review from the Iowa Court of Appeals.
from the Iowa District Court for Sac County, Gary L.
David Green seeks further review of a court of appeals
decision affirming his conviction of murder in the second
C. Smith, State Appellate Defender, Joseph A. Fraioli (until
withdrawal) and Melinda J. Nye, Assistant Appellate Defender,
J. Miller, Attorney General, and Bridget A. Chambers and
Douglas D. Hammerand, Assistant Attorneys General, for
case, we consider the right to counsel under article I,
section 10 of the Iowa Constitution. We also consider the
court's use of a malice-inference jury instruction. The
district court held John David Green did not have a right to
counsel under the Iowa Constitution when he voluntarily
participated in a noncustodial police interview under the
supervision of an Iowa county attorney, even though the
State's homicide investigation had by then focused on
Green as the primary suspect. The district court also
instructed the jury that it could infer Green acted with
malice aforethought from his use of a baseball bat, despite
Green's objection that he did not bring the bat to the
fatal encounter. The court of appeals affirmed the district
court on both the claimed errors, finding article I, section
10 could not apply to the preaccusation stage of a criminal
investigation, and the jury could infer malice aforethought
from the intentional use of a deadly weapon. We conclude the
level of prosecutorial involvement at the time of the
interview did not create a prosecution or case that would
trigger the right to counsel under article I, section 10. We
further conclude the jury could properly infer malice
aforethought from Green's use of a deadly weapon.
Therefore, we affirm the decision of the court of appeals.
Factual Background and Proceedings.
Koster lived in a one-bedroom house in Sac City. In 2009, he
seemingly disappeared from the area without notice. Police
were alerted after mail began to accumulate in the mailbox at
his house and he stopped paying his utility bills. Police
found a handwritten note attached to the back door of
Koster's house. The note indicated he had gone to Florida
for the winter and would return in the spring. A phone number
on the note was the number of a Florida resort, but the
resort had no record of Koster. As a result, police entered
and searched the home. Nothing looked suspicious, except
Koster's clothes and personal belongings had not been
removed from the home.
Koster failed to return to his house in the spring, police
continued to investigate his disappearance. They learned from
neighbors and others that a man had been staying with Koster.
The man was described as tall. The investigation, however,
led no further. Two years passed with no answers or
information. Koster was subsequently presumed dead, and his
house was sold.
owner of the home discovered a decomposed body buried under a
pile of debris in the basement. The state medical examiner
identified the body as Koster. A renewed law enforcement
investigation eventually located the man who had stayed with
Koster prior to his disappearance. His name was John David
Green, and police located him in a camper near Jacksonville,
County attorney, two police officers, and an agent from the
Iowa Department of Criminal Investigation traveled to
Florida. They approached Green at his camper. Green agreed to
accompany them to a nearby police station for an interview.
Green was told he was not under arrest and was free to leave.
He was not informed of his Miranda rights prior to
or at any time during the interview or told of a right to
interview was conducted in an unlocked room of the police
station. Green sat on a couch, and law enforcement officers
sat on chairs. The county attorney was not in the interview
room, but watched from another room in the station. Multiple
times throughout the interview, one of the officers would
leave the interview room to consult with the county attorney.
During these consultations, the county attorney would direct
the officers to ask specific questions. The interview was
eventually confessed to killing Koster after the two men had
an altercation in Koster's Sac City home one evening in
2009. Green said Koster became upset with him and started a
fight by striking him with a baseball bat. During the fight,
the two fell onto a table and then the ground, struggling
over the bat. Green, much larger in size than Koster, gained
control and pressed the bat against Koster's throat until
he could no longer breathe. Green held it there until Koster
then wrapped Koster's body in blankets and placed it in
the basement of the home. He covered the body with cat litter
and piled a variety of items over it, including an old, heavy
water heater. He propped up the broken table next to the pile
of debris. Green then cleaned the house, attached the note to
the back door, and left town.
enforcement officers initially returned Green to his camper
after this confession, but arrested him after the county
attorney obtained an arrest warrant. He was returned to Iowa
and charged with first-degree murder. See Iowa Code
§§ 707.1, .2 (2009).
to trial, Green moved to suppress the interview with police
in Florida. Pertinent to this appeal, he claimed the State
obtained his confession in violation of his right to counsel.
Green asserted that his right to counsel had attached at the
time of the interview because the case had effectively
transformed from an investigation into a prosecution based on
the active role of the county attorney during the interview.
The district court overruled the motion.
trial, the State introduced the entire interview as evidence.
The State also used portions of the interview during
cross-examination of Green and in closing arguments.
medical examiner testified that an autopsy of Koster's
body showed the cause of death was consistent with
Green's version of the events. The medical examiner also
testified it would have taken approximately two minutes to
asphyxiate a person by applying pressure to the neck with a
straight object. Green testified he acted in self-defense.
district court instructed the jury, over Green's
objection, that if a person had an opportunity to deliberate
and used a dangerous weapon against another resulting in
death, the jury may infer "the weapon was used with
malice, malice aforethought, premeditation, and specific
intent to kill." The district court also instructed the
jury that a dangerous weapon was an instrument actually used
in a way to indicate "the user intended to inflict death
or serious injury, and when so used is capable of inflicting
jury found Green guilty of murder in the second degree. In
doing so, the jury found Green suffocated Koster without
justification and with malice aforethought. The district
court sentenced Green to an indeterminate sentence of fifty
years with a mandatory minimum term of incarceration of
appealed and raised two claims of error. First, he claimed
his confession was obtained in violation of his right to
counsel under the Iowa Constitution. Second, he claimed that
the jury instruction on the inference of malice and the
definition of a dangerous weapon were improper since there
was no evidence introduced at trial that Green initiated the
physical altercation or that Green took the bat to the
transferred the case to the court of appeals. The court of
appeals affirmed the judgment and ...