*1 Dаkota, STATE of North Plaintiff Respondent, Leroy IVERSON,
James Defendant Appellant.
Crim. Nos.
Supreme Court of North Dakota.
April 8, 1971. Rehearing
As Amended Denied May 13, 1971.
Shaft, Benson, McConn, Shaft & Grand Forks, for appellant. defendant and Helgi Johanneson, Atty. Bismarck, Gen., Alphson, Atty., A. State’s John Alphson, Robert Atty., Asst. State’s Grand Forks, plaintiff respondent. ERICKSTAD, Judge (on reassignment). 2, 1969, May Leroy On James guilty jury was found in the District Court, County, Grand Forks of the crime of murder in degree the first of Diane Pa- tricia Bill and of the crime of murder in the second degree of Mayers, Carol the two having cases been consolidated for trial. On 9,May 1969, Iverson was sentenced to life imprisonment at hard labor for murder in degree the first and to an indeterminate *10 \\ labor found at the scene at hard lowcase was used imprisonment as the of sentence mur- thirty years given for source of the scent twenty-five to to the from blood- by The trail degree, the sentences hound. followed der the second the blood- alley hound ended outside concurrently. apart- run .the ment. After the bloodhound had been used 1969, appealed to this Iverson July On crime, at the scene of the the pillowcase May verdicts rendered court from the and the brought bloodhound were po- to the judgments of from lice m., station at approximately p. 5:15 9,May 1969. entered on District Court just when Iverson had completed testifying 17, 1969, appealed November On Attorney’s at Inquiry. State’s The Dis- of the this court from the order bloodhound, having given been a scent from for a new denying his motion trict Court pillowcase again, once followed a trail all opinion we will consider trial. In this that led to Iverson. issues. permitted Iverson was po- to leave the morning in the of approximately At 10:30 station, lice but later that evening, ap- at city in the Wednesday, November 8:00, proximately while bowling he was Forks, May- bodies of Carol of Grand league, with his Iverson was taken into Bill were discovered and Diane Patricia ers custody by Attorney the State’s and his by Mayers of apartment Carol administrative Subsequently, up- assistant. Bill Diane Bill. Mr. and Mrs. parents of on affidavits several investigating of- looking daughter for their after gone had ficers, a search warrant was issued author- employer call from her receiving phone a izing a search of Iverson’s automobile and that Diane had informing them and Carol residence. In the course of the search up at for the second failed to show work residence, coat, towel, of his a a and pair morning. The indi- consecutive record of trousers were seized. After he was tak- although Diane had her cates that own custody, en into Iverson was advised apartment working and had with rights interrogated. and was His state- weeks, for a she had Carol few on several statements, ments were taken down. These apartment occasions walked to so Carol’s together testimony with his at the State’s they go together. girls could work Both Attorney’s Inquiry, between were used to be work 6:30 and 7:00 State every morning. autopsy performed An impeachment purposes in the course of day later that established that Carol died Iverson’s trial. asphyxiation,
from traumatic findings with compatible strangulation, with and that Di- Iverson raises several constitutional is- ane died from asphyxiation, traumatic with sues, goes the first of which to the conduct findings compatible manual strangu- Attorney’s Inquiry. State’s lation. 11-19A-09, N.D.C.C., provides that when attorney cognizant state’s becomes investigation begun by An City causing person’s violation or act criminal Department Forks Grand Police death, may inquire into the facts and County Attorney’s Forks Grand State’s may subpoena testify. witnesses to The investigation continued Office. attorney statute authorizes the state’s throughout day discovery compel the attendance witnesses in the bodies, Wednesday, November same manner and with the same effect police investigating While officers were subpoenaed by as if had been crime, attorney scene of the the State’s judicial stat- government. The branch of conducting Attorney’s Inquiry State’s that, provides “Any ute witness com- also into these deaths. provisions pelled testify under the counsel and part investigation As section shall be entitled to at Carol’s apartment, rights.” all pil- bloodhound was used. A other constitutional persons subpoenaed
Three
himself,
in violation of Section 13 of the
testified
Attorney’s Inquiry
at the State’s
Constitution of North Dakota and in vio-
held
Attorney
State’s
the after-
lation of
the Fifth
Amendment
Wednesday,
noon of
November
1968. Constitution of the United States
made
*11
Shepler
p.
Robert
applicable
E.
testified at 3:00 m.
to the
through
states
the Four-
roommate,
Gustafson,
His
Bruce
testified
teenth
Malloy
Amendment in
Hogan,
at
p.
Shepler
1,
3:45 m.
and
1489,
Gustafson lived U.S.
84 S.Ct.
What is you I can wish? tell that designed wrap up against case a sus the matter inquiry is the fact pect. of a double murder or at least a homicide of one nature. hold, therefore, where, “We that here, the investigation longer is no Okay.
“A.
general
inquiry into an unsolved crime
but
begun
has
particular
to focus on a
“Q. Okay what?
suspect,
suspect
has been taken into
police custody,
Well,
police carry
you
out a
proceed.
“A.
The
said —
process
interrogations
that
lends it
right
statement
all
with me.
eliciting
statements,
self to
incriminating
“Q.
right.
All
suspect
requested
has
and been de
nied
opportunity
an
his
consult with
“A.
I don’t understand it.
lawyer,
police
and the
have not effective
Iverson,
“Q.
right.
All
Mr.
now we
ly warned him
his
absolute constitu
talking
accounting
your
are
about
for
tional right
silent,
to remain
the accused
Monday.”
approximately
time
3:30
from
has been denied ‘the Assistance of
Counsel’ in violation of the
Amend
Sixth
proceedings
alleges that
these
* * *
ment to the Constitution
and
were
in that he was not
unconstitutional
that
police
no statement elicited
given
warnings required by Miranda
during
interrogation
may be used
Arizona,
1602, 16
384 U.S.
86 S.Ct.
against him at a criminal
Esco
trial.”
He
(1966).
L.Ed.2d
could not refuse to answer granted be to an accused testify against which must compelled thus was designed right not to methods protect Amendment to elicit confessions. his Fifth As a psychologically himself. These methods are rather be to incriminate compelled decision, physically held than oriented. result individual clearly be informed interrogation must subject “To alone with the be es- to have right to counsel and that has the prevent sential distraction interroga- any lawyer during his him deprive support. him of outside silent; ; right to rеmain tion that he has the guilt aura of un- confidence in anything stated him can be used merely dermines his will He to resist. him; is an if he against evidence police preconceived story the confirms the appointed for indigent lawyer will be Patience seek to have him describe. him; must warnings these ques- persistence, relentless times *12 any Once given prior interrogation. employed. To a con- tioning, are obtain the given and warnings these have been fession, ‘patiently interrogator the must he any indicates individual manner himself into a quarry maneuver his or silent, interrogation wishes the to remain position objective from which the desired must cease. may pro- be attained.’ normal When state- produce result, use prosecution not fail cedures the needed “[T]he inculpa- ments, exculpatory police may deceptive or whether the resort to strat- interroga- tory, stemming agems giving legal from custodial such as false advice. it demon- important keep subject tion unless It is of the defendant the off safeguards balance, procedural example, by trading the use of for on strates his against privilege insecurity the about his effective to secure himself or surround- By trick, inter- ings. police persuade, self-incrimination. custodial The then rogation, questioning initiated cajole exercising we mean or him out of con- after by rights. officers law enforcement stitutional custody or person taken has been into brutality, employing “Even without the of deprived freedom otherwise of his stratagems degree’ specific ‘third or the significant way.” any action above, very described the fact of cus- heavy Court inserted footnote point interrogation At the todial exacts a toll liberty on the 4: on individual and trades weakness of Miranda v. individuals.” in Escobedo is what we meant “This Arizona, supra, 86 1618. S.Ct. investigation an which spoke of when we Miranda Following analysis had accused.” its of interro- focused these 1602, 1612. Arizona, methods, supra, gation foregoing S.Ct. of which part, is but a small stated: the Court preliminary matters discussed proper have concluded that without “We Inquiry Attorney’s Iverson at State’s in-custody safeguards process in- of warnings required fell short terrogation persons suspected or ac- alleges that Although Miranda. Iverson inherently com- cused crime contains warnings, he was entitled to these pelling to under- pressures work at real the time issue is whether mine the individual’s will to resist and Attorney’s Inquiry had the status State’s compel speak him to where he would the Miranda warn- person to whom freely. In order not otherwise do so is, time ings given. That at the must be permit pressures these and to combat Attorney’s Inquiry, was of the State’s privi- opportunity full to exercise witness, suspect Iverson a or was he the self-incrimination, the lege against ac- investigation? or the focus of effectively must be adequately cused apprised rights of his exercise Supreme In Miranda the S. U. rights fully of those must be honored.” police interrogation certain condemned necessary take probable cause Miranda supplied.] [Emphasis custody. decided into the four cases Arizona, supra, in each in Miranda defendant case not reading of Miranda is Our up” before he “picked had been arrested or process every person questioned in interrogation subjected to custodial given investigation must be of a criminal condemned which some of the methods rather warnings, but the Miranda periods rang- for Miranda used any per- warnings given must be these days. ing to five Not from several hours suspected having committed son who probable for Iverson’s only was cause crime, upon investigation whom lacking Inquiry, at arrest the time of is focused. progress but so also was substantial investigation. toas questioning on-the-scene “General gen- other surrounding facts crime At time that Iverson arrived questioning citizens eral fact- police Inquiry, station investi- process is affected our finding gation was old. The seven hours responsible holding. It is an act determined; cause of death had not give what- citizenship for individuals to length girls had been de- time the aid may have to ever information known; ceased was not witnesses situations law enforcement. In such *13 been found who had heard observed inherent compelling atmosphere the anything relating girls the unusual to interrogation process in-custody the of past days; the several substantial and necessarily present.” [Emphasis is not at revealing clues had not been found the Arizona, supra, supplied.] Miranda v. short, what scene crime. the 1602, 1629, 86 S.Ct. investiga- record reveals full-scale that a being tion was and that the conducted words, the Fifth neither In other investigators seeking any and were all Amendment to the United Consti States explain information that the would deaths is its counter tution nor Section which young women, up the two and that to part Constitution, requires that in our State including the and time of the At- State’s every in a criminal questioned witness torney’s Inquiry, being the information Miranda fact-finding process given the gathered from all had sources warnings. correlated. suspect been a the focus Had Iverson investigation time of at the Legislature The viewed conse Attorney’s his Fifth Inquiry, State’s causing quences of criminal act death constitutional Amendment and Section 13 procedure, serious that so it created by the rights have been violated would 11-19A-09, N.D.C.C., wherein warnings. give to him Miranda failure compelled persons subpoenaed could be and At- time Whether at the State’s any testify concerning such criminal torney’s suspect he or wheth- Inquiry was a Attorney The in this act. State’s case upon him investigation er the had focused statutory merely made use of the tool question be determined of fact provided three him. Each men ar- he later from the record. That subpoenaed testify at the At- State’s rested and convicted of two counts torney’s Inquiry questioned prove he was the murder does not that Attorney, two presence po- of the State’s investigation at suspect or focus of the detectives, reporter lice and court who Inquiry. Attorney’s the time of the State’s A proceedings. reading transcribed proceedings of those that indicates in- up and record of The events interrogations (approximately were short Inquiry does cluding Attorney’s the State’s questions each) half an hour and that the facts sufficient establish not reveal approximately prior discovery a week called were of the witnesses asked but the bodies and inquisitorial, were Carol Diane. accusatorial or any merely designed to elicit information Shepler also. testified that as to Carol’s ' investigation. that would assist visitors, just male “It seemed to me that complete, the proceedings were When the there guys were about two or three These permitted witnesses leave. were regular, came and either pretty one of them the custodial proceedings do not resemble something wrong had a bum or leg with his interrogation condemned methods leg, you way because could tell Miranda. foot would hit walked. One heavier than the other.” Attorney’s questioning The State’s ques- Shepler prior to the Gustafson had Gustafson also noticed this one visi- no informa-
