*1 Iowa, Appellee, STATE McClelland, Appellant.
Jack
No. 52825.
Supreme Court of Iowa. 14, 1969.
Jan. Iowa, also,
See *2 Atlantic, appellant. DeKay,
Harold G. for Gen., C. Turner, Atty. Richard C. James Sell, Gen., Don Atty. W. Asst. and William Carlos, County Atty., appellee. for MOORE, Justice. defendant, Mc- February On Jack County Adair
Clelland, was indicted entering with Jury Grand offense, wit: public intent to commit Code, 708.8, larceny, contrary to section guilty trial a verdict sentenced returned. Thereafter he was Men’s in the years exceed ten term not to appealed. Reformatory at Anamosa We affirm.
Between 1:3'0 and a. m. December 2:00 Carrick, night Donald mar- Adair shal, observed an automobile unfamiliar emerge alley from an and then west going turn north The vehicle onto Fifth Avenue. proceeded turned east north then block down suspicions Audubon His Avenue. caused him get patrol car to into his investigate. When he Fourth reached stop- Audubon he car saw the unfamiliar ped about a on Fourth half block south stopped with near its hood raised. It was Supply east Store entrance Bruce Fourth is on the southwest corner Audubon Adair. Chafa, only occupant, car’s Mike told generator Carrick he having battery car pushed trouble. Carrick patrol As Chafa car and started. away drove Nebraska Carrick car’s took the license number.
Carrick
locks in
began checking
then
door
the area
all se-
if
determine
cure.
defend-
While
doing,
so
he observed
thought
100 feet
that he
street about
walking down the
Carrick had seen him
ant
Supply.
then,
Bruce
side.
presence
the east entrance
south
Carrick,
stop and as Car- Curd and
pry
removed
He
bar
shouted
large
noticed a
which he had
hidden under
reached defendant
his clothes.
rick
trousers
screwdriver between
A few minutes later sheriff Don Foster
defend-
then told
person. Carrick
and his
deputy,
Herrick,
and his
Malcom
arrived
say anything
have to
he did not
ant
*3
at the
then read
de-
station.
sheriff
to
where
nearby
station
a
service
him to
took
fendant,
card,
prepared
from a
form
Nothing was
briefly
him.
frisked
Carrick
stated: “You have
Miranda
highway
then taken from defendant.
silent;
you say
right
anything
a
remain
to
then noti-
patrol
office were
and sheriff’s
against you
and
in a court
can
will be used
fied of the arrest.
law;
talk
a
you
right
have the
to
to
of
you
present
while
patrolman,
lawyer and have him
Very
highway
thereafter
soon
questioned;
you
if
cannot
Curd,
you
being
and advised defend-
Richard
arrived
lawyer
appoint-
one will be
break-
afford to hire a
being
suspicion
ant he was
held
you
any questions,
represent
to ed
right
that he had a
to
ing
entering
and
and
you
The reverse side of
right
an immediate
if
wish one.”
phone
make a
had
call,
questions
to a know-
and
two
relative
attorney,
an
a
to remain
card bore
to
the Miranda
waiver of
ing
intelligent
be used
and
anything he said could and would
read to defend-
however,
rights.
not
These were also
Curd,
did
inform
him.
he
not wish
appointed
then
did
a
coun-
ant. Defendant
stated
defendant he had
to
accordingly
questions and
answer
if he
one.
to
sel
could
afford
After
of him.
questions were asked
why he had
then asked him
broken
Curd
and Her-
the sheriff
handcuffing defendant
replied he
into
store and defendant
unrelated
investigate an
departed to
rick
it,
just
had
really
hadn’t
into
but
broken
part
in another
report
violence
in re-
open.
then left
pried the door
Curd
county.
police call.
sponse
another unrelated
to
About 5:30 a. m. sheriff Foster and his
2:30
Carrick
about
About
a. m. when
deputy Herrick returned
sta-
to
service
custody
dep-
leave defendant in the
a
Chafa,
tion where defendant and Mike
who
security
uty
resume
marshal
recently apprehended,
being
had been
were
establishments, de-
check
business
of local
Highway patrolman,
Novy,
held.
had
John
find an east door
fendant stated he would
arrived at the station a short time before
investigation dis-
broken into. Carrick’s
the sheriff’s return. At the
re-
sheriff’s
Supply had
Bruce
closed the east door to
quest
suspects
placed in
the two
latch broken.
open
been forced
and the
patrol
by Novy
car and taken
and Herrick
in the wood
pry
Fresh
marks were observed
nearby
jail
in the
town of Green-
pile
he
near the latch.
