State v. Miller , 259 Iowa 188 ( 1966 )

Snell, J.

This ease is before us following a conviction of murder in the second degree. The State appealed from adverse rulings excluding evidence. Defendant appealed from ‘all adverse rulings and the final judgment. The State’s appeal is important only in the event of remand for new trial. We will first consider defendant’s appeal.

On February 23,1965, there was filed an information charging defendant with the crime of murder committed on or about the 31st of October 1965.

To this information defendant demurred on the ground no offense was alleged in that the date of the alleged offense was impossible.

The demurrer was sustained. A new information was then filed alleging October 31,1964, as the date of the offense. To this information defendant entered a plea of former acquittal. The plea was overruled. Upon agreement of the court, 'and all parties that the right to raise the question on appeal would not be jeopardized, the defendant entered a plea of not guilty.

I. The second information against defendant, after the demurrer to the first information was sustained because it referred to 'an impossible date, did not place defendant in double jeopardy contrary to Article I, section 12, Constitution of the State of Iowa. See State v. Smith, 88 Iowa 178, 55 N.W. 198.

The first information referred to a date that had not yet arrived. The defect was clearly a typographical error. It could have been corrected by amendment. Sections 773.42 and 773.43, Code, 1962. It did not contain matter which is a legal defense or bar to indictment or information requiring discharge of defendant under Code section 777.8.

The sustaining of the demurrer did not constitute a final judgment of the charge against defendant.

II. Code section 777.9 provides the court may order resubmission to a grand jury when a demurrer to an indictment has been sustained.

Defendant argues the second information was not ordered by the court, there was no compliance with the statute and consequently further prosecution was without authority.

We do not agree. Here the charge was by information, not by indictment. The defendant’s contention is answered in State v. Hartung, 239 Iowa 414, 422, 30 N.W.2d 491:

“Manifestly section 777.9 cannot apply when demurrer to a county attorney’s information is sustained. If the original charge is not by indictment it cannot be ‘resubmitted to the same or another grand jury.’ But it is also clear that if such demurrer goes-to matters that can be obviated by a new information or by amendment to the original information it is not the intention or spirit of the statute that the defendant shall escape trial.”

III. It was established by the evidence and admitted by defendant that the victim, whose death resulted in the charge against defendant, died of a gunshot wound.

Defendant assigns error in that the trial court admitted three color photographs of decedent’s dead body.' The prosecution did not claim defendant fired the fatal shot or was present when it was fired. It claimed he aided and abetted the murder and was subject to prosecution under Code section 688.1. In this situation defendant contends the three color photographs would serve no useful purpose, i.e., they were irrelevant. Photographs are admissible in criminal prosecutions where proper foundation has been laid. State v. Estrella, 257 Iowa 462, 467, 133 N.W.2d 97, 100; State v. McClain, 256 Iowa 175, 183, 125 N.W.2d 764. The photographs were corroborative of what the witnesses had described and would ordinarily be admissible. Admission of the photographs here complained of did not constitute reversible error. See State v. Heinz, 223 Iowa 1241, 275 N.W. 10, 114 A. L. R. 959.

IV. Decedent, Walter Adams, was found in a dying condition in an alley in Davenport, Iowa, about 10:15 p.m. Subsequent autopsy indicated he had been shot through the heart with a .22 caliber bullet. His truck was parked nearby. His brother, a fireman, was called to the scene. A search of the body and the truck was made but the keys to the truck were missing;

The State at trial claimed defendant aided and abetted one Sharon Hildebrand who allegedly did fire the fatal shot.

State’s evidence disclosed this defendant had been employed by decedent, Adams, during August, September and October. Prior to October 30, 1964, defendant had been living in Clinton, Iowa. His landlady, Mrs. Betty Ann Collier, testified Miller-lived there with Sharon Miller (also identified as Sharon Hildebrand), “supposedly his wife”; he was employed by decedent at the time he was living in Clinton; Adams paid the rent on the apartment.

On October 30 defendant and Sharon vacated the apartment in Clinton. They spent the night in a motel and the next morning- proceeded by bus to Davenport, arriving in the afternoon. Later the same afternoon Sharon Hildebrand, in company with defendant, purchased a cheap Rohm .22 caliber pistol and bullets at a pawnshop in Davenport using defendant Miller’s driver’s license for identification. The address of the vacated Clinton apartment was given at the time purchase was made. Defendant and Sharon subsequently registered at a hotel in downtown Davenport.

