State v. Clough

• Decision Date: 10 January 1967
• Docket Number: No. 52242,52242
• Citation: 259 Iowa 1351,147 N.W.2d 847
• Parties: STATE of Iowa, Appellee, v. Richard Lee CLOUGH, Appellant.
• Court: Iowa Supreme Court

Page 847

147 N.W.2d 847

259 Iowa 1351

STATE of Iowa, Appellee, v. Richard Lee CLOUGH, Appellant.

No. 52242.

Supreme Court of Iowa.

Jan. 10, 1967.

Lawrence Scalise, Atty. Gen., of Iowa, Don R. Bennett and David A. Elderkin, Asst. Attys. Gen., Francis E. Tierney, County Atty., and Mark McCormick, Asst. County Atty., Fort Dodge, for appellee.

Gerald L. Shaffer, Fort Dodge, for appellant.

LARSON, Justice.

Richard Lee Clough, a young man 17 years old, was on April 29, 1965, charged by County Attorney's Information with the crime of burglary with aggravation, in violation of section 708.2 of the 1962 Code. He pleaded not guilty and on June 1, 1965, was tried to a jury. He was found guilty as charged, and the court sentenced him to the Men's Reformatory for a term of twenty-five years as by statute provided. Defendant appeals.

In his appeal defendant assigns as error (1) the admission into evidence of two written confessions which he contends were not voluntarily given, (2) the court's refusal to grant his motion for a mistrial when it appeared there was publicity relative to a pretrial hearing to determine the admissibility of confessions which came to the attention of the jurors during the trial, and (3) the failure to submit to the jury for a possible verdict the offenses of assault with intent to do great bodily harm and assault and battery. We find no merit in these assignments and affirm the case.

I. It appears that on the night of April 26, 1965, the home of Mrs. Hill, a widow living alone in Fort Dodge, Iowa, was broken into and she was assaulted and stabbed by a youth who demanded money. She gave him some money and he left, but not until after she had turned on the lights and had recognized the intruder. Mrs. Hill then called her son who notified the police and they came to her assistance. She was taken to the hospital for care and the treatment of her stab wounds.

Acting on the description furnished by her, the responding policemen brought two pictures of the suspect to the hospital. When she identified defendant's picture, the officers went to his residence nearby and found him in bed wearing his clothing, with the exception of his shoes. A muddy pair of loafers, along with several spent wooden matches later were found on the basement stairs of Mrs. Hill's house, and the basement window appeared to have been forced open. Defendant was taken to the police station, and on the way the officers told him someone had broken into Mrs. Hill's house and had attacked her. He was asked if he had done it, and he replied that it was a 'bum rap.' Apparently he was asked nothing more, and as soon as they reached the station he was allowed to make a phone call. At approximately 2:30 A.M. on April 27, 1965, he was booked and lodged in the juvenile quarters of the city jail.

II. Defendant contends written statements given to Detective Otis Halligan the morning of his arrest, and to the captain of detectives that evening, in their offices, were involuntary and inadmissible into evidence as a matter of fact and law, and that they were obtained in violation of due process. He argues the conditions by which these confessions were obtained were inherently coercive and, although perhaps no single circumstances of police conduct was bad enough to be a violation of due process itself, 'the total load of a number of improper circumstances can be' such a violation and make the confessions involuntary. He cites Fikes v. State of Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246, and Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037, as illustrative of his contention that these confessions were not 'an essentially free and unconstrained choice by its maker.' The proposition is sound and correct, but is it applicable here?

Among the circumstances which defendant believes caused his rights as an accused to be violated were (a) an improper notification of the charge against him, (b) not being advised of his absolute constitutional right to remain silent, and (c) not clearly and concisely advising the defendant of his absolute right to contact a lawyer. Complaint was also registered due to an alleged failure to give proper consideration to personal factors in connection with the voluntariness of the defendant's admissions, i.e., his age, mentality, education, time and manner of his interrogation by police, and an alleged threat or inducement to get the confessions. The trial court did not believe they add up to a denial of due process, and neither do we.