tioning of Iverson revealed testimony tor His his walk. was as fol- man tion lead a reasonable which would lows: upon suspect, to believe that Iverson was “Q you Do know males who investigation would have focused. whom frequent apartment ? Shepler and Gustafson testified Well, funny, “A this sounds but there apartment directly their below Carol’s guy. is one in during Bob was the sum- registers and that there wеre two between him mer. He had seen I come. apartments Shepler through their once, him but they heard called him the hear and Gustafson could sounds see one-legged guy funny because it was light coming apartment. from Carol’s way up he walked down stairs. physics They graduate students something wrong. I could tell there was University of North Dakota in Grand steps cadence was different study They developed Forks. certain normal, person’s than than a normal walk They patterns. leisure-time habit up and down the stairs. hit— One foot *14 sleep morning; attend would late each hit, when one foot it would sound dif- University classes and activities at Naturally than other ferent foot. we during day; supper eat and watch thought he had an was lame or artificial while; apartment television their at for a something leg or like I that. heard study at their offices then leave him Then I think sometime Oc- once. physics building, usually in the 2:00 until guy. heard one tober we We used to they morning, in the after which would stairs, go up hear him and down but apartment return their and retire. Both you people going up hear and down stairs regular men testified that had several Carol night morning. at and late Usu- apart- male visitors who would come to her ally guy, this one this one we called the very early in morning (around ment one-legged guy, would come late in the 2:00 3:00). or morning, early morning in the about 3:00 And times—sometime in o’clock. other Shepler testified that he heard someone guy up came about October one there apartment get up Carol’s turn off morning 2:00 or 3:00 and knocked approximately alarm clock that rang let him on the door and she in. It sound- Tuesday morning, 3:15 November ed like he was little drunk because He stated that footsteps he heard beer, her, kept asking he have one ‘Just sounded like Carol’s. That was last Carol, said, go.’ and I will And she coming sound that either of them heard ‘Jesus, morning. it’s 3:30 in the Get out apartment. Shepler from Carol’s of here.’ He wanted one beer. have they Gustafson heard no testified that Meanwhile, must have had friend unusual or from sounds commotion Carol’s out in car because then one more man apartment, any and that heard had not up came the stairs. And she him called apartment male visitors at Carol’s the only That’s name we heard. Jim. “Q “Q ? company? She called him What cab Jim “A Yes. “A A sign, black cab with a red I Now, guess Nodak. whether this cab anything “Q there unusual as Was going place pick next door to or mannerism? talk Jim’s somebody up place, and take them some Well, didn’t see him. All we “A we I don’t know.” his He didn’t sound heard was voicе. angry anything.” be noted that Iverson’s first It should Jim; being name is that at the time of testimony he in his was asked: Later on custody employed into he was taken Gustafson, you “Q this man call Mr. Cab; for Nodak and that he has an driver man, one one-legged is he the same injured leg requires the use of heavi- that Carol called ly significant It is shoe. note built-up Jim? stated that one- also that Gustafson two different “A There were No. legged man and were two different Jim men. persons. significant It is also neither one-legged man went “Q I see. Shepler nor male Gustafson noticed upstairs first? apartment within a week visitor Carol’s murder, particularly one-legged of her think one-legged man. I “A Not the man, walk was so whose noticeable. night Thurs- Thursday last —not Wednesday or say maybe last day. I’d is that at time conclusion Our that last week. Tuesday night of Attorney’s Inquiry, Iverson State’s “Q night you heard some- But the merely of informa possible source party up and later on another one come suspect and was not a focus tion Jim, name up and she used the came Accordingly, there was investigation. one-legged night you heard the give the Miranda warn no need to up? goman ings at that time. totally different noise. It’s a “A No. however, problem posed, An additional October, exactly That was sometime “custodial in- Miranda definition of by the when, I don’t know.” “questioning initiated terrogation” as testimony fol- concluded as Gustafson’s person after a enforcement officers has law lows : de- custody or otherwise into been taken *15 any sig- action his freedom of prived of any time you At “Q Let me ask this: Arizona, supra, way.” v. Miranda nificant out- parked you an automobile have seen 1602, It must be conceded 1612. 86 S.Ct. with associated have been side that compulsion under that one who testifies truck, automobile, apartment, of action his freedom subpoena has of a taxi-cab, anything? ap- way, as he must significant in a limited quite a few cars There are It would compulsion
“A No. law. pear under I have subpoenaed and some to tes- park anyone out there then that appear you apartments. warnings But placed Miranda given with certain tify must be with way suspect any if of them are associated no a ask he is in though even don’t know. I A sub- apartments investigation. certain there. of the the focus however, tool of the primary is the poena, a taxi-cab seen you Have ever “Q process fact-finding one jury, grand parked out there ? to the Fifth Amendment into the written Miranda And in a once Constitution. comes States “A A taxi-cab that United that, ques- “general provides no- specifically have place to the next door. I while fact-finding pro- tioning citizens ticed that.
17
subpoena
effect of
is to
holding.”
compel
Mir-
a
a
witness
not affected
our
cess is
1602,
to
legal proceeding
testify.
attend a
Arizona, supra, 86
1629.
to
S.Ct.
anda v.
power
compel
This
to
the attendance and
Attorney’s Inquiry is
The State’s
testimony
sys-
is
of witness
basic
our
to
grand
v.
jury.
to the
State
analogous
tem of
jurisprudence
long
has
been
216,
969,
P.2d
2d
429
19 Utah
Ruggeri,
recognized.
States,
v. United
su-
Shillitani
Supreme Court
Utah
(1967),
973
1531, 1535;
pra, 86 S.Ct.
United States v.
the district court
the decision
affirmed
323,
Bryan,
724, 730,
339
70 S.Ct.
94
U.S.
testimony
certain
holding
inadmissible
States,
Blair v.
(1950);
L.Ed. 884
United
grand jury when the
given
wit
before
468,
273,
470,
250 U.S.
S.Ct.
63 L.Ed.
39
testify
to
subpoenaed
grand
before
ness
Caldwell,
Application of
311
(1919);
979
of its
target
investiga
jury
in fact the
F.Supp. 358,
It is
(D.C.N.D.Cal.1970).
360
right
of the
recognized
The
tion.
duty
every ques-
of a
to
witness
answer
testify.
to
grand jury
compel
witnesses
subject
inquiry.
tion
to the
relevant
recognized by
is also
Shillitani
right
468,
This
States, supra,
Blair v. United
39 S.Ct.
364,
States,
U.S.
86
v.
384
S.Ct.
Blake,
United
471;
386,
State
46
175
v.
Wis.2d
1535,
1531,
(1966). Rug
to the State’s arises recognized This court 1908 that, told from the fact Iverson was grand jury right before a of witness the ques- “You cannot refuse to answer right com not to be claim his 13 alleges Beer, tions.” Iverson that this statement In Re pelled to incriminate himself. compulsion by the alone constituted right, State This 17 115 N.W. N.D. deprived him constitutional however, claimed personal and must be rights. Implicit allegation in this Manning, 134 by the witness. State that, contrary, he contention should States (N.D.1965); United N.W.2d right have been advised of his to be (C.A.6th Luxenberg, F.2d testify compelled against himself. As we 419 F.2d 1967); v. United Gollaher that Iverson was witness have concluded 1969), cert. denied 396 525 (C.A.9th Attorney’s In- at the time of State’s L.Ed.2d U.S. 90 S.Ct. *16 quiry, we limit our this is- States, consideration 340 U.S. (1969); Rogers v. United question rights of sue to the a wit- 344, 367, 438, 440, A.L. 19 71 L.Ed. 95 S.Ct. ness under the Fifth Amendment and Sec- U.S. reheаring denied 341 R.2d (1951), 378 tion 13. 619, 912, (1951); 95 1348 71 S.Ct. L.Ed. 490, Merrell, F.Supp. 303 States v.
United Dil (D.C.N.D.N.Y.1969); v. 493 State testifying To advise a witness worth, 795, 363, 159 798 subpoena N.W.2d compulsion under of a that he 83 S.D. Furthermore, not a witness need questions (1968). cannot refuse to answer the is (and, improper, purpose his Fifth Amendment legal be advised of not 18 chief, to be in in the case 13) right his not admissible
correspondingly,
purposes.
impeachment
himself. United
for
incriminate
States v.
used
241, 246;
supra,
F.2d
Luxenberg,
374
say that
Gov-
thing to
one
‘It is
Fruchtman,
F.Supp.
282
United
v.
States
affirmative
make an
cannot
ernment
534,
1968);
(D.C.N.D. Ohio
United
536
unlawfully obtained.
of evidence
use
959,
DiMichele,
F.2d
960
v.
375
States
say
the de-
that
another to
quite
It is
States,
Robinson v. United
(C.A.3rd 1967);
illegal
method
turn
fendant can
1968); Beckley
(C.A.9th
F.2d
250
401
in the Government’s
which evidence
State,
(Alaska 1968).
54
443 P.2d
ad-
own
obtained to his
possession was
himself with
vantage,
provide
to Iver-
Attorney’s admonition
The State’s
his un-
against
shield
contradiction
refuse to answer
son that he could not
extension
Such
truths.
superfluous,
to him was
questions submitted
United
doctrine
Weeks
[Weeks
subpoena to
under
required
as he was
States,
58
S.Ct.
34
U.S.
Having
con-
earlier
appear and answer.
perversion
be a
would
L.Ed. 652]
subpoena
of a
compulsion
cluded that
the Fourth Amendment.
his con-
upon
is
violative
a witness
a statute
hold that
rights, we
stitutional
‘ *
**
hardly justifi-
[T]here
subpoena is not
merely
enforces
letting
affirm-
cation for
the defendant
rights. Ac-
constitutional
of his
violative
testimony
atively
perjurious
resort
in
statute
application of the
cordingly,
disa-
in
on the
reliance
Government’s
con-
not violate Iverson’s
did
this case
credibility.’ 347
bility
challenge his
rights.
stitutional
U.S. at
74 S.Ct.
have concluded
Notwithstanding that we
impeached
that
“It is true
Walder
Inquiry did
Attorney’s
that
State’s
in his
as to collateral matters included
Miranda, we
under
rights
Iverson’s
violate
petitioner
examination, whereas
direct
the U.S.
note that
significant
think
testimony
impeached
bear-
here was
as to
effect
Supreme Court
confined
has
charged.
ing
directly
more
on the crimes
used
evidence
illegally
obtained
Miranda
is a
persuaded that
there
are not
We
in chief.
prosecution in its case
principle
in
that warrants
difference
York,
v. New
Harris
U.S.
by the
that reached
result different from
allowed
(1971),
L.Ed.2d
*
* *
impeach-
in
Walder.
by an accused
violation
statement made
undoubtedly provided
process
ment
here
impeach
rights
of Miranda
to be used to
peti-
jury
assessing
aid to the
valuable
to testify
him when he took
stand
credibility, and
tioner’s
the benefits
his own behalf.
lost, in our
process
should not be
view,
possibil-
speculative
because of
prosecution
frоm
“Miranda barred
ity
conduct will
impermissible police
making
of an
its case with statements
thereby. Assuming
encouraged
be
custody prior
accused
made while
exclusionary rule has a
ef-
deterrent
having
waiving
effectively
counsel.
conduct, suffi-
proscribed
fect on
police
It does not
from Miranda that
follow
deterrence flows when
evidence
cient
against
evidence inadmissible
an accused
question
is made unavailable to
prosecution’s
case in chief is barred
prosecution in its case in chief.
purposes, provided
all
course
“Every
privileged
criminal defendant
the trustworthiness of the
satis-
evidence
defense,
testify in
to refuse
his own
legal
fies
standards.
privilege
to do
But that
cannot
so.
