State of Iowa vs. Anthony Devon Polk

IN THE SUPREME COURT OF IOWA
No. 10–0335
Filed April 6, 2012
STATE OF IOWA,
Appellee,
vs.
ANTHONY DEVON POLK,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Black Hawk County,
Thomas N. Bower, Judge.
Defendant appeals denial of motion to suppress confession.
COURT OF APPEALS DECISION VACATED; DISTRICT COURT
JUDGMENT REVERSED; CASE REMANDED FOR NEW TRIAL.
Mark C. Smith, State Appellate Defender, and David Arthur
Adams, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson and
Richard J. Bennett, Assistant Attorneys General, Thomas J. Ferguson,
County Attorney, and Joel A. Dalrymple, Assistant County Attorney, for
appellee.

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WATERMAN, Justice.
Defendant, Anthony Devon Polk, confessed in a jailhouse interview
to firing his handgun at the scene of a gang-related shooting that left two
men with gunshot wounds. We must decide whether the interrogating
police officer’s tactics rendered Polk’s confession inadmissible. Polk
contends the officer baited him into talking after Polk had invoked his
Fifth Amendment right to remain silent and made improper promises of
leniency that suggested by talking to police Polk could get a better deal
and spend less time away from his children.
The district court denied Polk’s motion to suppress his confession
and convicted him on charges of intimidation with a dangerous weapon
in violation of Iowa Code section 708.6 (2009), going armed with intent in
violation of section 708.8, and carrying a weapon in violation of section
724.4(1). Polk was sentenced to ten-year, five-year, and two-year
concurrent prison terms for those convictions. The court of appeals
affirmed Polk’s convictions but found the officer came “dangerously close
to the line” when eliciting Polk’s confession. We conclude the officer
crossed the line with promises of leniency. We hold Polk’s confession
was inadmissible for that reason and, therefore, do not decide whether
Polk was in custody for Miranda purposes or whether his right to remain
silent was violated.
We vacate the court of appeals decision, reverse Polk’s convictions
and sentences, and remand the case for a new trial.
I. Background Facts and Proceedings.
Polk, age twenty-two, and his friend, Devin Pendleton, “got into it”
with Treyvon Henley during Waterloo’s Fourth of July fireworks
celebration in 2008. Henley, also known as “Stix,” was associated with
the Chopper City gang based near Sumner and Manson Streets. Henley

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pulled a revolver on Pendleton in front of a liquor store and fired a shot
at him. Later that night, Polk and Pendleton, both armed, returned to
the area of Sumner and Manson Streets looking for Henley. About
2 a.m., they spotted Henley drinking outside with two other men,
Dontrell Hoskins and Willie Evans. Pendleton and Polk both fired shots
at Henley. The bullets missed their target but struck Hoskins in the
back and grazed Evans’ left forearm. Evans later identified Polk from an
array of photographs.
On July 30, Polk was held in the Black Hawk County jail on an
unrelated arrest warrant. Officer Shawn Monroe questioned Polk there
about the shooting. Inmates are housed in pods on the jail’s second and
third floors. Polk’s questioning took place in a designated interview room
on the first floor. The room is small, approximately four- to six-feet wide
and eight-feet deep. Monroe audio recorded the interrogation using a
small digital recorder. Whether Polk was in custody for Miranda
purposes is disputed. See generally Howes v. Fields, ___ U.S. ___, 132
S. Ct. 1181, ___ L. Ed. 2d ___ (2012) (addressing whether prison
interview is custodial for Miranda purposes); State v. Pearson, 804
N.W.2d 260, 268 (Iowa 2011) (“When an inmate is questioned, we look
for ‘some added restriction on the inmate’s freedom of movement
stemming from the interrogation itself.’ ” (quoting State v. Deases, 518
N.W.2d. 784, 789 (Iowa 1994))).
Monroe began by advising Polk he was “in custody” and read him
his Miranda rights. He informed Polk he wanted “to talk about some of
the stuff that has been going on in Waterloo” and that Polk’s name “has
been brought up in a couple of things.” Monroe asked Polk about his
association with Pendleton and gangs. Monroe told Polk “somebody says
you shot somebody.” Claiming he “did not have a gun to shoot anybody

