State v. Coburn, 63551

• Decision Date: 17 February 1982
• Docket Number: No. 63551,63551
• Citation: 315 N.W.2d 742
• Parties: STATE of Iowa, Appellee, v. John Martin COBURN, Appellant.
• Court: Iowa Supreme Court

Page 742

315 N.W.2d 742

STATE of Iowa, Appellee, v. John Martin COBURN, Appellant.

No. 63551.

Supreme Court of Iowa.

Feb. 17, 1982.

J. F. M. Samore of Samore & Samore, Sioux City, for appellant.

Thomas J. Miller, Atty. Gen., Roxann Ryan, Asst. Atty. Gen., and Patrick C. McCormick, Woodbury County Atty., for appellee.

Considered by LeGRAND, P. J., and McCORMICK, ALLBEE, McGIVERIN, and LARSON, JJ.

LeGRAND, Justice.

Defendant was tried to a jury on the charge of having committed sexual abuse in the first degree upon the person of a ten-year-old girl in violation of section 709.2, Code Supp.1977. He was convicted and sentenced to life imprisonment in the penitentiary. He appeals, and we affirm the trial court.

Defendant, forty-two years old at the time of the crime, was living with the victim's mother. Both of them had serious drinking problems. On the night in question, defendant was home alone with the victim while her mother was drinking heavily at a local tavern. The events leading up to the crime, which we find it unnecessary to detail, occurred during this period. Suffice it to say, defendant showed the young girl some "dirty pictures", had her undress, and forced her to perform acts of sexual intercourse and sodomy.

Defendant raises the following issues as grounds for reversal:

1) Error in the admission of evidence.

2) Error in holding there was substantial evidence that the victim suffered serious injury.

3) Denial of a fair trial because of the "overwhelming likelihood" that the State designedly overheard conferences between defendant and his attorney.

4) Denial of defendant's motion to depose certain State's witnesses.

5) Error in selection of the jury.

I. Evidentiary Rulings.

a) Inculpatory Statements Made in New Mexico.

Defendant was apprehended in New Mexico. He waived extradition, and two Sioux City policemen went to New Mexico to return him to Iowa for prosecution. One of the officers, Russell White, Jr., interviewed defendant in the Alamogordo sheriff's office. Defendant objected to the use of the information obtained in this interview, but we find no error in its admission.

Before talking with defendant, White gave him the Miranda warnings. Defendant then signed a written waiver, which is here set out:

WAIVER OF RIGHTS

I have read the above Warning Statement advising me of my legal and Constitutional Rights and I understand what my Rights are. I have been given the opportunity to use a telephone to call an attorney or a member of my own family. I am willing to answer questions and make a Statement. I do this voluntarily and of my own free will. I understand and know what I am doing. I do not want to call or consult with a lawyer and I do not want a lawyer to be present to advise me of my rights and with whom I can consult. No promises of immunity or other promises of any kind have been made to me and no physical force or pressure of any kind has been used against me to cause me to make a Statement.

The burden of proof is on the State, which must establish by a preponderance of the evidence that the defendant "had a full knowledge of his constitutional rights and knowingly, intelligently and voluntarily relinquished them...." State v. Jump, 269 N.W.2d 417, 424 (Iowa 1978). The test of voluntariness is whether the defendant's will was overborne by the police officers. State v. Hartman, 281 N.W.2d 639, 644 (App.1979) and cases cited. In resolving this question, we consider the totality of the circumstances. Id.; State v. Jump, 269 N.W.2d at 426; State v. Swanson, 228 N.W.2d 101, 105 (Iowa 1975). Some of the factors to be taken into account are age, intelligence, education, awareness of the alleged crime, and apparent ability to understand his constitutional rights and the consequences of waiving them.

At the time of the interview, Coburn was forty-two years old. He had obtained a general equivalent (high school) diploma in military service and had received an honorable discharge after a total of ten years in the army. Since his discharge, defendant had worked as an electrician, a bartender, and a meat packer. While in jail in New Mexico, he was neither mistreated nor isolated; he was provided counsel for extradition discussions; and the questioning by Officer White was not prolonged.

There is nothing in the record to suggest defendant was unfairly imposed upon by Officer White or that he did not fully understand the rights he was forfeiting by signing the Waiver of Rights.

b) Inculpatory Statement During Airplane Flight.