“In Walder v. United
347 U.S.
right
construed to include
to commit
* * *
*17
74 S.Ct.
took the of the scratch marks and the observation that the trustworthiness question is no by him identification of a bloodhound oc- Attor the at the evidence obtained State’s Attorney’s curred at the of the State’s time standards; legal ac ney’s Inquiry satisfies absolutely knowledge Inquiry, no new was at the In cordingly, testimony Iverson’s by investigating received officers impeachment quiry properly was used for his cause arrest be made later notwithstanding that he was purposes, evening. Implicit this contention is given warnings at State’s the Miranda assertion that since his ultimate arrest was Attorney’s Inquiry. information, based on this which was known to investigating officers at the alleges that his arrest was Iverson next Attorney’s Inquiry, time of the State’s probable there unlawful in Inquiry should have halted and the been cause to that he had committed believe warnings given Miranda should been have time of his arrest and offense at the to him. that it was not made accordance Accordingly, he con- arrest statutes. not clear record is as to when the tends that from him a handkerchief seized place. identification There bloodhound took by subsеquent and testimony given him place during is evidence that it took a break improperly his arrest admitted evi- testimony Inquiry. in Iverson’s at dence products as of an unlawful arrest. However, reading questions asked after this break does not indicate that Iverson custody was taken into suspect. Iverson was a There is also evi- County Attorney Grand Forks State’s dence that the bloodhound identification his shortly administrative assistant after place took Inquiry completed after the m., p. 27, 1968, 8:00 Wednesday, November case, as to Iverson. this were If at a bowling alley. Grand Forks While the fact that he was released indicates that he Attorney State’s waited from the away Also, was not a suspect. a bloodhound bowlers, his administrative assistant twice point identification at would have had bowling. observed as Iverson he was Al- upon no effect testimony Inquiry at the though long-sleeved wearing Iverson was just completed. shirt, Attorney’s the State’s administrative assistant, Novacek, Leo that Iver- observed As observation of son had scratch marks his hand on marks, scratch these escaped the scratches neck, verifying thus observations made notice of the Attorney State’s and the oth one of the detectives at the Attor- State’s er present detective Inquiry. This ney’s Inquiry. observation did any par alone not take on Apparently, between the time significance Iverson ticular reported until it was released from the Attorney’s State’s after the Inquiry was completed and cor Inquiry and the time the Attorney State’s related with produced the other information and his administrative assistant went to the the investigation. This observation took bowling alley Iverson, to observe significance, Grand however, coupled when Forks Department Police and the with the State’s facts that a bloodhound had identi Attorney’s Office correlated in- fied various source of scent *18 investigation upon of the caused the scene focus pillowcase
on the
found at the
Iverson. The
marks were not men-
crime;
autopsies
revealed that
scratch
had
that the
they
during
Inquiry
24 to 48 tioned
the
nor were
from
girls
both
been dead
pointed
Attorney
to the
out
State’s
who
hours;
as a result of
that Carol died
conducting
investigation.
the
as a was
strangulation, and that Diane died
strangulation;
that Iver-
result of manual
The correlation
all the informa
Attor-
testimony
at the
son in
State’s
investigators
gave
tion
the
reasonable
knocking on
ney’s
had admitted
Inquiry
grounds to believe that Iverson had com
apartment
approxi-
at
the door of Carol’s
But,
mitted the
At
murders.
as the State’s
m.,
mately
Tuesday, November
6:00 a.
torney and the
other detective had failed
placed
which
him the scene
Inquiry,
observe the
marks
scratch
at the
period
crime within the
in which
24-hour
prudent
they
that
be verified before the
autopsies
girls
the
revealed the
were
investigating
officials
that
concluded
strangled. From these facts it would be
grounds
had reasonable
to believe Iverson
reasonable to assume that when attacked
had committed the murders.
Once
girls
fought
weap-
would have
verified,
marks
scratch
had been
reason
fingernails
ons available—their hands and
grounds
able
were
justify
established to
ar
expected
that their
—and
assailant could be
resting Iverson
pursuant
without warrant
to bear scratch marks.
the corre-
Without
N.D.C.C.,
Section 29-06-20(3),
information,
lation of all this
the observa-
provides that:
tion
these scratch
marks
detective
Inquiry
and unannounced at
private
did not
“29-06—20.
person
When
private
arrest. —A
give
person may
sufficient
cause
Attor-
arrest
State’s
another:
ney
conducting
Inquiry
who was
warnings to Iverson.
stop
Inquiry
give
the Miranda
[*]
“3. When a felony has been in fact
[*]
[*]
[*]
[*]
[*]
committed, and he has
ground
reasonable
Fisher,
The case of Commonwealth v.
person
believe the
arrested to have
354 Mass.
(1968),
N.E.2d
committed it.”
by Iverson,
here,
cited
inapplicable
itas
can be distinguished on its facts.
In Fish-
The term
ground
reasonable
to be
er,
police
recalled a witness to ex-
lieve that
person
arrested has committed
plain
discrepancies
testimony
certain
in his
the felony is substantially equivalent to
given
investigation
earlier
into- the
the probable-cause requirement of
murder of a
During
woman.
the interroga-
Fourth Amendment
U. S. Constitu
tion the officers noticed scratch marks
tion;
therefore, an arrest without a war
witness’s neck. The officers im-
rant
pursuant
made
to a statute satisfies
mediately questioned him about the scratch-
the Fourth Amendment
if
reasonable
shirt,
es and ordered him to take off his
grounds
Draper
exist.
v. United
revealing
point
At
more scratches.
329, 331,
358 U.S.
79 S.Ct.
3 L.Ed.2d
stopped
interrogation
the officers
Draper
Supreme
the U. S.
(1959).
rights.
him of his
advised
constitutional
held that:
Court
held
Supreme
Massachusetts
upon the wit-
investigation
question for us then
focused
crucial
“The
knowledge
no-
related facts
the scratches
whether
ness the moment
‘probable
although
gave
Marsh
case, however,
and circumstances
ticed.
In our
meaning
Fourth
during his tes-
cause’ within
scratch
were noticed
marks
Amendment,
grounds’
‘reasonable
Inquiry,
timony
Attorney’s
State’s
at the
*
* *
104(a)
meаning of
that this
within the
§
there is no evidence to indicate
had committed
petitioner
observation,
subse-
to believe
being
without
correlated
nar-
committing violation of
information,
or was
quently with all
the other
*19
did,
arrest,
If it
though
cotic laws.
“MR. ALPHSON:
I’ll object to this
”
* * *
warrant,
without a
was lawful
conversation as hearsay.
point
at
In a footnote
this
the Court
“THE COURT:
objection
is sus-
tained
added:
as to what
Alphson
Mr.
said.
“Q.
(By Mr. Rubin) Then
hap-
what
‘probable
as
in
“The terms
cause’
used
pened ?
and ‘reasonable
the Fourth Amendment
Nar-
grounds’
104(a)
as used
§
Alphson
“A. Mr.
and Mr. Novacek
Act,
Control
70 Stat.
are sub-
cotic
forced me to the basement
Up-
equivalents of the same mean-
stantial
town.
ing.”
supra,
Draper v. United
“Q. They what?
329, “A. Forced me in the basement
ground
Accordingly, “reasonable
to be-
Uptown.
person arrested has committed a
lieve” the
felony
“probable-cause”
satisfies
re-
They
you
“Q.
forced
in there ?
18 of the
Da-
quirement
North
Yes.
“A.
Constitution,
language
as
kota
its
virtu-
ally
Amend-
identical to
Fourth
Alphson and Mr. Novacek?
“Q. Mr.
ment to the U.
Constitution.
S.
a hand on his
Novacek had
“A. Yes.
said,
move,
you
‘If
make a
I
gun
pursuant
An arrest
to a state stat
shoot’.
will
arrest,
providing
ute
for a citizen’s
al
warrant,
though made without a
is valid if
object.
I
ALPHSON:
“MR.
“reasonable cause” exists. United States
Sustained.
“THE COURT:
Montos,
(C.A.5th
421 F.2d
1970); cert. denied 397 U.S.
90 S.Ct.
hap-
Then what
Rubin)
Mr.
“Q.
(By
(1970). This
shoulder and ‘Mr. [the happened? “Q. Then what Attorney] would like to talk to State’s you.’ Alphson building was in the Mr. said, you better, ‘You Novacek “A. said, the street and I towards entrance arrest.’ are under ‘Okay’. Alph- him I went with and Mr. ‘Well, basement, said, go let’s to the son happened? Then “Q. what something I I like to have would discuss I he said said, I took them off when you.’ And I could have “A. ‘We just right them under arrest. well discussed here.’ happened next?
