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IN THE COURT OF APPEALS OF IOWA No. 0-611 / 09-0522 Filed December 8, 2010

STATE OF IOWA, Plaintiff-Appellee, vs. MARTAVES DESHONE KEYS, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, George L. Stigler, Judge.

A defendant appeals his judgment and sentence, contending the district court (1) should have suppressed statements he made to police and others, (2) should have granted him a new trial based on what he asserts was juror misconduct, and (3) erred in giving certain jury instructions. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Joel Dalrymple and Brook Jacobsen, Assistant County Attorneys, for appellee.

Heard by Vogel, P.J., Vaitheswaran, J., and Huitink, S.J.* Tabor, J., takes no part. *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).

2 VAITHESWARAN, J. Martaves Keys appeals his judgment and sentence for two counts of firstdegree murder. He contends the district court (1) should have suppressed

statements he made to police and others, (2) should have granted him a new trial based on what he asserts was juror misconduct, and (3) erred in giving certain jury instructions. I. Background Facts and Proceedings Two individuals were found dead of gunshot wounds inside a vehicle in Waterloo. Police officers picked up Martaves Keys and conducted a recorded interview for approximately four hours. During the interview, Keys admitted he was in the vehicle at the time of the shootings but denied firing the shots. He pointed the finger at another individual and expressed fear that this individual would assault him. Following the interview, police officers transported Keys to a hotel and posted officers at the door of his room. The next morning, they returned him to the police station and interviewed him on and off for approximately nine hours. This interview was also recorded. Within the first hour of the second interview, officers administered a polygraph test. The interrogating officer later told Keys the test came back

truthful. The officer continued his questioning. After several hours, the interrogating officer allowed Keys to visit with his girlfriend in the interrogation room. The video recording device continued to run during their conversation. When the officer returned, he elicited a confession

3 from Keys to both shootings. The officer then left and Keys continued his

conversation with his girlfriend, who was still in the interrogation room. He also had a telephone conversation with his mother. continued to run. The State subsequently charged Keys with two counts of first-degree murder. Keys moved to suppress the statements he made, citing the United States and Iowa constitutions. The district court denied the motion. At trial, the State played for the jury Keys`s videotaped confession and the videotape of his conversations with his girlfriend and mother. The jury found Keys guilty of both counts of first-degree murder. Keys filed a motion for new trial based on an allegation of juror misconduct. The district court denied the motion and imposed judgment and sentence. appeal followed. II. Suppression Ruling A. Miranda Waiver Statements made by a suspect during a custodial interrogation are inadmissible unless a suspect is specifically warned of his or her Miranda rights and freely decides to forgo those rights. 251 (Iowa 2009).1 Keys asserts he did not freely decide to forgo his Miranda rights. Once this type of issue is raised, the State must prove by a preponderance of the evidence that the waiver [of the suspect`s Miranda rights] was knowingly, State v. Ortiz, 766 N.W.2d 244, This The video recording device

1

Miranda v. Arizona, 384 U.S. 436, 473

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