State v. Myers , 258 Iowa 940 ( 1966 )

Larson, J.

Defendant, a sixty-one-year-old janitor, was convicted of sodomy (fellatio) on a nine-year-old boy. He appeals, urging three errors for reversal.

The principal issue in this case involves the admission into evidence of defendant’s statement to summoned officers as they were taking him to the police station for investigation and interrogation. For the reasons which we set out hereinafter, we have concluded the statement was properly admitted and its acceptance was not reversible error.

. The State’s evidence shows defendant took a nine-year-old boy and his eight-year-old brother into his apartment on June 27,1964, at about 1 p.m., and performed the act charged'on the older boy. The boys notified their grandmother, parents, and older brothers of the incident. They called defendant from his apartment and he was “mauled” by the stepfather. The police were called and, when they arrived, the nine-year-old boy identified defendant and in his presence told the police what had happened. The mother testified defendant denied the accusatory statements, but the boy and the officers claimed defendant said nothing. As a crowd gathered,- the police placed defendant, in the squad ear and took him directly to the police station. One of the officers testified that on the way to the station “I asked the defendant how he could explain the boys being in the apartment. He stated that they were in the apartment. * *

“Q. Was that the extent of the conversation? As you recall it at that time? A. The defendant objected to being detained. He didn’t think he had done anything to go to jail for.

“Q. But he did admit the boys were in his apartment, is that, right? A, Yes.” ... ' ■ ■ :

The second officer’s testimony was to1 a like effect, and timely objection to this evidence was made.

. I, Defendant contends when he w;as taken into custody by the police he became an accused, that thereafter he was entitled, to advice of counsel, and that he did not waive that right but was effectively deprived thereof when the foregoing question was asked him by the officers on the way to the police- station. He contends the right to counsel attaches as soon as one becomes an accused, extends to all periods of police interrogation when- constitutional rights'must be intelligently exercised oy waived, 'and does not depend upon a request for counsel. He relies upon Escobedo v. Illinois, 378 U. S. 478, 84 S. Ct. 1758, 12 L. Ed.2d 977, and the eases therein cited; People v. Dorado, 62 Cal.2d. 338, 42 Cal. Rptr. 169, 398 P.2d 361; State v. Neely, 239 Ore. 487, 395 P.2d 557; United States ex rel. Russo v. New Jersey, 351 F.2d 429 (1965); People v. Schader, 62 Cal.2d 716, 44 Cal. Rptr. 193, 401 P.2d 665; State v. Turner, Ore., 404 P.2d 187; State v. Dufour, R. I., 206 A.2d 82.

It is clear that until defendant reached the station' and was turned over to the detectives for questioning, he was not advised. of his right to remain, silent or his. right to counsel. There was no contention defendant waived any of his constitutional rights. The issue is whether these rights were violated. Thus we face the very controversial issue of when one' is entitled to- be considered an “accused” so as to bar the admission into evidence .of. any voluntary statements made to the investigating officers. Reams have been written in' opinions and Law Review articles on this subject since the.Escobedo decision, and the controversy gqes on.. See annotation, 1 A. L. R.3d 1251.

Recently in State v. Fox, 257 Iowa 174, 178, 131-N.W.2d. 684, 686, we said: “The rule is well settled that one accused.of ■ a crime may refuse to answer questions of the police, and, before doing so,, is entitled to advice of counsel.” Hp-weyer, we held voluntary statements made in response to police questions when defendant’s counsel was absent but access to him was not denied, were admissible, especially when no objections, thereto were made. We expressed the view then that Escobedo was limited to its particular facts, which disclosed that Escobedo was accused of the crime of murder and was being extensively interrogated by the relays of officers when his attorney was being excluded and could not advise him. In fact, the United States Supreme Court on at least three occasions said the same thing in Escobedo v. Illinois, supra. In the opinion it said: “The critical question in this case is whether, under the circumstances, the refusal by the police to honor petitioner’s request to consult with his lawyer during the course of an interrogation constitutes a denial of ‘the Assistance of Counsel’ * * (Emphasis supplied.) The opinion continues: “We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested 'and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been domed ‘the Assistance of Counsel’ * * (Emphasis supplied.) The opinion concludes: “We hold only that when the process shifts from investigatory to accusatory- — • when its focus is on the accused and its purpose is to elicit a confession — our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer.” (Emphasis supplied.)

