State v. Davis

• Decision Date: 09 April 1968
• Docket Number: No. 52763,52763
• Citation: 157 N.W.2d 907,261 Iowa 1351
• Court: Iowa Supreme Court
• Parties: STATE of Iowa, Appellee, v. John Wayne DAVIS, Appellant.

Page 907

157 N.W.2d 907

261 Iowa 1351

STATE of Iowa, Appellee, v. John Wayne DAVIS, Appellant.

No. 52763.

Supreme Court of Iowa.

April 9, 1968.

Everett H. Albers, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., David A. Elderkin, Asst. Atty. Gen., Ray A. Fenton, County Atty., for appellee.

LARSON, Justice.

On May 23, 1967, the Polk County Grand Jury returned an indictment charging the defendant, John Wayne Davis, with the crime of breaking and entering as defined in section 708.8 of the 1966 Code of Iowa. Subsequent to a plea of not guilty, trial was had by jury resulting in a verdict of guilty. The defendant was sentenced to not more than ten years in prison in the Men's Reformatory at Anamosa, Iowa. He appeals.

Acting upon a radio dispatch that a breaking and entering was in progress at Jay's Bakery in Des Moines, Iowa, several Des Moines policemen went to the bakery to investigate. Upon their arrival about 2:30 A.M. on April 14, 1967, they found one party in the bakery and the defendant crouched on the roof near the edge of the skylight on top of the building. Officer Dickerson told the defendant to stand up with his hands in the air and to come down off the building. He and Officer Warrick then handcuffed him and took him to the front of the bakery where 'he was advised of his rights' by Lieutenant Burns in the presence and hearing of several officers.

Officer Warrick testified that 'Lieutenant Burns advised him (the defendant) that he was under arrest and charged with breaking and entering and that he had a right to remain silent and also he had a right to counsel and if he did not have the funds for counsel, the state would provide one.' He was 'further advised that anything he said could be against him.'

Officer James Collins corroborated that testimony and said the defendant had apparently injured his ankle when he jumped off the roof. Collins was sent to Broadlawns Hospital to guard him while he was being examined by doctors and, while there, had a brief conversation with defendant. It is the admission of this conversational exchange into evidence, over defendant's objection, that provoked this appeal.

In his proposition relied upon for reversal defendant contends, 'the trial court committed reversible error in permitting the introduction of admissions made by the defendant into evidence without an affirmative showing that the defendant waived his right to counsel at the time the admissions were made.'

I. It is well settled that when a person is taken into custody or otherwise deprived of his freedom of action in any significant way, before interrogation he must be advised (1) that he has a right to remain silent, (2) that anything he might say may be used in evidence against him, (3) that he has a right to the presence of an attorney, and (4) that if he cannot afford counsel he may have counsel appointed. Miranda v. State of Arizona, 384 U.S. 436, 444, 471, 86 S.Ct. 1602, 16 L.Ed.2d 694; State v. Hardesty, Iowa, 153 N.W.2d 464. Defendant does not contend the warnings listed above were not given to him after his arrest, but argues that the statement made by him was not admissible because the State failed to show at the time of the statement he was again advised of his rights or that he effectively waived his right to counsel.

Thus, we are faced with three very interesting questions: (1) Must a person be advised of his constitutional rights more than once? (2) Was defendant's objection to the admission of his statement at the time of trial properly overruled? (3) Did this verbal exchange between the officer and the defendant amount to actual custodial interrogation?

II. An accused need not be advised of his constitutional rights more than once unless the time of warning and the time of subsequent interrogation are too remote in time from one another. People v. Perrin, 247 Cal.App.2d 838, 55 Cal.Rptr. 847, 850 (1967); People v. Hill (Ill.), 233 N.E.2d 546 (1968). In the Perrin case defendant was advised of his constitutional rights prior to a morning interrogation by police, but when interrogation was again resumed in the afternon no admonition of his rights was repeated. The court held there was no evidence that the defendant had wished the interrogation to cease or had indicated so in any manner, and thus the warning in the morning was held to carry over into the afternoon. In the Hill case the defendant was arrested and brought to the precinct station and advised of his constitutional rights. He was then interrogated by some officers over a period of several hours. The court held it was not necessary to repeat the warnings at the beginning of each successive interview, particularly where the defendant was interrogated for a relatively short period of time, about three hours in all.

