of a firearm after he requested the return of a shotgun used by his relative in a crime. Davis, 446 N.W.2d at 790. Davis claimed he was influenced to answer a deputy’s inquiry regarding ownership of the weapon by the belief that if he did so, the gun would be returned to him. We held Davis’s inculpatory statements about the gun were not rendered involuntary by the deputy’s failure to correct his misperception. Id. So also here, we are convinced that any economic concern driving Thompson’s willingness to speak to Ellis stemmed from his own misapprehension of the law, not any coercion on the State’s part.

In short, Thompson’s statements to the IOSHA inspector were not coerced or otherwise involuntary. Thus the district court should not have suppressed them. We therefore reverse and remand for farther proceedings.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: LARSON, Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Loren Glen HUSS, Jr., Appellant.
    No. 01-2048.
    Supreme Court of Iowa.
    Feb. 26, 2003.
    Barbara A. Schwartz, University of Iowa Clinical Programs, and Teonta Williams and Anthony Haughton, Student Legal Interns, Iowa City, for appellant.
    Thomas J. Miller, Attorney General, Robert P. Ewald and Thomas H. Miller, Assistant Attorneys General, for appellee.
   LARSON, Justice.

This is another chapter in the long history of this case. The defendant, Loren Huss, was arrested and charged with murder in the gruesome death of his girlfriend, Marilyn Sheets, in 1986. He was ultimately convicted and appealed to this court. State v. Huss, 430 N.W.2d 621 (Iowa 1988), cert, denied, 490 U.S. 1024, 109 S.Ct. 1755, 104 L.Ed.2d 191 (1989) (.Huss I). We affirmed his conviction. Huss took his case to federal district court in a habeas corpus action, lost there, and appealed to the eighth circuit. See Huss v. Graves, 252 F.3d 952 (8th Cir.2001). The eighth circuit reversed and remanded the case for entry of a habeas corpus order by the federal district court unless the State, within ninety days, retried Huss by submitting the stipulated record to a new judge. Huss was tried in a nonjury trial in Polk County and found not guilty by reason of insanity. Huss filed this appeal, claiming the trial violated the double jeopardy provisions of the United States and Iowa Constitutions. We affirm.

I. Facts and Prior Proceedings.

On May 19, 1986, police broke into the apartment that Huss shared with the victim. They discovered Sheets’ mutilated body on the floor. Huss was spreading blood over the walls. With blood in his mouth and caked on his face, Huss was screaming passages of scripture. Later, while confined in a padded cell, Huss banged his head against the bed frame until he bled profusely, then smeared the cell walls with blood.

The State charged Huss with first-degree murder, and Huss filed a notice of insanity. After extensive discovery, the prosecutor became convinced that Huss was insane at the time of the killing. The State and defense counsel agreed the appropriate disposition would be to present the evidence in a bench trial on a stipulated record. In closing arguments both sides argued that Huss was insane at the time of the killing. The court took the matter under advisement. Two months after the hearing the court ruled that it would not render a verdict and could not find the defendant was insane at the time of the murder. The court set the case for trial to a jury, characterizing the aborted submission on the stipulated record as a “pretrial hearing.”

In the jury trial that followed the prosecutor abandoned the insanity approach and aggressively pursued a guilty verdict. The jury found Huss guilty of first-degree murder. Huss appealed to this court on the ground the jury trial violated his double-jeopardy rights. We found the original proceeding on the stipulated record was indeed a trial, not a “pretrial hearing,” as the judge had characterized it, and that jeopardy had attached. However, we ruled that the trial court’s refusal to enter a verdict in the original proceeding and to set the case for trial to a jury was in effect a mistrial declared in the sole interest of the defendant. State v. Huss, 430 N.W.2d at 624. We reasoned that, after the trial court determined that its assessment of the evidence did not match the arguments of the prosecutor and defense counsel, the court was reasonable in assuming the defendant had not contemplated the risk of a guilty verdict. Id. We found that the subsequent jury trial did not violate double jeopardy and affirmed the conviction.

Huss sought habeas corpus relief in the United States District Court for the Southern District of Iowa. That court denied relief, and Huss appealed to the eighth circuit, which granted the writ. It held Huss had been subjected to double jeopardy but that his release under the writ would be conditional. He would be released unless, within ninety days, the State retried him by submitting the original stipulated record to a new judge. Huss, 252 F.3d at 958-59. Huss petitioned for certiorari in the United States Supreme Court, but certiorari was denied. Huss, 535 U.S. 933, 122 S.Ct. 1308, 152 L.Ed.2d 218 (2002).

The State resumed proceedings in district court as allowed by the eighth circuit, based on the original stipulated record, and Huss filed a motion to dismiss on double-jeopardy grounds. The court denied the motion to dismiss, ruling that the eighth circuit’s decision was the law of the case. It did not address Huss’s double-jeopardy arguments. Huss unsuccessfully applied for interlocutory appeal to this court. The district court, on the stipulated record, found Huss not guilty by reason of insanity and ordered his evaluation for criminal commitment. The resulting commitment order is the subject of a separate appeal, and it is not at issue here.

Huss now appeals the court’s verdict of not guilty by reason of insanity, raising two issues: (1) whether the federal court’s habeas corpus ruling is binding as the law of the case, as the district court concluded; and (2) whether Huss’s retrial following the federal court’s grant of habeas corpus relief subjected him to double jeopardy so as to prevent a retrial.

II. The Constitutional Provisions.

The Fifth Amendment to the United States Constitution states, “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb_” U.S. Const, amend. V. This provision is applied to the states through the Due Process Clause of the Fourteenth Amendment. Justices of Boston Mun. Ct. v. Lydon, 466 U.S. 294, 306,104 S.Ct. 1805, 1812, 80 L.Ed.2d 311, 323 (1984). The Iowa Constitution provides that “No person shall after acquittal, be tried for the same offence.... ” Iowa Const, art. I, § 12. See generally State v. Franzen, 495 N.W.2d 714 (Iowa 1993).

III. The Habeas Corpus Ruling.

The eighth circuit disagreed with our opinion in Huss I and held that the trial in which Huss was convicted of first-degree murder violated double jeopardy principles because the earlier “mistrial” was not based on “manifest necessity” as' required by federal cases. Huss, 252 F.3d at 955 (citing United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165, 165 (1824), and United States v. Jom, 400 U.S. 470, 481, 91 S.Ct. 547, 557, 27 L.Ed.2d 543, 554 (1971)). The eighth circuit ruled that our court in Huss I erred by focusing on the benefit to Huss in granting a mistrial sua sponte. Huss, 252 F.3d at 956. The court held, however, that a proceeding that places a defendant in double jeopardy does not necessarily prevent a retrial, id. at 958. This is consistent with general constitutional principles:

[I]n cases in which a mistrial has been declared prior to verdict, the conclusion that jeopardy has attached begins, rather than ends, the inquiry whether the Double Jeopardy Clause bars retrial.

Illinois v. Somerville, 410 U.S. 458, 467, 93 S.Ct. 1066, 1072, 35 L.Ed.2d 425, 433 (1973) (emphasis added). The eighth circuit said in Huss:

“[H]abeas corpus is, at its core, an equitable remedy,” Schlup v. Delo, 513 U.S. 298, 319, 115 S.Ct. 851, 863, 130 L.Ed.2d 808, 831 (1995). Because of the equitable nature of the writ, a federal court “has broad discretion in conditioning a judgment granting habeas relief [and is] authorized ... to dispose of habeas corpus matters ‘as law and justice require,’ ” Hilton v. Braunskill, 481 U.S. 770, 775, 107 S.Ct. 2113, 2118, 95 L.Ed.2d 724, 732 (1987). When a double jeopardy violation is found on habeas review, the normal relief is to release the prisoner and forbid further retrial.
This case, however, is quite obviously far removed from the norm. Rather than maintaining his innocence, Mr. Huss sought at his bench trial to be excused from his acts because of insanity. Even if Mr. Huss had received what he asked for, therefore, he would have been deprived of his liberty, since a defendant in Iowa who is found not guilty by reason of insanity is subject to involuntary commitment in a mental facility. If we were to release Mr. Huss, he would be in a better position than he would have been in if the bench trial had concluded in his favor.
We do not believe that under the unique circumstances of this case the double jeopardy clause prohibits the retrial of Mr. Huss altogether. The Constitution does not absolutely require “that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment,” Wade v. Hunter, 336 U.S. 684, 688, 69 S.Ct. 834, 837, 93 L.Ed. 974, 978 (1949). A retrial is permissible when a defendant’s interest in a single trial is “outweighed by the competing and equally legitimate demand for public justice,” United States v. Givens, 88 F.3d 608, 611 (8th Cir.1996).... Mr. Huss’s first trial was conducted on a stipulated record, and the same evidence can be submitted to another judge.

