State v. Crisman

• Decision Date: 10 March 1953
• Docket Number: No. 48144,48144
• Citation: 244 Iowa 590,57 N.W.2d 207
• Parties: STATE v. CRISMAN.
• Court: Iowa Supreme Court

Page 207

57 N.W.2d 207

244 Iowa 590

STATE v. CRISMAN.

No. 48144.

Supreme Court of Iowa.

March 10, 1953.

Charles W. Bowers, of Des Moines, for appellant.

Robert L. Larson, Atty. Gen., Raphael R. Dvorak, Asst. Atty. Gen. and Clyde E. Herring, County Atty. of Polk County, Des Moines, for appellee.

OLIVER, Justice.

The errors assigned on this appeal involve the admission of a confession, Exhibit A, the reception of certain testimony and the refusal to give a requested instruction.

I. Was the confession admissible? The test is whether it was made freely and voluntarily and without compulsion or inducement of any kind. It is the province of the trial court to determine, as a preliminary question, whether a confession has been made with that degree of freedom to justify its admission in evidence, or in case of doubt and of a conflict in the evidence, to submit the question to the jury, under proper instructions. State v. Johnson, 210 Iowa 167, 170, 171, 230 N.W. 513; State v. Storms, 113 Iowa 385, 85 N.W. 610. If it clearly appears the statement was induced by force, threats or promises, the question is one of law for the court and the statement should be rejected. State v. Johnson, supra, 210 Iowa 167, 171, 230 N.W. 513.

In the case at bar the court submitted to the jury the question whether the confession, Exhibit A, was freely and voluntarily given. Defendant assigns error, asserting it was made under the influence or inducement of a statement by an arresting officer that it would be 'better' or 'better or wiser' for him to tell the truth, and this inducement destroyed the voluntary character of the statement and rendered it inadmissible. Hence, defendant contends the court, instead of submitting the question to the jury, should have held the confession involuntary and excluded it from the consideration of the jury.

Defendant was forty eight years old. He was a high school teacher, with a college education. The confession was made while he was in custody. It is not contended threats or violence were used in obtaining it. Defendant testified the officers told him, 'it would be much easier for me, that I would avoid publicity, that the school would be spared publicity, that my family would not be drawn through a long court proceedings, that I would not have to go into an identification line, if I would make a statement acknowledging that these things were true.' He testified he believed these promises, and that the parts of Exhibit A which referred to acts of sodomy were false. The officers testified they may have told defendant, 'it would be better or wiser for him to tell the truth.' They denied having made the other alleged statements.

Exhibit A recites it is a voluntary statement, taken in the presence of the officers without any threats or promises being made. A written confession, which on its face purports to have been freely and voluntarily given, is prima facie voluntary and the burden rests upon defendant to show it was involuntarily given. State v. Plude, 230 Iowa 1, 296 N.W. 732; State v. Hofer, 238 Iowa 820, 827, 28 N.W.2d 475.

Defendants cites State v. Jay, 116 Iowa 264, 89 N.W. 1070, contending the testimony of the state's own witnesses shows the statement was not voluntary. In the cited case the defendant was assured it would go easier with him if he would tell. There was no such testimony in the case at bar, even from defendant himself. Giving defendant's testimony the construction most favorable to him, there was, at most, merely a conflict in the evidence, and the question whether the confession was free and voluntary was for the jury. State v. Bennett, 143 Iowa 214, 219, 220, 121 N.W. 1021; State v. Harding, 204 Iowa 1135, 1144, 1145, 216 N.W. 642; State v. Storms, supra, 113 Iowa 385, 85 N.W. 610.

The trial court did not err in refusing to exclude the confession.

II. The confession consisted of fourteen typewritten pages of questions by the officers and answers by defendant. The state offered it in evidence, excepting three pages and parts of ten other pages. Defendant objected that it contained references to transactions other than that charged in the indictment, and if it was the intention to block out the parts referred to, this would permit the jury to speculate as to the matters blocked out and the statement would be highly prejudicial to defendant. The prosecutor stated, 'that any of the omitted parts which the defense counsel wishes to have left in the statement and is willing to waive any objections to, of course, will be left in by the State'. He stated also the omitted parts would be covered with heavy paper fastened with scotch tape, so the jury would not be able to read such parts, and the court would be requested to instruct the jury to draw no inferences from the omissions. As thus deleted Exhibit A was read to and submitted to the jury, which was instructed to consider its visible parts only, and neither to draw inferences for or against either party, nor to engage in speculation, because portions of it were blocked out.

