Interest of Thompson

• Decision Date: 14 April 1976
• Docket Number: No. 3--58727,3--58727
• Citation: 241 N.W.2d 2
• Parties: In the Interest of George THOMPSON, a child, Appellant.
• Court: Iowa Supreme Court

Page 2

241 N.W.2d 2

In the Interest of George THOMPSON, a child, Appellant.

No. 3--58727.

Supreme Court of Iowa.

April 14, 1976.

L. Vern Robinson, Iowa City, for appellant.

Richard C. Turner, Atty. Gen., Stephen C. Robinson, Special Asst. Atty. Gen., Theodore R. Boecker, Asst. Atty. Gen., and Daniel L. Bray, Asst. County Atty., for appellee.

Heard by MOORE, C.J., and MASON, REES, UHLENHOPP and REYNOLDSON, JJ.

REYNOLDSON, Justice.

Seventeen-year old Thompson was adjudicated a delinquent under § 232.2(12)(a), The Code, for breaking and entering a business establishment in Iowa City. Upon this appeal which raises issues concerning the validity of Thompson's oral confessions and the permissible scope of his cross-examination under § 781.13, The Code, we affirm.

At 2:30 A.M. September 3, 1975, Iowa City police received a telephone report from an individual who heard breaking glass or metal indicating a breakin at Blackstone Beauty Shop. Several officers hurried to the scene in police cars. Officer Saylor observed Thompson and two other juveniles emerging from an alley. Located in the alley was the beauty shop back door which had been broken.

At some later point in the investigation a police search of the alley disclosed in a recessed doorway of a nearby building a television stolen from the beauty shop, and the tools apparently used to force the beauty shop door.

The officers took the juveniles to the police station and began questioning them together about why they were out so late. According to officer Saylor, the police thought the boys could have been involved in the breakin but had asked no questions concerning it when one of the three, Ambrisco, said 'We did it.' The officers responded: 'Did what?' to which he replied 'We broke into it.' Saylor ambiguously testified Thompson agreed by gestures, and words he could not recall, but he did recollect Thompson volunteering, following Ambrisco's admission, that the three of them were together.

The juveniles were then read their constitutional rights from the standard form. Thompson signed a waiver of his rights. Sometime between 4:00 and 5:00 A.M. officer Saylor brought Thompson from his cell to the interrogation room and again advised him of his rights. Thompson then related the 'whole story' of the breakin.

Shortly after 8:00 A.M. detective Burns, who was fingerprinting and photographing the juveniles, again advised Thompson of his rights. The latter verbally waived these rights and again confessed his involvement in the crime.

Upon cross-examination officer Saylor was asked if Thompson made a request for someone to represent him. Saylor responded, 'I don't know if he was--they were asked if they had attorneys and Mr. Thompson said you (attorney Robinson) were his attorney and I believe detective Kidwell said that, who had evidently been involved with him before, said he knew you were his attorney and that is how you came into play, that is the extent of the mention of legal counsel.'

Thompson testified the officers refused his request to call attorney Robinson, who had represented him in a prior proceeding. Cross-examined concerning his written waiver of statutory § 755.17 communication rights, Thompson replied, 'Well, I believe he--okay, that paper--he (Kidwell) said I could call my lawyer so I asked if I could call him and he said 'Well, you can call him in the morning, I sure as hell'--excuse that--'I'm not going to wake him up at three in the morning just to come down here and talk to you about this."

Other evidence bearing on Thompson's background, mental ability, education and personal characteristics will be discussed, infra.

I. Scope of Review.

The juvenile's brief requests us to hold the confession invalid and remand the cause to district court for retrial excluding the confession.

However, our review is De novo. Section 232.58, The Code; In Interest of Meek, 236 N.W.2d 284, 289 (Iowa 1975); In re Henderson, 199 N.W.2d 111, 116, 124 (Iowa 1972). We formerly held when a delinquency charge is based on an alleged public offense, due process requires proof beyond reasonable doubt. In Interest of Potter, 237 N.W.2d 461 (Iowa 1976); see In re Winship, 397 U.S. 358, 368, 90 S.Ct. 1068, 1075, 25 L.Ed.2d 368, 377--378 (1970); In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 1436, 18 L.Ed.2d 527, 538 (1967). This evidentiary standard now applies in every delinquency proceeding. Laws 66 G.A., Ch. 142 § 5. Thus if in our De novo review admissible evidence satisfies the reasonable doubt standard we need not reverse. In Interest of Wheeler, 229 N.W.2d 241, 243--244 (Iowa (1975).

II. Validity of the confession.

Thompson launches a two-pronged attack on the validity of his confession. He first argues for adoption of a rule that a minor should be held incapable of voluntarily and knowingly waiving his right to remain silent in absence of a parent, adult friend, or lawyer. As a second argument he insists the totality of the circumstances surrounding the confession demonstrates it was involuntarily obtained.

The Per se exclusionary rule Thompson first contends for has a logical appeal. The legal safeguards the law provides minors in most civil matters, see Shearer v. Perry Community Sch. Dist., 236 N.W.2d 688, 697--699 (Iowa 1975) (Reynoldson, J., dissenting), have no counterparts in the criminal law surrounding confessions, where liberty is at stake. It is anomalous that a minor who is civilly Non sui juris may nonetheless be held to have waived his constitutional rights in a proceeding affecting his personal freedom.

