IN THE COURT OF APPEALS OF IOWA
No. 21

- 1208 Filed January 11, 2023

STATE OF IOWA, Plaintiff

- Appellee,

vs. JOSHUA JAMES PENDLETON , Defendant

- Appellant.

________________________________________________________________ Appeal from the Iowa District Court for Webster County, Gina C. Badding , Judge.

The defendant appeals his convictions for first

- degree murder and first

degree robbery

. AFFIRMED.

Martha J. Lucey , State Appellate Defender, and Melinda J. Nye , Assistant Appellate Defender, for appellant.
Brenna Bird , Attorney General, and Zachary Miller , Assistant Attorney General, for appellee.

Heard by Tabor, P.J. , and Schumacher and Chicchelly, JJ. Badding, J., takes no part.2

TABOR , Presiding Judge

. Joshua Pendleton killed Pastor Allen Henderson outside St. Paul’s Lutheran Church in Fort Dodge

. Pendleton also took the pastor’s cell phone. For those acts, a jury con victed Pendleton of first

- degree murder and first

- degree robbery

. On appeal, Pendleton contends his statements to law enforcement that day should have been suppressed

. He also challenges the sufficiency of the evidence for robbery and for one of two alte rnative theorie s marshalled for first

degree murder. In doing so, he c ontests the constitutionality of Iowa Code
section 814.28 (2019) on general verdicts. Because Pendleton’s statements to police were n either involuntary nor obtained in violation of his constitutional rights , the district court properly allowed them into evidence. And because the proof was sufficient to support both theories of first

- degree murder, we affirm the conviction s without reaching the constitutionality of th e statute

. I. Facts and Prior Proceedings
P arishioner E rika , and her son , H.K., arrived early for his confirmation class at St. Paul’s

. When they arrived around 5:20 p.m

. , a ll the entrances were locked. But using her church key, Erika and H .K. enter ed through the main doors and settled into the parish office

. Pastor Henderson shut off his computer in the office
and head ed into the fellowship hall

. As Erika and H.K. conversed in the office, they heard a sound. Erika recognized the pastor’s voi ce , saying: “What are you doing here? Why are you here? You don’t belong here.” Soon she and H.K. moved to the fellowship hall

.3 After finishing some h omework , H.K. went to look for the pastor

. The boy took a hallway by the kitchen toward the back do or. Erika testified, “ N ext thing I know, he comes running back telling me, ‘Mom, Pastor’s on the ground with blood coming out of his head.’” Looking out the back door, Ericka saw Henderson on the ground . She called 911. When paramedics arrived, they first noted the pastor ’s head injury . They then checked for vital signs, finding no pulse and no respirations . Their efforts to
resuscitate him did not succeed

. An autopsy recorded a ligature mark on the pastor’s neck, as well as bleeding inside his brain. The medical examine r identified the cause of death as “blunt force injury of the head with strangulation.” Back at the crime scene, investigators found evidence of a struggle. D rywall was damaged in the hallway just inside the church door. The pastor’s glasses
were on th e floor. And the pastor’s gun was under his body. On the sidewalk just
outside the back door, investigators found a rope with a metal clasp. C hurch surveillance cameras captured some of the action. The video
show ed a man wearing a dark jacket, jeans, and red shoes walking be side the church carrying a rope. The man turned a corner and did not re - emerge for nearly
ten minutes. Wh en he appear ed on camera again , his right sleeve was rolled up and the rope was gone

. But now he was glancing at a cellphone in his right hand. It didn’t take investigating officers long to recognize the man in the video as Pendleton. They knew Pendleton from previous encounters involving his unstable
mental health. After identifying Pendleton from the surveillanc e footage , officers
walked to his apartment , just two blocks from the church. T he apartment was empty. But officers spotted Pendleton in the front yard walking toward the m

. He4

spoke to them in a stilted manner, 1 claiming he heard a girl screaming at th e church. “He was molesting little girl. I got his phone right here.