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with,” Polk denied the accusation. Monroe followed up by asking Polk
why he was found in a house near two guns, one ten feet from him. Polk
continued to deny he shot anyone, raising his voice, “I ain’t shoot
nobody, I ain’t got nothing to say, can I go back to my [jail] pod?”
Monroe responded, “Well if you don’t want to know what happens from
here on out, yeah you can.” Polk asked Monroe “what happens?”
Monroe explained that “what happens from here can be influenced
by what we talk about.” Monroe continued, “Let me just lay it out for
you like this okay, it has been my experience working cases like this,
that if somebody cooperates with us, on down the road the county
attorney is more likely to work with them.” Polk asked, “What’s the
county attorney?” Monroe informed Polk that the county attorney has
discretion as to “how much time somebody does if they are found guilty
or the one that cuts a deal.” Monroe continued:
[County attorneys] are much more likely to work with an
individual who is cooperating with police than somebody
who sits here and says I didn’t do it, I don’t know what is
going on. What we can talk about now can influence and
has the potential to influence things that happen on down
the road.
At this point, Polk again attempted to end the questioning stating,
“I want to go back to my cell, I didn’t do it, can I go?” Monroe answered,
“You are free to go, the door’s right there. If that’s what you want to do.”
Polk stood up, left the interview room, and walked down the hall toward
the elevator to the jail pods. Monroe stepped to the doorway of the
interview room and said, “Hey Anthony, I do want to tell you I got
paperwork down here charging you with possession of a firearm and
going armed with intent.” Polk asked Monroe, “How did I get charged
with a firearm?” Monroe told Polk, “We can talk about it . . . but you
want to go back to your cell or we can talk? You can make the decision

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now . . . .” Polk returned to the interview room. Monroe asked Polk to
answer in the affirmative that he returned voluntarily to learn “what is
going on,” which Polk did.
Monroe then resumed his interrogation of Polk:
I’m telling you, you need to start thinking about what
you are going to do for yourself because I know you got a
couple of kids out there and I’d hate to see the kids miss their
daddy for a long time because you didn’t want to talk about
what’s going on, that you wanted to keep this I don’t know
what’s up.
. . . .
If you want keep your story, I’ll tell you what, later on
down the line nobody is going to be that willing to work with
you. But if you are thinking I want to cop a plea, and I want
to get the best plea possible, one of the things that can help
you with that, possibly help you with that, is that you are
cooperating now.
(Emphasis added.)
Monroe told Polk he had an eyewitness stating Polk was with
Pendleton, the color shirts each were wearing, and from what direction
they approached the house. Monroe continued:
Obviously, I’m only getting one side of the story and there is
probably more to it. But the only person that is going to be
able to tell me that is you. If you want to talk about this we
can talk about this. Like I said, you need to start thinking
what is best for you. You got to quit thinking about
[Pendleton] . . . you got to start thinking about what’s best
for you.
Monroe then mentioned Polk’s children again:
Man if you don’t want to do this for you, do this for your
kids. They need their dad around. [35-second pause] Just
don’t forget you got kids that are depending on you. They
need their pops around. And you got to think about
yourself, what’s good for you right now.
Polk promptly admitted he went to the Sumner and Manson Streets area
on July 5 with Pendleton, carrying a firearm with the intent to shoot
Henley, and that he fired shots at Henley there.

