Ibsen v. State

• Decision Date: 10 January 1967
• Docket Number: No. 5111,5111
• Citation: 83 Nev. 42,422 P.2d 543
• Parties: Clyde George IBSEN, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 543

422 P.2d 543

83 Nev. 42

Clyde George IBSEN, Appellant, v. The STATE of Nevada, Respondent.

No. 5111.

Supreme Court of Nevada.

Jan. 10, 1967.

Mann & Scott, Elko, for appellant.

Harvey Dickerson, Atty. Gen., Carson City, Donald Leighton, Humboldt County Dist. Atty., Winnemucca, for respondent.

OPINION

ZENOFF, Justice.

Delbert Howard, a well-known resident of Winnemucca, was last seen alive near his residence on July 8, 1965. Suspicions aroused, authorities began a search for the missing Howard. It was not until Clyde George Ibsen was arrested in Sarasota, Florida, July 20th, that the veil of mystery began to lift. There, Ibsen, under arrest for vagrancy, gave information in the first of a series of interrogations by law enforcement officers that ultimately turned the key on his jail door for the rest of his life. On December 15, 1965, he was convicted of murder and sentenced to prison for life without possibility of parole. Ibsen appeals from that conviction.

Of the several assignments of error, first and foremost our attention is directed to the contention that Ibsen was denied his constitutional right to counsel. We must decide this case, of course, in conformity with the decisions of the Supreme Court of the United States. The revelations of the voluminous record lead inescapably to the conclusion that the capable and expert investigation notwithstanding, an error by the justice of the peace was so inherently prejudicial that we are compelled to order that this case be remanded for another trial.

1. Extending umbrella-like over the entire episode, was the continuing concern over the whereabouts of Delbert Howard. All that was known was that he had disappeared and that, four days after his absence, someone not resembling Howard was observed trying to cash a check on his account in Las Vegas, several hundred miles from his residence in Winnemucca. An all-points bulletin describing Howard's car resulted in Ibsen's arrest in Sarasota, Florida. Also in Ibsen's possession were some of Howard's personal effects. There were signs of blood in the car.

Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), had not yet been decided. Our attention must then be directed to the fundamental Sixth Amendment right to counsel prescribed by Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964).

From his arrest July 20, 1965, in Sarasota Florida, until his final confession to the District Attorney of Humboldt County, September 8, 1965, Ibsen was in continuous custody. He was interrogated seven times by F.B.I. agents; four times in Sarasota, and three times by Agent Bell in Winnemucca. We reject the state's contention that the F.B.I. interrogations of Ibsen were directed solely to the federal violation with which he was charged in Florida. Before each interrogation he was fully informed of his rights. The trial resolved that he did not request an attorney at any of the questioning sessions, and the record does reflect that his statements in Sarasota were voluntarily given.

On July 29, Ibsen was returned to Winnemucca from Florida and taken before the justice of the peace on a state charge of the unlawful taking of a motor vehicle. At that time in court he requested that an attorney be appointed for him. The justice of the peace advised him that he had no authority to appoint one for him. At the same proceeding the preliminary hearing date was set for August 30, over a month away.

Thereafter on August 13, 1965, from his jail cell, he wrote the justice of the peace demanding an immediate preliminary hearing. In a separate letter dated September 3, 1965, he again requested appointment of an attorney. No action was taken on either request.

On September 7th, he was brought before the justice of the peace and agreed to September 15th as the date for his preliminary hearing and again he requested appointment of an attorney and was refused. The justice of the peace was unaware of NRS 171.370 (approved April 3, 1965, five months prior to Ibsen's appearance before the justice of the peace) which outlines the avenue by which an indigent may obtain court-appointed counsel at the justice of the peace level. ¹

In the meantime, on July 30 and July 31, he was questioned by F.B.I. Agent Bell. Finally, on August 1, he told Bell that he killed Howard with a coke bottle and threw the body in the Pacific Ocean. The method of Killing, and the details of the disposal of the body were untrue. These omissions, however, were supplied on September 8th, after two cell mates, the Mullins brothers, obtained from Ibsen a map drawn by him of the location of Howard's body.

The interrogations prior to being taken before the justice of the peace on July 2 met constitutional requirements. Ibsen was alert, intelligent, and aware of the reason for the investigation from the date of his arrest. At his earlier interviews with F.B.I. agents he told of his background which included two years' college education. The right to remain silent was known to him at all stages, and he acknowledged all of his rights and chose to talk. When he chose not to talk he said so, and interrogation ceased.

However, the failure of the justice of the peace to fully advise Ibsen of his right to counsel and the method of obtaining an appointed attorney to represent him when he requested one deprived appellant of his constitutional right to be represented thereafter by an attorney. The day following the second appearance before the justice of the peace (when he was again refused an attorney September 8, 1965), the district attorney told Ibsen that through the information supplied by the Mullins', Howard's body was found. Had counsel been appointed as required, the district attorney could not have thereafter talked to Ibsen, absent appointed counsel's approval. Nor can it be contended that Ibsen waived his right to counsel when he conferred with the district attorney since he had already learned from the justice of the peace that counsel could not be appointed for him. The district attorney's admonition that Ibsen could have counsel became ineffectual, in view of the court's prior statement. Naturally, it would appear to him then to be a fruitless request. One cannot waive a right which he does not think he has. Ibsen was entitled to rely on the court's advice rather than the district attorney's. The 'guiding hand of counsel' was essential to advise petitioner * * * in this delicate situation. Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527 (1932). After the confessions to the district attorney, Ibsen was then charged with murder on September 9, 1965, and counsel was provided for him.

The circumstances commanded the appointment of an attorney. Any concern that a 'guilty' defendant would go free disappeared in the face of the evidence already known to the law enforcement officials. They had Ibsen in possession of Howard's personal possessions, and his car. He admitted having been with Howard. With the finding of the body, his purchase of a pistol in Winnemucca was linked to the method of the killing. He was identified at the trial as the person who tried to cash Howard's check on Howard's account using Howard's personal identification in Las Vegas.

With all these facts, the district attorney took Ibsen's confession anyway. Its admission into evidence was error prejudicial in itself. Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963). The defendant testified at the trial and told the entire story as he had related it in his confession to the district attorney and to Agent Bell. His defense was largely based on self defense against an alleged homosexual attack. Without the confessions, defendant may have availed himself of the right not to testify. He was denied the freedom of choice because of the prejudicial atmosphere and by the fact there was no attorney to guide him at a time when he was incapable of freely making his own decisions.

We were forewarned in the dissenting opinion of Mr. Justice Douglas in Crooker v. State of California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958), when he said, 'The Court properly concedes that the right to counsel extends to pretrial proceedings as well as to the trial itself. * * * The demands of our civilization expressed in the Due Process Clause require that the accused who wants a counsel should have one at any time after the moment of arrest.' With...