. . . He wouldn’t give it up.” O fficers placed Pendleton in handcuffs. At the police station, Detective Larry Hedlund interviewed Pendleton . He gave Pendleton Miranda warnings 2 and obtained a written waiver. Pendleton started with th is narrative:
T hat man was very strong

. I had to bite him in head

. . . . H e tried to claw my eyes out

. . . . I can’t believe how strong he was. And I was struggling because the last thing I wanted was for him to shut the door and get back in to little girl

. ‘ C ause I thought he might get rid of her. Hedlund next asked about the rope on the ground. Pendleton responded :

“ That’s my hem p belt

. . . I brought it there. I heard little girl screaming

. . . . I ring bell . And he sees me in door. ” Pendleton claimed that he held up his hemp belt and told Henderson, “I got present for little girl , ” a s a ruse to get the pastor to open the doo r. Pendleton admitted that when Henderson open ed the door, he wrapped the rope around the pastor’s neck.
When Hedlund asked about the hole in the drywall, Pendleton answered : “I
made it. ” Pendleton then described the pastor pushing the rope off his neck while Pendleton held the back door open with his foot. Pendleton also said he bit Henderson on the head “because he was overpowering me.”

1 Throughout the evening, Pendleton slipped in and out of a Russian accent , featuring grammar lapses

. 2 See generally Miranda v. Arizona , 384 U.S. 436 (1966).5 As for the pastor’s cellphone, Pendleton explained: “I said give me phone
because he

. . . had it in pock et. I said I’m taking phone because I thought he was recording it.

. . . I thought he was trying to record his sex acts with the little girl.”
Pendleton then decided he would end the interview: “ I’m not gonna talk anymore, can I leave?” And h e asked fo r an attorney. Hearing those invocations, Hedlund stopped the interview and arrested Pendleton

. In October 2019, t he State charged Pendleton wit h first

- degree robbery for taking Henderson’s cellphone and first

- degree murder , alleging both premeditation

a nd participation in the forcible felony of robbery

. The court halted p roceedings in February 2020 , finding that Pendleton was not competent to stand trial. After he received treatment for his schizophrenia , Pendleton’s prosecution resumed in June 2020. That fall, he gave notice of his intent to raise an insanity defense. Pendleton also moved to suppress statements he made to police on the day of his arrest. In considering suppression, t he district court divided his statements into fou r phases : (1) when he was handcuffed outside his apartment ; (2) when he was at the police station but before the Miranda wa iver; (3) after he signed the written waive r of his Miranda rights ; and (4) after he invoked his Miranda rights to remain silent and counsel . The court suppressed statements Pendleton made during the second and fourth phases bu t allowed all other statements

. At trial, the court instructed t he jury to find Pendleton guilty of first

- degree murder if it found that he either “acted will fully, deliberately, premeditatedly, and with a specific intent to kill ” or “was participating in the offense of robbery in the first or second degree.” On general verdict forms, the jury found Pendleton guilty of first

- degree murder and first

- degree robbery. Pendleton appeals.6

I I. Analysis
Pendleton makes two arguments . First, he contends that the district court should have suppressed all statements he made to police o n the day of his arrest

. Second, he insists the State presented insufficient proof of felony murder . And from there, he challenges the constitutionality of Iowa Code section 814.28 , which allows courts to uphold a general verdict if su bstantial evidence supports at least

one alternative theory.
A. Suppression of Statements
The F ifth A mendment of the U.S. Constitution and a rticle 1, section 9 of the Iowa Constitution protect a criminal defendant from compulsory self

- incrimination. See U.S. Const. a mend V ; Iowa Const. art. 1, § 9; State v. Gibbs , 941 N.W.2d 888 , 894 (Iowa 2020)

. “ When a defendant challenges the denial of a motion to suppress based on an asserted constitutional violation, we review the district court ruling de

novo. ” State v. Sallis , 981 N.W.2d 336, 344981 (Iowa 2022)

. “ We examine the entire record to independently evaluate the totality of the circumstances based on each case ’ s unique situation. ” State v. Price

- Williams , 973 N.W.2d 556, 531 (Iowa 2022)

. W e defer to the district court ’ s fact findings , especially on witness credibility , but we are not bound by th em. Id. “We consider both the evidence introduced at the suppression hearing as well as the evidence introduced at trial. ” State v. Hunter