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On August 1, the county attorney charged Polk by trial information
with intimidation with a weapon, going armed with intent, and carrying
weapons. Polk filed a motion to suppress his confession. The motion
alleged Monroe procured his confession in violation of his Fifth
Amendment privilege against self-incrimination, his Sixth Amendment
right to counsel, and through improper promises of leniency. The district
court denied Polk’s motion to suppress. The district court concluded
Monroe’s “[s]tatements indicating that it would be in [Polk’s] best
interests and that of his family [for Polk] to tell the truth . . . [do] not
make [Polk’s] statements inadmissible.”
Polk also challenged his competency to stand trial. A psychologist,
Dr. Carroll Roland, was retained by the defense. Dr. Rowland had
measured Polk’s IQ at fifty-nine two years earlier when evaluating Polk as
incompetent to stand trial on a 2006 charge. Dr. Rowland interviewed
Polk twice in October and concluded that Polk “is not currently
competent to stand trial.” Dr. Rowland concluded Polk functions in the
“mild range of mental retardation” and, in his opinion, “did not
understand his Miranda rights when they were read by the arresting
officer.” Experts for the State measured Polk’s IQ at sixty-four and
seventy-one, respectively, and found him competent to stand trial. The
district court ruled Polk was competent, but stated “it may be necessary
that court proceedings be slowed down somewhat to give defendant an
opportunity to fully comprehend the events as they occur in the
courtroom.”
The case was tried to the court on minutes of testimony. The
district court convicted Polk on all three charges, relying on Polk’s
confession he went armed to the Sumner and Manson Streets area. The
district court relied on Polk’s “admissions and the testimony of the other

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witnesses.” Polk was sentenced to ten-year, five-year, and two-year
prison terms to be served concurrently.
Polk appealed, arguing his confession was procured in violation of
his Miranda rights and through promises of leniency. The court of
appeals affirmed the district court’s denial of Polk’s suppression motion.
The court of appeals found Polk was not “in custody” for Miranda
purposes. On the promise-of-leniency issue, the court of appeals found
“the officer is dangerously close to the line, but these statements do not
make Polk’s confession involuntary.”
We granted Polk’s application for further review.
II. Scope of Review.
We review de novo Polk’s constitutional challenges to the
admissibility of his confession. Pearson, 804 N.W.2d at 265. We review
for correction of errors at law the district court’s ruling on promises of
leniency under the common law evidentiary test, when “there is no
dispute as to the words used” or their meaning under the circumstances.
State v. Mullin, 249 Iowa 10, 15, 85 N.W.2d 598, 601 (1957) (court to
determine promise-of-leniency issue as a matter of law).
III. The Promise-of-Leniency Issue.
“[I]t is obvious that confession evidence is of great importance in a
criminal trial.” State v. LaDouceur, 366 N.W.2d 174, 177 (Iowa 1985).
“ ‘Voluntary confessions are not merely a proper element in law
enforcement, they are an unmitigated good, essential to society’s
compelling interest in finding, convicting, and punishing those who
violate the law.’ ” Pearson, 804 N.W.2d at 266 (quoting Maryland v.
Shatzer, 559 U.S. ___, ___, 130 S. Ct. 1213, 1222, 175 L. Ed. 2d 1045,
1055 (2010)) (internal quotation marks omitted). But, we have long
recognized promises of leniency create the risk of a false confession

