Collins v. Auger

• Decision Date: 07 December 1977
• Docket Number: Civ. No. 76-215-1.
• Citation: 451 F. Supp. 22
• Parties: Gary James COLLINS, Petitioner, v. Calvin AUGER, Warden, Respondent.
• Court: U.S. District Court — Southern District of Iowa

451 F. Supp. 22

Gary James COLLINS, Petitioner, v. Calvin AUGER, Warden, Respondent.

Civ. No. 76-215-1.

United States District Court, S. D. Iowa, Central Division.

December 7, 1977.

Keith E. Uhl, Des Moines, Iowa, for petitioner.

Richard C. Turner, Atty. Gen. of Iowa, Thomas D. McGrane, Asst. Atty. Gen., State of Iowa, Des Moines, Iowa, for respondent.

CERTIFICATION IN RESPONSE TO ORDER OF REMAND

STUART, Chief Judge.

This matter is before the Court on the order of remand from the Eighth Circuit Court of Appeals dated October 21, 1977. Petitioner was originally convicted in state court on July 18, 1974 on the charge of assault with intent to commit rape in violation of section 698.4 of the Iowa Code (1973). The Iowa Supreme Court affirmed State v. Collins, 236 N.W.2d 376 (Iowa 1975), and certiorari was denied, Collins v. Iowa, 426 U.S. 948, 96 S.Ct. 3166, 49 L.Ed.2d 1184 (1976). Petitioner subsequently filed an application for habeas corpus relief in this Court. On March 30, 1977 this Court granted relief on the ground that the admission into evidence of defendant's inculpatory statements made to the psychiatrist during a court ordered psychiatric examination to prove his guilt was so fundamentally unfair that defendant was deprived of due process of law. The Court also stated; "there is ample evidence to sustain a conviction without these admissions. But, I cannot say that the admission of statements of defendant confirming in detail the testimony of the victim was harmless error". Collins v. Auger, 428 F.Supp. 1079, 1084 (S.D.Iowa 1977). The writ of habeas corpus was sustained on the condition that it would not issue if retrial were initiated within ninety days, and in addition, the writ was to be suspended in the event of appeal. Appeal was taken by respondent to the Eighth Circuit which, after the decision of the Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), remanded the case for this Court's certification of findings on the following questions:

"1. Whether petitioner made an adequate contemporaneous objection in the state court to the use of the psychiatrist's statements containing his admission of guilt in order to preserve his constitutional objections now asserted in this proceeding; and

2. If not, whether under the Wainwright rule and as earlier defined in Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976), petitioner has shown `cause' and `actual prejudice' in not making such objection. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 2508, 53 L.Ed.2d 594 (1977)."

ADEQUATE CONTEMPORANEOUS OBJECTION

Under the Supreme Court's guidelines in Wainwright v. Sykes, supra, the question of contemporaneous objection was stated as follows: "shall the rule of Francis v. Henderson, supra, barring federal habeas review absent a showing of `cause' and `prejudice' attendant to a state procedural waiver, be applied to a waived objection to the admission of a confession at trial? We answer that question in the affirmative." Wainwright v. Sykes, supra, at 86, 97 S.Ct. at 2506.

Although Iowa's contemporaneous objection rule is not embodied in specific statutory provisions, it is nonetheless

well established that failure to object to evidence or to move to strike the same at the time the record is made and when the grounds for objection or motion to strike are first apparent precludes the party from asserting on appeal admission of evidence was error.

State v. King, 225 N.W.2d 337, 341 (Iowa 1975). See also State v. Jewett, 219 N.W.2d 559, 560 (Iowa 1974); State v. Canada, 212 N.W.2d 430, 432 (Iowa 1973); State v. Williams, 207 N.W.2d 98, 109 (Iowa 1973).

Further, not only must an objection be contemporaneous, it must also be sufficiently specific so as to alert the trial court to the question raised and enable opposing counsel to take proper corrective measures to remedy, if possible, any defects in the offer of evidence. State v. Williams, supra, at 110. As the Iowa Supreme Court has noted:

The Court to which the evidence is offered is entitled to know on what grounds it is challenged and should not be left to speculate as to whether the evidence is in fact subject to some infirmity which the objection does not point out. A specific objection, if overruled, cannot avail the objector except as to the ground specified since the court is not bound to look beyond the ground of the objection thus stated. Every ground of exception which is not particularly specified is to be considered as abandoned.