, 947 N.W.2d 657, 660 (Iowa Ct. App. 2020) (quoting State v.
Palmer , 791 N.W.2d 840, 844 (Iowa 2010) ). Pendleton’s suppression argument is threefo ld . First, he seeks to exclude his re plies to police questions after he was handcuffed but before he was
M irandized

. Second, he claims his Miranda waiver was not knowing and voluntary.7

And third, he contends all his statements were involuntary because he was suffering from unmedicated schizophrenia

. 1. Volunteered Statements A failure to provide a Miranda advisory warrant s suppression of a suspect’s
statements made during a custodial interrogation. State v. Country man , 572 N.W.2d 553, 557 (Iowa 1997). Custody means police have limited a suspect’s freedom to act on the scale of a formal arrest. State v. Bogan , 774 N.W.2d 676, 680 (Iowa 2009) . Interrogation includes both express questioning , as well as words or actions that an officer would know were reasonably likely to elicit an incriminating response

. Rhode Island v. Innis , 446 U.S. 291, 301 (1980).
We consider the police encounter with Pendleton outside his apartment. As captured on their body ca meras, Pendleton approached the officers claiming to have hear d a girl screaming. Officer Evan Thompson re plied “okay” and then
directed Pendleton to “show me your hands real quick.” Thompson then handcuffed Pendleton , saying: “I just want to detain you at this point.” Pendleton responded, “That’s fine.” And before officers asked any questions, Pendleton made a muffled statement that ended with “had taser in pocket.” Asking for clarification, Thompson responded “okay who’s that?” Pendleton answered “ t hat’s
a bad man down there. ” Thompson asked, “down by the church there?” And Pendleton responded yes. Thompson then introduced Detective Hedlund and asked Pendleton

w hether he w ould speak to Hedlund a t the station

. Pendleton looked at the detective and volunteered: “Yes, he was molesting little girl.” Pendleton continued, telling officers that he had taken Henderson’s phone. Officers asked Pendleton if8

he had any weapons , patted him down, and prepared to transpor t him to the station. During the pat down, the officer said, “ t his is just for our safety

. ” Pendleton responded “I wouldn’t hurt nobody innocent” and recalled asking He nderson “what are you doing to that little girl?” 3 Pendleton argues that he was in custody and subjected to interrogation as

soon as he encountered the officers. Like t he district court , we agree he was in custody but n ot interrogated. “ S tatements made after a person is taken into custody are not automatically considered the product o f interrogation.” State v.
Turner , 630 N.W.2d 601, 608 (Iowa 2001). For instance, “ s tatements that are volunteered, spontaneous and freely made by an arrested person do not come within the scope of Miranda .” Id. Pendleton points to two exchanges whe n officers knew they would elicit an incriminating response. First, Officer Thompson asked “who’s that?” after Pendleton mentioned someone having a taser. Because that question focused on a safety matter related to Pe ndleton’s detention, we do not find a Miranda violation. See State v. Sallis , 574 N.W.2d 15, 18 (Iowa 1998) (quoting Innis , 446 U.S. at 301 ) ; see also New York v. Quarles , 467 U.S. 649, 657 (1984) (recognizing
Miranda exception in situation imperiling public safety ). Second , Thompson asked Pendleton if he would speak to Detective
Hedlund. In a non

- responsive reply , Pendleton asserted he would not harm an innocent person. Contrasting that assertion with his distorted belief about the pasto r, Pendleton said he caught Henderson “in the act” of molesting a girl.

3 Pendleton said Henderson at one point told him it was not a little girl but a little boy, in a pparent reference to H.K.9

Contrary to Pendleton’s argument, Thompson had no reason to know that his benign inquiry would encourage Pendleton to incriminate himself on the spot

. Pendleton ’s volunteered stateme nt was n ot the product of interrogation

. See State
v. Brown , 176 N.W.2d 180, 183 (Iowa 1970)

. Pendleton’s statements at his apartment were admissible.
2. Miranda Waiver Next, Pendleton lobbies for the suppression of his statements made after
the Miranda waiver

. At the police station, Detective Hedlund joined Pendleton in an interview room. About five minutes in , Hedlund showed Pendleton a Miranda rights form