The statement! of the question involved and the pronouncements above clearly disclose the court held only that under these circumstances the accused must be permitted to consult his counsel. In reaching this result the court does say that an accused has a constitutional right to demand counsel when the police investigation becomes accusatory. It then pointed out: “The ‘guiding hand of counsel’ was essential to advise petitioner of his rights in this delicate situation” and that “This was the ‘stage when legal aid and advice’ were most critical to petitioner”, thus advancing the time formerly considered “critical”, i.e., when one is brought before a magistrate as by law provided. For that time in Iowa, see section 755.17, Code, 1962.

In State v. Mabbitt, 257 Iowa 1063, 1070, 135 N.W.2d 525, 530, we held a defendant was not denied the assistance of counsel under Escobedo or of his right to remain silent where, before interrogating him in the absence of counsel, police officers fully advised him of his right to remain silent and that anything he said might be used against him. Also see State v. Tharp, 258 Iowa 224, 138 N.W.2d 78.

There is no suggestion that defendant’s statements to the officers here were not voluntary. Ini fact, in the trial he denied making them. There is no claim of coercion, physically or mentally. Therefore, if defendant’s contention is to be upheld, we must hold any statements voluntarily made by one at the time of his arrest when he hasi not been advised of his constitutional right to remain silent and to have the assistance of counsel, cannot be admitted in evidence in the absence of an intelligent waiver of such rights. This we cannot do, and doubt the correctness of his contention that United States ex rel. Russo v. New Jersey, supra, and People v. Dorado, supra, so hold or that State v. Neely so holds as to the failure to remain silent. In each of those cases a crime had been committed, the investigative efforts of the authorities were focused upon the accused, and the purpose of their lengthy and exhaustive interrogation was to obtain a confession from him. Regardless of the value of these distinctions, most state courts and the United States circuit courts have rejected the view of Escobedo advanced here by appellant. They apply the Escobedo rule only under factual situations comparable to those in the cited cases. Among these states are Illinois, New York, Nevada, Wisconsin, Idaho, New Jersey, Kansas, Minnesota, Missouri, Ohio, Pennsylvania, Texas and New Hampshire.

Furthermore, most state and federal circuit courts have refused to hold that any interrogation of one arrested or suspected of a crime can make no voluntary statement admissible in evidence against him, unless it appears the accused or suspect has first been advised of his right to counsel and to remain silent, and has intelligently waived that right. See United States v. Cone, 254 F.2d 119, decided November 22, 1965, by the Second Circuit Court of Appeals, covering the states of New York, Connecticut and Vermont; People v. Lewis (1965), 32 Ill.2d 391, 207 N.E.2d 65; People v. Golson (1965), 32 Ill.2d 398, 207 N.E. 2d 68, 71, and citations. The Illinois Supreme Court, which carefully considered this' vital question in the field o-f police ihvestigation and interrogation prior to arraignment, held the authorities weré not under a duty to advise an accused of his right-to counsel'and of his right to remain silent. Generally, we agree with that conclusion, especially as to- voluntary statements made prior to any formal, basic, or purposeful interrogation by trained investigators. Also see People v. Hartgraves, 31 Ill.2d 375, 202 ME.2d 33; State v. Scanlon, 84 N. J. Super. 427, 202 A.2d 448; People v. Gunner, 15 N. Y.2d 226, 257 N. Y. S.2d 924, 205 N.E.2d 852; Bean v. State, 398 P.2d 251 (Nevada); Browne v. State, 24 Wis.2d 491, 129 N.W.2d 175, 131 N.W.2d 169, 13 L. Ed.2d 706.