Huss, 252 F.3d at 958. The court then ordered this disposition:

[I]t is appropriate to issue a writ of habeas corpus releasing Mr. Huss, unless the State of Iowa, within 90 days after the mandate issues in this case, retries Mr. Huss by submitting the stipulated record from the first trial to the new judge.

Id.

IV. The Trial Following Federal Remand.

The State argues, and the district court ruled, that the holding of the federal case binds this court because it is the law of the case. Huss responds that law-of-the-case principles do not apply because a holding in a habeas corpus case between Huss and a warden cannot bind the court in a subsequent case in which Huss and the state are the parties. Huss suggests we could reach a conclusion as to the application of the federal constitutional provision different from that of the federal court in Huss v. Graves. In any event, Huss argues we should interpret Iowa’s double-jeopardy provision to prevent his retrial. We have no inclination to question the federal court’s interpretation of the federal double-jeopardy provision, and we interpret Iowa’s double-jeopardy provision to allow Huss’s retrial for the reasons that follow. See Franzen, 495 N.W.2d at 715-16 (“same constitutional standards for determining when jeopardy attaches must be applied equally in both federal and state courts”).

We believe a retrial as ordered by the eighth circuit is permissible under well-established principles, as we will discuss, without regard to any preclusive effect of the eighth circuit’s opinion in Huss. We therefore do not address Huss’s first issue, involving the application of the law of the ease. The second issue, as stated by Huss, is

whether the subsequent re-trial of Loren Huss following the grant of habeas relief on double jeopardy grounds was permissible, ... [in view of] published decisions of the United States Supreme Court, namely Burks v. United States, 437 U.S. 1[, 98 S.Ct. 2141, 57 L.Ed.2d 1] (1978), Swisher v. Brady, 438 U.S. 204[, 98 S.Ct. 2699, 57 L.Ed.2d 705] (1978), and Smalis v. Pennsylvania, 476 U.S. 140[, 106 S.Ct. 1745, 90 L.Ed.2d 116] (1986).

In Burks the Supreme Court held a conviction for armed robbery barred a subsequent trial because the government had failed to rebut the defendant’s evidence of insanity. The Court distinguished the cases that are resolved on a failure of proof from those based on procedural error. It noted:

“The principle that [the Double Jeopardy Clause] does not preclude the Government’s retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction is a well-established part of our constitutional jurisprudence.”

Burks, 437 U.S. at 14, 98 S.Ct. at 2149, 57 L.Ed.2d at 11-12 (quoting United States v. Tateo, 377 U.S. 463, 465, 84 S.Ct. 1587, 1589,12 L.Ed.2d 448, 450 (1964)).

In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect.... When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished.
The same cannot be said when a defendant’s conviction has been overturned due to a failure of proof at trial, in which case the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble.

Burks, 437 U.S. at 15-16, 98 S.Ct. at 2149-50, 57 L.Ed.2d at 12.

In discussing the distinction between cases terminated for lack of evidence and those terminated for “error in the proceedings,” the Court in Burks said:

Given the requirements for entry of a judgment of acquittal, the purpose of the [Double Jeopardy] Clause would be negated were we to afford the government an opportunity for the proverbial “second bite at the apple.”

437 U.S. at 17, 98 S.Ct. at 2150, 57 L.Ed.2d at 13.

In Huss’s second cited case, Swisher v. Brady, 438 U.S. 204, 98 S.Ct. 2699, 57 L.Ed.2d 705 (1978), nine minors challenged a Maryland procedure that allowed the findings of a master’s report in delinquency cases to be appealed for judicial review. The Supreme Court said:

Importantly, a [juvenile rule allowing a master’s report to be reviewed by a judge] proceeding does not impinge on the purposes of the Double Jeopardy Clause. A central purpose “of the prohibition against successive trials” is to bar “the prosecution [from] another opportunity to supply evidence which it failed to muster in the first proceeding.” [The rule in question] does not provide the prosecution that forbidden “second crack.” The State presents its evidence once before the master. The record is then closed, and additional evidence can be received by the Juvenile Court judge only with the consent of the minor.

Swisher, 438 U.S. at 215-16, 98 S.Ct. at 2706, 57 L.Ed.2d at 715 (quoting Burks, 437 U.S. at 11, 98 S.Ct. at 2147, 57 L.Ed.2d at 9). Swisher does not support the proposition for which Huss cites it. Swisher merely reinforces the general rule that terminations on grounds other than insufficiency of the evidence will not foreclose a retrial.

In Huss’s third cited case, Smalis v. Pennsylvania, 476 U.S. 140, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986), the Court held that a trial judge’s ruling, on the defendant’s demurrer, that the prosecution’s evidence was insufficient to establish guilt, was an acquittal under the Double Jeopardy Clause and barred further proceedings. Smalis, 476 U.S. at 146, 106 S.Ct. at 1749, 90 L.Ed.2d at 122. This merely confirms the holding of Burks— retrials will not be allowed if the earlier proceeding is terminated for insufficient evidence. 437 U.S. at 18, 98 S.Ct. at 2150-51, 57 L.Ed.2d at 14.

In contrast to the cases cited by Huss, the present case is not one that was terminated to give the State a “second bite at the apple” following a failure of proof in the initial proceeding. In fact, the eighth circuit made it clear that the State could not mend its hold by furnishing additional proof. It said:

A retrial is permissible when a defendant’s interest in a single trial is “outweighed by the competing and equally legitimate demand for public justice.”
Mr. Huss’ first trial was conducted on a stipulated record, and the same evidence can be submitted to another judge. In such a proceeding, Mr. Huss’ interest in a single trial would be greatly diminished, since the prosecution could not introduce new evidence.

Huss, 252 F.3d at 958 (emphasis added) (quoting Givens, 88 F.3d at 611).

In a case analogous to the present one, the Supreme Court approved the retrial of a defendant whose trial had been terminated by the court because of misconduct of defense counsel. On retrial the jury convicted the defendant, but the conviction was set aside by the fifth circuit on double-jeopardy grounds. The Court said:

The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where “bad-faith conduct by judge or prosecutor” threatens the “(h)arassment of an accused by successive prosecutions or declarations of a mistrial so as to afford the prosecution a more favorable opportunity to convict” the defendant.
But here the trial judge’s banishment of [defense counsel] from the proceedings was not done in bad faith in order to goad the respondent into requesting a mistrial or to prejudice his prospects for an acquittal. As the Court of Appeals noted, [defense counsel] “was guilty of improper conduct” during his opening statement which “may have justified disciplinary action[.]” Even accepting the appellate court’s conclusion that the trial judge overreacted in expelling [defense counsel] from the courtroom, the court did not suggest, the respondent has not contended, and the record does not show that the judge’s action was motivated by bad faith or undertaken to harass or prejudice the respondent.

United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267, 276 (1976) (citations omitted) (footnote omitted) (quoting Jom, 400 U.S. at 485, 91 S.Ct. at 557, 27 L.Ed.2d at 556; Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100, 102-03 (1963)). The Court in Dinitz reversed the court of appeals and remanded for retrial. Id. at 611-12, 96 S.Ct. at 1082, 47 L.Ed.2d at 276. Dinitz reinforced the distinction between errors in the proceedings and terminations on the merits of the cases.

In Somerville the jury had been impaneled and sworn, so jeopardy had attached, but no evidence had been presented. The trial court discovered the indictment was defective because it did not allege the requisite intent. Under Illinois law, the defect could not be cured except through a new indictment. In fact, if the trial had been completed, the defendant could have challenged a conviction at any time, even on appeal, because the error was jurisdictional. Somerville, 410 U.S. at 459-60, 93 S.Ct. at 1068, 35 L.Ed.2d at 428. A grand jury indicted the defendant again. The defendant was tried and convicted, and the Illinois Supreme Court affirmed. Defendant petitioned for habeas corpus in federal court, and the seventh circuit ruled that under double-jeopardy principles the defendant could not be retried. The Supreme Court reversed, holding that the fact the defendant had been previously held in jeopardy did not prevent a retrial.