. Pendleton read his rights out loud and then signed the waiver

. 4 To be valid, a Miranda waiver must be knowing, intelligent, and voluntary. State v. Tyler , 867 N.W.2d 136, 174 (Iowa 2015)

. A waiver is voluntary when it is “the product of
the suspect’s free and deliberate choice rather than intimidation , coercion, or deception” by the police. I d. (citation omitted). We look at the totality of the
circumstances and the se factors:
D efendant ’ s age; whether defendant had prior experience in the criminal j ustice system; whether defendant was under the influence of drugs;

. . . whether defendant was mentally “subnormal”; whether deception was used; whether defendant showed an ability to understand the questions and respond; the length of time defendant was d etained and interrogated; defendant ’ s physical and emotional reaction to interrogation; whether physical punishment, including deprivation of food and sleep, was used.

4 While not alone sufficient, a written waiver provides “strong proof” of voluntariness. Countryman , 572 N.W.2d at 559.10

Id. at 175 (citation omitted). Among these factors, Pendleton focuses on his mental

co ndition: untreated schizophrenia. He contends his Miranda waiver was involuntary because he was “under the influence of schizophrenic hallucinations.” It’s true that Pendleton had struggled with schizophrenia for at least fifteen years. His mother testi fied that t wo weeks before the killing, he had been experiencing auditory and visual hallucinations because he was not taking his medication

. She tried to get her son help, but he was unwilling to accept treatment from t he mental

- health center. What’s not as clear cut is the effect of Pendleton’s schizophrenia on his ability to waive Miranda and answer the detective’s questions. E xperts at trial gave conflicting opinions on Pendleton’s mental state. 5 The State offered testimo ny from Pendleton’s treating physician

. Dr. Gary Keller diagnosed Pendleton with schizoaffective disorder, bipolar type, and amphetamine use disorder. But because the doctor did not treat Pendleton until months after the interrogation, he
could not disti nguish if Pendleton’s behaviors stemmed from prolonged drug use or his mental illness

. The defense countered with testimony from n europsychologist Daniel Tranel, who evaluated Pendleton over one year after the incident. Dr. Tranel believed Pendleton wa s acting under “ a diseased or deranged condition of the
mind ” on the day of the killing. But on cross - examination , Dr. Tranel a cknowledged that he did not review the videos from that day

. Another defense expert witness, psychiatrist Arnold Anders e n, exam ined Pendleton for competency in January

5 At oral argument, the parties agreed that trial evidence supporting and opposing Pendleton’s insanity defense was relevant to this suppression question.11

2020, about four months after the killing. Dr. Andersen observed that Pendleton was “behaving very abnormally” and his statements were “nonsensical.” But Dr. Anderson also did not review video from the day of the killing. In contrast, the State’s rebuttal expert, psychiatrist James Dennert, examined all the video evidence before forming his opinion. He considered that footage as “[t]he best evidence for [Pendleton’s] state of mind at the time of the incident.” In Dr. Dennert‘s opinion , Pendleton “did not suffer any mental impairment or derangement” that day. Not at the time of the killing. And not at the time of the interrogati on. Dr. Dennert noted that Pendleton highlighted “a logical inconsistency” in the Miranda warning for Detective Hedlund. Dr. Dennert also testified about Pendleton’s ability to understand the interrogation process: Throughout the interview, he responded appropriately. He asked pertinent questions. His comments were pertinent and appropriate. He seemed to understand the situation and he said things and did things that reasonably interpreted as indicating that he is trying to present himself in the ligh t that he wishes to present himself. While the evidence on Pendleton’s psychiatric condition was mixed , we are persuaded by Dr. Dennert ’s assessment that his “mental subnormality” did not prevent Pendleton from knowingly and voluntarily waiving his Miran da rights. See State v. Davidson , 340 N.W.2d 770, 773 (Iowa 1983) ( stating that “mental subnormality does not itself deprive a waiver or confession of voluntariness”). Furthermore, w hen we turn to the totality of the circumstances, m ost of the factors we igh on the side of a knowing and voluntary waiver. For instance, Pendleton was thirty

- six years old and had previous encounters with police , having been arrested for minor offenses