' Only California, Oregon, and the Third Circuit seem to support appellant’s position and, as stated, those cases can be distinguished on the facts. In each the clear,' purpose of the interrogation was to obtain a confession. Batteries of officers took turns questioning defendants, and in Escobedo the accused’s demand to consult his waiting attorney was actually denied. On the other hand, the court in Escobedo was careful to point out at page 492 of 378 U. S., 1766 of 84 S. Ct., and 987 of 12 L. Ed.2d:

“Nothing we have said today affects the powers of the police to investigate ‘an unsolved crime’, ® * * by gathering information from witnesses and by other ‘proper investigative efforts.’ # * # We only that when the process shifts from investigatory to accusatory — when its focus is on the- accused and its purpose is to elicit a confession — our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer.” ' •

Thus, it seems :the court was saying that information gathered 'without physical or mental abuse during- a preliminary investigation to determine what happened and whether a charge should be placed -against a suspect taken into custody, is admissible, and that it violates no constitutional rights provided by the Bill of Rights made applicable to the states by Amendment 14 to the Federal- Constitution. The court was very specific in ex-cep-ting a “general inquiry into an unsolved crime” and in designating the critical time when the suspect is entitled to counsel assistance as the time when the police carry out a “procesé of interrogations” with a “purpose” to elicit a, confession.

Even Justice Douglas in his dissent in Crooker v. California, 357 U. S. 433, 441, 78 S. Ct. 1287, 1293, 2 L. Ed.2d 1448, 1455, recognized a period of preliminary interrogation was not included in this extension, for he said when petitioner “was first arrested, and before any real interrogation took place, he asked that his attorney be present.” (Emphasis supplied.) He pointed out therein why the court felt it, was necessary to interpret the constitution to provide counsel before trial, i.e., that would effectively restrain the coercive power of the police but not eliminate the right and duty of the officers to detect and solve' crimes. Thus, to accept appellant’s view would seriously curtail the latter duty and no doubt leave many additional crimes unsolved.

United States v. Cone, supra, C. A. 2 (en banc), 34 United States Law Week, 2293, 2294, is a stronger ease for exclusion than the case at bar. There the facts tended to prove a purposeful interrogation of one in custody suspected of a crime. The court held a post-arrest, confession that custom agents’ elicited during a brief, noncoercive, sidewalk interrogation of a suspected narcotics smuggler, about'whom they had received information from other suspects, was not rendered inadmissible by their failure to advise him of his right to counsel or his right to remain silent. There, as here, the suspect argued at the time the statements "were made that he had become the “target” of the investigation and', since the purpose of the questioning was to elicit an incriminating statement, his response under the rule of Escobedo v. Illinois, supra, could not be used against him. However, the eourt pointed out that an inculpatory statement given voluntarily under circumstances that did not create any feeling that the suspect was compelled to answer on pain of suffering physical or psychological mistreatment would not violate any constitutional right of the defendant in the absence of a warning of his rights. Only one judge dissented. Also see Kennedy v. United States (D. C. Cir.), 353 F.2d 462.

An extended discussion of Escobedo and review of the many authorities considering the application of the Sixth Amendment made applicable to’ the states by the Fourteenth Amendment would at this time serve no useful purpose. See 49 Minnesota Law Review 47 (1964); 73 Yale Law Journal 1000 (1964); 76 Harvard Law Review 1516 (19.63). We are satisfied the most that can be claimed for Escobedo is that the critical period when an accused is entitled to counsel’s aid was moved forward to the time when the interrogation ceased to be investigatory and the purpose thereof was to obtain a confession. We do not believe that time had arrived in the case at bar.

Here the circumstances do not reveal a stage where a proper investigation by the officers had been transformed into an accusatory or adversary proceeding. To say the single question asked by the officer en route to the station was a “grilling” would seem farfetched. To say the purpose of that question was to obtain a confession, that the suspect had abused the boy is also not justified. It was clearly a question seeking information as to what had happened and to learn whether there was any substance to the child’s complaint. The fact that it did get a response which might be against appellants interest is not the controlling factor here. The question was pertinent to an investigation as to whether a crime had been committed. There was not the slightest hint of abuse or coercion attached to it. The accusatory stage had not been reached until he was interrogated at the police station, and at that time it is not denied he had been advised of his rights. The inquiry then was general and the evidence was, admissible.