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leading to a wrongful conviction. See Mullin, 249 Iowa at 16, 85 N.W.2d
at 601. Specifically, we have recognized such promises “may very well
destroy the voluntary nature of the confession in the eyes of the law.” Id.
at 16, 85 N.W.2d at 602 (quoting 3 Wigmore on Evidence §§ 823–24 (3d
ed. 1940)).
Accordingly, we have reiterated that a “ ‘confession can never be
received in evidence where the prisoner has been influenced by any
threat or promise.’ ” State v. McCoy, 692 N.W.2d 6, 27 (Iowa 2005)
(quoting Mullin, 249 Iowa at 14, 85 N.W.2d at 600)). The rule
suppressing confessions tainted by promises of leniency deters police
from using a tactic that might induce the innocent to confess falsely. See
2 Wayne R. LaFave, et al., Criminal Procedure § 6.2(b), at 612–13 (3d ed.
2007) (noting the “exclusionary rule for confessions . . . is also intended
to deter improper police conduct”).
A. The Common Law Test for Reviewing Promise-of-Leniency
Challenges. We review challenges to confessions based on a promise of
leniency under a common law evidentiary test. McCoy, 692 N.W.2d at
27–28. The defendant’s confession is to be suppressed if it follows the
officer’s improper promise of leniency. Id. We have adopted this
exclusionary rule out of concern that “ ‘the law cannot measure the force
of the influence used, or decide upon its effect upon the mind.’ ” Id. at
27 (quoting Mullin, 249 Iowa at 14, 85 N.W.2d at 600)). The exclusionary
rule eliminates the need for the court to attempt to read the mind of the
defendant to determine if his confession in fact was induced by or made
in reliance upon the promise of leniency.
B. Precedent Defining an Improper Promise of Leniency. “An
officer can tell a defendant that it is better to tell the truth without
crossing the line between admissible and inadmissible statements from

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the defendant.” Id. at 28. Our cases, however, prohibit the investigator
from communicating to defendants that an advantage is to be gained by
making a confession. See, e.g., id. (The line between admissibility and
exclusion seems to be crossed “ ‘if the officer . . . tells the suspect what
advantage is to be gained or is likely from making a confession.’ ”
(citation omitted)).
In State v. Whitsel, we held the defendant’s confession was
admissible when the officers stopped short of indicating his cooperation
would likely result in less severe punishment. 339 N.W.2d 149, 153
(Iowa 1983). We summarized the facts as follows:
During the course of questioning, Whitsel volunteered
information concerning his prior arrest on a sexual abuse
charge . . . . In response to this statement offered by
Whitsel, the detectives told Whitsel that they would
recommend to the county attorney that Whitsel receive
psychiatric help and tell the county attorney of his
cooperation. They emphasized, however, that they could not
make any promises or give any guarantees and would only
relate to the county attorney what had been said. Whitsel
then made his confession following this exchange.
Id. An offer to inform the county attorney of the defendant’s cooperation,
without any further assurances, is not improper. Id.
By contrast, we have held officers impermissibly promise leniency
when they make “suggestion[s] . . . defendant would receive better
treatment and less severe punishment” if he confesses. State v. Hodges,
326 N.W.2d 345, 346 (Iowa 1982). In Hodges, the officer told the
defendant “there was a much better chance of him receiving a lesser
offense than first degree murder” if he talked. Id. at 349 (emphasis
omitted). In State v. Kase, we held an investigator crossed the line by
telling defendant “that if she told him what she knew about Vaughn’s
death and signed a consent to search her apartment no criminal charges
would be filed against her; otherwise, she was told, she would be charged

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with murder.” 344 N.W.2d 223, 226 (Iowa 1984). In State v. Quintero,
we held the police utilized improper threats by suggesting to defendant
that if he did not tell the truth “he would anger the judge and jury and
suffer greater punishment.” 480 N.W.2d 50, 50–51 (Iowa 1992). In
McCoy, we found the officer improperly promised leniency by telling the
defendant twenty-five times that “if he didn’t pull the trigger he would
not be in any trouble.” 692 N.W.2d at 28.
C. Application of Precedent. After three minutes of questioning,
Polk said, “I ain’t got nothing to say. Can I go back to my pod?” Monroe
immediately baited Polk by saying he could go back if Polk “didn’t want
to know what happens from here on out.” Polk took the bait, asking,
“What happens?” and remained in the interview room. Monroe then
began to insinuate that cooperation could affect punishment. Monroe
told Polk that “what happens from here can be influenced by what we
talk about.” Monroe elaborated, “Let me just lay it out for you like this
okay, it has been my experience working cases like this, that if somebody
cooperates with us, on down the road the county attorney is more likely
to work with them.” For the next several minutes, Monroe reinforced the
message that Polk would benefit by cooperating. For example, Monroe
stated county attorneys “are much more likely to work with an individual
that is cooperating with police than somebody who sits here and says I
didn’t do it.”
Polk indicated a second time he wanted to end the questioning.
Monroe told him he was free to go and “the door is right there if that is
what you want to do.” Polk walked out of the room and down the hall
toward the elevator. Monroe then baited Polk again, stating, “Hey
Anthony, I do want to tell you I got paperwork down here charging you
with possession of a firearm and going armed with intent.” Polk took the