The trial judge was faced with a situation similar to those in [other cases], in which a procedural defect might or would preclude the public from either obtaining an impartial verdict or keeping a verdict of conviction if its evidence persuaded the jury. If a mistrial were constitutionally unavailable in situations such as this, the State’s policy could only be implemented by conducting a second trial after verdict and reversal on appeal, thus wasting time, energy, and money for all concerned. Here, the trial judge’s action was a rational determination designed to implement a legitimate state policy, with no suggestion that the implementation of that policy in this manner could be manipulated so as to prejudice the defendant. This situation is thus unlike Doimum [v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963)], where the mistrial entailed not only a delay for the defendant, but also operated as a post-jeopardy continuance to allow the prosecution an opportunity to strengthen its case. Here, the delay was minimal, and the mistrial was, under Illinois law, the only way in which a defect in the indictment could be corrected. Given the established standard of discretion set forth in [Supreme Court eases], we cannot say that the declaration of a mistrial was not required by “manifest necessity” and the “ends of public justice.”

Id. at 468-69, 93 S.Ct. at 1072-73, 35 L.Ed.2d at 433-34.

Huss’s original “trial” on a stipulated record created a similar dilemma for the district court here. It could have entered a verdict of guilty, contrary to the evidence and the arguments presented by both sides. Or, it could have entered a verdict of not guilty, in the face of evidence presented by both sides that Huss had in fact killed the victim, and in violation of the rights of society whose “interest in fair trials [is] designed to end in just judgments.” Wade, 336 U.S. at 689, 69 S.Ct. at 837, 93 L.Ed. at 978; accord Somerville, 410 U.S. at 470, 93 S.Ct. at 1073, 35 L.Ed.2d at 434. The court elected to do neither. It refused to rule either way, effectively resulting in a mistrial. This disposition, having been made without a showing of manifest necessity, was an error in the proceedings and not based on the sufficiency of the evidence. Based on the reasoning of the cases previously discussed, we hold this does not bar a retrial.

Our adoption of the test for determining whether a case may be retried, i.e., whether termination of the trial was for “procedural errors,” requires us to examine an earlier case, State v. Dixon, 534 N.W.2d 435 (Iowa 1995). In Dixon the trial judge had inserted himself into the questioning of a witness, and when challenged by one of the' attorneys, sua sponte, declared a mistrial. We said:

If a trial judge acts irrationally or irresponsibly in declaring a mistrial, the judge has abused his or her discretion and double jeopardy will bar retrial of the matter.

Dixon, 534 N.W.2d at 441 (emphasis added). We cited Arizona v. Washington, 434 U.S. 497, 514, 98 S.Ct. 824, 835, 54 L.Ed.2d 717, 734 (1978), for that proposition. In Dixon we held the trial judge had “acted irrationally or irresponsibly in sua sponte declaring a mistrial,” and barred retrial. 534 N.W.2d at 441. , However, Arizona v. Washington did not hold that an irrational or irresponsible act by the judge would automatically bar retrial, as we suggested in Dixon. Rather, the Court said:

If a trial judge acts irrationally or irresponsibly, his action cannot be condoned.

Arizona v. Washington, 434 U.S. at 514, 98 S.Ct. at 835, 54 L.Ed.2d at 734 (citations omitted) (emphasis added). The Court did not bar retrial.

We retreat from the broad language of Dixon that suggests an “irrational or irresponsible” act of a judge will automatically bar a retrial. “Irrational or irresponsible” acts of a judge, in the circumstances of a given case, may fairly be characterized as mere “errors in the proceedings,” which will not bar a retrial.

VI. Conclusion.

We conclude that the State was not precluded from trying Huss again.- Huss does not contend that the termination of the original trial was motivated to give the State “another bite at the apple,” Burks, 437 U.S. at 17, 98 S.Ct. at 2150, 57 L.Ed.2d at 13, or a “forbidden ‘second crack’ ” for the prosecution, Swisher, 438 U.S. at 215-16, 98 S.Ct. at 2706, 57 L.Ed.2d at 715. The termination of the proceeding did not amount to an acquittal or other ruling on the sufficiency of the evidence, Swisher, 438 U.S. at 215-16, 98 S.Ct. at 2706-07, 57 L.Ed.2d at 715; Burks, 437 U.S. at 15-16, 98 S.Ct. at 2149-50, 57 L.Ed.2d at 12, or any “ ‘bad-faith conduct by judge or prosecutor’ [to] ‘[h]arass[ ] ... an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict’ the defendant.” Dinitz, 424 U.S. at 611, 96 S.Ct. at 1081, 47 L.Ed.2d at 276 (quoting Jom, 400 U.S. at 485, 91 S.Ct. at 557, 27 L.Ed.2d at 556, and Doimum, 372 U.S. at 736, 83 S.Ct. at 1034, 10 L.Ed.2d at 102-03). See generally State v. Swartz, 541 N.W.2d 533, 537-41 (Iowa Ct.App.1995) (discussing principles regarding retrial). The termination of Huss’s first trial without a finding of “manifest necessity” by the trial court was an error in the proceeding and did not foreclose the State under either federal or state double-jeopardy principles from retrying Huss.

AFFIRMED.


text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS & CONDUCT, Complainant, v. Richard M. FEENEY II, Respondent.
    No. 02-1787.
    Supreme Court of Iowa.
    Feb. 26, 2003.

      Norman G. Bastemeyer and Charles L. Harrington, Des Moines, for complainant.
    Patrick M. Roby of Elderkin & Pirnie, P.L.C., Cedar Rapids, for respondent.
   LARSON, Justice.

The Iowa Supreme Court Board of Professional Ethics and Conduct charged Richard M. Feeney II with violating our Code of Professional Responsibility by neglecting a legal matter entrusted to him, failing to make a timely refund of unearned fees, and failing to promptly respond to notices sent to him by the board. The commission ruled that the board had established the allegations of the complaint and recommended a one-month suspension. We agree with the board’s findings and its recommended sanction.

I. Facts and Prior Proceedings.

This disciplinary matter arises out of Feeney’s handling of a legal matter that, while “only” a simple misdemeanor case, required Feeney to attend to it with the same diligence we expect of attorneys in all cases. The relevant facts have largely been stipulated by the parties.

Feeney’s client, Khaled Sharafuddin, was involved in a motor vehicle accident in Iowa City. Iowa City police ticketed Shara-fuddin for an improper lane change in violation of a local ordinance. Sharafuddin hired Feeney, who had represented him on a previous speeding citation, to represent him. In April 2000 Sharafuddin paid Fee-ney a retainer of $300. Sharafuddin authorized Feeney to resolve the citation in a way that would not involve a conviction. Feeney hoped to resolve the case by the entry of a “theme order.” This is a disposition used in some counties of the Sixth Judicial District that requires the accused in a traffic case to complete a project, usually consisting of attendance at a class and the preparation of a “theme paper” on issues of driving and safety. If the assignment is successfully completed, the charge is dismissed. In Feeney’s previous representation of Sharafuddin in the speeding case, he was able to arrange for the dismissal of the citation by a similar procedure. Feeney anticipated that the court might agree to enter a theme order and, for that purpose, prepared a written appearance, guilty plea, and request for theme order. In the event the court did not agree to this disposition, he also prepared an appearance and plea of not guilty.

On April 18, 2000, Feeney approached the magistrate to request resolution by a theme order. The magistrate told Feeney it was not his practice to enter theme orders. Feeney then filed the appearance and plea of not guilty. The next day the magistrate set trial in Sharafuddin’s case for 9 a.m. on August 15, 2000.

Feeney testified that he prepared a letter to inform Sharafuddin that the magistrate would not consider a theme order and that trial had been set for August 15, 2000. Sharafuddin testified he did not receive this letter, and there is no proof in the record to show whether or not the letter was received. After April 21, 2000, Feeney did not attempt to communicate with Sharafuddin and did not speak with him at all until September 2000, which was after the scheduled trial date.

