State v. Allen

• Decision Date: 18 December 1974
• Docket Number: No. 56480,56480
• Parties: STATE of Iowa, Appellee, v. Thadius Alonzo ALLEN, Appellant.
• Court: Iowa Supreme Court

Page 237

224 N.W.2d 237

STATE of Iowa, Appellee, v. Thadius Alonzo ALLEN, Appellant.

No. 56480.

Supreme Court of Iowa.

Dec. 18, 1974.

Raymond Rosenberg, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Jim P. Robbins, Asst. Atty. Gen., and Ray A. Fenton, County Atty., for appellee.

Heard by MOORE, C.J., and LeGRAND, REES, HARRIS and McCORMICK, JJ.

McCORMICK, Justice.

Defendant appeals his conviction by jury and sentence for second degree murder in violation of Code § 690.1. The State alleged that he and Robert Winfrey murdered a gas station attendant during an armed robbery in Des Moines on March 29, 1972. Defendant contends the trial court erred in overruling his pretrial motion to suppress evidence and in overruling his motion for mistrial made during the trial. We reverse because we find the motion for mistrial should have been sustained.

I. At the time of the alleged offense defendant was 15 years old. He was arrested April 6, 1972, and after appearing in municipal court was placed in the jurisdiction of the juvenile court. See § 232.64, The Code. While incarcerated in the juvenile ward of the county jail on April 9, 1972, defendant and Winfrey made oral statements to jailer Alfred J. Baumann and city detective Ray Steiner.

The circumstances under which these statements were made are fully detailed in the opinion on Winfrey's appeal and will not be repeated here. See State v. Winfrey, 221 N.W.2d 269 (Iow 1974). Although defendant was represented by a lawyer, his lawyer was not present when he and Winfrey talked to the officers.

Defendant filed a pretrial motion to suppress the testimony of officers Baumann and Steiner regarding his alleged oral admissions. He relied on provisions of Amendments 5, 6, and 14 of the United States Constitution. After hearing the motion was overruled.

The sole basis for reversal asserted in relation to this ruling is that the trial court should have sustained the motion on the ground the statements were made in the absence of counsel after adversary proceedings had commenced. Defendant maintains that no admissions obtained in the absence of counsel after adversary proceedings are initiated can be used as evidence without violating the accused's right to counsel assured by the sixth and fourteenth amendments.

We agree with defendant that he had an absolute right to counsel during custodial interrogation, but we do not agree with his contention that the right could not be waived. It is well established that the right to counsel during custodial interrogation may be waived by an accused. State v. Winfrey, supra, at 273; United States v. Crisp, 435 F.2d 354 (7 Cir. 1971), cert. denied, 402 U.S. 947, 91 S.Ct. 1640, 29 L.Ed.2d 116; Moore v. Wilff, 495 F.2d 35 (8 Cir. 1974), and citations. Defendant's reliance on Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), is misplaced. In Massiah the accused's statements were obtained by eavesdropping, and there was no claim or evidence of waiver of the right to counsel.

Defendant does not challenge the evidence demonstrating he waived his right to counsel in this case. The record shows he was fully and repeatedly advised of his rights and of the serious nature of the offense. He said he did not want either his parents or his lawyer present while he talked to the officers. Our independent evaluation of the totality of circumstances, giving special consideration to defendant's youth, convinces us he voluntarily and intelligently waived his right to counsel. See State v. Winfrey, supra; State v. Cooper, 217 N.W.2d 589 (Iowa 1974).

Although defendant had not yet been transferred from juvenile court for prosecution under the criminal law, he does not contend he was misled as to the consequences of his admissions by the ameliorative and rehabilitative emphasis in the juvenile court system. There is no indication he would not have waived the right to counsel if he had known he would be prosecuted as an adult. See State v. Loyd, 297 Minn. 442, 212 N.W.2d 671 (1973); State v. Gullings, 244 Or. 173, 416 P.2d 311 (1966); cf. Harling v. United States, 111 U.S.App.D.C. 174, 295 F.2d 161 (1961).

The trial court did not err in overruling defendant's motion to suppress on the basis now urged.

II. Defendant's motion for mistrial was based on events which occurred when the State called defendant's alleged accomplice Robert Winfrey as a witness. Before trial the State served defendant with a notice of additional testimony reciting that Winfrey would testify regarding his presence with the defendant at the time and place of the robbery and murder 'and to other matters concerning the guilt of the defendant.'