On the night of the fatal shooting decedent was with an employee, Gene Dynes, at his home in Davenport at approximately 9 p.m. His sister took a phone call for him, identified a woman’s voice and called him to the phone. He talked on the phone a few minutes. After the phone call his manner appeared normal. He stopped to say something to his father. At that time he appeared somewhat nervous, spoke to his sister, made another phone call and then left the house. He was next observed in a dying condition in the alley in downtown Davenport.

The immediate police investigation, coupled with the Federal Bureau of Investigation technical analysis, disclosed decedent had a bruise on his right arm just above the elbow which the physician thought was caused by a bite. The bullet recovered from the body had markings sufficient to identify it as having been fired by a cheap foreign make revolver, but insufficient to allow positive identification of the make of the revolver or the identical weapon from which the bullet had been fired. Cortland Cunningham, examining expert from the F. B. I., stated the bullet could have been fired from any one of 500,000 guns now in the United States, including a Bohm .22 caliber weapon. The area around the bullet hole in the clothing was microscopically examined 'and chemically tested for the presence of gunpowder residue. None was found.

On November 3, three days after the killing, defendant Miller was arrested in Louisville, Kentucky, while driving* the .1953 Ford pickup truck owned by decedent, as the result of a report the vehicle had been stolen. Sharon (Miller) Hildebrand was arrested in Louisville shortly thereafter. They were returned to Davenport November 6, 1964.

Much of the additional testimony connecting defendant with this crime, admitted by the trial court and about which controversy revolves, was given by Detective Sergeant Iversen over objection by defense counsel. It consisted of recitation of two oral statements taken from defendant November 6, 1964. The two stories varied in several details. The time lapse between the taking of the statements is not shown.

First, defendant Miller told Detective Iversen he and Sharon came to Davenport from Clinton via bus on October 31, arriving at about 2 p.m. They walked around and did some shopping, ate at a local restaurant and went to a show. After the show they viewed the Halloween parade, and after the parade went to a tavern where he had a couple of beers but Sharon did not drink. He stated that at no time during the day did Sharon use the telephone in his presence. After leaving the tavern they walked down the street and subsequently made their way to another tavern which was about to close as it was then 11:45 p.m. They went to the bus depot to see about buying tickets for Kentucky, his home state. As he came out of the tavern he observed Walter Adams’ truck which was parked parallel to the alley alongside the Central Fire Station, headed north. He then left Sharon at the bus depot, went to see some person named Gamble, failed to locate him and returned to Sharon at the bus station. He went out and got the truck. The keys were in the truck at that time and there ivas a man coming down the alley, carrying a bag. He picked up Sharon, they rode around awhile and finally decided to go to Kentucky. He tried to talk Sharon out of it because of her condition, but she said she would go anyway or would follow him.

In the second statement defendant told Detective Iversen about leaving Clinton, staying in a motel overnight on October 30, coming to Davenport by bus, shopping in Davenport and then going to a pawnshop where Sharon purchased a revolver and bullets. He showed, his driver’s license to the man who sold the gun to Sharon and took the gun and bullets- into his possession after they left the loan company. They then went to a show, later had a beer and then registered at the Columbia Hotel, went up to their room where they stayed awhile. Later they came to the Griddle Kestaurant. While at this restaurant Sharon borrowed a dime from him and made a phone call. He overheard Sharon say over the telephone: “Is Walt there.” He went out to the street where he subsequently talked to Sharon who stated: “I’m sorry. We have to go down — I’ve got to meet Walt in front of the ABC Pool Hall, but I told Walt you weren’t going to be around.” Then he walked to the ABC Pool Hall with Sharon and continued down the street alone. While he was walking around he saw Walter Adams’ truck go by. He did not know whether Adams was driving the truck or not. He then went into John and Joe’s tavern where he had a whiskey and 7Up. When he came out he saw the truck parked at the bus depot. He then went into another tavern and had a couple of beers and at that time thought Sharon was gone too long. He went out of the tavern, walked toward the bus depot and met her as she was coming back, then they went upstairs to their hotel where they remained 20 or 30 minutes. He observed that Sharon’s hair was mussed and her hand was reddened and asked her what had taken place but she would not tell him. He then told Sharon he was going out for a few minutes. He walked to the tavern where he had a beer and stayed until about ten minutes to twelve. He left the tavern and observed the truck by the bus depot, but it had been moved. He went back to the room where Sharon gave him the keys. He asked, “Why didn’t he bring the truck — why didn’t he bring his car?” and Sharon said, “Well, his two cars are laid up, and that’s the reason he brought the truck.” He stated when he got the keys from Sharon he went out, got the truck after cheeking out, walked over, got into the truck, a man with a paper sack was there at that time and was looking at him.