Feeney claims he wrote a letter to Sha-rafuddin on April 21, stating he would contact an assistant Iowa City attorney to try to work out a plea agreement. However, he did not communicate with the city attorney’s office to propose any plea agreement. Neither Feeney nor Sharafuddin appeared for the scheduled trial on August 15, 2000.

When no one appeared at trial for Sha-rafuddin, an assistant city attorney telephoned Feeney at his residence in Cedar Rapids. Feeney told the prosecutor that he had a baby-sitting problem that morning and that he had written down the wrong trial date on his calendar. He asked the prosecutor to agree to a continuance of the trial, but the prosecutor informed him that the city would resist a continuance. Nevertheless, he would convey to the court Feeney’s request for a continuance. The prosecutor told Feeney that it was unlikely the continuance would be granted, and he asked Feeney what he wanted to do in that event. Feeney asked the prosecutor to convey to the magistrate Sharafuddin’s plea of guilty if the court denied the continuance. Feeney and the prosecutor did not engage in any plea bargaining.

Feeney concedes he had no express authorization from Sharafuddin to enter a guilty plea, unless it could be done without a conviction. He and Sharafuddin did not discuss how to proceed after the court rejected the request for a theme order. Feeney claims he had authorization to enter Sharafuddin’s guilty plea but acknowledges that Sharafuddin, if asked, would deny giving such an authorization.

The magistrate denied the request for continuance and, pursuant to Feeney’s request, entered a plea of guilty. The magistrate accepted the guilty plea, entered a judgment of guilty, and fined Sharafuddin $50 plus a surcharge and costs for a total of $106.52. Even after the fine was entered, Feeney neglected to inform Shara-fuddin that he had entered a plea of guilty on his behalf and that the court had found him guilty and fined him. Sharafuddin did not learn of this disposition until on or about September 1, 2000, when the city served him a notice of the entry of the fine.

When Sharafuddin learned of the judgment, he wrote to Feeney in a letter dated September 1, 2000, to request Feeney’s further assistance. Feeney failed to answer. When Sharafuddin did not hear from Feeney, he attempted to telephone him at home. Sharafuddin left messages with Feeney’s wife, but the calls were not returned.

Sharafuddin eventually reached Feeney at home by telephone in September 2000 at about 6 a.m. Sharafuddin claims Feeney said he was engaged in work on a legal matter and would be unable to assist Sha-rafuddin. Feeney took no further action on behalf of Sharafuddin.

On or about September 16, 2000, Shara-fuddin sent a letter to the clerk of court, which the court treated as a motion to set aside the judgment. The motion was denied. Sharafuddin then filed this complaint against Feeney. In November 2000 the board sent a notice of Sharafuddin’s complaint to Feeney by restricted certified mail, requesting a response. Feeney received the letter but failed to respond. In December 2000 the board sent a second notice. Feeney received this notice as well but failed to respond. When a response was not forthcoming following the certified mail notices, the board attempted to contact Feeney by ordinary mail. Feeney acknowledges he received the board’s letter of January 4, 2001, but did not answer it. On September 27, 2002, just prior to the hearing on this matter, Feeney mailed restitution to Sharafuddin in the amount of $300.

Feeney has not previously been disciplined except for the suspension of his license on December 16,1999, for failure to comply with our client security and continuing legal education requirements. His license has now been reinstated.

II. Disposition.

The board charged violations of several disciplinary rules: DR 1 — 102(A)(1) (violating a disciplinary rule); DR 1 — 102(A)(4) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation); DR 1-102(A)(5) (engaging in conduct prejudicial to the administration of justice); DR 1-102(A)(6) (engaging in any other conduct adversely reflecting on the fitness to practice law); DR 2-110(A)(2) (withdrawing without taking reasonable steps to avoid foreseeable prejudice); DR 2-110(A)(3) (failing to promptly refund unearned fees); DR 6-101(A)(3) (neglecting a client’s legal matter); DR 7-101(A) (failing to represent a client zealously); DR 9-102(B)(3) (failing to maintain complete records); and DR 9-102(B)(4) (failing to promptly repay funds to which a client is entitled). The board divided these violations into four categories: neglecting a client’s legal matter, pleading a client guilty without authorization, failing to account for and return client funds, and failing to cooperate with a board investigation.

The Grievance Commission did not make specific findings as to each alleged rule violation. Rather, it concluded:

Feeney committed professional misconduct of all four (4) types alleged. Fee-ney neglected to properly attempt negotiation of the citation and to appear at trial. He also entered the guilty plea of the Client without authorization. Between at least November 2000 and September 27, 2002, Feeney also failed to account for the Client’s [retainer]. Finally, Feeney failed to cooperate with the Board’s investigation.

When we consider each of the board’s allegations in light of the evidence, we conclude Feeney violated DR 1 — 102(A)(1); DR 1 — 102(A)(5); DR 1-102(A)(6); DR 2-110(A)(2); DR 2-110(A)(3); DR 6-101(A)(3); and DR 9-102(B)(4).

We agree with the commission’s recommended sanction and suspend Feeney’s license for one month. This suspension applies to all aspects of the practice of law. Iowa Ct. R. 35.12(3). Reinstatement is governed by the automatic reinstatement provisions of Iowa Court Rule 35.12(2). Costs are taxed to Feeney pursuant to Iowa Court Rule 35.25.

LICENSE SUSPENDED.


author: LAVORATO, Chief Justice.

text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Michael D. REESE, Respondent.
    No. 02-1785.
    Supreme Court of Iowa.
    Feb. 26, 2003.

      Norman G. Bastemeyer and Charles L. Harrington, Des Moines, for complainant.
    Michael D. Reese, West Des Moines, pro se.
   LAVORATO, Chief Justice.

The Iowa Supreme Court Board of Professional Ethics and Conduct charged Michael D. Reese with ethical violations involving neglect of clients’ matters, misappropriation of clients’ funds, failure to return clients’ properties in violation of court orders, improper receipt of probate fees, misrepresentations to a client, and failure to respond to the Board’s inquiries regarding these alleged violations. Following a disciplinary hearing, a division of the Iowa Supreme Court Grievance Commission concluded the Board had established these violations and recommended that we revoke Reese’s license to practice law in this state. We agree with the Commission’s recommendation and revoke Reese’s license.

I. Background Facts.

In July 2002 the Board filed a complaint against Reese, alleging he violated various provisions of the Iowa Code of Professional Responsibility for Lawyers.

Although the Board made proper service on Reese, he did not answer the complaint. His failure to answer the complaint resulted in an admission of all its allegations. See Iowa Ct. R. 36.7 (“If the respondent fails ... to file such answer within the time specified, the allegations of the complaint shall be considered admitted .... ”).

Moreover, the Board filed fifty-six requests for admissions pursuant to Iowa Court Rule 35.6 and Iowa Rule of Civil Procedure 1.510, to which Reese did not respond. His failure to respond resulted in an admission of all matters requested to be admitted. See Iowa R. Civ. P. 1.510(2). All such matters were therefore conclusively established for purposes of the disciplinary hearing. See Iowa R. Civ. P. 1.511; see also Iowa Supreme Ct. Bd. of Profl Ethics & Conduct v. Allen, 586 N.W.2d 383, 387 (Iowa 1998).

We find the following facts based on the complaint, the admissions, and the testimony of the Board’s witnesses at the disciplinary hearing.

A. Christiansen dissolution. In 1998 Reese represented Andria Christiansen in a dissolution of marriage action. The dissolution decree, entered in January 1999, directed counsel to prepare a qualified domestic relations order (QDRO) for the division of assets in a retirement account belonging to Christiansen’s former husband. Reese and opposing counsel agreed that Reese would prepare the QDRO. Reese misrepresented to Christiansen that he had prepared and filed the QDRO.

Christiansen filed a complaint with the Board. Reese failed to respond as requested to two notices of the complaint, which the Board had sent him.

B. Brauch bankruptcy. In 1998 Sandra Brauch paid Reese a $500 retainer to represent her in filing for bankruptcy. Reese failed to file the bankruptcy petition. He abandoned his practice without notice to Brauch and without accounting for or returning her money and papers.

Brauch filed a complaint with the Board. Reese failed to respond to two notices from the Board about the complaint.