Inside
observed
in the front seat next
field. Defendant sat
front of
old
chips
slivers wood
Novy,
and Chafa
the rear with Her-
pry marks
register along with
wooden cash
rick.
pry
attempts to
drawer. The
on the cash
Greenfield,
way
which took less
On the
open
been unsuccessful.
had
drawer
minutes, Novy
defendant
thirty
than
asked
Ironically
which contained
the drawer
Novy was
happened in Adair.
what had
money
amount
was unlocked
small
gave defend-
present
the sheriff
when
by
opened
press-
easily have been
could
an-
warnings. Defendant
ant the Miranda
on the face of
ing
proper
button
Supply
Bruce
into
swered he had broken
register.
saw the marshal’s
he
and was inside when
by
Think-
Upon
stop
Chafa’s.
pass
his return to the service station
car
he
in the store
him
ing
Carrick was
the marshal
seen
told
defendant was
car
out
marshal’s
pushed
store when
car and
soon as the
Carrick
Chafa’s
left as
Initially,
challenges
I.
trial,
he had
testified
At
Herrick
sight.
propriety
submitting
to the
his ad-
heard this conversation.
Novy
urging
missions to
and Herrick
jail
at the Greenfield
they arrived
When
un-
was violative of
him, again read
booking
Herrick, before
Arizona,
holding
der the
warnings
then
defendant Miranda
16 L.Ed.2d
occupa-
name,
address
him his
asked
prepared card read
Defendant does not were transportation threats, state vehicle. promises, physical or stolen coercion abuse Upon police arrival at upon him. The record is void of station the of- inflicted any ill-treatment, ficer advised lengthy custodial inter- defendant of his constitutional any questions and then asked him a rogation, overreaching, showing few or mentally suspect readily replied. to which the deficient or unable He defendant was changed announcing then his mind he appreciate to the circumstances in which he would Although questions. not answer further himself. advised of his inter- found immediately attorney present rogation stopped. have an and to About to call, agent hour later an to telephone the record discloses F.B.I. came make a station, gave Miranda attempt exercise either these defendant the warn- to The record ings, interrogate him. is similar to case at bar proceeded to fully signed a in that willingly the officers careful to De- matter. inform of their did not discuss defendants coftstitutional hesitate to agent, rights prior any interrogation. he nor did There not tell the fendant did know, previously physical psycho- invoked was no evidence of logical the sort silent. intimidation of condemned remain
in Miranda. argued that since appeal page 520, S.E.2d, At says: the court any fur- already to answer he had refused interpret portion “We do of the not Mir- questions improper under ther it was opinion now under consideration him agent question anda F.B.I. for the mean that when a defendant ‘in custo- to him were statements dy’ duly advised his con- admissible. stitutional states he rights, he that does not want to a statement at the make conviction affirming first questioning, that law enforcement of- says: 391 F.2d 513 of circuit ficers are asking an- forever barred these contentions. agree “We do question. other interpret it to We do mean us that what Court It seems clear thac when being interrogated a defendant is those sought in Miranda were to interdict and he wishes to indicates remain indicated person has in which situations interrogation must then his constitutional to exercise his desire be sought continued. The vice be remov- police refuse but the silence continued, ed is the evil har- incessant Disregarding an answer. take ‘no’ for by interrogation rassment which results in claim, they continue to ask suspect, thereby the will of the questions, see 384 U.S. making involuntary.” his statement techniques These is admitted that It used in this case. Godfrey, In State v. 182 Neb. interrogation immediate- police local ceased defendant was arrested on un- expression ly upon appellant’s suspicion burglary and taken *6 proceed further.” willingness to police questioning. station for After re- ceiving warnings his Miranda Bishop, In N.C. specifically stated would answer no appealed S.E.2d four codefendants questions. interrogation then ceased. entering their convictions for and About hours later officers five confronted larceny ground inculpa- and certain newly defendant with some discovered evi- tory in-custody statements into admitted dence again giving and after him the Mir- evidence constituted reversible error under anda warnings him if he asked wished Miranda. waive rights. willingly voluntarily waived his rights and confessed Following apprisal arrest their to the requested crime. He had rights each denied accused aid counsel. any knowledge of the Subsequent crimes. appeal from conviction defendant they interrogation day further next argued request his initial to remain silent maintain their continued to innocence any should prevented have further in-cus- stated did not wish to answer further tody interrogation of him the police questions. Interrogation immediately