Defendant also challenges the use of the statement he made during the airplane flight from New Mexico to Iowa. Defendant said he "didn't sleep very well" because of what he did and that he wanted Officer White to know he "never meant to hurt that little girl." Without deciding if the Miranda warnings originally given would apply to this statement, we hold it was admissible as a volunteered statement not made in response to interrogation. The evidence shows there was no attempt to question defendant at any time during the flight. On the contrary, Officer White discouraged any conversation concerning the crime. See State v. Beatty, 305 N.W.2d 496, 499 (Iowa 1981); State v. Matlock, 289 N.W.2d 625, 627-28 (Iowa 1980).

Defendant attempts to bring this case within Rhode Island v. Innis, 456 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1981) and Brewer v. Williams, 430 U.S. 387, 97 S.Ct 1232, 51 L.Ed.2d 424 (1977), to convince us the inculpatory statement was the result of "subtle compulsion" which was the "functional equivalent" of interrogation. The significant circumstances of those cases are entirely lacking here. Unlike Innis and Williams, there was no request for an attorney by this defendant until after the statements had been made. Neither was there anything here akin to the "Christian burial" speech in Williams.

The statement made on the flight back to Iowa did not result from "subtle compulsion," as defendant claims, and there was no error in admitting it.

c) Admission of Photographs.

Defendant argues the admission of photographs was error because they were "grisly and gruesome" and served only to inflame the jury without any probative value as a balancing factor. The trial court allowed them to come in, ruling they were "probative of the matter of serious injury" which "outweighs the potential prejudice."

Of course, the photographs were grisly and gruesome, but this does not render them inadmissible. State v. Seehan, 258 N.W.2d 374, 378 (Iowa 1977). The admission or rejection of photographs is determined by their relevancy. State v. Fuhrmann, 257 N.W.2d 619, 624 (Iowa 1977). The relevancy test was easily met by the testimony of Dr. Boggs, the State's expert, who said that the photographs were a "fair and accurate depiction" of the victim's condition and that they were necessary to aid him in explaining and illustrating the nature and extent of the injury. Furthermore we agree that the probative value of the pictures on the issue of serious injury outweighed any possible prejudice.

We find no error in the admission of the photographs.

d) Admission of Victim's Written Statement.

At one point during the interview in the Alamogordo county jail, defendant, according to Officer White, put both his elbows on his knees, cupped his face with his hands and said, "I never meant to hurt her. I'm going to jail for fifty years."

To explain why, and the circumstances under which, this statement was made, Officer White was permitted to read to the jury a written statement the victim had made describing defendant's criminal conduct.

The State offered the statement to explain defendant's verbal response and physical reaction when confronted with the victim's version of what had occurred. The trial court cautioned the jury to consider this evidence only as it tended to explain what defendant said and did, not as the truth of what was said. A similar cautionary instruction was given when the case went to the jury.

The admission of this statement was resisted by motion in limine prior to trial, by timely objection at trial, by motion for mistrial, and in defendant's motion for a new trial. Defendant's objections were more general than specific, but we believe the principal basis for complaint was the argument that the statement was hearsay.

When an out-of-court statement, otherwise hearsay, is admitted, not to show the truth of what was said, but to explain responsive conduct, it is not regarded as hearsay. State v. Hilleshiem, 305 N.W.2d 710, 712-13 (Iowa 1981); State v. Nowlin, 244 N.W.2d 596, 600 (Iowa 1976); State v. Rush, 242 N.W.2d 313, 319 (Iowa 1976).

In allowing the statement for limited purposes, the trial court found it was substantially consistent with the prior testimony of the victim; the explicit cautionary instruction sufficiently protected defendant; and "the probative value of the evidence outweighs the prejudice to the defendant, which the court finds to be de minimis."

The conclusions reached in Hillshiem, Nowlin, and Rush support the trial court's ruling here. Defendant's verbal and physical responses during the Alamogordo interview lose much of their meaning and impact without showing the context in which they took place. The circumstances attending this matter are similar to those in State v. Hilleshiem, where we said:

Defendant's alleged response to (the victim's) statement was an admission that he hit her with his hand. No question exists about the admissibility of his statement. Yet his statement could not fully be understood out of context. (The victim's) statement was an essential component of the setting in which defendant's statement was made. Statements of one party to a conversation may be admitted without regard to their truth or falsity in order to show the context in which admissible statements by another party were made.

305 N.W.2d at 712-13 (citations omitted).

Defendant counters by arguing this rule should not be...