We do not read the recent Supreme Court holdings in Massiah v. United States, 377 U. S. 201, 84 S. Ct. 1199, 12 L. Ed.2d 246, Escobedo v. Illinois, supra, and others, far-reaching as they are in excluding voluntary utterances, to render inadmissible all statements made by an uncounseled person in custody. Since these eases are not controlling on the facts shown in this record, we need deal with them no further.

II. Appellant also contends the court committed reversible error in giving Instruction No. 12 'as follows:

“There has been introduced in this case on the part of the State of Iowa evidence by witnesses to the effect that the defendant, Hall Elton Myers, remained silent when confronted with an accusatory statement or statements arising out of the alleged facts on which the charge herein is based, and you have heard the testimony of the defendant as to this evidence introduced by the State of Iowa.

“Under the law of this State if a person is accused of the crime at such a time and under such circumstances that a normal and reasonable person of similar age and experience and under such circumstances would deny any guilt, if that person chooses to remain silent upon being so accused, such silence may be considered along with all other evidence in determining the guilt or innocence of the defendant.

“Before you may consider such evidence in the present case, if you find that in fact such incidents did take place, you must find beyond a reasonable doubt that the defendant, Hall Elton Myers, had knowledge of the accusatory nature of the alleged statements and at said time or times a normal and reasonable person of similar age and experience would have denied said accusatory statements and that the said defendant, Hall Elton Myers, did not deny said accusatory statements. If you so find, you may give such evidence such weight as you may determine it to be entitled. Otherwise not.”

This case was tried before the recent United States Supreme Court opinion in Griffin v. California, 380 U. S. 609, 85 S. Ct. 1229, 14 L. Ed.2d 106, where it was held that Amendment 5 was by virtue of Amendment 14 made applicable to the states. Thus, the constitutional question involved was not presented to the trial court. Nevertheless, the defendant contended reversible error was committed in giving the instruction on silence, that he had reserved his objections and exceptions to the instruction and presented them in his written motion for a new trial, and that it was erroneously overruled. While it occurs to us these objections and exceptions were not timely, we do note the present contention that “the instruction as a whole gave undue prominence to and called special attention to testimony concerning whether or not the appellant denied the accusatory statements made by the complaining witness * * * allegedly in the presence of the appellant, * * #.” He admits there was some evidence of conduct in the record to sustain that issue and admits no objection was made to it when offered or now. We find no merit in this complaint.

It has been repeatedly held in this State that the admission of testimony as to the conduct of a defendant when first accused of a crime is not objectionable. State v. Johnson, 221 Iowa 8, 19, 264 N.W. 596, 267 N.W. 91; State v. Benson, 230 Iowa 1168, 1171, 300 N.W. 275; State v. Beckner, 197 Iowa 1252, 1258, 198 N.W. 643; State v. Middleham, 62 Iowa 150, 151, 17 N.W. 446; State v. Pratt, 20 Iowa 267, 269, 270. We have held that, while the weight to- be given this evidence is slight, it is the jury’s function to value it in view of all other, circumstances. State v. Pratt, supra. A fact of importance here is whether the defendant heard and understood the accusation. State v. Middleham, supra.

Prior to the Griffin decision the Iowa Supreme Court had discussed and approved the propriety of an instruction that stated an inference that the accusations were true when one remained silent or failed to testify. See State v. Nicola, 169 Iowa 171, 151 N.W. 70. Subsequent to the Griffin case we have held on at- least three occasions that an instruction was -erroneous which told the jury that if the defendant fails to exercise his right to take the stand in his own behalf, his failure to do so may be considered as an inference of guilt. State v. Johnson, 257 Iowa 1052, 135 N.W.2d 518; State v. Beshears, 258 Iowa 389, 138 N.W.2d 886.

Amendment 5 to the Federal Constitution provides that “No person shall be * * * compelled in any criminal case to be a. witness against himself, * * ■

Clearly the Griffin case forbids comment by the prosecution on,, the; accused’s failure to testify, or instructions by the court that -if defendant does not take the stand, to deny or explain facts withm his knowledge, the jury must) take that failure into consideration as tending to indicate the truth of such evidence.

