State v. Aldape

• Decision Date: 17 June 1981
• Docket Number: No. 62498,62498
• Citation: 307 N.W.2d 32
• Parties: STATE of Iowa, Appellee, v. Paulino ALDAPE, Jr., Appellant.
• Court: Iowa Supreme Court

Page 32

307 N.W.2d 32

STATE of Iowa, Appellee, v. Paulino ALDAPE, Jr., Appellant.

No. 62498.

Supreme Court of Iowa.

June 17, 1981.

John P. Roehrick and Ray Sullins, Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., Shirley Ann Steffe, Asst. Atty. Gen., and Dan Johnston, Polk County Atty., for appellee.

Considered by UHLENHOPP, P. J., and HARRIS, McGIVERIN, LARSON, and SCHULTZ, JJ.

SCHULTZ, Justice.

Defendant, Paulino Aldape, Jr., appeals from his conviction of first-degree murder in violation of sections 690.1-.2, The Code 1977. We affirm.

On September 1, 1977, Douglas Furth was found dead in the basement of his home in West Des Moines. An autopsy revealed that Furth had been shot in the head twice with what was later determined to be a .22 caliber rifle. On September 8 the West Des Moines Police Department contacted the Plainview, Texas, Police Department and requested that agency's assistance in locating defendant, a minor at the time, for questioning concerning the homicide.

A writ for immediate custody was obtained by defendant's probation officer from the Hale County, Texas, Juvenile Court on the ground of a probation violation. Plainview police detectives arrested defendant at the home of his father-in-law on September 16. Later that day defendant signed a statement confessing his role in the Furth murder. On September 20 Iowa law enforcement officials went to Plainview and questioned defendant. Information in the nature of a confession was obtained and was reaffirmed in an interview conducted the following day.

Defendant was charged in Iowa, by a county attorney's information filed December 28, 1977, with first-degree murder in violation of sections 690.1-.2, The Code 1977. He was subsequently returned to Iowa and transferred from juvenile court to be tried as an adult in district court. Defendant filed a motion to suppress the aforementioned confessions, contending they were not given voluntarily. After a hearing, the trial court found that the confessions were voluntary and overruled defendant's motion.

At trial the State relied on alternative theories of first-degree murder premeditated murder and felony murder. Evidence established that Furth, the deceased, picked up defendant, Richard Aldape, and a "white kid" in downtown Des Moines and took them to his home for the alleged purpose of homosexual activity. Defendant testified that he and his "wife" were in Des Moines without any money. Apparently, someone had told defendant that he could make money by, in effect, prostituting himself to homosexuals.

Richard Aldape, defendant's younger brother, testified that sometime after they arrived at the Furth residence the "white kid" took a rifle off a gun rack, loaded it with shells lying on an endtable, gave the rifle to defendant, and told him to fire it into the wall behind Furth, because Furth would not surrender his wallet as the "white kid" had instructed him to do. Defendant fired the gun into the wall. Furth was subsequently taken to the basement and shot in the head first by the "white kid" and then by defendant, after the "white kid" had threatened to shoot defendant if he did not shoot Furth.

Defendant substantiated Richard's testimony regarding the events surrounding the shooting but stated that the "white kid" fired the shot into the wall, and that Richard, not he, fired the second shot. Defendant testified that he did not actually see Richard fire the second shot, but that he ran to the basement after hearing shots fired, and Richard was holding the gun. Defendant further contended that the shooting occurred because Furth refused to take them home when it was getting late.

During trial defendant unsuccessfully moved for a mistrial because an allegedly prejudicial newspaper article appeared in the Des Moines Tribune. Defendant then moved for a judgment of acquittal on grounds of insufficiency of the evidence. This motion was also overruled.

Jury instructions were subsequently prepared by the court and presented to counsel. Instruction 8 incorrectly told the jury that there were no lesser included offenses of felony murder; however, no objection was made. The jury returned a verdict of guilty of first-degree murder. Defendant thereafter, in a motion in arrest of judgment, again challenged the sufficiency of the evidence and attacked the voluntariness of the confessions. Defendant also moved for a new trial. Both of these motions were overruled.

Defendant was sentenced to life imprisonment on August 2, 1978. New counsel was then appointed for this appeal.

Defendant contends:

1. This court should adopt a per se rule of exclusion for confessions of a juvenile who has not consulted with an attorney, a parent, or another adult friend.

2. Even if a per se rule is not adopted, the trial court erred in concluding that, under the totality of the circumstances, the State proved the voluntariness of defendant's confessions beyond a reasonable doubt.