State v. Droste, 232 N.W.2d 483, 487 (Iowa 1975). See also State v. Pitlik, 247 N.W.2d 741, 743 (Iowa 1976); State v. Leonard, 243 N.W.2d 75, 85 (Iowa 1976).

In the instant case, petitioner's counsel made several timely objections to the admission of the testimony of the psychiatrist, Dr. Lara. In the partial transcript of proceedings the following appear:

At page 7-8:

Q. All right. Now that we know the skeletal outline of what you do there, at this point would you go back to the beginning and `plug in' so to speak what happened in this procedure with regard to Mr. Collins.

MR. KROHN: That is objected to as divulging a doctor-patient relationship and in violation of the Code of Iowa protecting such relationships.

THE COURT: Overruled. You may answer the question.

At page 10-11:

Q. Where did you get this information?

A. From him and from the information you did furnish.

Q. All right.

MR. KROHN: This is objected to on the grounds that there is no proper foundation. There is no showing that the defendant has been given the Miranda warnings.

THE COURT: Overruled at this time.

Q. Now doctor, would you briefly state to us the substance of the conversation regarding the background information which is contained in your report which you had with Mr. Collins?

MR. KROHN: Same objection.

THE COURT: Same ruling.

. . . . .

Q. Read it or refer to it as you testify, whichever you prefer.

MR. KROHN: This is objected to as disclosing a doctor-patient relationship which is prohibited by the laws of Iowa.

THE COURT: Overruled.

At page 13:

MR. KROHN: This is objected to and we move that the testimony be stricken for the reason that the defendant was not given the Miranda warning.

THE COURT: Overruled.

At page 22:

Q. Did he ever relate to you during the course of these interviews his opinion as to what happened on January 6, 1974?

MR. KROHN: This is objected to as not including the Miranda warning.

THE COURT: Overruled.

At page 26-27:

Q. Would you please relate to us what he told you regarding the incident in question?

MR. KROHN: This is objected to as hearsay and not within the realm of the witness.

THE COURT: Overruled.

. . . . .

A. I'll quote from the history.

MR. KROHN: This is objected to again as hearsay.

THE COURT: Overruled.

At page 46:

MR. KROHN: Your Honor, at this time I would like to move the Court to enter an order declaring a mistrial for the reason that the Defendant's constitutional rights against self-incrimination have been violated. There has been offered into evidence Dr. Lara's testimony in the trial and accepted, and the Defendant had no Miranda warning that he had a right to remain silent, that any statement he might make could or would be used against him.

THE COURT: The Defendant's Motion for Mistrial will be denied for the reasons it does not believe that the Miranda warning or requirement goes that far when a person, the Defendant in this case, was submitted to the Oakdale facility for examination upon request and application made in behalf of the Defendant at which time he was represented by counsel, and in this Court's opinion competent counsel, and for the reasons set forth in State v. Mayhew the testimony of Dr. Lara is relevant, competent, and important to his case.

As is evident from the excerpts set forth above, defense counsel urged three basic objections to the trial court; (1) failure to give adequate Miranda warnings; (2) violation of the doctor-patient privilege; and (3) hearsay.

Failure to adequately and properly inform petitioner of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) was the most consistently urged objection at trial prior to the testimony of the Court appointed psychiatrist. The objection was overruled. The issue was raised on appeal and the conviction affirmed. State v. Collins, supra. As this Court noted in its conditional grand of habeas relief:

The Court agrees with the Iowa Supreme Court that the prophylactic rules of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and its progeny should not be extended to encompass the kind of situation involved herein. State v. Collins, supra, 236 N.W.2d at 378. The giving of the Miranda warnings prior to a psychiatric examination would be highly inappropriate. . . . The Court concludes that the manner in which the statements were elicited were thoroughly proper.

Collins v. Auger, supra at 1082. In addition, as this Court also noted in Collins v. Auger, supra:

If the giving of a Miranda warning satisfied requirements of the Fifth Amendment and the Fourteenth Amendment and made the defendant's incriminating admissions admissible, the defendant would be placed in a situation where he must sacrifice one Constitutional right to claim another.

. . . . .

A defendant should not be compelled to choose between exercising his Fifth Amendment right not to incriminate himself and his due process right to seek out available defenses.

Collins v. Auger, supra, at 1083. See also Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Remaining firmly convinced that Miranda is totally inapplicable to these facts, this Court cannot say that urging of this objection was an adequate contemporaneous objection within the meaning of Wainwright v. Sykes, supra.

The Miranda warnings are intended to inform defendant of his right to remain silent and his right to counsel and to advise him that if h...