He picked up Sharon, they rode around awhile and finally decided to go to Louisville, Kentucky. He tried to talk Sharon out of it, but she stated she was going with him. On the trip to Louisville he needed some money and sold something.

The foregoing testimony was admitted before the jury. A great deal of evidence was suppressed on objections and motions by defense counsel. The State made several offers of proof which were rejected.

V. All proffered testimony of Detective Captain William C. Petersen of the Davenport Police Force, and of Detective Robert Gutman of the Louisville Police Department was suppressed. Further, all evidence by any witnesses concerning the discovery, testing and introduction into evidence of a .22 caliber revolver was suppressed. The State claims error.

The assignments of error by both the State and defendant are bottomed on rulings made after extensive voir dire hearings. The procedure has been approved in State v. Holland, 258 Iowa 206, 214, 138 N.W.2d 86, 90, 91.

VI. Defendant questions the admissibility of Detective Iversen’s testimony relative to defendant’s oral admissions. The first objection is that no minutes of evidence concerning this testimony by this witness were served on defendant. The defect noted by defendant was that the witness who was to testify to this information was Detective Petersen, not Detective Iversen. Since Detective Petersen’s evidence was suppressed, State offered the challenged evidence through Detective Iversen. As to material contained in the second portion of Detective Iversen’s testimony, i.e. the story in which defendant stated he was with Sharon Hildebrand when the gun was purchased, heard her say “is Walt there” on the phone, etc., the evidence had been clearly delineated in the Supplemental Bill of Particulars.

The testimony by Captain Petersen regarding the first conversation with defendant outlining the same general story with certain deviations was not admitted. The State challenges the suppression of this evidence. We are not here concerned, however, with the correctness of this ruling except to note that prior to trial defendant knew the substance of what the State would try to prove, and the names of witnesses to be called.

The information, pretrial notices of testimony and Bills of Particulars stated the names of witnesses, what would be offered as testimony, copies of written statements signed by defendant, and that “the defendant admitted in a statement to two Davenport, Iowa, Police Detectives, certain facts relating to the circumstances of the murder of Walter Adams * *

Defendant’s challenge is under section 780.10, Code, 1962: “Notice of additional testimony. The county attorney, in offering the evidence in support of the indictment * * *, shall not be permitted to introduce any witness who was not examined before a committing magistrate, or the grand jury, and the minnt.es of whose testimony were not presented with the 'indictment, to the court, unless he shall have given to the defendant, or his attorney of record if the defendant be not found within the county, a notice in writing stating the name, place of residence, and occupation of such witness, and the substance of what he expects to prove by him on the trial, at least four days before the commencement of such trial.” (Emphasis supplied.) An information is, for this purpose, treated in the same manner as an indictment, sections 769.4 and 769.5, Code, 1962.

The defendant knew that Detective Iversen would be called to testify as to conversations with defendant. The defendant knew that Captain Petersen would be called to testify as to conversations with defendant. The defendant knew what the police claimed defendant had said. The fact that Detective Iversen’s testimony covered some matters the State had expected to prove by Captain Petersen was not (if otherwise admissible) so violative of the statute as to constitute reversible error. It was not such an injection of entirely new matters of substance as to require reversal. The testimony did indicate defendant had told different stories but there is not the slightest suggestion of any coercion, pressure or involuntariness in obtaining the statements.

In State v. Powell, 237 Iowa 1227, 1248, 1249, 24 N.W.2d 769, we said:

“We think the minutes were rather brief and too broad a statement of the subject matter of his testimony, but the objection made at the trial when he was called as a witness was as to his giving any testimony because of the insufficient minutes. Mere brevity of the minutes would not prevent his testifying. State v. Van Vleet, 23 Iowa 27. And his testimony was within the subject matter of his observations and the statements he heard various parties make.

«# # #

“We have, in a long line of cases, held the State is not limited to the minutes or notice in its examination of witnesses. State v. Harding, supra, 204 Iowa 1135, 216 N.W. 642; State v. Thom, 236 Iowa 129, 17 N.W.2d 96.”

While under our previous pronouncements the situation here was not vulnerable to successful challenge we suggest to prosecutors that from an abundance of caution, and so there can be no claim of unfairness, the substance of what the State expects to prove by respective witnesses be furnished.

VII. Defendant’s second objection to Detective Iversen’s testimony is that admissions were obtained while defendant was without counsel.

Detective Iversen testified he advised defendant of his constitutional right to a lawyer and his right to remain silent, and whatever he said could be used against him, and that defendant knew the attorney representing Sharon Hildebrand.