At trial the State first introduced evidence tending to prove corpus delicti. Then fingerprint evidence was presented which placed Winfrey at the scene of the crime. In this setting the State called Winfrey as a witness.

Winfrey appeared with counsel, Anthony M. Critelli. At attorney Critelli's request a record was made out of the presence of the jury. Critelli said he represented Winfrey in his earlier trial for the same offense, Winfrey's appeal from conviction was still pending, Winfrey did not testify in his trial, and Winfrey told him he would assert his privilege against self-incrimination if called as a witness in defendant's trial. Critelli also advised the court he had informed the prosecuting attorney Winfrey would assert his privilege if called to testify. The trial court said, 'I will certainly recognize his privilege if and in the event he claims it.'

The jury returned, and Winfrey was sworn as a witness. Then the following record was made:

(Direct examination by assistant county attorney Young)

Q. Would you state your name, please? A. Robert Stephen Winfrey.

Q. How old are you, Mr. Winfrey? A. 18.

Q. Where do you presently reside? A. Anamosa, Iowa, reformatory.

Q. Mr. Winfrey, I call your attention to the evening of March 29, 1972, and ask you if at that time you were living in the City of Des Moines, Iowa. A. Yes.

Q. Were you in the City of Des Moines, Iowa, on that evening? A. I refuse to answer the question on the ground that it may tend to incriminate me.

Q. On the evening of March 29, 1972, did you have the opportunity to be in the company of one Thadius Alonzo Allen?

A. I refuse to answer the question on the ground that it may tend to incriminate me.

Q. Mr. Winfrey, if I was to ask you any questions concerning an occurrence which occurred on the evening of March 29, 1972, in the City of Des Moines where an alleged robbery and murder took place at East 16th and University, would your answers be the same to any and all of those questions as those answers you have just given me? A. I refuse to answer on the ground that it may tend to incriminate me.

MR. YOUNG. I would have no further questions of this witness, Your Honor.

THE COURT. Mr. Rosenberg, any questions?

MR. ROSENBERG. Your Honor, at this time I respectfully move for mistrial and request permission to make a further record outside the presence of the jury.

THE COURT. You may.

In support of his motion for mistrial defense counsel offered testimony of the prosecutor, assistant county attorney Harold A. Young. The prosecutor acknowledged he prepared the notice of additional testimony without knowing whether Winfrey would testify. He admitted he was advised by Critelli that Critelli would advise Winfrey to assert his privilege. Defense counsel then asked, 'Did you then * * * in good faith have a belief that Mr. Winfrey would testify as to any of the matters contained in that notice?' The prosecutor responded, 'I had no belief that Mr. Winfrey would testify. However, I felt it was necessary for the prosecution to put him on the stand to see if in fact he would assert his fifth amendment privilege.'

In overruling the motion for mistrial, the trial court said in part:

'* * * (H)e could either on the advice of counsel, though it is highly unlikely, but it is a possibility, or, contrary to the advice of counsel, testify, and that could have happened even after the record that was made. He could have gotten on the stand and decided he wanted to tell his story, whatever it may be, either with or without Mr. Critelli's advice and consent.

'I would point out also that the privilege which Mr. Winfrey was exercised is his; it is not Allen's, and I don't believe that when we have a witness who, according to the State's * * * good faith theory of the case, could be the most important witness in the case, * * * we have to say that he cannot be put on the stand because of some adverse effect it might have on the defendant.'

No cautionary instruction to the jury regarding Winfrey's assertion of the privilege was either requested or given.

It is improper for a prosecutor to require a witness to claim his privilege against self-incrimination in the presence of the jury when, as in this case, the prosecutor knows or has reason to anticipate the witness will assert it. Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963); Fletcher v. United States, 118 U.S.App.D.C. 137, 332 F.2d 724 (1964); Robbins v. Small, III, 371 F.2d 793 (1 Cir. 1967), cert. denied, 386 U.S. 1033, 87 S.Ct. 1483, 18 L.Ed.2d 594; United States v. Wolfson, 405 F.2d 779 (2 Cir. 1968), cert. denied, 394 U.S. 946, 89 S.Ct. 1275, 22 L.Ed.2d 479; United States v. Tucker, 267 F.2d 212 (3 Cir. 1...