“Q. meaning 29-05-10, What of Section N.D. They checked the scratches and C.C.), “A. must be tested govern- the law my put ing told me shirt back on and took private arrest person. An arrest upstairs. I told them I wanted me back fact situation, made since my bowling my change from shoes actually Iverson was restrained regular persons and Novacek followed me shoes making the arrest.
through the bowlers were bowl- where How arrest “29-06-09. ar- made.—An ing and I locker room where *20 by rest is made an actual restraint of the changed my shoes.” person defendant, of by or his sub- [*] [*] [*] [*] [*] [*] mission to the custody person mak- brought “A. Novacek ing me—followed the arrest.” N.D.C.C. gun way
me with his hand on his all the The authority making this ar from the locker room to the anteroom rest is found in Section 29-06-20(3), N.D. going said, out there and he ‘Stand still! C.C., previously as set forth opin in this a police coming pick have officer We ion. The State’s Attorney and his admin you up.’ assistant, istrative as private persons, knew “Q. happened? Then what felony that a had been committed and had grounds reasonable to believe that Iverson Hinsz, “A. Officer Hinsz or I think Iverson, however, committed it. con it is— unlawful, tends that this arrest was “Q. Yes? that he was not informed of the cause required the arrest by 29-06-21, Section said, ‘Jim, “A. Came N.D.C.C. you police want at down station.’ said, ‘Okay’.” And I person Must “29-06-21. inform cause private person arrest.—A mak- At the preliminary hearing, Officer ing person 'an arrest must inform the stated Hinsz that he arrested Iverson him, be arrested intention to arrest hours, 27, 2000 Wednesday, November arrest, and of the cause of the unless: 1968. Iverson contends that by his arrest person to “1. The be arrested then is unlawful, Officer Hinsz was as he did not engaged in the commission an of- authority his state or the cause of the ar- ; fense required by 29-06-17, rest as Section N.D. C.C., when officer makes an arrest with- person pursued is immedi- “2. Such out warrant. But from Iverson’s own ately after its commission or after an testimony testimony and from the Leo escape; Novacek, apparent it is that he was arrested by Attorney the State’s and his administra- forcibly re- person flees or “3. Such assistant, tive and not Officer Hinsz. person making the sists before the him; inform opportunity to arrest has 29-06-02, N.D.C.C., pro Section or vides may that an arrest be made of such information officer, giving peace “4. warrant, with or without a or imperil arrest.” private will person. 29-05-10, N.D.C.C., peace defines officer as foregoing excep
“sheriff none of the county of a Since deputy, or his aor coroner, constable, marshal, applicable, Iverson policeman tions to the statute of a city, of the cause township, village.” was entitled to be informed As Iver- Notwithstanding son’s arrest that Iverson accomplished by his arrest. State’s verbally Attorney informed of and his administrative assistant not have arrest, (neither are satisfied of his we peace of whom a officer cause with-
23
magistrate
of his arrest and
not taken before the
until 12:15
the circumstances
Inquiry
m., Thursday,
Attorney’s
conducted
November
1968. At
a.
the State’s
earlier,
arrest,
in which Iverson testi
trans-
hours
the time of
Iverson was
three
witness, provided him sufficient
ported
police
Forks
station.
fied as
to the Grand
his arrest
person
photo-
of the cause of
so
notice
The scratches on his
was accom
objective
statute
to ex-
graphed
physician
and a
was called
Kiser,
plished. Application of
83 S.D.
proper-
amine these scratches. Iverson was
Federal
602
(1968),
158
ly
rights by being given
N.W.2d
advised of his
F.Supp.
Corpus denied
Habeas
in-
warnings,
Miranda
after which he was
affirmed 419 F.2d
(D.C.S.D.1969),
terrogated.
reporter
A
recorded the entire
Mich
(C.A.8th 1969);
Schindelar v.
During
time
proceeding.
aud,
(C.A.6th 1969);
411 F.2d
authorizing presented
a warrant
Baxter,
United States v.
361 F.2d
residence and automobile
search of his
State, 256 N.E.
(C.A.6th 1966); Pullins v.
his arrest for the first
with warrants for
2d
556 (Ind.1970).
degree murders of Carol and Diane.
*21
Having
lawfully
by pri-
arrested
delay of
are satisfied that this
We
persons,
properly
vate
Iverson was
de-
four hours before Iverson
approximately
officer,
peace
Hinsz,
livered to a
Officer
magistrate
brought
was not
was
before
29-06-23,
required by
as
Section
N.D.C.C.
unnecessary
prejudice
and that no
per se
Bandy, 421 F.
States v.
resulted. United
private
by
Arrested
person
"29-06-23.
646,
three
(C.A.8th 1970) (Delay
648
2d
—Duty—Taken
magistrate.
before
—A
showing
days
prejudice);
no
State
private person who has arrested another
91,
Ramos,
196,
Ariz.App.
11
463 P.2d
offense,
for the
public
commission of a
delay
held not
was
(1969) (Eleven-hour
96
unnecessary delay,
without
must take him
State,
prejudicial); Dimsdle v.
456 P.2d
magistrate
before
or deliver him to a
621,
(Okl.Cr.1969),
622
cert. denied 396
peace officer.”
446,
966,
cause person, the officer or or some other person, to subscribe and make oath to As requirements to the constitutional complaint such and to file it.” complaint, Supreme U. S. Giordenello v. United 357 U.S. required complaint contents of a are (1958) L.Ed.2d 1503 stated: 29-05-01, N.D.C.C., set forth follows: then, “The purpose the complaint, is to enable appropriate magistrate, here a complaint “29-05-01. What must Commissioner, to determine whether the complaint
state. —A state: must ‘probable required support cause’ accused, person “1. The name warrant exists. The Commissioner must known, if or if judge not known and it is so persuasiveness himself the stated, designated by any the facts relied of- complaining name; other ficer probable to show cause. He should accept question without the com- county “2. The in which the offense plainant’s person mere conclusion that the committed; sought whose arrest has committed *22 crime. general “3. The name of the crime or
public committed; offense complaint “When the in this case is judged mind, “4. with these considerations in complained The acts or omissions pass constituting public is clear it does not crime or muster. * * * named; complaint offense no af- contains allegation spoke firmative that the affiant whоm, person against “5. The or personal knowledge of the matters against property, whose the offense therein; contained it does not indicate committed, known; if belief; any complainant’s sources for the and it does not set forth suf- other against “6. If the prop- offense is upon finding ficient basis which a erty of any person, general descrip- a ** * probable cause could be made. tion of property. such “ * * * probable the issue of cause complaint “The must be subscribed and by had to determined be Commission- by complainant.” sworn to er, adequate and an basis for such a find- ing on appear had to the face of com- complaints Two against were made States, plaint.” Giordenello v. United Iverson by Knutson, S. Duane Chief of supra, 78 S.Ct. Police of City of Grand Forks. One complaint charged Iverson with murder in Supreme Later U. cases affirmed S. degree first in the death of Carol requirement Giordenello in its that a com- Mayers; the other charged him plaint with mur must set forth so that sufficient facts der in degree the first in the death of magistrate judge a can for himself whether Diane Patricia complaints Bill. These probable Aguilar were or not v. cause exists. read 1509, 1514, to Iverson appearance at his Texas, before 378 84 U.S. magistrate. complaint Each Spinelli fulfills the 12 United (1964). L.Ed.2d 723 requirements of Sections 21 29-05-01 and'29- 393 U.S. 89 S.Ct. 05-04, N.D.C.C., in that name the ac- L.Ed.2d 637 (1969).
25 brought be- a warrant be arrested without Giordenello, Spinelli, State Aguilar, unnecessary de- magistrate a without fore Erdman, (N.D.1969) N.W.2d complaint against be filed lay and that a defend- that the held which were all cases Clearly, it is the intent of this statute him. in Erd- right, and Amendment Fourth ant’s violated, interpose judgment independ- of an had been right, man his Section a magistrate judgment ent to cure between remedy applied to he and that the peace private person officer or a in ar- that evi- violation the constitutional resting person another without a warrant of a violation as a result dence obtained pre- and the rights must decision to hold him a constitutional the defendant’s liminary examination to stand trial. The trial. from his excluded fact that we have concluded that Iverson’s Giordenello, by the standards Judged by private arrest per- without warrant Police complaints made Chief sons was lawful and based on reasonable in- failed to set forth sufficient Knutson grounds to believe he had committed magistrate could on formation felony does not alter the manner in which probable cause existed have found that magistrate must find рrobable cause for hold warrants and to issue arrest arrest, or, case, probable as in this cause hearing or to stand trial. preliminary for a to hold preliminary him for a examination complaints only these been the source Had stand trial. magistrate, of information available to the we would have hold Iverson’s inquiry “An into prob- the existence of rights Fourth Amendment and same, able cause is the whether made cause, “upon probable not to be held except magistrate application for warrant supported by Oath or affirmation” had been or made a court after an arrest or violated. search and seizure without a warrant.” Lee, 917, 921, United States v. 428 F.2d These complaints two were used in two (C.A.6th 1970). instances the proceedings against Iver- They son. approximate- first used at Upon record, a review of the we find ly m., p. 10:30 Wednesday, November that the item in evidence that can be 1968,when Chief of Police appear- Knutson challenged as a result of the decision *23 ed before magistrate, seeking two war- magistrate to hold pre- Iverson for a rants for Iverson’s arrest for murder liminary examination is a blood-stained degree. first They again were used as re- handkerchief. This handkerchief was seized quired by 29-05-04, N.D.C.C., at from being Iverson as he was booked into Iverson’s appearance first mag- before the county jail following appear- his first istrate m., held at Thursday, 12:15 a. No- magistrate m., ance before the at 12:15 a. vember 1968. The fact that these com- Thursday, November wherein the plaints were first used to obtain arrest war- magistrate probable found cause to order rants being instead of support used to Iverson confined without bail for two arrest without a warrant makes no differ- degree counts of murder in the first pur- ence, as the arrest warrants were unneces- 29-08-05, suant to Section N.D.C.C. sary, having Iverson been lawfully arrested by private persons “29-08-05. upon charge without Bail prior mur- warrant of to the issue der in degree. by of these warrants. sufficient Pillsbury v. first —Bail State, upon sureties Wis.2d be admitted arrest in 142 N.W.2d (1966). No criminal action evidence when the offense is was obtained as the result degree of the murder in the first issuance of unless the these two arrest proof guilt warrants. of presump- is evident or the action, tion thereof great. In such bail Section 29-06-25, N.D.C.C., as shall be taken only supreme court previously forth, set requires person that a thereof, judge or a taking and the there- of discretionary, regard shall be being complaints, we are satisfied that thе had to the magistrate nature circumstances of had sufficient information the offense and to the evidence and probable find that cause existed to hold ” * * * usages of law. Iverson on two counts of murder in the degree. first evidence, As to all the other the evidence pursuant obtained to the search warrant When appeared before the was not appear- tainted Iverson’s first magistrate m., at magistrate 12:15 a. magistrate, ance before the as the search already probable found cause to issue warrant setting was based on affidavits a search warrant at a proceeding held one probable independent forth cause of and forty-five hour and minutes Al earlier. prior appearance to his magis- before the though we will subsequently discuss the trate. The interrogation record of the sufficiency of the praying affidavits for a Iverson after his arrest and after he had warrant, search we are satisfied that these given been warnings the Miranda was used two affidavits set forth sufficient informa for purposes impeachment. his trial support tion to finding probable cause. interrogation This record of was likewise These part affidavits are of the record tainted, as it prior was obtained to his of this magistrate, case. The having found appearance magistrate before the and his probable cause issue the search warrant rights safeguarded. The record clear- affidavits, based on these necessarily had ly indicates that Iverson was advised of his knowledge information contained rights constitutional as set forth in Miran- affidavits, which, these together da, voluntary and that he executed a waiver complaints two which in themselves failed rights agreed these to submit to in- to set information, forth sufficient Here, however, terrogation. unlike tes- support sufficient finding probable timony Attorney’s at the Inquiry, State’s cause to hold Iverson for preliminary only objection constitutional the use review, examination. On testimony product is that it was the complaints affidavits, but also we of an unlawful arrest. magistrate conclude that the had sufficient Because have found we that there were probable information to find cause to hold grounds reasonable to believe Iverson had a preliminary Iverson for examination. the felony committed of murder in the first degree, which is say probable cause lawful, having His arrest existed for his arrest under the Fourth handkerchief seized from him at the time Amendment and Section and thаt the booked, being of his ap after his first
procedures
for his
private per-
.arrest
pearance
magistrate,
before the
prop
sons without
substantially
a warrant were
erly admitted in
at his trial as
evidence
evi
complied with, we conclude that this testi-
dence seized
arrest,
incident to a lawful
*24
mony
pursuant
was obtained
to a lawful ar-
having
solely
the search
been limited
to his
rest and not as a result of
appear-
his first
California,
person. Chimel v.