C. Hardenbrook personal injury matter. Reese represented Sheila Harden-brook as plaintiff in a personal injury action that arose from a 1995 automobile accident. Hardenbrook had medical insurance coverage under her husband’s policy with Wellmark Blue Cross and Blue Shield of Iowa. Under the policy, Wellmark was subrogated in the amount of $2,023.59 to any recovery Hardenbrook might receive from the defendant in the personal injury action.

In November 1998 Wellmark proposed that Reese represent it with respect to its subrogation claim for a fee of twenty-five percent of any recovery obtained before trial. Reese settled with the defendant. He retained $2000 from the settlement proceeds to apply to Wellmark’s subrogation claim, with the understanding that he would return to Hardenbrook any outstanding balance after payment of the sub-rogation claim. Reese failed to distribute the $2000 to Wellmark or to Hardenbrook.

In August 1999 Wellmark requested from Hardenbrook’s husband payment of the subrogation claim. Thereafter, Har-denbrook wrote Reese a letter asking for distribution of the $2000, to which he has never responded. As of April 2002 Well-mark was still contacting the Harden-brooks about its subrogation claim.

Hardenbrook filed a complaint against Reese with the Board. Reese failed to respond to two notices from the Board regarding the complaint.

D. Probate matters. During all or part of 1998, 1999, and 2000 Reese represented the estate of the decedent in nine separate Polk County probate matters. Reese neglected the nine estates by failing to file in a timely manner the final report and close the estates, or by failing to comply with other probate deadlines. Reese was also the attorney for the guardianship of David S. Scothorn in 1998 and 1999. In both years, he neglected to file in a timely manner the annual report in the guardianship. Reese received more than thirty delinquency notices from the clerk of court in these matters.

In 1998, 1999, and 2000 Reese received formal inquiries from the Board requesting his response to complaints regarding probate delinquencies. He failed to reply to all but one of the notices. In the one instance in which he did respond, Reese failed to follow up with promised action to remove the delinquencies or withdraw as counsel.

E. Hunt estate. In 1997 Reese took all of his attorney’s fee in the estate of Grace V. Hunt without obtaining a court order authorizing the fee and without filing an inheritance tax clearance and a final report. The fee totaled $1500, which exceeded the maximum statutory fee for ordinary services as provided in Iowa Code sections 633.197 and 633.198. Although the estate file shows there was a contested real estate matter that might have justified an extraordinary fee, Reese never obtained court approval that such a fee requires. See Iowa Code § 633.199.

Reese abandoned his practice while the estate was still open and failed to turn over the estate’s records and the unearned portion of his fee to the executor.

F. Chiles estate. In 1999 Reese took attorney’s fees totaling $800 in the estate of Phyllis R. Chiles without filing an inventory or obtaining a court order authorizing the fee. Later, the district court removed Reese as attorney for the estate. Following his removal, Reese failed to turn over the estate’s books, records, and documents to the executor within fourteen days as the district court had ordered.

II. Proceedings.

In its complaint filed against Reese, the Board alleged that in conjunction with the transactions outlined above, Reese violated the following disciplinary rules: DR 1-102(A)(1), (3), (4), (5), and (6); DR 2-106(A); DR 2-110(A)(2) and (3); DR 6-101(A)(3); DR 7-101(A); DR 7-106(A); and DR 9-102(B)(3) and (4).

Reese did not appear at the hearing on the complaint. Nor did an attorney appear on his behalf. The Board presented written exhibits, which included the requests for admissions, and offered the testimony of Tonya Kay O’Donnell and Sheila Hardenbrook. O’Donnell, an assistant clerk of the Commission, testified regarding steps taken to obtain service on Reese. Hardenbrook testified regarding Reese’s alleged failure to pay the subrogation claim owed to Wellmark.

In its filed report, the Commission concluded that Reese neglected the legal matters of clients as detailed above. More specifically, the Commission concluded that Reese’s neglect arose from his failure to (1) prepare the QDRO in the Christian-sen dissolution action, (2) file the Brauch bankruptcy petition, (3) successfully resolve the Hardenbrook subrogation claim with Wellmark, and (4) meet the probate deadlines in nine separate estates and one guardianship. The Commission concluded such failures were in violation of DR 1-102(A)(5) (lawyer shall not engage in conduct prejudicial to the administration of justice) and (6) (lawyer shall not engage in conduct reflecting adversely on fitness to practice law), DR 6-101(A)(3) (lawyer shall not neglect a client’s legal matter), and DR 7-101(A) (lawyer shall not intentionally fail to seek lawful objectives of a client through reasonable available means permitted by law and the disciplinary rules).

The Commission also concluded that Reese engaged in a pattern of misappropriation of funds and faded to account for and return property of his clients. More specifically, with respect to the Brauch bankruptcy matter, the Commission concluded Reese violated DR 9 — 102(B)(3) (lawyer shall maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer), (4) (lawyer shall promptly pay or deliver to client the funds, securities or other property the client is entitled to receive), and DR 1-102(A)(4) (lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).

As to the Hardenbrook subrogation matter, the Commission concluded Reese violated the same disciplinary rules — DR 9-102(B)(3), (4) and DR 1-102(A)(4) — as he did in the Brauch bankruptcy matter. Additionally, the Commission concluded Reese violated DR 1 — 102(A)(3) (lawyer shall not engage in illegal conduct involving moral turpitude).

In connection with the probate fees Reese took in the two estates, the Commission noted that before taking a fee in a probate matter, a lawyer must first obtain a court order setting the amount of the fee. See Iowa Code §§ 633.197, 633.198. And once the court order is secured, the lawyer may take the first half of the fee only after the Iowa inheritance tax return is prepared or an inheritance tax clearance is filed. The second half of the fee may be taken when the final report is prepared and the court costs have been paid. See Iowa Ct. R. 7.2(4); Iowa Supreme Ct. Bd. of Prof l Ethics & Conduct v. Smith, 569 N.W.2d 499, 500 (Iowa 1997). The Commission concluded that Reese violated the two statutory provisions cited as well as the court rule in connection with taking the fees in the two estates. In addition, the Commission concluded he violated DR 2-106(A) (lawyer shall not enter into agreement for, charge or collect an illegal or excessive fee) and DR 1-102(A)(5).

As to his conduct in violating the court order directing Reese to turn over the records in the Chiles estate, the Commission concluded that he violated DR 7-106(A) (lawyer shall not disregard ruling of tribunal) and DR 1-102(A)(5) and (6).

The Commission determined that Reese made misrepresentations to Christiansen with respect to the preparation and filing of the QDRO. The Commission concluded that Reese violated DR 1-102(A)(4), (5) and (6). As to his failure to respond to the Board concerning (1) complaints from Christiansen, Brauch, and Hardenbrook and (2) probate delinquency notices, the Commission concluded Reese violated DR 1-102(A)(5) and (6).

The Commission recommended that we revoke Reese’s license to practice law.

III. Scope of Review.

Reese has not appealed from the Commission’s recommendation under Iowa Court Rule 35.11. Nevertheless, our review is de novo. Iowa Supreme Ct. Bd. of Profl Ethics & Conduct v. Hansel, 558 N.W.2d 186, 187 (Iowa 1997). We give respectful consideration to the Commission’s recommendations, but we ultimately decide what discipline is appropriate under the unique facts of each case. Id. The Board must prove its allegations of lawyer misconduct by a convincing preponderance of the evidence. Id.

IV. Ethical Violations.

We agree with the Commission that the Board proved by a convincing preponderance of the evidence Reese violated the disciplinary rules cited by the Commission in support of its conclusions. Specifically, the record evidence establishes that Reese (1) neglected the legal matters of his clients who filed complaints, (2) misappropriated funds and failed to account for and return clients’ properties, (3) improperly obtained probate fees, (4) disregarded a court order, (5) made misrepresentations to a client, and (6) failed to respond to the Board’s inquiries. We turn now to a determination of the appropriate discipline.

V. Discipline.

When determining the appropriate discipline, we consider the purposes of attorney disciplinary proceedings: protecting the courts and the public from persons unfit to practice law, vindicating public confidence in the integrity of our system of justice, and deterring other lawyers from similar misconduct. Id. at 192.