Error is predicated upon this procedure. Defendant does not content the deleted parts of the confession were favorable to him or were relevant. One objection to the proffered confession was 'that it contains references to transactions other than the one alleged in the indictment in this case.' The prosecution states the deleted parts of the confession related to offenses by defendant with others than the person named in the indictment and were omitted to avoid possible error.

The majority rule appears to be that when parts of a statement which refer to other offenses cannot be separated from the relevant parts, the whole statement may be received in evidence with an instruction to the jury to disregard such irrelevant matters but 'when the relevant parts can be separated from the irrelevant this must be done, and that part, only, of the confession admitted which is material to the issues on trial.' People v. Spencer, 264 Ill. 124, 106 N.E. 219, 225; 20 Am.Jur. 426, Evidence, section 489; 22 C.J.S., Criminal Law, § 820, p. 1441; Annotation in 2 A.L.R. 1017, 1030; Stagemeyer v. State, 133 Neb. 9, 273 N.W. 824, 832, 833; People v. Coughlin, 67 Mich. 466, 35 N.W. 72, 75, 76; People v. Hepner, 285 Mich. 631, 281 N.W. 384, 387; Mack v. State, 203 Ind. 355, 180 N.E. 279, 285 83 A.L.R. 1349; Hansbrought v. State, 228 Ind. 688, 94 N.E.2d 534, 536, 537; State v. Rosen, 151 Ohio St. 339, 86 N.E.2d 24; People v. Hurry, 385 Ill. 486, 52 N.E.2d 173, 176; Ingram v. State, 120 Tex.Cr. 8, 47 S.W.2d 285.

In Martinez v. State, 138 Tex.Cr. 51, 134 S.W.2d 276, 277, over defendant's objection, the entire confession, parts of which referred to extraneous crimes, was read to the jury and taken into the jury room. The court held this was erroneous and observed:

'In the instant case, the State might easily have pasted a strip of paper over the objectional portion of the confession and thereby excluded it from the jury.'

State v. Cooley, Mo.Sup., 221 S.W.2d 480, holds the admission of a confession from which certain parts were deleted on objections by defendants, by pasting tape over deleted parts, was not error on the ground that the confession placed in the minds of the jurors facts not in evidence, in absence of any showing that deleted parts were readable through the tape.

In State v. Hofer, 238 Iowa 820, 830, 831, 28 N.W.2d 475, supra, the parts of the statement referring to extraneous offenses were ordered stricken and withdrawn and the jury was admonished not to consider them. Apparently through oversight, the entire exhibit was taken to the jury room. We held it would not be assumed the jury disregarded the admonition not to consider the parts stricken.

Defendant cites Evans v. Holsinger, 242 Iowa 990, 995, 996, 48 N.W.2d 250. That case involved the removal of part of a public record placed in evidence. There was no explanation or instruction to guide the jury. In the case at bar the jury was instructed it should not speculate or draw inferences from the blocking out of parts of the statement. The prosecution offered to leave in evidence any parts of the statement desired by defendant and defendant had the right, under section 622.19, Code of Iowa 1950, I.C.A., to place in evidence the deleted parts of the statement. Moreover, it is the general rule, under decisions or statutes, that where the state introduces a confession, defendant has the right to require that the whole of the statement or conversation shall go to the jury. The reason appears to be that defendant should not be deprived of the advantage of any explanatory or favorable statements contained in it. In this case defendant did not exercise such right, apparently because the deleted parts were unfavorable to him.

We are satisfied there was no reversible error in placing Exhibit A in evidence and in the hands of the jury, in its deleted form. The prosecution could have made a better record by securing from the court, in the absence of the jury, rulings and orders to be shown in the record, deleting the questionable portions of the statement.

The foregoing discussion assumes, without so deciding, that the deleted portions of the statement were irrelevant.

III. Another assignment of error is based upon the admission of certain testimony of the witness Ronnie Jones,...