ceas- lawyer, a absence of therefore day ed. after following reiteration of rendered subsequent inadmissible his ad- each defendant criminating statements. complicity mitted trial crimes. On these admissions received in evidence argument In rejecting this the court objections. purely over noted not exclude defendants’ Miranda did volun- tary disposing also noticed the inter- statements and this contention employed question- what rogators’ prac- immediate cessation of believe to be both request tical and ing upon constitutionally permissible was indicative test prepared interrogators determining fact “his voluntariness of in- recognize privilege criminating given by should he choose statements a defend- ant it.” after he exercise has received his Miranda
warnings. N.W.2d, the court pages At At page says: 246 A.2d the court police recognize that states: “We equally plain “And from Miranda is the permitted attempt an in-cus- cannot be flat holding pages 86 S.Ct. and, tody met interrogation being upon at pages 1628and 16 L.Ed.2d that no refusal, prisoner to his with a return a evidence obtained as a result a custodial repeat pro- attempt cell and then interrogation can be used periodically cedure until a is ob- statement accused prosecution unless and until the However, tained. an otherwise valid volun- demonstrates a waiver of constitutional tary right to counsel waiver of both the rights within meaning knowingly the right to remain Johnson Zerbst, made, intelligently followed L.Ed. 357], A.L.R. statement, case which [146 into should be transformed holds that waiver of a fundamental con- invalidity merely of silence some because stitutional ordinarily ‘an intentional prior a state- time. One refusal to make relinquishment or abandonment ment, honored, of a known fully when that refusal is right or privilege’, the determination of ought not taint of the en- the substance depend case, ‘must upon in each subsequent procedures tire cir- * * * particular facts and circumstances cumstances here. case,
surrounding that including the back- defendant, hold that the fact that a ground, “We experience, and conduct of the * * * part procedures of the initial at a accused’. Despite the fact that police station, warnings, after full Miranda testimony express does not show an is asked whether he desires to make a state- waiver appellant’s right to remain silent ment at negatively, that time and counsel, answers and to totality we hold that the automatically does not invoke his the circumstances—the attendant facts of counsel and render inadmissible sub- the case—are implicitly such as show that sequent appellant statement obtained in the absence voluntarily intelligently re- linquished counsel. Neither does such a factual these when he made his circumstance, coupled with facts the other incriminating admissions.” *7 here, prohibit or invalidate a later waiver In States, Cir., Narro v. United 5 370 voluntarily, knowingly, intelligently and 329, F.2d defendant was and arrested con- made.” victed for and stealing possessing an un- employment compensation ap- check. On Mullaney State, 248, In v. Md.App. peal signed she asserted her written con- 246 A.2d defendant was arrested for fession was inadmissible because the possession way of marihuana. On the prosecution had failed to demonstrate she police after given station he had been had knowingly waived rights. her Miranda warnings Miranda he made some criminating statements later which were In her affirming conviction the court ap- admitted evidence at into his trial. On said: “Thus the cases in which it is clear peal contended he these statements were that the warnings have been must be had inadmissible since the state failed considered on their own facts in order to knowingly demonstrate he had waived his question determine the of waiver. The rights. courts must do basis; this on an ad hoc far rick has thus been and per se rule Curd and hence no inadmissible on
since problem. ground dealing with defendant had at that time adopted ample adequately apprised warrant been of his Miranda here seems appellant freely and warnings. His argument apparently is conclusion that premised after hav- voluntarily poisonous her statement gave on fruit tree by fully her doctrine as Supreme aware of ing been made discussed Court investigat- States, in Nardone v. and the United 308 U.S. the Commission both 370 F.2d. Pages Wong S.Ct. 84 L.Ed. ing Sun officers.” States, United 371 U.S. Cir., Hayes, 4 In United States convicted F.2d i>*ii .cited*us. in inter- falsely made checks transporting that Nardone fact both Laying aside the on contention His sole commerce. state with concerned Wong Sun incriminating state- appeal that certain and therefore rights, Fourth Amendment receiving after from him ments elicited authority for defendant’s persuasive con- in warnings obtained rights guaranteed claim he has been denied rights in his constitutional travention of Amendment, are him under the Fifth prosecution failed to demon- had argument has merit. persuaded still not knowing intelligent strate rights. of his specifi- Supreme has never Court cally or tainted poisonous extended the defendant’s conviction affirming rights. theory fruit to Fifth Amendment reasoning on the relied Circuit Court are, however, close- We of and have aware case, supra, and said at Narro ly studied Westover v. United admonishes: F.2d: “Miranda 16 L.Ed.2d S.Ct. required and the waiver ‘The Miranda, companion case of wherein opinion our necessary in with accordance court conviction reversed defendant’s are, fully ef- today the absence of very previously reasoning similar to prerequisites to the equivalent, fective employed dealing by a made admissibility any statement Fourth * * Amendment violations * simply decide defendant.’ We tainted fruit doctrine. cir- today strong and unmistakable may occasion, cumstances, upon satis- say case It sufficient factorily equivalent.” establish bar comparable factually to Westover applied in United reasoning Similar length interrogated where defendant was Cir., Hall, F.2d 841. States v. over local of period fourteen hour warned ficers with showing he totality that when hold We of his immediately thereafter attendant circumstances —are facts —the questioned by obtained agents who F.B.I. wholly strong clearly demonstrating admissions from the facts him. On incrimi nature of defendant’s us defendant’s statements statements, nating such statements both sufficiently Herrick were removed evidence, though may admissible in even place time free them to render have re previously invoked *8 any to taint which been attached may have error, not Accordingly, main it was silent. his earlier conclusion admissions. This circumstances of view of the attendant in Moody, support finds v. Commonwealth case, made to this admit the statements to 39, 429 409; Pa. 239 v. United Evans A.2d Novy officers and Herrick. Cir., F.2d 355. IT. asserts admissions Defendant
made to Herrick III. argues was de product previous Car- to nied not process due was that he law This magistrate. guilt. a inference promptly taken before generate It must some- raised in specifically thing more than suspicion, was not speculation contention conjecture. trial court did not court. The Myers, the lower State v. 271, 253 Iowa 274, re 660, 662; point, rule nor did N.W.2d Daves, State v. 584, 586, quest ruling. a The officers 259 Iowa 879, 144 N.W.2d 881. period dur having busy a law enforcement case, In a criminal however, day ing early morning hours of cause should be submitted jury to the custody. The taken into defendant was the court should not direct a verdict of ac was record does not when defendant reveal quittal if there is any substantial evidence magistrate. taken must adhere We reasonably tending support to charge. not to our established rule issues Miskell, State v. 247 Iowa ordinarily raised in the trial court will not 36, 41; N.W.2d Horrell, State v. 260 Iowa appeal. be considered for the first time on 945,151 526, N.W.2d 529. 751, Ford, 744, State v. 259 Iowa N.W. Iowa 642; Hardesty, v. 2d State Miskell, 464, 469; addition to the State v. 153 N.W.2d we have already to, referred
Iowa, record discloses the 161 N.W.2d 735.
owner of Bruce Supply Store, Mr. Schwen- neker, now In like manner and his IV. wife testified as owner to ship due time he was denied and the urges the first east for door was closed and locked a process in that he was denied his few hours before defendant’s ar rest. telephone in violation of The make a call sheriff testified pry marks 755.17, Code, This where 1966. conten the door section had been open forced specifically in the trial matched tion was raised the width of the pry bar taken trial did not rule on court. The defendant. Defendant testified he requested was nor do so. this claim Chafa’s car shortly before his arrest. cited, supra, are likewise The authorities evidence was more than sufficient raise Additionally, a fair dispositive of this contention. inference of guilt. He was point we must out defendant was advised of entitled to a directed verdict. telephone call and did make VI. Defendant argues the trial court to exercise it. not choose erred in submitting instruction which public defined offense, was insuf- V. Defendant claims there conjunction with support the verdict. He instructions 9 ficient evidence to which detailed the elements charged entering necessary a guilty sustain ver- Adair, dict and Supply larceny. the Bruce Iowa defined Store alleges He “two offense, public with intent commit a unreconcilable issues were tendered larceny property wit: of the Bruce pick could either.” We Schwenneker, do agree. its owner. public offense, A appeal by se, per defendant based on is not an indictable insufficiency sup
claimed offense under evidence to of our port conviction, statutes. It merely view the evidence in a definitional term light encompassing most favorable to the wide variety State. of specific State Frink, crimes to v. Iowa the state penalty N.W.2d attaches a 435; Allnutt, Iowa, infraction 156 N.W.2d thereof.