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bait a second time, asking, “How did I get charged with a firearm?” He
returned to the room for more questioning. After Monroe and Polk
agreed to resume the interview, Monroe played on the fact Polk had
children:
I’m telling you, you need to start thinking about what you
are going to do for yourself because I know you got a couple
of kids out there and I’d hate to see the kids miss their
daddy for a long time because you didn’t want to talk about
what’s going on.
Monroe continued: “Man if you don’t want to do this for you, do this for
your kids. They need their dad around. [35-second pause] Just don’t
forget you got kids that are depending on you. They need their pops
around.” The court of appeals observed, “It is clear from this statement
that the officer meant to communicate that if Polk confessed, he would
spend less time away from his children.” We agree. The strategy
worked—Polk promptly confessed to taking a firearm to the scene with
the intent to shoot Henley and firing shots at Henley there.
Monroe’s interrogation strategy goes beyond the permissible tactics
approved in Whitsel. Monroe did not simply offer to inform the county
attorney of Polk’s cooperation. Instead, he suggested the county attorney
is more likely to work with him if he cooperates and implicitly threatened
Polk that silence will keep him from his children for “a long time.”
Monroe’s statements are similar to the officer’s statement in Hodges that
“there was a much better chance of . . . receiving a lesser offense” if the
defendant confessed. See Hodges, 326 N.W.2d at 349 (emphasis
omitted). In each case, the officer suggested the defendant’s confessions
would likely reduce the punishment.
We conclude Monroe crossed the line by combining statements
that county attorneys “are much more likely to work with an individual

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that is cooperating” with suggestions Polk would not see his kids “for a
long time” unless he confessed. Other courts have cried foul when
interrogators imply a confession will reduce the suspect’s time away from
his or her children:
The relationship between parent and child embodies a
primordial and fundamental value of our society. When law
enforcement officers deliberately prey upon the maternal
instinct and inculcate fear in a mother that she will not see
her child in order to elicit “cooperation,” they exert . . .
“improper influence . . . .”
United States v. Tingle, 658 F.2d 1332, 1336 (9th Cir. 1981); see also
Lynumn v. Illinois, 372 U.S. 528, 534, 83 S. Ct. 917, 920, 9 L. Ed. 2d
922, 926 (1963) (finding confession involuntary when police told
defendant, absent a confession, state financial aid for defendant’s child
would be cut off); United States v. Groves, 470 F.3d 311, 322 (7th Cir.
2006) (“Any level of threats or coercion related to [defendant’s] child
would weigh against a finding of voluntariness.”). But see United States
v. Lee, 618 F.3d 667, 677 (7th Cir. 2010) (finding officer statement that
defendant “had a lot at stake” and that he had three young children to
think about did not, by itself, make the confession involuntary). We hold
Polk’s confession was rendered inadmissible by Monroe’s promise of
leniency.
IV. Conclusion.
For these reasons, we conclude the district court erred in denying
Polk’s motion to suppress his confession. Because we find Polk’s
confession followed an impermissible promise of leniency, we need not
address Polk’s Miranda claim. We vacate the court of appeals decision,
reverse Polk’s convictions and sentences, and remand the case for a new
trial.

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COURT OF APPEALS DECISION VACATED; DISTRICT COURT
JUDGMENT REVERSED; CASE REMANDED FOR NEW TRIAL.
All justices concur except Mansfield, J., who takes no part.

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