IN THE COURT OF APPEALS OF IOWA
No. 17

- 1188 Filed September 12, 2018

STATE OF IOWA, Plaintiff

- Appellee,

vs. ROGELIO PABLO MORALES , Defendant

- Appellant.

________________________________________________________________ Appeal from the Iowa District Court for Woodbury County, Jeffrey L.
Poulson , Judge.

Rogelio Morales appeals from the denial of his motion to suppress.
AFFIRMED

.

Mark C. Smith , State Appellate Defender, and Melinda J. Nye , Assistant Appellate Defender , for appellant. Thomas J. Miller, Attorney General, and Thomas E. Bakke , Assistant Attorney General, for appellee.

Considered by Danilson, C.J., and Vogel and Tabor, JJ.2

DANILSON, Chief Judge. Rogelio Morales was convicted of second

- degree murder. He appeals from the denial of his motion to suppress statements he made to police officers

. Under the totality of the circumstances, we find Morales knowingly and voluntarily waived
his Miranda rights. 1 We affirm. On April 19 , 2015 , Sioux Cit y Police Officer Joshua Tyler was dispatched

on a report of an unconscious party. Upon his arrival , Officer Tyler found Officer
William Enockson administering CPR to Margarita Morales. Officer Tyler t hen was advised by a by stander he should spe ak with Rogelio Morales. Officer Tyler approached Morales , w ho was sitting on the front steps of the house and crying. Officer Tyler asked Morales what had happened. Morales replied that he and
M argarit a had been arguing and Margarita had said she had s lept with s omeone else

. Morales told Officer Tyler he had “lost it” and blacked out. After speaking with Morales, O fficer Tyler placed him into custody. During the walk to the patrol

car , Officer Tyler read Morales his Miranda rights

. Morales was pla ced into an interrogation room at 1:06 a.m. Detectives Nick Thompson and Mike Simons entered the room a t 2:22 a.m. Detective Thompson
read Morales his Miranda rights and asked Morales if he understood those rights.
Morales slightly nodded affirmatively

. Detective Thompson then asked if he was willing to speak to the detectives. Morales again affirmatively nodded. The detectives questioned Morales for about an hour and a half. Morales answered
the d etectiv es ’ questions without asking to stop or speak to an attorney

.

1 See Miranda v. Arizona , 384 U.S. 436, 444

- 45 (1966)

.3
Morales was charged with first

- degree murder after Margarita died. In district court, Morales moved to suppress the video of the custodial interrogation , arguing there was no showing by the State he voluntarily and knowingly waived
his M iranda rights. He asserted the video shows that after being read his Miranda rights, Morales made a minor head gesture and n o verbal affirmative statement

. No express written or verbal waiver was o btained by the detectives before they questioned him

. After a hearing, t he district court found: Morales responded to questions of both his understanding of hi s Miranda right s and his willingness to speak to the detectives with a nod. This is clearly seen in the video of the interview. Detective Th ompson d elivered the rights and questions in a conversational tone. There w ere no thr e ats or promises or intimidation in the conversation. Morales had his head down during the recitation and questions , but there was no indication that he not listening or was con fused. He responded to questions in a logical manner a t the appropriate time s without p rompting. Finall y, Morales offers no alternative explanation to contradict the nods being interpreted as affirmative responses to Detective Tho mpson ’ s questions. M ora les cites several additional factors that he argues diminish his ability to kn ow ingly , intelligently , and voluntarily waive his M iranda rights , including his age , his military service , his lack of a prior criminal record , the location of the interview , the length of wait prior to interrogation , the length of interrogation , the number of law enforcement officers present , his emotional s t ate , deprivation of sleep, and the detectives ’ request that he disrobe. When evaluating the tota lity o f the circumstan ces , the court does not find these persuasive

. Morales presents no evidence to support ho w these factors might have altered his ability to understand or w aive his Mir anda rights. Severa l of these , i n fact , occurred after Morales ’s w aiver, including the l ength of the i nterrogation and the detectives ’ request that he disrobe. None of these factors alter Mora les ’s knowing, intelligent, and voluntary waiver of his Miranda rights. On appeal, Morales argues the Iowa Constitution requires an express
waiv er of a suspect’ s rights before he may be subjected to custodial interrogation

. He a sks that we ov errul e State v. Davis , 304 N.W.2d 432 , 435 (Iowa 1981) (“ We4

hold an express waiver is not a requirement of the Iowa Constitution. Thus we must examine this defen dant’ s words and actions, after he was informed of his
Miranda rights, to determine if in fact a waiver occurred. ”)

. As has been noted before, t h e task of overruling precedent is for our supreme court

. See State v.
Miller , 841 N.W.2d 583, 584 n.1 (Iowa 2 014) (“While we reverse the judgment of the district court and vacate the decision of the court of appeals, we acknowledge both courts properly relied on our applicable precedent. G enerally, it is the role of the supreme court to decide if case precedent should no longer be followed.”); State v. Eichler

, 83 N.W.2d 576, 578 (Iowa 1957) (“If our previous holdings are to be overruled, we should ordinarily prefer to do it ourselves.”); State v. Hastings , 466 N.W.2d 697, 700 (Iowa Ct. App. 1990) (“We are not at liberty to overturn Iowa Supreme Court precedent.”)

