STATE OF IOWA, appellee, v. DALE CHRISTIANSEN LEISS, appellant.
No. 51924.
Supreme Court of Iowa
FEBRUARY 8, 1966.
140 N.W.2d 172
Lawrence F. Scalise, Attorney General, Don R. Bennett, Assistant Attorney General, Francis E. Tierney, County Attorney, and Mark McCormick, Assistant County Attorney, for appellee.
LARSON, J.—Appellant was charged with one of the most despicable crimes against society, that of lascivious acts with a minor child, in violation of
While no useful purpose could be accomplished by a recitation of the evidence relating to the crime, including the testimony of the ten-year-old girl and her brother a year older, we must observe at the outset the testimony which the jury evidently believed was sufficient to sustain a conviction of assault with intent to commit rape under
Nevertheless, appellant must be furnished a fair trial and,
Appellant assigns as error the following: (1) In accepting into evidence his oral statements made to the police officers when he was taken into custody and a written statement taken from him at that time, on the ground that they were involuntary and were taken in violation of the due process clause of both the Federal Constitution,
I. Prior to trial defendant requested a separate hearing to determine whether the admissions and written statement given the officers at the Fort Dodge police station on the night of his apprehension were voluntary and admissible. The hearing was granted and the trial court carefully considered the objections raised and held the admissions and confession were voluntary and admissible evidence.
At that time this court had not announced its position as to the procedure trial courts should follow in order to comply with the requirements of separate hearings annоunced in Jackson v. Denno, 378 U. S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908, 1 A. L. R. 3d 1205. Since then we have adopted the so-called “orthodox” rule rather than the “Massachusetts” rule, as our method of determining the question of voluntariness. See State v. Holland, 258 Iowa 206, 215, 138 N.W.2d 86, 91, and State v. Tharp, 258 Iowa 224, 138 N.W.2d 78. Appellant conceded in oral argument his contention that the jury should have considered that issue has been decided adverse to him. Under the rule we have adopted in Holland, the trial “court‘s determination of admissibility is final“, and, if admitted, the weight to be given that evidence is left to the jury in the main trial. If the court determines the admissions and confession were involuntary, they are excluded and do not go before the jury. See comment on Jackson v. Denno in 50 Iowa Law Review 909 to 917.
Prior to his interrogation at the station the officer testified he advised appellant that he did not have to say anything, that he had a right to counsel, and that “what he wоuld tell me could be used in court as evidence.” After the interrogation the officer asked defendant if he would be willing to put what he had said in writing. Appellant advised the officer he could not read or write too well, but agreed to sign a statement if the officer typed it. When the statement was finished, another officer was called in, the statement was read to appellant, and he signed it saying it was true to the best of his knowledge. Both officers witnessed his signature and the statement was introduced into evidence as State‘s Exhibit 1.
In passing on the contentions of defendant that his admissions and statement were not admissible because he wаs not in legal custody, the trial court held the issue of voluntariness was not dependent upon whether he was legally arrested, that, if it appeared defendant voluntarily gave the statement, it is admissible whether he was legally arrested prior thereto.
The trial court also properly found defendant had been tоld of his right to counsel, that access to counsel was never denied him, and that Escobedo v. Illinois, 378 U. S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977, did not apply. It nevertheless gave consideration to the fact that defendant did not have counsel, and that he was of limited intellect and restrained at the time, in determin-
III. Of course, evidence of statements obtained by force or duress are not admissible in the trial of one accused of a crime. But in the absence of statutory prohibitions, which we do not have, the test is not whether the statements are taken by officers before or after an arrest, but as we have often said, the sole test in this jurisdiction is whether the admissions or confessions were made freely and voluntarily without compulsion оr inducement of any kind. State v. Fox, 257 Iowa 174, 178, 131 N.W.2d 684, 686, and citations; State v. Tharp, supra; State v. Williams, 245 Iowa 494, 500, 62 N.W.2d 742, and citations; State v. Shephard, 255 Iowa 1218, 1228, 124 N.W.2d 712.
Recent decisions by the Supreme Court of the United States have injected additional constitutional considerations which must be recognized by the trial court in passing on the admissibility of such admissions. Escobedo v. Illinois, supra. These rights were recognized and observed here as indicated in Division II.
Thus, the trial court correctly submitted the issue of voluntariness of the admissions and confession to the jury for its consideration only as to the weight to be accorded them, and to allow the jury to pass upon the credibility of the witnesses who testified regarding them. There was no error in this assignment.