266, 267; Anderson, Iowa, State v. course, Of the instructions must
be taken and together. considered quality necessary Shipley, of evidence Iowa 146 N.W.2d convict, 269; whether it be circumstantial or Hardesty, 261 State v. Iowa *9 direct, be must sufficient raise a fair N.W.2d 471. When so read we find 20,' opinions the in either conten- 1967 before in defendant’s merit
there is unrec- the two cited cases. We find no reversible two submitted instructions tion the giving in the 12. error of instruction issues. oncilable error, Having found no reversible the argues the trial next VII. judgment must be affirmed. jury the instruct failing “to erred in commit intent to ‘with element of Affirmed. larceny’ awas offense, to wit: public doubt beyond a reasonable proven fact be GARFIELD, LARSON, J., and C. presumed from defendant’s and not be LeGRAND, JJ., concur. SNELL and presence in the store.” STUART, J., concurs in result. had the the state It elemental beyond guilty proving burden of RAWLINGS, BECKER, MASON and charged. the crime a reasonable doubt JJ., dissent. specifically so instructed Instruction six therein set out jury. The trial court required to
elements which the state was BECKER, Justice.
prove beyond a reasonable doubt. I dissent. “That the listed stated:
second element so done with the entering error occurred when testi- Reversible offense, wit: public intent to commit mony Novy, relating ad- Patrolman larceny.” trial court agree cannot We defendant, admitted missions made adequately instruct on did not into evidence. this burden. essential facts first review the We should Lastly, defendant VIII. contends to Patrolman giving trial court erred in instruction the in- Novy were made. At the time of person 12. It reads: “Under our law a terrogation following appear from facts charged may testify with a crime in his record made State: behalf, own and the defendant has availed himself privilege, determining at 2:00 1. Defendant had been arrested question you guilt of his or innocence A.M. testimony. must consider his custody had been held 2. Defendant witness, and interested as an “He testified filling at a station in the town DX standpoint, and as such from an interested Adair for four hours. testimony; and you should consider this, the sur- all of you with when do the Miran- 3. Defendant case, give rounding circumstances da at 3:20 A.M. in connection weight, testimony such Immediately upon Mir- receiving case, as evidence in the other anda defendant exercised his warning to receive.” you think it entitled stated he did self-incrimination and pointedly opinions we have In two recent sheriff read not want to talk who jury’s calling suggested an instruction him. warning wit- an interested defendant as attention to Alford, questioned 5. Defendant was not fur- given. ness should not be 576; ther Iowa, the sheriff but was handcuffed. 151 N.W.2d during 273. He remained handcuffed to and Allnutt, Iowa, 156 N.W.2d However, patrol his ride in the car where further repeat here. our admonition We February questioning place. took began case the trial of this
199 transported to being interrogation which the place 6. Defendant takes ques- only making when has means of county patrol car jail available Patrolman corroborated given at about 6:00 A.M. tioned during driving, interrogation, de- incommunicado Novy was Novy. Officer burden is rightly on its seat shoulders. right. sat at his the back fendant Deputy Chafa, also handcuffed express “An statement that the individual Sheriff Herrick. willing is to make a statement and does warn- of further There no record attorney 7. is not want an closely by followed or patrolman ings to defendant a statement could constitute a waiver. But anyone else. a valid presumed simply waiver will be silence of the accused after warn question- initiated the patrolman 8. The ings simply or from the fact ing. that eventually confession inwas fact patrolman’s obtained. A answered 9. Defendant statement we made in Carn ley Cochran, questions. 