We agree with the Commission that Reese’s misappropriation of client funds, when considered along with Reese’s numerous other violations of the disciplinary rules, his repeated failure to respond to the Board’s inquiries, and his previous suspension for failing to comply with CLE reporting requirements warrant revocation. We have revoked an attorney’s license under similar circumstances. See, e.g., Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sullins, 648 N.W.2d 127, 132-36 (Iowa 2002) (license revoked where attorney with a record of prior attorney disciplinary actions neglected clients’ legal matters, failed to deposit advance payments of fees into trust account, and collected excessive fees); Iowa Supreme Ct. Bd. of Prof l Ethics & Conduct v. Leon, 602 N.W.2d 336, 338-39 (Iowa 1999) (license revoked where attorney repeatedly neglected clients’ legal matters, misappropriated client trust funds, misrepresented to clients the status of their cases, and made dishonest statements to law partners and judge to cover up his wrongdoing); Committee on Profl Ethics & Conduct v. Peterson, 524 N.W.2d 176, 178-79 (Iowa 1994) (revocation warranted where attorney with prior disciplinary record failed to file suit on client’s behalf, made misrepresentations to client, collected illegal fees, failed to inform clients of dismissal of case, failed to return client funds, misappropriated client funds, and failed to respond to inquiries by the Committee).

Costs are assessed to Reese pursuant to Iowa Court Rule 35.25.

LICENSE REVOKED.


author: STREIT, Justice.

text:
    STATE of Iowa, Appellee, v. Douglas Robert POLLY, Appellant.
    No. 02-0283.
    Supreme Court of Iowa.
    Feb. 26, 2003.

      Linda Del Gallo, State Appellate Defender, and David Arthur Adams, Assistant Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Linda J. Hines and Robert J. Glaser, Assistant Attorneys General, and Michael A. Riepe, County Attorney, for appellee.
   STREIT, Justice.

A man caught with his pants down assaulting a nurse claims there is no proof of his sexual intent. The State charged Douglas Polly with assault with intent to commit sexual abuse with bodily injury, a class D felony, and three counts of interference with official acts. A jury convicted Polly of the charges. Polly appeals asserting ineffective assistance of counsel regarding three trial matters. Because we find Polly failed to prove ineffective assistance of counsel as to each of his three claims, we affirm.

I. Background and Facts

Douglas Polly was incarcerated at the Mt. Pleasant Correctional Facility after a felony conviction. Polly went to the facility’s medical clinic complaining of severe bleeding from hemorrhoids. The examining nurse did not find any evidence of a medical problem. As the exam concluded, Polly attacked the nurse. She fought back and Polly struck her on both sides of her head. Throughout the assault Polly’s pants were around his ankles.

The nurse escaped to the waiting room and called for help. Polly pulled his pants up and fled. Four officers chased after Polly. Polly fought them before being restrained. During interviews with a prison investigator, Polly admitted the attack had been sexually motivated — he planned to force the nurse to perform oral sex. Additional relevant facts will be discussed below.

The State charged Polly with assault with intent to commit sexual abuse with bodily injury, a class D felony, and three counts of interference with official acts. A jury found him guilty as charged. Polly appeals only his conviction for assault with intent to commit sexual abuse with bodily injury. He claims his trial counsel was ineffective.

II. Scope of Review

We review ineffective assistance of counsel claims de novo. State v. Myers, 653 N.W.2d 574, 576 (Iowa 2002) (citing Kane v. State, 436 N.W.2d 624, 626 (Iowa 1989)).

III. The Merits

On appeal we are asked to examine three issues. First, Polly argues his trial counsel was ineffective for failing to move for a judgment of acquittal based upon the State’s alleged failure to introduce “other proof’ corroborating Polly’s confession of his intent to commit a sexual crime. As a related matter, Polly also argues his counsel should have requested a jury instruction requiring the jury to find such “other proof’ to corroborate the crime as charged. Finally, Polly asserts his counsel was ineffective for failing to call Polly as a witness to testify on his own behalf.

To prove an ineffective assistance of counsel claim, Polly must show by a preponderance of the evidence: (1) trial counsel failed to perform an essential duty; and (2) prejudice resulted from counsel’s error. Myers, 653 N.W.2d at 577 (citing State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996)); State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002); State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002). Failure to demonstrate either element is fatal to a claim of ineffective assistance. Id. We begin our discussion with the presumption that counsel acted competently. Id. (citing Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674, 694 (1984)). A claim of ineffective assistance is more likely to prevail when counsel lacked diligence as opposed to the exercise of judgment. Id. (citing Ledezma v. State, 626 N.W.2d 134,142 (Iowa 2001)).

A. Failure to Move for Judgment of Acquittal

The State charged Polly with assault with intent to commit sexual abuse with bodily injury. Polly admits the evidence was sufficient to warrant a conviction of assault causing bodily injury. However, he argues there is no “other proof’ to corroborate Polly’s confession of intent to commit sexual assault, a crime of specific intent. Polly asserts his trial counsel was ineffective for failing to move for a judgment of acquittal based upon the State’s claimed failure to introduce “other proof’ corroborating Polly’s confession of his intent to sexually assault the nurse.

The general rule is that a confession standing alone mil not warrant a criminal conviction unless other proof shows the defendant committed the crime. Iowa R.Crim. P. 2.21(4); Opper v. United States, 348 U.S. 84, 89, 75 S.Ct. 158, 162, 99 L.Ed. 101, 106 (1954) (defendant’s confession requires some independent corroborating evidence in order to serve as basis for conviction); State v. Hobson, 284 N.W.2d 239, 243 (Iowa 1979). The requirement of corroborating evidence stems from the incidence of false confessions and the need to prevent “errors in convictions based upon untrue confessions alone.” Warszower v. United States, 312 U.S. 342, 345 n. 2, 61 S.Ct. 603, 606 n. 2, 85 L.Ed. 876, 879 n. 2 (1941). The need for corroboration is also based in part on the belief that

a system of criminal law enforcement which comes to depend on the “confession” will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation.

Escobedo v. Illinois, 378 U.S. 478, 488-89, 84 S.Ct. 1758, 1764, 12 L.Ed.2d 977, 985 (1964).

Apart from the confession itself, the “other proof’ against Polly consists of the following facts. Polly went to the nurse complaining of severe bleeding from hemorrhoids. The nurse took Polly into an examination room where he lowered his pants and laid face down on an exam table. The nurse did not see any inflamed tissue consistent with Polly’s complaint. The only item of note was a piece of toilet paper with a very small amount of blood on it between Polly’s buttocks. The nurse removed the tissue and gave Polly gauze squares to use. She told Polly he could come back the next day and see a doctor. As the nurse stepped away from the exam table, Polly lunged at her and began strangling her. The nurse fought back and Polly struck her on both sides of her head. Throughout the assault Polly’s pants were around his ankles. Polly did not say anything sexually suggestive during the attack.

Polly’s confessions to the prison investigator revealed the following facts. Polly admitted the attack had been sexually motivated — he planned to force the nurse to perform oral sex. He explained to the investigator that he had been watching the nurses for about five or six months. Polly determined a nurse worked alone on the weekends. Polly said he “was going to beat [the nurse] until she quit fighting.” When asked if he was having sexual thoughts when he attacked the nurse, Polly responded “yes.” He told the investigator he had no intention of letting her go. Polly stated he was grabbing at the nurse’s clothing.

The question is whether Polly was prejudiced when his trial counsel faded to move for a judgment of acquittal based upon the State’s claimed failure to introduce corroborating evidence of sexual intent. Prejudice is shown when “there is a reasonable probability that, but for the counsel’s unprofessional error, the result of the proceeding would have been different.” State v. Hopkins, 576 N.W.2d 374, 378 (Iowa 1998) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698). A reasonable probability is one sufficient to undermine confidence in the outcome. State v. Kone, 557 N.W.2d 97, 102 (Iowa Ct.App.1996). The State must prove sufficient “other proof’ to corroborate Polly’s confession in order for the confession itself to serve as a basis for his conviction. See id. (citing Opper, 348 U.S. at 89, 75 S.Ct. at 162, 99 L.Ed. at 106); Iowa R.Crim. P. 2.21(4). “Evidence is sufficient to support a conviction if, viewing it in the light most favorable to the prosecution, ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” United States v. Lopez-Alvarez, 970 F.2d 583, 589 (9th Cir.1992) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979)).

