Appeal from the Iowa District Court for Johnson County, Paul D. Miller, Judge.
Dallas Miller appeals from his conviction and sentence for burglary and intent to commit sexual abuse.
Mark C. Smith, State Appellate Defender, and David A. Adams and Patricia Reynolds, Assistant Appellate Defenders, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, Janet M. Lyness, County Attorney, and Anne Lahey, Assistant County Attorney, for appellee.
Considered by Eisenhauer, C.J., and Potterfield and Tabor, JJ.
Dallas Miller appeals from his conviction and sentence for burglary in the first degree and intent to commit sexual abuse. First, he argues the district court improperly denied his motion to suppress his confession, contending it was involuntarily made. Second, he argues he was provided with ineffective assistance of counsel when his attorney failed to request a mistrial immediately after the State made an inappropriate comment during closing argument. We affirm, finding Miller's confession was not involuntary and Miller's counsel provided effective representation.
I. Facts and Proceedings
September 8, 2011, J.M. awoke with a male figure above her, touching her head. She screamed, and the intruder fled through the window. Left behind were the following items: electrical tape, a loaded gun, a digital camera, a knife, clothing, and a notebook. J.M.'s family called the police; while driving towards the residence, the responding officer noted a dark-colored truck in a nearby parking lot. A photo of a matching truck was found on the camera left behind at the home. Police searched the license plate number of the truck in the photo and found it belonged to Miller. As they left, the dark truck seen in the commuter lot was gone. Miller's name was found on the notebook in the pocket of a shirt left behind. Miller and J.M.'s family were friends, and J.M.'s family had recently denied a request from Miller to borrow money.
A warrant was issued for Miller's arrest, and he was arrested at work that same day. After his arrest, Miller was interrogated regarding the events at J.M.'s residence in a room at the police station by Officer Kinney. Kinney has worked as a deputy officer for twenty-six years; he is approximately six feet five inches tall and weighs 275 pounds. Miller was twenty-two years old, five feet five inches tall, and weighed 160 pounds at the time of questioning; he has an eighth-grade education. Kinney provided Miller with a document explaining his rights under Miranda v. Arizona, 384 U.S. 436, 460-61 (1966), and a waiver of those rights, which Miller signed. An audio and video recording of the interrogation was made and admitted into evidence during the hearing on Miller's motion to suppress the confession.
Kinney sat behind a desk initially; Miller sat on a stool on the other side of the desk. Kinney questioned Miller about the break-in, and Miller provided a story about another male being present at the home who orchestrated the incident. Kinney moved from behind the desk to sit near Miller and better see his body language. He continued to question Miller, telling Miller he knew he was lying. During the conversation, neither man raised his voice. Miller sat with his elbows on his knees, leaning forward. Kinney similarly leaned in, conversing within one or two feet of Miller's face. Miller eventually confessed to the break-in and incident with J.M.
Miller filed a motion to suppress the confession, claiming he made the admissions involuntarily in violation of his constitutional rights. The court heard testimony from Kinney and Miller, and watched the recording of the interrogation. Kinney admitted he was trying to "get in [Miller's] space" during the interrogation and partly make him uncomfortable. Miller testified to feeling uncomfortable when Kinney leaned in towards him and said he was intimidated. The court overruled the motion to suppress, concluding no promises of leniency were made, and that "Kinney never verbally or by observable physical motion ever said or did anything that a reasonable person would consider threatening in nature." It also concluded "Miller's demeanor during this exchange does not indicate that he is fearful of or intimidated by Kinney."
A jury trial was held May 8-10, 2012. During closing argument, Miller presented his argument that he had no specific intent to commit an assault. He contended that because he only touched J.M.'s face, criminal trespass was the appropriate verdict instead of burglary. In its rebuttal, the State argued, "Now, sometimes we get the paling effect. We think, 'Well, gee, it could have been so much worse.' And the State submits to you it could have been, except again—" to which Miller objected. The court sustained the objection, granted the motion that it precede the prosecutor's comment, and instructed the jury to disregard the comment. Shortly thereafter, Miller requested to approach the bench and both counsel conferred with the court. 
After the conclusion of the State's rebuttal argument, the court completed the reading of the jury instructions and sent the jury to begin deliberations. Miller then moved for a mistrial or, in the alternative, a stronger admonition to the jury. The court denied the motion for mistrial and request for stronger admonition, finding the prosecutor's improper comment was isolated and did not prejudice Miller. The court concluded its instruction to the jury to ...