. T he standard of review of a motion to suppress based on federal and state
constituti onal grounds is de novo. State v. Lane , 726 N.W.2d 371, 377 (Iowa 2007). We make “ an ind ependent evaluation of the totality of the circumstan ces based on the entire record.” Id. (citation omitted). We give deference to the trial
court ’ s factual findings, especially because of its opportunity to assess witness credibility, but we are not bound by th ose findings. Id. Our review includes evidence produced at the suppression hearing and the trial. State v. Gaskins , 866 N.W.2d 1, 5 (Iowa 2015).

“ Miranda holds that a defendant may waive the rights effectuated in the warnings only if the waiver is made voluntarily, knowingly and intelligently. ” State v. King , 492 N.W.2d 211, 214 (Iowa 1992)

.5
If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive h im of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.
Miranda , 384 U.S. at 444

- 45

.

“ The burden is on the S tate to prove by a preponderance of the evidence
that defendant ’ s waiver of his Miranda r ights was made knowingly, voluntarily and intelligently. ” King , 492 N.W.2d at 214. This inquiry has two dimensions: “First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.” Moran v. B urbine , 475 U.S. 412, 421 (1986). However, an express waiver is not required. [ Davis , 304 N.W.2d at 435 ]

. Rather, the validity of the waiver is to be based on particular facts and circumstances surrounding the giving of the Miranda warnings.
Id. Our supreme court has indicated “[a] number of factors help in determining
voluntariness. ” State v. Payton , 481 N.W.2d 325 , 328 (Iowa 1992 ).
A mong them are: defendant’s age ; whether defendant had prior experience in the c riminal justice system ; whether defendant wa s under the influence of drugs ; whether Miranda warnings were given; whether de fendant was mentally “subnormal ”; whether deception was u sed ; whether defendant showed an ability to understand the questions and respond; the length of time defenda nt was detained and interrogated; defenda nt’ s physical and emotional reaction to interrogation; [and] whether physical punishment, including deprivati on of food and sleep, was used

. Id. at 32 8

- 29 (citations omitted).6

H ere, the totality of the circumstanc es demonstrate that Morales made a knowing a nd voluntary waiver of his rights. He was twice informed of his Miranda rights . The first time Morales was informed of his rights was by Officer Tyler on the way to his patrol car . Officer Tyler testified he asked Morales if he understood his rights and Morales “acknowledged by two forms. One was basically a head nod gesture, and the other was simply yes.” According to Officer Tyler, Morales did not appear to be under the influe nce of any substances, gave the officer logical answers or explanations to questions, and appeared to understand the situation. The second time Morales was given the Miranda warnings was by Detective Thompson at the police station. Detective Thomps o n tes tified that he then asked
Morales if he understood his rights and if he was “okay with talking.” Morales “gave an affirmative head nod to both of the questions indicating to me that he did understand.”
Morales indicated he understood those rights. He talk ed with t he offficers after being advised he was not required to make any statements. S ee S tate v. Mann , 51 2 N.W.2d 528, 534 (Iowa 1994) (“Mann’ s voluntary decision to talk to the officer may clearly be implied from the fact that he did so after being advised that
he was not require d to.” ).
Evidence that Morales knew and understood his rights is also supported by his age and experience: he had been a Marine from 2006 to 2014 and was honorably discharged. He was not discharged for physical disability or injury. Morales was twenty

- eight years old on April 19, 2015 , and attending college full

time

. Less than two weeks before this incident, Morales gave a statement to l aw enforcement officers after being advised of , given a written copy of, and signing a7

written waiver of his Miranda rights

. The officer in that transaction testified at the hearing on the instant motion to suppress , stat ing Morales had no difficulty understanding the English language or answering th e officer’s questions and that Morales’s responses were appropriate to the questions asked. Officer Tyler’s observations of Morales’s ability to understand and respond were similar to the other officer . Morales was in custody for about two hours before h e was questioned by the detectives. The video shows Morales with his head resting in his arms for much of this time period. The detectives questioned Morales for about
two hours. The video shows Morales was emotional and depressed but he

answer ed the de tectives’ questions in a coherent manner. W e agree with the
district court that Mor ales’s nods and subsequent action in answering questions

were sufficient to indicate a knowing and voluntary waiver of his Miranda righ ts

. We therefore affirm.
AFFIRMED.