While the question raised herein is somewhat akin to that settled in the above-mentioned cases, it must be remembered the objectionable feature to be avoided is the compulsory self-incrimination. Griffin v. California, supra, 380 U. S. at 614, 85 S. Ct. at 1233, 14 L. Ed.2d at 110. Thus, the violation of Amendment 5 by any previous permissible comment rule, regardless of its source, was barred because “It cuts down on the privilege by making its [right to remain silent] ass&riion costly.” (Emphasis supplied.)

However, we think the situation presented here is very different from that in the Griffin and Johnson cases. Under the admitted testimony there was a jury question as to whether the accused heard and understood the boy’s accusations, and whether he made any reply. His own testimony thereon is not clear. Since there was evidence from which the jury could find that the defendant heard and knew the charge made against him by the boy and that he remained silent, the instruction was not erroneous. Unless the given instruction by its wording is violative of Amendment 5, the court did not err in giving* it. We do not find it so. On the other hand, it would seem to defendant’s advantage to have such an instruction given to prevent any jury speculation or indulgence in improper inferences due to the testimony. Instruction No. 12 accomplished that purpose and permitted the jury to consider evidence of silence or conduct in connection with other circumstances, and to give it only such weight on the issue of guilt or innocence as the circumstances would justify, which in this case was a hostile crowd and a recent mauling. The instruction as given, in effect, barred any presumption or inference of guilt due to his silence, and still allowed its consideration.

Since this instruction did not penalize appellant for his failure to speak out, we find no error in this assignment. In any event, we feel the instruction as given was not so prejudicial as to require a reversal of the case.

III. Appellant’s third assignment contends the court erred in giving an additional “get together instruction”, and that it had the effect of forcing a verdict not based upon the merits of the case.

From the record we learn this case was submitted to the jury on November 19, 1964, at about 2:10 p.m. Some twenty hours later at 10:48 a.m. the jury was recalled and an additional instruction given. The jury again retired and about 41 minutes later at 11:29 a.m. a verdict was returned. We have examined carefully the additional instruction as given and do not find therein any error. Nor do the facts surrounding' the giving of the additional instruction and the return of a verdict indicate any abuse of the court’s discretion or prejudicial effect on the jury. In the recent case of Coulthard v. Keenan, 256 Iowa 890, 897, 898, 129 N.W.2d 597, 601, we set out the general rules governing the propriety of just such an instruction, saying:

“We have said the ultimate test of the propriety of a verdict-urging instruction is whether it forced or helped to force an agreement, or merely started a new train of real deliberation which ended the disagreement. Also that where the jury’s disagreement is of more than ordinary and usual duration and, after giving of a verdict-urging instruction, a verdict is reached in a short time in comparison with the duration of the disagreement, a presumption arises that the instruction was prejudicial.”

See also State v. Barlow, 242 Iowa 714, 46 N.W.2d 725; In re Estate of Cocklin, 232 Iowa 266, 5 N.W.2d 577; State v. Bogardus, 188 Iowa 1293, 176 N.W. 327, and citations. Compare Clemens v. Chicago, R. I. & P. By. Co., 163 Iowa 499, 144 N.W. 354, and State v. Peirce, 178 Iowa 417, 159 N.W. 1050.

Here the court told the jury that “Each juror should listen to the arguments of other jurors with a disposition to be convinced by them; and if the members of the jury differ in their views of the evidence, such difference of opinion should cause them all to scrutinize the evidence more closely and to reexamine the grounds of their opinion.”

This is not the situation passed on in the Coulthard case where the jury had been out eleven and one-half hours. There an oral verdict-urging instruction had been given, and within some five or six minutes a verdict was returned. Here it appears ample time had elapsed to avoid any presumption that the jury did not follow the instruction properly. It was not disclosed how the jury stood before the instruction, but there was ample time for the jury to' reexamine its approach to the issue, to' consider the new approach, and to* arrive at an agreed and adequately-considered verdict. See State v. Barlow, supra. There was no reversible error in this assignment.

IV. Having carefully considered the contentions and authorities of able counsel for appellant, we are convinced the case should be affirmed. — Affirmed.

Gareield, C. J., and Snell, Moore and Stuart, JJ., concur. Thornton, Mason, Rawlings and Becker, JJ., dissent.