Two closely related but distinct arguments have been made by those seeking to impose a Per se exclusion of juvenile confessions. One argument is that a juvenile's confession should be inadmissible if the police did not obtain the Consent of a parent or guardian to the juvenile's waiver of rights. This argument has been rejected in People v. Lara, 67 Cal.2d 365, 62 Cal.Rptr. 586, 432 P.2d 202 (1967), cert. denied, 392 U.S. 945, 88 S.Ct. 2303, 20 L.Ed.2d 1407 (1968); State v. Oliver, 160 Conn. 85, 94, 273 A.2d 867, 871 (1970), cert. denied, 402 U.S. 946, 91 S.Ct. 1637, 29 L.Ed.2d 115 (1971); and People v. Stephen J.B., 23 N.Y.2d 611, 616--617, 298 N.Y.S.2d 489, 495, 246 N.E.2d 344, 348--349 (1969).

Another argument, made here, is that a juvenile's confession given without presence of or opportunity to Consult with a parent, adult friend or lawyer should be inadmissible Per se. This theory, too, has been almost unanimously rejected. See People v. Pierre, 114 Ill.App.2d 283, 291, 252 N.E.2d 706, 710 (1969), cert. denied, 400 U.S. 854, 91 S.Ct. 71, 27 L.Ed.2d 92 (1970); State v. Melanson, 259 So.2d 609, 611 (La.App.1972); State v. Hogan, 297 Minn. 430, 440, 212 N.W.2d 664, 671 (1973); State v. Carder, 3 Ohio App.2d 381, 389, 210 N.E.2d 714, 719 (1965), aff'd, 9 Ohio St.2d 1, 222 N.E.2d 620 (1966); State v. Raiford, 7 Or.App. 202, 490 P.2d 206 (1971); Commonwealth v. Moses, 446 Pa. 350, 354, 287 A.2d 131, 133 (1971); Theriault v. State, 66 Wis.2d 33, 38, 223 N.W.2d 850, 852 (1974); Mullin v. State, 505 P.2d 305, 309 (Wyo.), cert. denied, 414 U.S. 940, 94 S.Ct. 245, 38 L.Ed.2d 166 (1973). But see Council of Judges of the National Council on Crime and Delinquency, Model Rules for Juvenile Courts, Rule 25, p. 53 (1969).

Although the Per se rule has received almost unanimous support from commentators, e.g., Ferguson & Douglas, A Study of Juvenile Waiver, 7 San Diego L.Rev. 39 (1970); Note, Waiver in the Juvenile Court, 68 Col.L.Rev. 1149, 1163--1164 (1968), it has been adopted in only two decisions and a few statutes. See In re K.W.B., 500 S.W.2d 275, 283 (Mo.Ct.App.1973); Lewis v. State, 259 Ind. 431, 439, 288 N.E.2d 138, 142 (1972); General Statutes of Connecticut § 17--66d (1975); 10 Oklahoma Statutes Annot. § 1109 (Supp.1975--1976).

It is apparent most courts, required to deal pragmatically with an ever-mounting crime wave in which minors play a disproportionate role, have considered society's self-preservation interest in rejecting a blanket exclusion for juvenile confessions. People v. Lara, supra, see Cotton v. United States, 446 F.2d 107, 110 (8 Cir. 1971); United States v. Ramsey, 367 F.Supp. 1307, 1312 (W.D.Mo.1973). An analogous public policy consideration probably foundations the tort rule that a minor's conduct is to be measured by adult standards of care when the child has engaged in what is usually considered an adult activity, such as flying an airplane or driving an auto. See Rosenau v. City of Estherville, 199 N.W.2d 125, 129 (Iowa 1972); W. Prosser, Law of Torts § 32, pp. 156--157 (4th ed. 1971); 2 Restatement (Second) Torts § 283A, Comment c. at 16.

We find almost all decisions apply to both adults and minors the same 'totality of surrounding circumstances' test for determining a confession's voluntariness, but weigh heavily in the balance the facts of minority and failure to provide consultation with a parent, guardian, custodian, adult friend or lawyer. See, e.g., Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962); Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948); Commonwealth v. Cain, 361 Mass. 224, 279 N.E.2d 706, 709 (1972).

In State v. Fetters, 202 N.W.2d 84, 88 (Iowa 1972), we adopted the rule approved by Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 626--627, 30 L.Ed.2d 618, 627 (1972) requiring the prosecution to prove voluntariness of a confession by a preponderance of the evidence. In the same decision, 202 N.W.2d at 89, we held proof Miranda warnings were given did not obviate the prosecution's burden to establish the accused voluntarily, knowingly and intelligently waived his right to remain silent and his right to assistance of counsel.

The Per se exclusionary rule was rejected by the Iowa court in State v. Kelley, 253 Iowa 1314, 1324, 115 N.W.2d 184, 190 (1962), although the case loses precedential value because minority then existed to age 21 and Kelley was 20 years of...