IV. That appellant had been duly and timely advised of his rights to counsеl, to remain silent, and that anything he said could be used in court, and understood their import, even though he was somewhat mentally retarded and illiterate, cannot be seriously questioned. Although a clinical psychologist, called on behalf of defendant, testified defendant was mentally defective on the intelligence scale, with an I. Q. of 68, and found his basic adjustment level for reading and arithmetic to be at about the first or second grade level, it also appeared defendant had taken and passed a driver‘s license test, had been able to hold a steady job, had been married, and was the father of one child. There
V. We next consider appellant‘s alleged error in overruling his motion for a new trial due to misconduct of the county аttorney. He claims the county attorney, in substance, stated in argument to the jury, “I want the jury to remember when the question of the written statement is brought up, the difficulty defendant had in lying.” Defendant objected to the statement as prejudicial.
We may agree with counsel that prosecuting attorneys should not be allowed to make inflammatory or prejudicial statements regarding a defendant in a criminal action, but we do not believe this language falls into that category. While it is true, words such as “liar“, “crook” and “pathological liar” in rebuttal arguments to the jury have been frowned upon, we have found no instance where the statemеnt by the prosecutor that defendant was lying has been held so prejudicial as to warrant a new trial on that ground alone. Counsel could cite us no such authority. As bearing on the problem he cites Fox v. Bellon (N. D.), 136 N.W.2d 134, 141; 53 Am. Jur., Trial, section 502; and 88 C. J. S., Trial, section 196b.
In the Fox case the court recognized that “counsel in his argument had the right to analyze the testimony and the exhibits and to point out to the jury any reason or reasons why he thought the witness was not worthy of belief; * * *” The court there was critical of the trial court in not instructing on the language used or to the effect that it should be wholly disregarded, but the majority felt, in the absence of a showing of actual prejudice, the decision of the trial court not to grant a new trial on this basis should not be disturbed.
In the matter before us the trial court said, “whether or not the defendant was lying lies particularly and peculiarly within the province of the jury.” It recognized “counsel for both sides has the right in argument to make such comments about the testimony, thе motives actuating the witnesses to testify, as they believe the record shows.” Within reason we can agree, and when
VI. Having found no reversible error, the conviction and judgment must be affirmed.—Affirmed.
GARFIELD, C. J., and SNELL, MOORE and STUART, JJ., concur.
RAWLINGS, THORNTON and BECKER, JJ., dissent.
MASON, J., dissents generally.
RAWLINGS, J.—I respectfully dissent.
I. Hаving in his possession a preliminary information only, but with no arrest warrant having been issued, a Fort Dodge police officer at about 9:00 p.m., went to defendant‘s home located outside the city limits, and there arrested him.
No offense had been committed by defendant in the presence of this or any other officer.
Unquestionably defendant was a person of low mentality, having an I. Q. of 68, and was illiterate.
Without being first advised as to any of his fundamental rights, defendant was questioned at some length by the officer in the police car. At that time defendant denied guilt, was then taken to the Fort Dodge Police Station, and there again interrogated at length. He still denied guilt of the offense with which the officer accused him but, according to the officer, gavе self-
No showing is made of any effort to take defendant before a magistrate, without unnecessary delay, and no reason appears for failing to do so.
This is comparable to
Then
These Iowa laws have a wholesome and clear-cut purpose. As was said of
“The purpose of this impressively pervasive requirement of criminal procedure is plain. * * * The awful instruments of the criminal law cannot be entrusted to a single functionary. The complicated process of criminal justice is therefore divided into different parts, responsibility for which is separately vested in the various participants upon whom the criminal law relies for its vindication. Legislation such as this, requiring that the
... With due regard for any prior holdings of this court to the contrary, I honestly believe the case at hand demonstrates a need for strict compliance with
II. But there is another factor in this case which is even more disturbing.
As aforesaid defendant was questioned extensively in the police car before being taken to the station. Clearly, any investigation had then focused on defendant. The proceedings had reached an accusatory stage. Escobedo v. Illinois, 378 U. S. 478, 485, 84 S. Ct. 1758, 1762, 12 L. Ed. 2d 977. However, defendant was not at that time advised as to his right to remain silent, to have advice of counsel, or the effect of any statements he might make. In fact the record fails to disclose he was advised of any constitutional rights until after arrival at the station. Stated otherwise he was not timely advised.
During the critical period of interrogation in the police car, defendant denied guilt but a denial of guilt during interrogation before being advised as to rights, followed by confession or admissions after such advice, can be most damaging. Among other things, it servеs to create inconsistencies which the prosecution may and usually does bring out on trial, with appropriate comments by the prosecution.
At the station defendant was for the first time told that what he might say could be used in court as evidence, and of his
The good faith of the arresting officer, the trial court, and the majority of this court is beyond question. However, the totality of the circumstances in this case leaves me no alternative but to express disapproval of the procedures adopted by the police officer, and the admission of defendant‘s claimed confession.
It is my opinion defendant‘s motion for a new trial should have been sustained.
Justices THORNTON and BECKER join in this dissent.