III. Two court-appointed attorneys represented defendant in these proceedings. In response to their request defendant was ordered sent to the Mental Health Institute at Cherokee, Iowa, on May 4, 1965, 'for evaluation and diagnosis, observation and treatment as the Mental Health Institute shall deem necessary,' as an aid to the preparation of his defense to the crime charged. A report on his mental condition was made to the court on or about May 28, 1965. Thereafter, a motion to transfer the cause to juvenile court was made and, after hearing, rejected by the court.

The Institute report advised that the defendant had a 'full scale I.Q. of 74' and was considered a "moderate mental defective." No demonstrable organic brain damage was found, and the low I.Q. was considered present since birth. Although it is not expected to rise appreciably in the future, the experts opined that with proper training he could probably learn to function in society better than he has, in spite of his handicap. 'He is not psychotic, is not out of contact with reality and he knows the nature and consequences of his behavior.'

It also appears defendant had been in a special education class in the Fort Dodge schools since the seventh grade, and was classified as an 'educable mentally retarded student.' He reached the ninth grade before leaving school, and at this time could not read or write too well. The school psychologist had not examined defendant, but from the test made in 1961 evaluated defendant's I.Q. at 69 at that time, and stated at that level he was only able to do fifth grade work in school.

It is quite clear defendant was given every opportunity to show he was unable to comprehend questions, make decisions and take considered actions, but failed to convince the trial court his limited intellect precluded a voluntary act. In its ruling on the admissibility of the confessions involved herein, the trial court stated: 'The Court has considered all of the evidence offered by both sides, including the fact that the defendant has an intelligence quotient of 74, and is convinced beyond a reasonable doubt that the oral admissions were made and the written statements given voluntarily by the defendant.' The court then wisely observed, 'A person, even though of limited intellect, can act voluntarily * * * do so every day in decisions they make and actions they take.' We agree. Certainly there is nothing in this record to indicate defendant's limited intellect had anything to do with the crime, nor affected his ability to understand the request for a true statement as to what occurred at the Hill home, nor the import of the statements he was giving the officers.

With this background we turn to the evidence of admission made to the officers after his arrest on April 27, 1965. Both of the arresting officers testified they told defendant of the entry of the Hill house and the attack upon Mrs. Hill. This he did not deny and, therefore, it appears he was fully and completely informed as to the offense for which he was being detained. True, these officers did not at the time advise him of his rights, but beyond asking if he did it, they did not interrogate him further.

IV. Before admissions or confessions may be admitted in evidence as voluntary, pursuant to custodial interrogation, we have said it must appear the interrogation was free from coercion or mistreatment of the defendant, that the statements were given without threats or promises. State v. Mullin, 249 Iowa 10, 14, 85 N.W.2d 598, and citations.

Detective Halligan testified he questioned defendant twice on the morning of his apprehension, once for about five minutes shortly after 8:30 A.M. and later for an hour and a half about 10:30 A.M., which included a trip to the hospital to see Mrs. Hill. Detective Captain Lamb testified he interrogated defendant for a few minutes about 5 P.M. that evening and for a little over an hour beginning at 6:45 P.M. Both testified they advised defendant that he did not have to tell them anything about the matter and that he had a right to have an attorney. The latter said he told defendant that, if he could not pay for an attorney, the State would provide one for him, and that, although he did not have to talk to him, what he did tell him could be used as evidence.

After weighing the evidence, the trial court found defendant had been fully informed of his right ot an attorney and to remain silent, and at the hearing before it on June lst held certain oral admissions and written statements made by the defendant were voluntarily made without any threats, promises, or coercion, and were admissible in the trial of this case. This case being tried prior to our decision in State v. Holland, 258 Iowa 206, 138 N.W.2d 86, 91, the court provided that the circumstances under which these statements were made might be shown at the trial and, under our decisions prior to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205, the jury could 'determine again the question of voluntariness and what weight, if any, will be given them.'

Appellant's denial that he was properly advised of his rights was largely based upon his assertion that he did not understand some words used in the written statement, especially the word 'counsel.' He asserted that he gave the confessions to get a prompt hearing on his case, that the officers had told him he could be kept in jail until...