395 U.S.
ance before the magistrate.
2034, 2040,
752, 89 S.Ct.
Therefore, if we were to hold that Iver- 24 124 (1969). L.Ed.2d son was at appearance held his first be- fore magistrate of his violation
rights pre-trial under the Fourth Amendment and note that no motion We Section 18 suppress due to the failure of the com- was made this handkerchief and plaints to set grounds upon obj forth that when it was ad sufficient no ection was made magistrate probable could find mitted in at Fail evidence Iverson’s trial. cause, timely motions evidence that should ure to make waives have such admissibility excluded objection was the of the evi handkerchief. Nev- to the ertheless, States, notwithstanding insufficiency 362 U.S. dence. v. United Jones
27 re- particularity the items to be seized as 4 L.Ed.2d 257, 80 S.Ct. quired by Amendment and the Fourth Sec- v. United Mesmer (1960); 78 A.L.R.2d 18; tion that the search authorized 1969); warrant (C.A.10th States, F.2d per- property search for other than F.2d v. United Kuhl N.D.C.C.; by 29-29-02, mitted and also that the evi note 1966). (C.A.9th We night- search warrant authorized on this by the bloodstains provided dence time cumulative, search of Section 29-29- merely as violation handkerchief was 10, N.D.C.C., the affidavits did because type blood were the same bloodstains of property not state that the to be seized was item of evidence seized found on another positively place in the to be search- located the search warrant. pursuant to ed. presented to warrant Iverson search by the The search warrant was issued the search of after'his arrest authorized m., magistrate p. approximately at 10:30 daytime or and residence automobile 27, 1968, Wednesday, upon two November garments for “ladies’ either torn nighttime en- by affidavits sworn two officials them, purses, on ladies’ with blood stains ”*** gaged investigation of the deaths Mayers for Carol identification and Diane. The Fourth Amend- Carol warrant, Iverson’s Pursuant to this search “ ** to the ment U.S. Constitution reads: automobile and his residence search- were issue, probable upon but shall no Warrants conducting ed. The officers the search affirmation, cause, by supported Oath or pair at his residence seized a of trou- describing place to be particularly sers, coat, and a towel. These items things to be searched, persons and the along previously with the handkerchief Dakota 18 of North seized.” Section mentioned were admitted in evidence . language. contains similar Constitution Iverson’s trial. affirming Supreme Court The U.S. Through expert testimony it es- authorizing search for warrant search tablished belonged that Carol to blood prob- that to establish distillery held illegal group type belonged B Diane and that Fourth required able cause group blood testified type A. Amendment, belonged group type that he A. blood “ * * * search warrants affidavits for Expert testimony established that blood * * * interpreted tested must be belonged stains handkerchief found on the in a common- courts magistrates and B; group type to blood stains blood They are fashion. sense realistic found on the both blood trousers were of nonlawyers in the normally drafted group types B; A and that blood stains investiga- criminal haste of midst and on belonged group type towel blood elab- requirements of Technical tion. A; and that stains found no blood com- under specificity once exacted orate Expert testimony on the es- coat. further place proper no pleadings have law mon tablished that hairs from Diane were found at- negative grudging A in this area. towel, and that the trousers * * * will toward warrants titude hairs from were found on the trou- Carol from discourage officers police tend sers, towel, and the coat. of- judicial ato submitting their evidence that these seized Iverson contends items acting. before ficer pursuant to warrant search should “ * * * the under- of some of evidence, Recital have been admitted because *25 is affidavit the in support lying circumstances the affidavits in of the search perform to magistrate is if the sufficiently prob- establish essential warrant did not serve and not function required by detached able as the Fourth his cause police. stamp for the merely as a rubber 18; that the af- and Amendment * * * case particular in Although sufficient fidavits did not describe with easy Furthermore, it to not be determine when it would be reasonable as- to the existence that affidavit demonstrates sume Iverson would his have driven cause, probable doubt- resolution of automobile up the to his residence and to clean change or in should marginal any ful this area out cases blood-stained cloth- by that, largely preference ing, be the and accordingly, determined evidence could be expected to be warrants.” United in accorded to be his found automobile Ventresca, 102, 85 States v. 380 U.S. his residence. 741, 746, (1965). L.Ed.2d 684 facts justi- The in the asserted affidavits fied the issuance of the in search warrant present in are The affidavits the case they probable that to be- disclosed cause specificity, elaborate and burdened that Iverson committed the crime of lieve prepared it is were obvious that murder and ob- sought that evidence to be investigation.
midst and aof criminal haste tained ex- reasonably search could be However, in judged when a common-sense pected be found in residence Iverson’s being fashion, and with doubt realistic in his automobile. in upholding resolved the search favor warrant, es- affidavits in this case note that the alleges We State its brief cause, necessary probable tablished the praying that affidavits two thereby justifying the issuance presented search warrant were search warrant. magistrate proceeding in which the same presented Chief of Police Knutson his affidavits, read to when complaints. Had there been a record gether, Mayers and that establish Carol proceeding, found this entire we could have murdered; Diane Bill had Patricia magistrate that had sufficient facts he had that Iverson knew Carol that and Iverson, probable hold since find cause apartment visted her in several oc her on praying for search war- the affidavits casions, being the most two recent visit only probable rants established cause not days discovery bodies before the warrant, but the search for the issuance of Diane; of Carol and that on the Iverson of murder. to hold Iverson for crime day discovery of the murder victims marks interrogated and that scratch Spinelli cites to demonstrate Iverson neck, hand, body; were and noticed on in this case. insufficiency the affidavits and that Iverson drove a cab would on and however, its distinguishable on is Spinelli, give occasion Carol a to work. ride large- facts, Spinelli affidavit pro- unsupported information ly based sketchy, Although this information informant” by a reliable “confidential vided it judged fashion when common-sense Spinelli allegation that conclusory and the reason- probable It is does establish cause. In the gambler. a “known” himself such in a crime able assume that violent case, made the affidavits present present, be blood as murder there would part taken personally who officials fight and thаt female victims would sim- affidavits investigation and whose hands weapons to them—their available and observations reported their own ply Accordingly, it would fingernails. and reciting investigation, their results assailant that their to assume reasonable conclusions. and not facts Hence, marks. bear scratch would to further assume be reasonable would there warrant search As to the Iverson, one of the victims knew who to be searched places allegation most no apartment, with her had visited residence) were automobile days (Iverson’s before having been two recent visit particularity. victims, sufficient described with the bodies of discovery of descrip hand, Rather, contends on his scratch marks and who bore war- the search in the affidavits neck, assailant. tion body, be the could *26 as were used property rant lacked suf- means committing be seized of a of felony. strongly particularity Iverson ficient to allow seizure of the this con- resists tention allegation the coat claims that towel. No that these items were made and, suf- “mere accordingly, evidence” trousers were described with could particularity. be ficient We are satisfied seized. fall within the de- coat trousers Supreme U.S. in garments scription of “men’s torn or either Warden, Maryland Hayden, Penitentiary v. and, according- stains them” blood 387 U.S. S.Ct. L.Ed.2d ly, we that the coat and trousers were hold 782 (1967) answers contention of both search properly seized under the warrant. parties. In Warden certain of items cloth contends, however, these ing evidence, were admitted in having been items were nevertheless inadmissible in that seized incident to a lawful arrest without they were in of violation seized warrant. 29-29-02, N.D.C.C. then, come, question “We to the wheth- “29-29-02. Grounds issuance of er, lawful, though even the search was may
search warrant. —A search warrant Appeals Court of in was correct hold- upon any be issued following of ing that the seizure and introduction of grounds: clothing items of violated the Fourth they Amendment because are ‘mere evi- “1. property When is stolen or em- dence.’ The distinction made some bezzled, may it be taken on a search of our cases of between seizure items of any warrant place from house or other evidential value and seizure of in- concealed, in which it is or from the strumentalities, fruits, or contraband has possession the person by of whom it criticized courts and commenta- embezzled, was stolen or any or of * * * today tors. reject the dis- We person in possession other whose it premises longer tinction as based on no may be; accepted applica- governing rules “2. When it was used as means tion of the Fourth Amendment.” War- committing felony, of may it be den, Maryland Penitentiary, supra, 87 taken on the warrant from any house 1642, 1646, or place other in concealed, it Hence, simply item was claim possession or from the person inadmis- “mere evidence” therefore by whom it was used in commission longer objection. sible is no useful offense, any or person other be; possession whose may it Supreme Court The U.S. clothing “3. When is in held that the items it Warden also possession of evidence, person properly with the admitted in intent use seized were it as offense, committing public implicitly, means of as instrumentalities of crime. or in possession another requirements of “The the Fourth Amend- may whom he have delivered it for the protection ment can secure the same purpose concealing preventing it or for ‘mere privacy whether the search is discovered, being may its taken fruits, evidence’ or for instrumentalities person, on the such warrant from or course, must, of There contraband. place occupied from a house other automatically provided abe nexus— control, by him or under his or from fruits, instrumentalities or the case possession person to whom to be the item contraband—between it.” have delivered behavior. Thus seized and criminal evidence,’ probable The State that these contends items were ‘mere case evidence, properly of cause admitted in since be examined terms cause must *27 30 sought gasoline
to believe that evidence will tainers of and benzene were law particular apprehension fully warrant, aid in a pursuant or con- ato search seized doing, they by viction. In so of since conspiracy consideration were be used a * * * police required. of purposes will be training up blow Statue presented But in problem States, such is Liberty); no Palmer 92 v. United U.S. washing App.D.C. 66, case. The clothes found in the 103, (pis (1953) 203 F.2d 67 description machine matched the of those tol not described in search warrant was police the robber worn and the there- seized it lawfully because could be used ; reasonably escape) fore could person believe to effect his United 175, in Garris, items would aid of supra, F.Supp. identification States v. 262 Warden, culprit.” Maryland 176, keys although Peni- and not (clothing 177 Hayden, tentiary supra, 1642, lawfully v. 87 in S.Ct. search warrant were- describеd seized as instru- because were used rapist his es mentalities which effected In accord with this items of decision Prop cape crime). from the scene of the clothing be a crime can instrumentalities of in erty stages these three any used in of Alloway, 105, are United v. States 397 F.2d equal of a is commission of crime 110, (C.A.6th 111 and 1968), States United significance. Garris, F.Supp. v. (D.C.D.C.1966). 262 175 agree clothing that items can be in- We of it We have concluded would strumentalities the commission of a have reasonable to that Iver- assume crime; say, they that is to can be means of his residence son have returned to would committing felony. Accordingly, the coat a up change any blood to clean out of lawfully seized under trousers were clothing. It would also be reason stained N.D.C.C., 29-29-02(2), previous- as process in the clean able to assume that ly forth. set wipe ing up a towel to he would have used
any
person. A towel used
blood off his
a
committing
means
in this manner is a
as a means
Property used
of com
destroying
felony,
it
evidence
since
aids
mitting
felony
solely
is not limited
to the
a
crime.
of the commission
crime,
weapon
in the commission of a
used
preparation
property
it
but
includes
used
only question remaining
crime,
in the com
property used
for the
it
the seizure
the towel is whether was
crime,
af
property used
mission of the
unlawfully seized,
description of
since the
attempt
the crime to
the commission of
ter
in the
items to be seized
search warrant
v.
up the crime. State
escape or to cover
the towel.
cannot be construed
include
147,
(Or.App.