516, v. 506, U.S. 82 369 S.Ct. 890, ap 8 L.Ed.2d (1962), 77 is duress other There is no evidence 10. plicable here: and hand- custody being than cuffed. ‘Presuming waiver from a record “ silent impermissible. is show, The record must record of 11. is no There or there must be allegation and evidence defend- waiver of constitutional show, that an accused was offered ant. counsel but intelligently and understand- de- of whether I. This not a case is rejected ingly Anything offer. less warnings under adequate fendant received not waiver.’ Arizona, v. the rules in Miranda laid down 16 L.Ed.2d 384 U.S. “See also Glasser v. United 315 It whether 694. is a case of U.S. 62 S.Ct. 86 (1942). 680 L.Ed. previously proved a of defendant’s Moreover, where in-custody interrogation silent. Miranda right exercised to remain is involved, there is no room for the con- page 475 U.S. v. Arizona states tention that the privilege is waived if the “If the in- 86 S.Ct.: 1628 of individual questions answers gives some or presence terrogation without continues some prior information on his own to in- taken, attorney of an a statement voking right his to remain silent when government heavy burden rests on terrogated.” knowingly demonstrate privilege Maryland majority phil- waived intelligently accepts I, “despite osophy1 self-incrimination cited Division counsel. Escobedo appointed testimony
retained
fact that
show
does not
478, 490,
Illinois,
n.
express
v.
U.S.
to re-
appellant’s
State of
waiver of
counsel,
986.
main
hold that
S.Ct.
silent
high
always
totality
set
standards
at-
This Court
the circumstances—the
of constitutional
proof
tendant
facts of
the waiver
the case—are
Zerbst,
voluntarily
rights,
implicitly
appellant
show
Johnson
relinquished
146 A.L.R.
intelligently
these
S.Ct.
L.Ed.
incriminating
stand-
these
made
admis-
when he
(1938), and we re-assert
interrogation.
may
re-
in-custody
sions.” Whatever
have
applied
ards as
Maryland case,
for estab-
under the facts
responsible
sult
Since the
court,
acceptance
of such
lishing
circumstances
the isolated
Mullaney
Md.App.
State,
A.2d
291.
*11
Supreme
facts of
case con-
Court
the
character
holding
under the
merge
of
refusal to follow the mandate of
the statement.
we
stitutes
When
of the
two standards and treat
as
Supreme
Court
United States
them one
ultimately
issue.
make the
pre-
a federal constitutional
decision based on
Miranda standards.
are
because there
no facts
This is true
of the
intelligent
point to
S.,
Basically
supra,
v. U.
recog-
Moore
remain
previously
right to
silent.
asserted
by reversing
this distinction
nizes
the case
Court
opinion
A
of the United States
short
inquiry
without
into the voluntariness of
S., 401
Appeals (9 Cir.), Moore v. U.
of
inquiry
is immaterial
statement. Such
exactly: “Mir
our situation
F.2d 533 fits
if
not been
the standards of Miranda have
Arizona,
436,
384 U.S.
anda v.
of
State
met. Such
the case
is
here.
re
(1966),
16 L.Ed.2d
S.Ct.
only
quires
principle
to show
II. The
fundamental
that
government
effectively
Supreme
rulings
informed
that
accused was
States
Court
are
United
in
in
of federal
privilege
binding
of
self-incrimination
State courts matters
counsel,
repeatedly
of
law has been
rec
and his
to
assistance
constitutional
Kelly,
knowingly
ognized by
but
that the accused
this court. State v.
also
562;
rights. More
Kar
intelligently
these
Iowa
91 N.W.2d
State v.
waived
presumed ston,
over,
not be
‘A
waiver will
247 Iowa
When
valid
ignore
binding authority
the accused we
simply
the silence of
of
from
simply
perilously
affirming
from rules we come
close to
after
or
principle
may
fact
its
was in
that the
violate
a confession
fact
that
objective.
own laws to achieve its immediate
eventually
86 S.
U.S.
obtained.’
at 1628.
Ct.
away
We have tried to move
from such
any evidence
is devoid
"The record
dangers
philosophy
as are inherent in the
waived his
appellant
accepted
Tonn,
in State v.
195 Iowa
making
which Officer