3. The trial court erred in submitting to the jury an instruction on felony murder.

4. The trial court erred in failing to sustain defendant's motion for a directed verdict of acquittal because the evidence was insufficient to engender a jury question.

5. Defendant was denied effective assistance of counsel.

I. Validity of defendant's confessions. Defendant attacks the validity of his confessions on two grounds. He first argues for a per se rule of exclusion for juveniles and secondly asserts that the State failed to prove that his confessions were voluntary.

A. Per se rule of exclusion. Defendant urges this court to adopt a per se rule that would hold juveniles incapable of knowingly and voluntarily waiving their rights to remain silent and to have assistance of counsel under the fifth and sixth amendments to the United States Constitution unless waiver is effected with advice of an attorney, a parent, or another adult friend. It is undisputed that, in waiving his Miranda rights prior to the three confessions at issue, defendant did not consult with any such individual.

On two occasions we have expressly refused to adopt the rule advocated by defendant. See In re Thompson, 241 N.W.2d 2, 6 (Iowa 1976); State v. Kelley, 253 Iowa 1314, 1324, 115 N.W.2d 184, 190 (1962). In Thompson we acknowledged the appeal of such a rule, and emphasized "the importance of securing for the minor under interrogation the advice and consultation of a parent, guardian, custodian, adult friend, or a lawyer." 241 N.W.2d at 5-6. And while we stated that "(f)ailure to provide such support will throw a deep shadow of judicial distrust over the resulting confession," id. at 6, we declined to make minority, alone, a sufficient ground for invalidating a juvenile's confession. We therefore upheld the rule we adopted in State v. Fetters, 202 N.W.2d 84, 88-89 (Iowa 1972), which was approved in Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 626-27, 30 L.Ed.2d 618, 627 (1972), requiring the State to prove the voluntariness of a confession by a preponderance of the evidence. 241 N.W.2d at 6.

In revising our juvenile justice laws, the 1978 legislature, following the recent trend of other states enacted a per se exclusionary rule for juvenile confessions. See §§ 232.11(1)-(2), .45(9), The Code 1981. Defendant does not contend that these provisions should be applied retroactively. Instead, he argues that this legislative intent should be considered in determining whether to judicially adopt a per se exclusionary rule to govern situations occurring prior to the effective date of the provisions.

We do not find defendant's argument persuasive. We assume that the 1978 legislature was familiar with the existing state of the law. See Peffers v. City of Des Moines, 299 N.W.2d 675, 678 (Iowa 1980). If the legislature had intended the provisions of chapter 232 concerning juvenile confessions to receive consideration prior to their effective date, it would have made the provisions retroactive. There is no indication of such an intent, however. See 1978 Sess., 67th G.A., ch. 1088.

It is clear that a per se rule is not constitutionally mandated. In Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2572, 61 L.Ed.2d 197, 212 (1979), the United States Supreme Court held that a totality of the circumstances test provides adequate protection for a juvenile's fifth and sixth amendment rights. This ruling is in accord with our previous holdings. In obtaining confessions from juveniles prior to the effective date of sections 232.11(1)-(2), .45(9), state law enforcement officials were justified in relying on the constitutionally firm standard enunciated in Thompson. Accordingly, we hold that the totality of the circumstances test is the proper standard for determining the voluntariness of defendant's confessions.

B. Totality of the circumstances. Defendant's motion to suppress required the State to prove by a preponderance of the evidence that his confessions were made voluntarily, after an effective waiver of his Miranda rights. State v. Hartman, 281 N.W.2d 639, 643 (Iowa App.1979); State v. Washington, 257 N.W.2d 890, 895 (Iowa 1977), cert. denied, 435 U.S. 1008, 98 S.Ct. 1881, 56 L.Ed.2d 390 (1978); State v. Fetters, 202 N.W.2d at 88. These are separate issues. State v. Snethen, 245 N.W.2d 308, 311 (Iowa 1976); State v. Hilpipre, 242 N.W.2d 306, 309 (Iowa 1976). Since defendant's contention that his confessions were made involuntarily is premised on the fifth, sixth, and fourteenth amendments to the United States Constitution, we review the evidence de novo, evaluating the totality of the evidence from which the allegations of unconstitutionality arise. State v. Hartman, 281 N.W.2d at 643; State v. Conner, 241 N.W.2d 447, 453 (Iowa 1976).

"(C)ourts indulge every reasonable presumption against waiver of constitutional rights." In re Thompson, 241 N.W.2d at 6, (citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed.2d 1461, 1466 (1938)). In Thompson ...