150, 151
Spicer, 473 P.2d
satisfied, however,
though
that even
are
law We
were
paraphernalia
1970) (narcotics
search
described in the
war
evidence
not
seized, although not described
fully
particularity,
it
prob
rant
sufficient
with
warrant,
they establish
since
search
lawfully
and ad
seized
being
nevertheless
a crime is
believe that
cause
able
property,
it
stolen
if was
evidence
United mitted
Edelin
committed);
v.
has been
committing a
as the means of
property used
(D.C.App.1967)
States, 227 A.2d
397
posses
in the
property which is
felony,
although
de
(narcotics paraphernalia,
to use
intent
person
warrant,
with
law
sion
search
scribed
felony,
committing
as the
as a means
they may be used
fully seized since
possession of which
;
property the
crime)
say,
committing
is to
instrumentalities
Warden, Maryland Peniten
1, 13
Bowe,
a crime.
360 F.2d
United States
1642, 1648
87
Hayden, supra,
S.Ct.
tiary
385
1966), cert.
U.S.
(C.A.2d
denied
instrumentalities, or
crime,
(planks
(1966)
(fruits of
306
L.Ed.2d
87
17
S.Ct.
in a
lawfully seized
bottles,
nails,
cotton
can be
wood,
contraband
long spike
to an
incident
con-
a warrant
plastic
two
search without
wadding, a funnel
arrest);
v. United
although
U.S.
described
par-
Johnson
sufficient
App.D.C.
ticularity
F.2d
540 (1961),
in the search warrant, was law-
cert. denied 375 U.S.
fully
seized and admitted in evidence as a
L.Ed.2d 118 (1963) (stolen credit card means of committing
felony.
*28
seized incident to a search
a
under
search
To hold otherwise would be to unduly en-
warrant which did not describe the credit
the particularity
cumber
requirement of the
card
lawfully
admitted in
seized and
Fourth Amendment and Section
In a
18.
evidence
an instrumentality
of a crime.
search incident
arrest,
to a lawful
based
“An officer engaged in a lawful search is
probable
cause and limited to the im-
not
seizing only
confined to
items described
mediate area surrounding
person
at the
warrant,
in the
especially
where
un
arrest,
time of may
evidence
be law-
listed items
ar.e instrumentalities of
seized
fully seized if it is stolen property, the
crime.”);
a
Alloway,
United States v.
instrumentality
crime,
of a
property
or
105,
supra,
(several
397
111
F.2d
suits
(cid:127)
possession of which is a crime. A con-
lawfully
were
seized and admitted in evi
trary rule as
pursuant
to searches
to a
crime,
dence as
al
instrumentalities of a
search
warrant
independent
issued
though
language
of the search warrant
magistrate on his
finding
own
probable
only
authorized
seizure
a certain
cause would defeat the
pref-
constitutional
sum of stolen
money
“any weapon used
erence for search warrants.
in
robbery.”); United
Robin
said
States v.
son,
250,
245,
F.Supp.
287
(D.C.N.D.
254
warrants,
preferring
“Instead
search
(clothes
casings
and shell
Ind.1968)
were
a
limiting
rule
seizure under
them to
lawfully seized
in
evidence as
admitted
items
in
description
enumerated
instrumentalities of a crime under a search
relegate
would
them to a secondary sta-
warrant that authorized the seizure of “cer
tus, if not an
in the
anachronism
law.
tain instrumentalities
used
the commis
* * *
might
it
possible
be
While
* * *
robbery
”);
sion of the
and murder
describe
things sought
some of the
with
Garris,
F.Supp.
supra,
United States
262
particularity
satisfy
sufficient
a con-
175,
(although
176
not
in the
described
magistrate,
scientious
it
be
will never
clothing
search warrant several items of
possible
any
to forecast with
exactitude
lawfully
and admitted in
were
seized
evi
might
the items
re-
which such a search
crime);
as instrumentalities
dence
* * *
only
The
veal.
reasonable rule
898,
Ludwig
(Fla.App.1968),
State,
215 So.2d
900
conducting
is that officers
lawful
927,
denied 396
90
t.
U.S.
cer
may
pursuant
search
to search warrant
261,
rehearing
(1969),
that was no there regard ment without to technical errors made; and when the search was exceptions or defects or which do if obtained would same result have par- rights affect the substantial delayed search until their the officers ties.” daylight.
Accordingly, hold that the we items seized pursuant nighttime search Iver- to the the Fourth conclude We properly son’s residence were admitted and, correspondingly, Section Amendment evidence at his trial. Similarly, people places. and not protect purpose we conclude have stat- “All 50 States harmless-error 29-29-10, N.D.C.C., protect person rules, long and the utes United States place peculiar “the abrasive and not a from through ago Congress its established periods” at such *30 ness of official intrusions shall judgments its courts the rule that Ravich, (United supra, States 421 F.2d v. reversed for ‘errors defects not be 1196, 1201). rights which do not affect the substantial * * * parties.’ of these None evening the during privacy Iverson’s distinguishes on between rules its face by a could not have been invaded search errors and errors federal constitutional pursuant of search his residence war- rules. of law or federal statutes and state rant affidavits that lacked the issued on rules, federal, of these state or serve All positive required by statement Section 29- they very purpose useful insofar as 29-10, N.D.C.C., because was incarcer- he setting for small block aside convictions ated at the time the search warrant of any, little, errors or defects that have if pursuant Therefore, to his lawful arrest. changed having the result likelihood nighttime authorization aof search of of the trial. conclude there We Iverson’s residence was harmless error. constitutional errors which in the be some setting particular of a case are unim- holding Our that this violation «0 insignificant, may, portant 29-29-10, N.D.C.C., was harmless error as Constitution, consistent with Federal to Iverson is supported by the U. S. Su harmless, be deemed not requiring preme Chapman in v. State of Cali automatic reversal of the conviction.” fornia, 18, 824, 386 U.S. 87 S.Ct. 17 L.Ed. California, Chapman supra, State 705, 2d (1967), A.L.R.3d 1065 rehearing 824, 827. 87.S.Ct. denied U.S. 18 L.Ed. 2d 241 (1967). Chapman the U.S. Su alleges that Iverson he was denied preme Court held that “the application of a assistance of counsel his preliminary at state is, harmless-error rule course, pursuant examination to Chapter held 29- state question where involves errors 07, N.D.C.C., mentally because was not he of state procedure or state Chapman law.” competent at preliminary the time California, v. State of supra, 87 S.Ct. examination to assist in his own defense. 826. We have previously held in this clearly The record indicates that Iverson opinion that this was a statutory and anot represented by was appointed at counsel constitutional Accordingly, violation. it is preliminary examination held on Janu- proper apply our State harmless-error ary 21, 1-969,and at all proceedings before rule. magistrate held on and after December However, being contends that trial. After bound over to the dis- court, denied the assistance trict by Iverson was committed
he was nevertheless
mentally compe-
district
Hospital
counsel since was
court
to the
in
he
State
in
to assist his
his own defense.
for a mental
tent
counsel
examination
Jamestown
competence
determine his
to understand
mag-
appearance before
At Iverson’s
ability
nature of
proceedings
and his
on
State
istrate
December
aid in his
He
re-
own defense.
was
be committed to the
that Iverson
moved
turned to the district court after an evalua-
Hospital in
a mental
State
Jamestown
tion,
compe-
he
which was found to be
determine whether
examination to
charges
tent
understand the nature of the
defense,
capable of
in his own
assisting
against
capable
assisting
him and
history mental ill-
had a
since Iverson
in his own defense.
further
counsel
No
ruling
post-
A
on the motion was
ness.
question
was raised
either
State
con-
poned
magistrate
time to
to allow
competence until
the defense as to Iverson’s
Subsequently,
hearing
held on
sider it.
and the
after the
rendered
verdicts were
6, 1968, magistrate
denied the
December
by his
imposed.
sentences
It
conceded
State’s motion to commit Iverson
argument,
appeal,
oral
counsel
granted
Hospital
Jamestown,
but
State
Iverson had been examined at
State
the State
to amend the motion
leave
his trial and
Hospital in
before
Jamestown
provide
be con-
that the mental evaluation
mentally competent
that he
found to
experts,
ducted
Forks
two
Grand
to stand trial.
granted
thereafter
motion
amended.
Supreme
Court Coleman
U. S.
psychologist
Iverson was evaluated
1999, 2003,
Alabama,
399 U.S.
90 S.Ct.
psychiatrist
and a
from the
Re-
Northeast
pre-
that the
(1970),
26 L.Ed.2d
held
gion Mental
Their re-
Health Institute.
liminary
stage”
examination is a “critical
ports,
12, 1968,
con-
dated December
both
*31
must
afforded
at
which
defendant
competent
cluded that Iverson was not
that
have noted
right
to counsel. We
proceedings
understand the nature of the
his
provided
counsel at
Iverson was
with
against him and
not
able
assist
proceedings
preliminary hearing and at all
his own defense. As
result
of these
1968,
as
after December
held
on
State,
reports,
appearance
at
before
аn
N.D.C.C.,
29-07-01(4),
required by Section
magistrate
held on December
29-07-04,
N.D.C.C.
Section
renewed its motion to commit
Hospital
State
for a
Jamestown
however,
Court,
Supreme
The
S.U.
magistrate,
mental
The
how-
evaluation.
S.
Dusky United
U.S.
v.
ever,
motion,
holding
denied
that this
held
(1960),
788, 789,
troduced at hearing by either party.” Upon record, we a review preju are satisfied Iverson was magistrate erred, however, when he magistrate’s diced decision to con immediately failed to fix a time for a hear- preliminary despite duct a examination ing to determine condition, Iverson’s mental fact that existed evidence that Iverson required 29-20-01, N.D.C.C. *32 not able to assist his own defense or to This error compounded was pro- when he ceeded to a charges hold preliminary understand the nature of the hearing while he against had represented by before him reports indicating two him. Iverson was that Iverson capable preliminary was not counsel at understand- the examination. of ing the of charges against testify nature the Iverson upon him or was not called to assisting defense, present in his thereby own rais- defense. No statements ing the inference that he was denied made given oppor the him. He was the assistance tunity of counsel under the the case standards to discover State’s entire of Dusky. against oppor him. His counsel used this tunity to vigorous conduct a discovery of Coleman, statutory With the the through State’s case extensive and right to at counsel a preliminary examina probing cross-examination, raising many provided tion by Sections 29-07-01 and objections to admission of State’s 29-07-04, N.D.C.C., upgraded has been to evidence, at leaving while the same time right constitutional to have the assistance his own case proceeding undisclosed. This of counsel at a critical stage proceed was trial; rather, not a simply was ings against the defendant. What we said proceeding to determine probable whether in State Starratt, v. 153 (N.D. 311 N.W.2d cause existed to hold him to stand trial. 36 reports psychiatrist ported of the local representation by
The counsel was such psychologist prove was not that Iverson as to mockery do make trial a farce and of incompetent justice, the nature of allegations to understand of incompe- mere in his proceedings against him to aid tent ordinarily or ineffective counsel will merely reports own The are evi- grounds defense. suffice as for issuance report light to be dence considered of a corpus writ of habeas or for the superintendent Hos- from the State reversal of a conviction.” Smith v. contrary. pital 594, Woodley, to evaluation supra, 164 N.W.2d Jamestown, Hospital Iverson at the State holdings. Federal courts made similar have mentally being his resulted in found States, 735, Borchert v. United 405 F.2d trial, over to was made competent stand 738 cert. (C.A.9th 1968), denied 394 U.S.