Polly is incorrect in asserting there must be evidence to corroborate every element of the crime charged. “Corroboration need not be strong nor need it go to the whole case so long as it confirms some material fact connecting the defendant with the crime.” State v. Liggins, 524 N.W.2d 181, 187 (Iowa 1994); State v. Robertson, 351 N.W.2d 790, 793 (Iowa 1984); State v. White, 319 N.W.2d 213, 214 (Iowa 1982); State v. Vesey, 241 N.W.2d 888, 890 (Iowa 1976). The State must offer evidence to show the crime has been

committed and which as a whole proves Polly is guilty beyond a reasonable doubt. However, the “other proof’ itself does not have to prove the offense beyond a reasonable doubt or even by a preponderance. See Smith v. United States, 348 U.S. 147, 156, 75 S.Ct. 194, 199, 99 L.Ed. 192, 200 (1954). Other independent evidence “ ‘merely fortifies the truth of the confession, without independently establishing the crime charged.’ ” Wong Sun v. United States, 371 U.S. 471, 489, 83 S.Ct. 407, 418, 9 L.Ed.2d 441, 456 (1963) (quoting Smith, 348 U.S. at 156, 75 S.Ct. at 199, 99 L.Ed. at 200). “Other proof’ must “support[] the essential facts admitted sufficiently to justify a jury inference of their truth.” Lopez-Alvarez, 970 F.2d at 590 (quoting Opper, 348 U.S. at 94, 75 S.Ct. at 164, 99 L.Ed. at 109). It is the court’s duty to determine the existence of corroborative evidence and the jury’s obligation to determine the sufficiency of such evidence. State v. Origer, 418 N.W.2d 368, 371 (Iowa Ct.App.1987) (citing White, 319 N.W.2d at 214).

In the case before us, there is no doubt the crime of assault actually occurred. It was a tangible crime supported by the testimony of the victim. The nurse stated Polly restrained her, strangled her, and beat her causing pain and injury. The nurse’s condition after the incident was consistent with the reported assault. She had bruises, scratches, and abrasions on her neck where Polly tried to strangle her. The nurse described other bruises on her hip as well. Her wounds bled. There was other independent evidence to verify the details of the crime. The facts of the crime as recounted by Polly were identical to the details as retold by the nurse at trial.

The facts of the crime circumstantially demonstrate that Polly had sexual intent when he assaulted the nurse. Polly came to the nurse complaining of hemorrhoids. He removed his pants without being asked to do so. The nurse saw no indication that Polly had been severely bleeding as he reported. Though Polly did not touch the nurse in a sexually suggestive manner, he attacked the nurse while his pants were around his ankles. He grabbed at the nurse’s clothing. These facts, including the feigned medical condition, indicate Polly’s calculated plan to place himself in a position of sexual contact with the nurse. The facts tend to show not only the occurrence of a sexual crime, but also the veracity of Polly’s confession as to his intent to sexually assault the nurse. Polly was free to argue these facts do not prove sexual intent, however, it was for the jury to decide. Given the above facts, Polly’s confession was supported by credible “other proof’ a jury would be substantially justified in believing; the evidence was therefore sufficiently reliable to support the jury’s finding of guilt beyond a reasonable doubt. See Lopez-Alvarez, 970 F.2d at 593.

The ultimate question is whether Polly was prejudiced when his trial counsel failed to move for a judgment of acquittal based upon the State’s claimed failure to introduce corroborating evidence of sexual intent. Given the weight of the evidence recited above, there is no reasonable probability the result would have been different even had the trial counsel moved for a directed verdict based upon the State’s alleged failure to corroborate Polly’s confession. Because Polly has not shown any prejudice, his ineffective assistance of counsel claim for his attorney’s failure to move for a directed verdict fails.

B. Failure to Request Jury Instruction on Corroboration

Polly argues his trial counsel was ineffective for failing to request a jury instruction on corroboration. He does not point to any basis for this conclusion. In theory, every confession given by a defendant could have a corroboration jury instruction. However, Polly has not asserted his confession was false or inaccurate. He does not contend the investigator coerced him into confessing. Polly does not urge and we can find no circumstances present which would indicate the unreliability of his confession. Given the facts before us, there is no reasonable probability the result would have been different if the jury had received a corroboration instruction. In sum, Polly has not proven the prejudice prong of his ineffective assistance of counsel claim for his attorney’s failure to request an instruction on corroboration; therefore his claim must fail. See State v. Oetken, 613 N.W.2d 679, 684 (Iowa 2000) (“We need not consider whether counsel did in fact abrogate a duty if no prejudice is evident.”).

C. Failure to Call Defendant to Testify

Polly also brings an ineffective assistance of counsel claim for his trial counsel’s failure to call Polly as a witness to testify on his own behalf. As we said before, an ineffective assistance of counsel claim generally does not lie for the exercise of judgment. Hischke, 639 N.W.2d at 8 (citing Ledezma, 626 N.W.2d at 142). Generally, the decision not to call a particular witness or the defendant to testify implicates a reasonable tactical decision. “Improvident trial strategy or miscalculated tactics” typically do not constitute ineffective assistance of counsel. Oetken, 613 N.W.2d at 684 (citing Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999)). Trial counsel’s decision not to call Polly to testify clearly was a strategical decision we will not second-guess. See Kone, 557 N.W.2d at 102. Because Polly has failed to show his trial counsel failed in an essential duty, his ineffective assistance of counsel claim based on this issue fails.

IY. Conclusion

Polly’s three claims of ineffective assistance of counsel fail because he failed to show either prejudice or counsel’s failure to perform an essential duty. Trial counsel’s failure to request a directed verdict based upon the State’s claimed failure to demonstrate corroboration of Polly’s confession of sexual assault did not prejudice Polly. Likewise, counsel’s failure to request a jury instruction on corroboration did not result in prejudice. Trial counsel’s decision not to call Polly as a witness to testify on his own behalf was a reasonable tactical decision.

AFFIRMED.

      . Though some of the cases cited within this opinion discussing corroborating evidence dealt with admissions rather than confessions, their analyses apply with equal force here. See, e.g., Opper v. United States, 348 U.S. 84, 89, 75 S.Ct. 158, 162, 99 L.Ed. 101, 106 (1954). Admissions made subsequent to the commission of a crime are treated as though they were confessions replete with the same inherent weaknesses of confessions. See id. at 90. 75 S.Ct. at 163. 99 L.Ed. at 107. As such, admissions made after the crime must also be supported with sufficient corroborating evidence. Id. ("[A]n accused’s admissions of essential facts or elements of the crime, subsequent to the crime, are of the same character as confessions and ... corroboration should be required.”). The nature of the corroborating evidence required for such admissions is the same as the evidence required to corroborate confessions.


author: CARTER, Justice.

text:
    STATE of Iowa, Appellee, v. Stanley Allen BERNHARD, Appellant.
    No. 01-1872.
    Supreme Court of Iowa.
    Feb. 26, 2003.

      Andrew P. Nelson of Meyer, Lorentzen & Nelson, Decorah, for appellant.
    Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, and Kevin H. Clefisch, County Attorney, for appellee.
   CARTER, Justice.

Defendant, Stanley Allen Bernhard, appeals from his conviction of OWI. He contends that a chemical test of his blood-alcohol level should have been suppressed because his consent to the withdrawal of his blood was obtained by an unwarranted threat of license revocation. The court of appeals rejected that contention and affirmed defendant’s conviction. We agree with that disposition. We affirm the decision of the court of appeals and the judgment of the district court.

On February 2, 2001, defendant’s four-wheel-drive pickup truck slid off the roadway south of Postville. The vehicle ended up overturned in the ditch. Emergency medical and fire personnel soon arrived at the scene, as did officers of the Iowa State Patrol. These officers found an open bottle of peppermint schnapps beside the truck and detected an odor of that liquor in the interior of the cab.

Defendant was taken by ambulance to a hospital in Waukon. He arrived at the hospital emergency room immobilized in a C-collar and on a backboard. He was complaining of pain in his right arm, shoulder, and left hip. No head injuries or neurological injuries were observed. He was able to move all four extremities. The emergency-room nurse described defendant’s condition as very agitated, nervous, and beset with rapid speech patterns.

