A Natrona County District Court judge decided Monday to prevent admission of an interview a sexual assault suspect gave because he didn’t understand the consequences of speaking to police.
Levi Zitterkopf in March pleaded not guilty by reason of mental deficiency to a charge of first-degree sexual assault.
Zitterkopf briefly appeared on a History Channel show that chronicled the work of logging crews across the country, including his father’s business.
Patrick Lewallen, Zitterkopf’s public defender, told Judge Catherine Wilking on Monday that his client did not have the legal understanding necessary to waive his Miranda rights when he agreed to speak to a detective investigating the case.
Prosecutor Kevin Taheri told Wilking in the 55-minute morning hearing that the interview should be allowed as evidence because the police had not practiced overreach, trickery or coercion.
“This is a straight up waiver case,” Taheri said in closing remarks. “He waived his Miranda rights.”
Wilking said the prosecution had failed to present evidence that would make its case on Monday afternoon when she handed down her decision.
Police must read a warning to suspects in criminal cases. The warning, which is commonly known as informing a suspect of their Miranda rights, includes telling a suspect that he or she has the right to remain silent, that anything the suspect says can be used against him or her in court, that he or she can have a lawyer present and that he or she can stop answering questions at any time.
Zitterkopf signed a form waiving his rights, but Lewallen said on Monday that the defendant did not make that decision knowingly or intelligently. Lewallen said that Zitterkopf’s mental deficiency kept him from understanding the meaning of the form.
Zitterkopf was in special education classes before he dropped out of school.
Monday’s hearing began with Wilking swearing in Dr. Mark Watt so he could testify by phone.
After Watt told the judge his right hand was raised and took an oath, he spoke at length about the mental competency exam that Watt administered to Zitterkopf at the court’s request.
The doctor could be heard flipping through pages in his records before telling Lewallen that Zitterkopf had scored an IQ of 77 on the exam, lower than 94 percent of the population. Watt said that Zitterkopf was competent to stand trial, provided legal concepts were explained to him as if he were an adolescent. The doctor also said it would be helpful to have Zitterkopf repeat his understanding of ideas, in order to ensure he understands what is being discussed.
During Taheri’s cross-examination of the doctor, the prosecutor asked about other intelligence tests the defendant had undergone. The doctor said Zitterkopf had received a score of 94 on a different, more in-depth examination. Watt did not administer that exam, but he said it was likely more accurate.
“You cannot fake being smarter than you are,” Watt said.
Casper police Detective Jonathan Peterson took the stand next. The detective told Taheri that he had twice asked Zitterkopf if he had any questions after reading the suspect his rights. Zitterkopf said no, according to Peterson.
Peterson said the only question Zitterkopf had for him was regarding the meaning of “coercion,” which the detective explained.
The exchange about coercion was recorded along with the rest of the interview. Taheri played that portion from his laptop for the courtroom and it matched what Peterson said.
Under cross-examination, the detective told Lewallen that he does not change his Miranda warning technique based on a suspect’s age.
After the attorneys made their closing statements, Wilking said she would listen to the full recording during her lunch break and return at 2:30 p.m. with a ruling.
The judge returned to the courtroom and said she had listened to the interview recording and considered whether Zitterkopf had knowingly and intelligently waived his right to remain silent. The detective told Zitterkopf he would answer the questions but did not do so, in contrast to his testimony Monday, Wilking said.
Wilking said she considered the doctor’s testimony and cited Zitterkopf’s low reading comprehension score on his intelligence examinations. She then said she wanted to know if Zitterkopf was employed or employable. The recording indicated he had worked previously, but she had no more information to go on, she said.
Finally, the judge considered whether Zitterkopf had enough experience with the criminal justice system to know what he was doing when he waived his rights. Wilking said that was unclear to her, but noted that Zitterkopf incorrectly used legal terms in the interview.
“There was minimal evidence presented by the state at the hearing this morning,” Wilking said.
She then said she would order Zitterkopf’s statements suppressed and adjourned the second half of the hearing 14 minutes after it began.
Prosecutors charged Zitterkopf with first-degree sexual assault in September 2016. If convicted, Zitterkopf could face up to 50 years in prison and a $10,000 fine. He remained free on bail Monday afternoon.