Defendant on voir dire examination testified:

“I recall a conversation with Detective Sergeant John Iversen on or about November 6, 1964, in the Davenport Police Department. At that time I recall that Detective Iversen told me that I had a right to consult with counsel before making any statement to him. He asked me if I wanted to call an attorney, and I told him it wouldn’t do no good for me to call one because I didn’t know none because I was new around this neighborhood and that I didn’t have enough money to even hire one. I don’t remember whether Detective Iversen made any response to me at that time with regard to an attorney. I had maybe five, six, seven dollars, something like that at that time. # * *

“I was advised of my right to remain silent. There were no promises, threats, inducements, triekery or deceit used and I talked freely and voluntarily.

“I remember in the latter part of November, but I don’t remember the exact date, that I talked to Captain Petersen. * * *

“I voluntarily spoke to Captain Petersen at that time. No promises, threats, tricks, or inducements were used at that time. I was not struck or drugged and I spoke freely and voluntarily. This conversation was at my request.”

We have never held that under such circumstances statements made by an accused were inadmissible.

Defendant in his brief says:

“The defense admits that its proposition in this section of the brief goes further than the Iowa law on the subject and even the decisions of the United States Supreme Court. We do, however, submit that this situation is a logical extension of the holding in Escobedo v. Illinois, supra, and the cases subsequent thereto in the various Courts of Appeal.”

In State v. Myers, 258 Iowa 940, 140 N.W.2d 891, we considered statements made without the aid of counsel and refused to extend the Escobedo rule to the extent requested by eounsel here.

In State v. Myers we referred to United States ex rel. Russo v. New Jersey, 351 F.2d 429 (3 Cir. 1965), and rejected its application to situations such as we have here. Such an extension of the rule has been rejected by many jurisdictions including New Jersey.

The Supreme Court of New Jersey in State of New Jersey v. Coleman, 46 N. J. 16, 38, 214 A.2d 393, 404, decided November 8, 1965, extensively reviewed the authorities including Russo. It was a murder case involving ■ the admissibility of statements made in the absence of eounsel. The court said: “As we read the record and under our consistent interpretation of Escobedo, there was neither injustice nor constitutional violation in the admission of the defendant’s statement here into evidence.” We adopt this quotation as applicable to1 the case at bar.

For analysis of admissibility of statements see also State v. Leiss, 258 Iowa 787, 140 N.W.2d 172.

VIII. Defendant was arrested in Louisville, Kentucky. He was returned to Davenport on November 6 on a larceny charge incident to decedent’s truck. The time does not appear. As indicated, supra, he was interrogated by the officers and made some statements that day. He was taken before a magistrate on the morning of November 7. There is no claim by defendant there was any undue or prejudicial delay or any coerced statements obtained in the meantime.

Defendant’s brief makes no complaint about any delay.' We are not prepared to say that where there has been warning such as was admitted here and defendant talked voluntarily there was error in admitting his statements because counsel had not yet been appointed.

Section 757.7, Code of Iowa, requires that a defendant when arrested must be taken before a magistrate without unnecessary delay. Defendant here was taken before a magistrate the next morning. Defendant apparently did not feel abused. He never made any eomplaint. There was no such unnecessary delay as to require reversal. State v. Williams, 245 Iowa 494, 502, 62 N.W.2d 742; State v. Tharp, 258 Iowa 224, 232, 138 N.W.2d 78, 82, and State v. Hodge, 252 Iowa 449, 458, 459, 105 N.W.2d 613.

IX. Defendant contends a verdict of acquittal should have been directed by the court because of insufficient evidence to sustain a conviction. We do not agree.

The evidence was entirely circumstantial but extensive and ample. We have considered the entire record but amplification of the details here would serve no useful purpose. The court properly instructed the jury that the facts and circumstances relied on must not only be established beyond a reasonable doubt, but must be inconsistent with any other reasonable hypothesis. When the evidence is viewed in the light most favorable to the State a jury question was presented. We do not decide disputed fact questions in such a ease. State v. Frink, 255 Iowa 59, 64, 120 N.W.2d 432.

X. The State appealed from adverse rulings excluding the testimony of Detective Captain Petersen of the Davenport Police Department, Detective Gutman of the Louisville, Kentucky, Police Department, and the evidence relating to admission of a .22 caliber revolver.

As we have concluded the case should be affirmed on defendant’s appeal the questions raised on State’s appeal are moot. The questions are not of sufficient academic importance to the bench and bar to justify undue extension of this opinion.

The case is — Affirmed.

Garfield, C. J., and Larson, Moore and Stuart, JJ., concur. Becker, Thornton, Mason and Rawlings, JJ., dissent.