period of
weeks while Iverson
several
972,
1466,
(1969);
89 S.Ct.
psychologist’s report, but opinion held in this previously We have only from could observed Iverson have that the evidence seized from Iverson’s 6, 12, 1968. 1968, December December to pursuant residence to a search warrant transcript lawfully properly seized. Iver- From our examination examination, are we son’s in preliminary claim that his trial counsel was competent doubt beyond inadequate satisfied a reasonable because he failed prejudiced suppress the failure was not to move this evidence without Iverson finding as magistrate incompetent to make a because Counsel is not merit. preliminary prior competency suppress he fails to evidence which move error was Accordingly, Argo v. lawfully seized. In examination. disregarded 301, under (C.A.9th harmless and United F.2d 303 will 378 29-28-26, 1967), N.D.C.C. cert. denied 390 U.S. S. Court (1968), 19 L.Ed.2d U. he was denied next contends Iverson Appeals a trial counsel was held that counsel, since assistance effective object failing incompetent ineffective, incompe- his trial counsel was In search. in a lawful evidence seized tent, inadequate in that failed States, 128 accord Harried United are suppress obtained move to the evidence (1967) F.2d U.S.App.D.C. residence of the search Iverson’s result Meyer, 417 F.2d and United States v. pursuant to a search warrant. Smith 1969). 1024 (C.A.8th (N.D.1969), Woodley, 164 N.W.2d if trial held “that court counsel court erred trial asserts *33 equal inadеquate is to be to no counsel so as the photographs of allowing ten in color all, judgment void at a be rendered These in evidence. received victims to be ” * * * held that: This court further at laid out the victims photographs show They autopsy. the mortuary prior to are in the law libraries books “The pathologist, properly identified alleging incompetency with cases replete were taken. they direction under whose at of counsel ineffective assistance knew the that he pathologist testified The uniformly hold that These cases trial. and and Diane deaths of Carol cause of the of such proof of the effectiveness without formed that his conclusions were in character assistance lies of that each photographs, but aid of the pur- proceedings, resultant and unless
37 photographs something the ten showed that The slides were shown on a screen for the point testimony. he must out in his jury view. Iverson, however, argues that defense they “There was no indication were dis- dispute did not of death and the cause torted or did portray not an accurate the pathologist could have testified to his representation of deceased children. photo- conclusions without the use of the Photographs, X-rays slides and are ad- graphs, projecting photographs and that they accurately missible portray when screen, them, a greatly enlarged which anything competent for a purpose served no other than to inflame the words, witness to describe in his own jurors
minds of
passion
and
their
arouse
helpful
where
are
as an aid to
prejudice.
description
objects
verbal
of
or condi-
tions and
relevant
some material issue.
appears
It
abe well-settled rule
They are not rendered inadmissible mere-
photographs
prosecu
of
in
the victim a
ly
they vividly bring
jurors
because
homicide,
tion for
duly verified and shown
of
incidentally
details
a crime or
tend to
repre
extrinsic evidence to be faithful
passion
prejudice. They
arouse
are
sentations of the
ques
victim at the
in
time
recognized
in
common
medium this
tion, are, in
court,
the discretion of the trial
day
depicting
for
State
events.”
v.
admissible
evidence
an
jury
aid to the
Zobel,
101,
supra, 134
111.
N.W.2d
in arriving at a fair
of
understanding
evidence, condition and identification of the
photographs
The use
criminal trials
body,
though
even
photographs may
such
previously upheld by
has been
this court.
have
additional
tending
effect of
largely
It
within the discretiоn of the
excite the emotions
jury.
23 C.J.S.
Gill,
791,
trial
154
court. State v.
N.W.2d
Criminal
852(l)c
Law
(1961); 29 Am.
§
;
(N.D.1967)
798
State v.
85
Jager,
N.W.2d
785-788,
Evidence
(1967);
798
§§
Jur.2d
Gulke,
240,
v.
(N.D.1957).
244
State
1413,
159 A.L.R.
73 A.L.R.2d
See
N.,W.2d
653,
(1949), we
76 N.D.
38
722
also,
Austin,
recent
State v.
84
cases:
S.D.
prosecution
manslaughter
held that
405,
People
172
(1969);
N.W.2d 284
v.
photograph
the scene of the
taken
Brawley,
277,
161,
Cal.Rptr.
1 Cal.3d
82
accident, showing
body
the deceased
Martinez,
39 annotаtion, An extensive “Evidence of Killmer v. change of trial. the order Cases”, 650, Trailing by Duchscherer, Dogs in Criminal 18 (N.D. 657 72 N.W.2d Goodman, type A.L.R.3d with the deals evi- 1955); 79 N.D. Mevorah v. Hazer, ; complains. ap- dence of which It (1953) N.W.2d 608 State 57 pears twenty-five from this that (1929). annotation 225 322 N.D. N.W. 57 directly question states passed have on the Appeals in a U. S. Court of case The admissibility generally of what arising made a similar North Dakota referred to as bloodhound evidence. Twen- holding. Braatelien v. United ty of have held bloodhound 1945). these states (C.A.8th F.2d admissible, evidence to while five Hunt, Iverson relies State these it to states have held be inadmissible. (Mo.App.1960). Hunt S.W.2d appears It general that the rule in those a traffic the defendant was case wherein twenty admitting states bloodhound evi- took stand in his own defense on a evidence, that, dence is as with other charge of trial speeding. The court allowed proper be laid for foundation must its ad- prosecution interrupt the defend- mission and it must be corroborated that testimony prose- several ant’s and recall by other evidence. questions cution witnesses them to ask proper generally A foundation neglected had includes during State ask their dog pure evidence that was of questions blood direct The examination. related and of a by acuteness prosecution matters stock characterized on which the was discrimination; of scent and trying power to contradict the The defendant. dog that properly had been trained Appeals Missouri Court of held that this and tracking exercised in the of human procedure constituted an abuse of discre- beings; tion, that person who testified gave prosecution as it unfair dog’s training per- advantage by breeding and testimony beyond its allowing thereof; sonal knowledge and dog that the case chief. put place on the trail at the where Wfis guilty circumstances tended show the Hunt, interruption Unlike party had been. here was simply purpose verify for ing signature, Iverson’s which he had de used bloodhound in this case making. nied It purpose was not for the had been trained andMr. Mrs. Vincent filling in gaps in the State’s case. We Bray Bray Mrs. Grand Forks. are satisfied interruption that this called as a for witness the State. She Iverson’s testimony on cross-examination operated testified that she and owned was not an that, abuse of discretion and kennel; bloodhound that she had raised accordingly, the trial court acted within years; trained bloodhounds seven power given 29-21-02, it under Section that president she was the vice N.D.C.C. Amеrica; Bloodhound she Club that Iverson also argues that the trial court “Rye”, her husband had trained erred permitted when it State case; bloodhound used in this that present testimony regarding the identifi- training was extensive that to her cation of Iverson a bloodhound. Iver- knowledge Rye mistake; had never made a son’s counsel appeal on this *36 rights Section 13 police station his were violated under through
a
and
the
trail into
seated;
Dakota
and
the North
Sec-
place
to
was
of
Constitution
the
where Iverson
29-16-03,
tion
he then
and
N.D.C.C.
and that
smelled Iverson
her,
wagged
tail
his
and looked toward
prosecutions
In
13.
criminal
“Section
sign
Rye
the
which is the
had identified
party accused
whatever, the
any
court
pillowcase.
source of the scent
on the
found
and
speedy
a
right
the
to
have
shall
* * *
appear and
and to
public trial
proper
satisfied
a
founda-
We are
counsel.
with
and
person
defend
laid for
of
tion was
the introduction
”
*
**
of
of
as the source
identification
Iverson
pillowcase, not-
found on the
the scent
“29-16-03. Presence
if
defendant
of
put
withstanding was
the bloodhound
charged.
felony
an information
—If
the victims
on the trail 24 to 48 hours after
a
charges
of
indictment
the commission
murdered,
blood-
had been
and that
personally
felony, the
must be
defendant
police
transported
station
hound
to
present at the trial.”
where,
being
scent
given
after
a fresh
up
picked
pillowcase,
again
from
rights
If
Iverson’s
violated ündfer
were
alley by
that he had lost in
trail
they
Section 13
were also
under
violated
this
apartment.
note that
Carol’s
alsoWe
the Sixth Amendment to the U. S. Consti-
bloodhound evidence was corroborated
tution,
provides
that “in all criminal
much additional evidence.
prosecutions,
enjoy the
accused shall
* *
*
right
speedy
public
to
trial
“The fact
a circumstance
established was
be
against
to
confronted with the witnesses
which was consistent with defendants’
”
* * *
him
which,
alone,
guilt
standing
but one
probative
would
little
value. How
have
Supreme
has held that
U. S.
proper
evi
ever it was
receive this
guaranteed
rights
of the most
“one
basic
together
dence
with that of a multitude
ac
by the
is the
Confrontation Clause
of
also
other circumstances which were
right
present
to be
in the court
cused’s
be
guilt,
consistent
the defendants’
every stage
trial.”
Illinois
room
of
cir
cause a sufficient number of such
1058,
Allen,
337,
1057,
v.
397 U.S.
S.Ct.
permit
cumstances will
a reasonable con
(1970),
denied
rehearing
was not *37 “The record will also show that a con- 27, 1968, ference April was held in the Oklahoma, In Ellis v. State of 430 F.2d morning at which time State re- 1352, 1354-1356 (C.A.10th 1970) was quested proof to make offer of for held to be harmless error to have held a purpose introducing testimony judge’s conference chambers outside relating alleged to other offenses on the presence defendant wherein part of the Defendant. Counsel for the objection defendant’s counsel waived to a Defendant the said resisted offer of juror subjected whose been wife had proof, hearing arguments, and after during harassment the course of the trial Court objection sustained the of Coun- and who asked her husband to withdraw Defendant, sel rejected for the and jury. from the testimony sought to be introduced. “A third April conference held foregoing, In view the hold we 28, 1968, in the forenoon. This was that it was error to have excluded Iverson held to make additional offer of from the four in-chamber conferences. [an] proof testimоny however, relating sought to be satisfied, We are that this error by introduced Frances Fol- witness Chapman. harmless Before under sum, regarding the contents of a note day the court following reconvened on the Defendant, allegedly by written and conference, the fourth in-chambers objected Counsel for the Defendant court held a fifth in-chambers conference upon testimony. offered And hear- specific with Iverson in attendance for the ing arguments regarding the offer of purpose him reviewing what had proof, objection sustained the Court place preceding taken four confer Defendant, for the and Counsel for ences. testimony allowed. * * * “THE COURT: “A April fourth was held conference in the afternoon in which “The purpose calling this conference requested Counsel for Defendant is to relate information the Defendant permit proof make an offer of testi- occurred, ques- for conferences on mony by witness, Mason Jeanette tions by of law said Counsel and the Dunlap, alleged as to to have statements the witness Court. made to her Curtis hearing Peterson. The after ar- Court you “Prior to this want to sit guments the ob- sustained Counsel time— here, up Iverson, you so Mr. can hear jection by the State and disallowed better ? testimony by the Mason witness Jeanette Dunlap regarding alleged statements April 25, 1969, in the “On afternoon have been to her the witness made supple- conference was held which a Curtis Peterson. police subject mental report was the police report the conference. “Does Counsel the State This and Coun- State, agree been offered in evidence sel for the Defendant these arguments and the Court heard conferences were held matters re- driving? walking or “Q. heWas made decisions thereto lated stated. as driving. He was “A. posi- It is the ALPHSON: “MR. R. you do? did “Q. Then what cor- the Court of the State
tion a ride. if I wanted He asked me “A. the conferences rectly stated rulings related subject matter object to this! I ALPHSON: “MR. as made. hearsay. This agrees, Defendant “MR. RUBIN: sus- Objection is “THE COURT: also. tained.” understand, you Do “THE COURT: Iverson, the direct examination On just has Iverson, the Court what Mr. testimony being hear- objections to two conferences? these regarding said say were sustained. *38 understand, but I “DEFENDANT: But, did right. then what “Q. All time. at the here I wasn’t you do next? That I understand. “THE COURT: They me if— “A. asked informa- relating this I’m reason is the object this “MR. I to ALPHSON: present time.” at the tion hearsay. being as conferences, these first three of In the absence, Objection sus- is “THE COURT: by his prejudiced was not Iverson coun- tained. his objections of in each since con- fourth sustained.