Soon after defendant’s arrival at the hospital, Trooper Greg Rude of the Iowa State Patrol appeared and spoke to him in the emergency room. At this time, medical personnel were in the room attending to defendant’s injuries. Trooper Rude detected the odor of liquor on defendant’s breath. He advised defendant that he had come to get a blood sample and then proceeded to read an advisory to defendant from a form that is regularly used for the initiation of the implied-consent procedure for chemical testing. Trooper Rude did not deliver a copy of the implied-consent form to defendant nor did defendant ever sign it. Trooper Rude wrote on the form “unable to sign being treated for injuries.” The district court found that this action on Trooper Rude’s part was warranted in order to avoid disrupting defendant’s medical treatment.

A nurse was present during the time that Trooper Rude was in the emergency room. She testified that following Trooper Rude’s reading of the implied-consent admonition defendant extended his arm and allowed her to draw a sample of blood. At the suppression hearing, defendant testified that he did not actually hear what Trooper Rude was reading. He stated, however, that comments made to him by the nurse made him aware that a refusal to consent to a chemical test would result in the loss of his license. He testified that he consented to a withdrawal of blood in order to avoid that sanction.

Trooper Rude took possession of the blood sample obtained in the hospital. That sample was later tested at a laboratory and revealed a concentration of 208 grams of alcohol in 100 milliliters of blood. The district court denied defendant’s request to suppress the results of this chemical test. That evidence was made a part of the record, subject to defendant’s objection, in a stipulated bench trial resulting in defendant’s conviction of OWI, first offense. Other facts and circumstances that bear on this appeal will be considered in connection with our discussion of the legal issues presented.

I. Whether the Results of Chemical Testing of Defendant’s Blood Should Have Been Suppressed.

The statement that was read to defendant included the following:

The Implied Consent Law requires that a peace officer advise the person of the following:
Refusal to submit to the withdrawal of a body specimen for chemical testing will result in revocation of your privilege to operate a motor vehicle for one year if you have not previously been revoked within the previous twelve years under the implied consent or drunk driving laws of this state, or for two years if you have one or more revocations within the previous twelve years. If you are under age 18, the revocation will be for the above periods, or until you reach age 18, whichever is longer.

Defendant correctly notes that under the provisions of Iowa Code section 321J.6 (1999) a refusal to provide a sample of blood is not a basis for a license revocation. That statute provides:

The peace officer shall determine which of the three substances, breath, blood, or urine, shall be tested. Refusal to submit to a chemical test of urine or breath is deemed a refusal to submit, and section 821J.9 [providing for license revocation] applies. A refusal to submit to a chemical test of blood is not deemed a refusal to submit, but in that case, the peace officer shall then determine which one of the other two substances shall be tested and shall offer the test.

Iowa Code § 321J.6(2) (emphasis added).

Had defendant refused to consent to a withdrawal of blood, the officer would have had to request either a breath sample or a urine sample and in that case a refusal to provide either would have resulted in a revocation of defendant’s license pursuant to Iowa Code section 321J.8(1). That statute provides:

If the person refuses to submit to the test, the person’s driver’s license or nonresident operating privilege will be revoked by the department as required by and for the applicable period specified under section 321J.9.

Iowa Code § 321J.8(1). Section 321J.9 provides for a varying length of revocation depending on the subject’s prior history of license revocations.

Defendant urges that, because his consent to providing a sample of blood was obtained by an unwarranted threat of license revocation, the results of the chemical test should have been suppressed. In advocating this disposition he relies on our decision in State v. Kjos, 524 N.W.2d 195 (Iowa 1994). In that case the defendant was advised more than two hours following his arrest that he must agree to a chemical test or face license revocation. Actually, Iowa Code section 321J.6(2) provides that “[i]f the peace officer fails to offer a test within two hours after the preliminary screening test is administered or refused or the arrest is made, whichever occurs first, a test is not required, and there shall be no revocation under section 321J.9.” Based on this statute, we concluded that Kjos had been misinformed concerning the consequences of refusing a chemical test. Kjos, 524 N.W.2d at 197. We held that suppression of the chemical test result was the proper remedy because “[o]nly in this way can a defendant’s right to refuse a test offered more than two hours after arrest be preserved.” Id.

We are convinced that defendant’s reb-anee on Kjos in the present case is misplaced. Unlike the defendant in Kjos, Bernhard was required by law to submit to a chemical test or have his license revoked. Although we recognize that the general admonition concerning license revocation that was read to defendant was misleading when given with respect to a request for blood, it was correct within the context of the complete statutory procedure that defendant was facing. At the time this admonition was given, the statutory procedure had not yet run its course.

Trooper Rude elected to first request a sample of blood. Because defendant consented to that request the inquiry went no further. If, however, defendant had refused to provide a sample of blood the implied consent procedure would have merely shifted to a request for a urine or breath sample. Defendant would have been required to provide a sample of one of those substances or face the revocation of his license. Defendant conceded at the suppression hearing that he was motivated to agree to a blood test because of the desire not to lose his license. We find no reason to assume that his choice would have been different had he been requested to provide a sample of one of the other two substances. Nor is there reason to believe that a chemical test of an alternative substance would not have revealed a similar concentration of alcohol in defendant’s system. Consequently, the only real detriment that may have befallen defendant was unwittingly consenting to a blood test when he may have preferred one of the alternative tests. We do not view that detriment as sufficient to warrant the suppression of the results from the chemical testing of his blood.

We made it clear in State v. Gra-venish, 511 N.W.2d 379 (Iowa 1994), that not every inaccurate depiction by law enforcement officers that might bear on a subject’s election to submit to chemical testing is a basis for suppressing the test results. Gravenish, 511 N.W.2d at 381. Our review of the district court’s finding on this issue is de novo. Id. The ultimate question is whether the decision to comply with a valid request under the implied-consent law is a reasoned and informed decision. Id. In applying this standard, we conclude that defendant’s consent to a chemical test was voluntary. The district court correctly denied the motion to suppress.

II. Absence of a Warrant.

Defendant argues that the procedure under which his blood was withdrawn was violative of his rights under the Fourth Amendment to the United States Constitution because of the absence of a warrant. We have recognized that the procedure outlined in our implied-consent law, Iowa Code § 321 J.6, is consistent with Fourth Amendment protections notwithstanding the absence of a warrant. State v. Palmer, 554 N.W.2d 859, 861 (Iowa 1996); State v. Stanford, 474 N.W.2d 573, 575 (Iowa 1991). The validity of the procedure presupposes that there are reasonable grounds to believe that the person subjected to chemical testing has been operating a motor vehicle while under the influence and that one of the seven conditions specified in section 321J.6(1) are present. In the present case, there were reasonable grounds to believe that defendant had been operating a motor vehicle under the influence based on the open liquor bottle found beside the vehicle and the odor of alcohol that Trooper Rude detected on defendant’s breath. In addition, one of the seven conditions that gives rise to implied-consent testing is that the person has been involved in a motor-vehicle accident resulting in personal injury. Iowa Code § 321J.6(l)(b). That occurred when defendant’s vehicle slid off the roadway.

III. Other Issues.

A. Lack of a written request. Defendant urges that, based on our decision in State v. Richards, 229 N.W.2d 229, 233 (Iowa 1975), the request for chemical testing under the implied-consent law was invalid because it was not made in writing. We need not decide whether the method used for requesting a sample of blood in the present case was sufficient to satisfy the writing requirement recognized in Richards. See State v. Meissner, 315 N.W.2d 738, 740 (Iowa 1982) (recognizing that reading request from written form is tantamount to a written request). The defendant did not raise an issue challenging a lack of written notice in his suppression motion in the district court. The district court gave no consideration to that issue. Moreover, when defendant later filed a posttrial motion requesting additional findings, he continued to make no claim of, or reference to, a lack of written consent. That issue is not before us for review.

B. Sufficiency of the evidence. Although defendant urges that the stipulated evidence was insufficient to sustain his conviction, a reading of his written argument reveals that this claim is premised on the suppression of the chemical-test results. Because we have concluded that those results need not be suppressed, the results of chemical testing provide substantial evidence in the record to sustain the conviction. We have considered all issues presented and conclude that the decision of the court of appeals and the judgment of the district court should be affirmed.

DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.

      . Language of the implied-consent advisory has not been made the subject of an administrative rule; however, the language that was used in the present case appears to be the same as that which was before this court in the earlier case of State v. Kentner, 562 N.W.2d 431, 432 (Iowa 1997).