. The record does not suggest Pendleton was under the influence of drugs. Nor did the detective use deception. To the contrary,12

Hedlund’s approach was clear and straightforward. He did not intimidate, coerce,

or trick Pendleton into waiving his rights. S ee Tyler , 867 N.W.2d at 174. The interview format was not coercive. The questioning took place the evening of the killing, but not late into the night. It lasted less than thirty minutes. Pendleton was offered a drink and received a can of diet Mountai n Dew. And Pendleton was not daunted by the setting. One example: in the middle of his Miranda warning , Pendleton declared, “I don’t need legal representation, I have the truth.” Hedlund said “okay” and asked Pendleton to keep reading. When
Hedlund c onfronted Pendleton about his Russian accent, the suspect explained

— in a self

- deprecati ng manner
— that he picked it up from a phone app and he fakes
an accent because it is “appealing to women.” In deciding whether his mental condition prevented a volunt ary waiver or confession, we look to Pendleton’s “comportment and demeanor.” See Davidson , 340 N.W.2d at 773. Pendleton remained calm and cooperative until the end when Hedlund arrested him for murder. E ven if he were experiencing symptoms of schizophrenia , Pendleton’s demeanor and discussion show ed he understood his Miranda rights and ma de a voluntary waiver. That understanding was on display when Pendleton invoked his right to silence and right to counsel. Pendleton asked if the inter view was being recorded ; Hedlund responded, “of course,” and pointed at a c amera in the corner. When Hedlund posed another question, Pendleton declared , “I’m not gonna speak anymore. Can I go?” Hedlund replied: “ I need to check on something

. ” Pendleton then insisted , “I want lawyer.” Hedlund ended the interview but asked to photograph Pendleton’s hands . At first, Pendleton agreed but then changed his13

mind: “no , I don’t want pictures of hands here until lawyer comes.” This exchange shows Pendleton understood his rights and knew how to invoke them , bolstering the inference that he knowingly and voluntarily waived them earlier. From our de novo review, we find Pendleton’ s post

- Miranda statements were admissible.
3. Due Process Violation
Pendleton closes with an argument that all of his statements to police were involuntary and therefore admitting them into evidence violated his right to due process. The test for voluntariness is the same under Miranda as it is for due
process. Tyler

, 867 N.W.2d at 176. So for the reasons recited in the previous section, we find Pendleton voluntarily made his statements to police. 6
B. Su bstantial Evidence “We review sufficiency of the evidence claims for correction of errors at law.” State v. Crawford

, 974 N.W.2d 510, 516 (Iowa 2022). We consider whether, when taken in the light most favorable to the State, the verdict s are supported by substantial eviden ce

. Id. E vidence is substantial if it would convince a rational trier of fact that Pendleton is guilty beyond a reasonable doubt. I d. Pendleton argues we should vacate his robbery conviction because the State offered insufficient evidence of his inte nt to commit a theft. What’s more, if the State did not prove robbery, according to Pendleton, it did not prove the forcible

6 The State contends that because Pendleton confessed to killing Henderson and advanced an insanity defense, admitting his statements was harmless error. Because we reject his suppression arguments, w e need not address this alternative contention

.14

felony alternative of first

- degree murder , requiring that conviction to be overturned as well

. 7 Granted , t he jury returned general verdicts on the two murder alternatives. 8
U nder prior law, if the evidence was insufficient under one alternative, we would not try to divine which alternative the jury embraced and instead would reverse for
retrial. See, e.g. , State v. Tyler , 873 N.W.2d 741, 754 (Iowa 2016) . But Iowa Code section 814.28, enacted in 2019, now prohibits revers ing a general verdict “on the basis of a defective or insufficient theory if one or more of the theories presented
and described

. . . is sufficien t to sustain the verdict on at least one count.”
Pendleton challenges section 814.28 on constitutional grounds, arguing it violates the separation of powers, due process, and equal protection. 9 But we need not reach those arguments because both alternat ives are supported by the record. We start with the robbery instructions. To convict Pendleton of first

- degree robbery, the jury had to find:

7 Pendleton does not challenge the State’s proof of premediated murder. 8 T o convic t Pendleton of first

- degree murder, the jury had to find:

1. On or about the 2nd day of October 2019, Mr. Pendleton struck and/or strangled Allen Henderson 2. Allen Henderson died as a result of being struck and/or strangled. 3. Mr. Pendleton acted w ith malice aforethought. 4. Mr. Pendleton either: (a) acted willfully, deliberately, premeditatedly, and with a specific intent to kill Allen Henderson; or (b) was participating in the offense of [r]obbery in the [f]irst or [s]econd [d]egree. 9 Given the timing of his briefing, Pendleton’s routing statement recommended the supreme court transfer this appeal to our court because a nother case pending before the supreme court would resolve th os e constitutional issues. But t hat decision, State v. West Vangen , filed in June 2022 , did not resolve the constitutionality of section 814.28 . 975 N.W.2d 344, 348

– 51 (Iowa 2022).15 1. On or about the 2nd day of October 2019, Mr. Pendleton had the specific intent to commit a theft; 2. To carry out that intention or to assist him in escaping from the scene, with or without stolen property, Mr. Pendleton either: a. Committed an assault as defined in Instruction No. 37 on Allen Henderson; or b. Threatened Allen Henderson with, or purposely put Allen Henderson in fear of, immediate serious injury; and 3. While perpetrating the robbery, Mr. Pendleton: a. Purposely inflicted or attempted to inflict a serous injury on Allen Henderson; or b. Was armed with a dangerous weapon Or the jury cou ld find second

- degree robbery if:

1. On or about the 2nd day of October 2019, Mr. Pendleton had the specific intent to commit a theft. 2. In carrying out his intention or to assist him in escaping from the scene, with or without the stolen property, Mr. Pendleton: a. Committed an assault on Allen Henderson as defined in Instruction No. 37; or b. Threatened Allen Henderson with, or purposely put Allen Henderson in fear of, immediate serious injury. Pendleton claims the State offered insufficient proof that he intended to commit a theft. The jury did not receive a theft instruction , but our c ode provides “[a] person commits theft when the person

. . . [t]akes possession or control of the property of
another

. . . with the intent to deprive the other thereof.” Iowa Code § 714.1(1). The property at issue is the pastor’s cell phone. Pendleto n claims he did not have a specific intent to take the phone bec ause he “was acting in response to a delusion that Henderson was sexually abusing a child in church and was using the phone to record the abuse.” In other words , Pendleton “took the phone
bec ause he believed it was evidence of the crime.” But even if Pendleton believed he was act ing for righteous reasons, the jury could reasonably find he “[took] possession or control” of the phone “with the intent16

to deprive” the pastor of the property. 10 Pendleton told Hedlund how he used the hemp belt to lure Henderson out of the building before attacking him. In his interview, Pendleton claimed that he seized the phone because he believed that Henderson was using it to record sex acts. Pendleton also told officers that when he tried to take the phone, Henderson “wouldn’t give it up.” Considering Pendleton’s dubious motive, the jury could reasonably conclude h is intent was to permanently deprive Henderson of his phone.
Pendleton also submits that if his “intent were to rob Henderson, certainly
he would have taken

. . . other valuables ,” including the pastor’s gun, his wallet, and his cash

— all of wh ich were found on or near the body. But the State did not have to explain why Pendleton did not steal all items in Henderson’s p ossession

. It was enough that the State offered proof that Pendleton had the specific intent to deprive Henderson of the phone

. The State proved beyond a reasonable doubt that Pendleton committed robbery and thus was “participating in” a forcible felony
when he killed Henderson

. Because both murder alternatives are supported, we need not delve into Pendleton’s constitutional challenges to section 814.28. See West Vangen , 975 N.W.2d at 351.
I II . C onclusion
W e find no grounds to suppress the challenged statements . And substantial evidence suppor ts both the robbery verdict and the felony

- murder theory for first

degree murder

. Thus, we affirm Pendleton’s convictions.
AFFIRMED.

10 Section 714.1(1) “ requires more than a temporary dispossessing of another ’ s property .” State v. Berger , 438 N.W.2d 29, 31 (Iowa Ct. App. 1989)

.