sel were an offer ference, made counsel Iverson’s you? “Q. happened to And then what the testi- to objection proof, of since had Novacek, my second in evidence after sought admit “A. Leo mony he to tapped me game bowling court. came and open in sustained been said, Alphson and ‘Mr. on shoulder the action reviewed the court When you’. Alphson to talk to Mr. would like conference, Iverson the fourth in-chambers street building towards the was object the court’s to opportunity to had said, ‘Okay’. I went entrance and I attorney through ruling speak and to ‘Well, said, let’s Alphson him and Mr. to the court time for still while there was basement, something I go I have to circum- ruling. these its Under reverse I you.’ And like to discuss with would he was stances, that cannot conceive we dis- said, just as could have well ‘We prejudiced. right them here.’ cussed object I’ll excluding from “MR. ALPHSON: Iverson The error hearsay. as harmless conversation was thus the four conferences disregarded must be Chapman and under objection is sus- “THE COURT: 29-28-26, N.D.C.C. under Section Alphson said.” Mr. tained as to what that the court finally contends Iverson objec- argues that these three cer- objections to it sustained erred when being as improperly sustained tions were hearsay. testimony being as tain trying do he hearsay, in that all was that certain statements defense was to establish of a the direct examination On trying to made, ob- and that was witness, Dunlap, an Mason Jeanette asserted in hearsay sus- the truth of facts jection testimony establish those statements. tained.
AS trial, asking her to substantiate out before previously made A statement oath. trial his statements under Iverson’s evidence, not for court offered statements these counsel contended establishing the truth purpose Peter- admissible as related to stated, merely pur were but the matter credibility. son’s state establishing pose the fact that made, subject ment was rule,
hearsay ad test of its testimony objected to This missibility is it relevant to whether prior sustained to the in-chambers 2 ed. (Sth case. on Evidence it too proof, § in that was remote offer Jones Bancroft-Whitney 1958); Wig- Co. VI objection place. time and This same Little, (3d more on Evidence ed. § after the offer renewed chambers 1940). Brown and Co. proof. objection An based on remoteness goes
of time the relevance of offered testimony, with in the trial wide discretion The answers of the witnesses admissibility. its on court as to in thеse fell three instances within the Jones State, 153. The hearsay Evidence how Objections having rule. been made §§ ever, objection to expanded its attack grounds on the responses these three testimony proof, set forth the offer of hearsay, were up it was trial Iverson’s hearsay. it As grounds that was counsel to objection argu remove the above, an statement is noted out-of-court ing responses that the solely for the hearsay if it not covered rule is of purpose of proving that the statements simply prove evidence fered in had been made. on Evidence 976. § Jones *39 however, statement, was made. Such a With no attempt having been to re made must be The relevant. court did abuse objection, move State’s the court cor sustaining its discretion the State’s ob rectly ruled in sustaining these objections. jection testimony of addition, offer the witness’s to answer time, proof was too remote in which question is asked in each instance was unre say sponsive that it was The court cor not relevant. properly and therefore excludable. rectly out trial counsel pointed 4 to Iverson’s on Evidence 979. § Jones impeach that if he he Peterson wanted ruling Another of the court sustaining having attempt by could to do Mrs. so objection State’s Dunlap testify her testimony as to her version of which relationship with Peterson that a Iverson’s so con trial counsel tried to introduce is trast could be drawn between testi cited as error. On the direct examination Furthermore, mony of the two witnesses. of Dunlap, Mrs. Iverson’s trial counsel a Dunlap conversation between Mrs. and sought to introduce into evidence state- they as to Peterson whether or not had ments allegedly by made the witness Cur- together prior evening on the tis Peterson during separate two telephone autopsy time the and revealed Carol Diane conversations with Dunlap prior Mrs. strangled had been irrelevant as the trial of this case. The sustaining guilt the issue of Iverson’s or innocence. objections of the State’s attempts to several to introduce in evidence the statements Supreme Minnesota, The in re- by made Peterson in these conversations viewing first-degree-murder a conviction led to in-chambers conference in which containing on an appeal twenty-one legal (cid:127) Iverson’s trial counsel made an offer issues, affirmed the conviction and held proof. proof In his offer of he stated that despite the existence of errors the de- testify, if were Dunlap Mrs. allowed to fendant had received fair trial. witness, testify she would that the State’s Peterson, Curtis had Febru- involvement, called her in “Because human no ary again 1969 and one and a half weeks proceeding disposed criminal a trial defects, did error because the officers harmless likely completely free
is
he was
privacy as
Only
invade the defendant’s
those of
irregularities, or errors.
They
home when it was searched.
not at the
prejudice substantial
character as
such
that the unlawful authorization
new trial.
conclude
rights justify granting
error,
a technical
nighttime
search was
rights are affected
substantial
Whether
disregard-
harmless
must be
the entire which was
examination of
requires an
appeal.
on
of the
ed
probable effect
record and
light
or errors
defects
determined
I
that this is a strained
feel
construction.
proceedings
of all of the evidence and
found and seized the towel
The officers
Mastrian,
as
State v.
viewed
a whole.”
of the
they
searching
while
the home
695, 710
171 N.W.2d
285 Minn.
parents,
he lived.
defendant’s
with whom
1049, (1969),
cert. denied
U.S.
it,
thought
spots
They
saw
(1970).
warrants are more the re- than Subsequent Harris, to Marrón and case quirements of the fourth amendment law on searches was developed, up- and, also, further the federal constitution more are holding right the of searching pur- officers stringent requirements the than Sec- of suant to a search warrant to seize items tion 18 of our state constitution. The two not described in the warrant if those items statutes question in are set forth in in full were subject to 29-29-02, seizure as an incident of majority opinion. the Section a lawful Many N.D.C.C., arrest. stated, of these briefly provides cases are for limit- by cited the majority only but grounds upon for the ed which a search warrant proposition that property the may They and be (1) seized issued. are as follows: not described in the embezzled; search warrant consti- when the is property stolen or
46 it was not admissible means federal constitution as a property was used the when
(2)
in evidence.
when
felony;
(3)
and
committing a
of
any per-
possession of
in
property is
Dove,
by
v.
followed
State
Manning was
means
it as a
intent to use
son with
In Dove we
(N.D. 1970).
83, 212 The common-law (1927). N.W. 442 upon “Where a search warrant was based admissibility rule has also followed affidavit, any an insufficient evidence states, fifty percent in more than obtained as a result of the search in- England. 531-546, Canada and 50 A.L.R.2d admissible.” and later case service. In accordance with rule, admissibility my It feeling common-law wording that illegality paragraph evidence not affected was too broad and it the means adopting which was obtained. tantamount the exclusion- ary state, including rule in this violations Manning, In State v. N.W.2d requirements. search state warrant (N.D.1965), we held evidence obtained said, applying Dove we the harmless *42 in violation Fourth Amendment to error rule: States not United Constitution is ad- admitting plainly “An error in relevant missible in following Mapp. evidence possibly influenced the evidence which decision in our Manning modified hold- cannot, adversely litigant jury to a under ing in Fahn to the extent that where Fahy, be conceived of as harmless.” evidence in violation of obtained that majority have said In this case statutory- but violation there was
because HANSON, P. Plaintiff Clifford Appellant, proper it is and violation not a constitutional do They rule. harmless error apply the v. ob- the evidence spite so in fact Zoller, John ZOLLER and Martha husband to the defend- highly prejudicial tained was al., Defendants, and wife et consisting items, three ant. The and trousers, trenchcoat, pair and Zoller, James P. Zoller and Alice R. husband al., and wife et Defendants towel, a result of all seized as Respondents. and search, after-midnight contained blood and compared with the blood and hair which Zoller, P. James ZOLLER Alice and R. appears It and hair of two victims. Third-Party Plaintiffs, effect, majority, in to me what the and that, it although have is was violative held City Association, Savings Gate and Loan corporation, Third-Party in statute have received articles Plain Appellant, tiff and nevertheless, evidence, the error because constitutional, statutory it only a technical error and will be disre- NORTH DAKOTA TITLE GUARANTY& Therefore, garded appeal. appears on it CO., Third-Party Defendant syllabus in paragraph number 3 Respondent. ref- Dove have been to have must intended Eugene Binder, V. BINDER and Gloria A. only erence to constitutional violations wife; husband and and The Na- Dakota violations, statutory although not to Bismarck, corporation, Bank tional refused, majority time at the Dove Third-Party Appellants, Plaintiffs and written, clarify paragraph number 3 my syllabus light special concur- NORTH DAKOTA TITLE GUARANTY& rence. CO.,Third-Party Defendant and Respondent. effect, appears it me that the ma- Civ. No. 8511. jority applied in this case have com- admissibility rule of mon-law review Supreme of North Dakota. why in the supreme see no reason court. I 20, 1971. April we apply should continue the com- Rehearing Denied June admissibility mon-law rule of state at the trial court level where the evidence
was not obtained violation of the Fourth
Amendment States United Constitu- specifically
tion. I think that should we exclusionary that the
hold federal rule applicable
evidence is in North Dakota
if the require- search does not meet the constitution,
ments of the federal con- apply
tinue all common-law rule in
other cases. aforesaid,
For my it reasons be-
lief that there was error ad- no question
mission of evidence even
though may have been obtained vio-
lation of our search warrant statutes. notes Rye that that given pillow scent from a Iverson’s trial counsel made objection no case apartment; Rye in Carol’s twice to this testimony. contends, however, He followed a alley trail that ended in the certainty because its probative apartment; outside Carol’s that she and value were highly questionable, Rye, along pillowcase, with the were taken speculative too to be admitted as to the evidence Department, Grand Forks Police of identification notwithstanding Rye again where given that no was once a scent objection was pillowcase; made. from the then followed