The statement in question was made while defendant was in custody at a hospital, about one and a half hours after the time of his arrest. We think this warning was sufficient.

III. Defendant's next contention concerns the overruling of his objection to the testimony of Officer Collins and his motion to strike the officer's testimony relative to the conversation he had with the defendant at the hospital.

From the transcript furnished, it appears Officer Collins testified he observed two cans of beer and one tire iron on a table in the bakery at the time defendant and another were apprehended. He was then asked, 'Now, based upon this observation, could you relate to the jury the conversation you had with the defendant at Broadlawns Hospital?' Before answer, defense counsel said, 'The defendant objects, Your Honor. There has been no direct testimony with this particular witness that advised him of his rights or if anyone advised him of his rights or what rights he was advised of and this testimony should be stricken.' The objection was overruled and defendant excepted. Counsel then said, 'Tell us what the conversation was,' and when no further objections or motions were made by defendant, the officer said, 'Yes, I made reference to the beer that I had seen in Jay's Bakery. I asked him, I said, 'You guys must have been planning on staying for awhile.' I said, 'You had your cold beer with you.' And he said, 'Yes, but we did not have a chance to drink it.' This is about all.'

No motion to strike was made at the time. However, at the conclusion of the cross-examination of Officer Collins, defendant's counsel renewed his 'objections to the questions propounded by counsel and I would like to request the objection because such questioning was done when the accused was in great pain and which would constitute a form of duress by the questioning of the officer,' and asked on those two grounds that the testimony be stricken. This motion was overruled, and we find no other motions relative to this statement in the record, no objection to the court's instructions, and no motion for a new trial.

Under this record the trial court could properly deny both the objection and the motion to strike. The reasons advanced by counsel in support of his specific objection and motion were not sufficient. It is elementary that an objection to offered evidence must be sufficiently specific to advise the trial court why it is inadmissible. Frederick v. Shorman, 259 Iowa 1050, 147 N.W.2d 478, 485, and citations; State v. Estrella, 257 Iowa 462, 468, 133 N.W.2d 97. When specific objections are made and do not include the reasons argued in appeal, as a general rule the latter will not be considered on appeal. State v. Mabbitt, 257 Iowa 1063, 1066, 135 N.W.2d 525; Masters v. Eide, 8 Cir., 353 F.2d 517, and citations; Chester v. People of State of California, 9 Cir., 355 F.2d 778, and citations.

The record shows defendant had been properly and timely advised of his rights as announced in Miranda at the time he was taken into custody, and there was no objection at the time of defendant's statement on the basis of duress. In fact, this belated idea seems to have come to counsel during the cross-examination when Officer Collins admitted defendant's foot was swollen and he was advised of the pain by defendant.

We are not convinced the trial court erred in overruling defendant's objection to this testimony. Clearly, it was not premised on a claimed failure of the State to show he heard and understood the warnings given. Defendant's argument that this reason was included in his objection and motion to strike has no merit.

It is the State's position that, even if the objection be considered adequate to raise this latter issue, by failing to file a motion to suppress, defendant waived his right to object to the officer's statement at the trial. It refers to the well established rule that, unless a defendant who is forewarned as to the substance of testimony to be offered makes a proper and timely motion to suppress such evidence before trial, any objection to its introduction will be deemed waived. State v. Dwinells, 259 Iowa 945, 146 N.W.2d 231, 234; People v. Ferguson, 376 Mich. 90, 135 N.W.2d 357; Dunek v. District Court of Lee County, 258 Iowa 673, 140 N.W.2d 372.

It appears here that the objected-to testimony of Officer Collins was almost identical to that appearing in the minutes of testimony attached to defendant's grand jury indictment. Defendant was, or should have been, well aware in advance of trial of this testimony, made no motion to suppress it, and failed to make a proper objection to its admission when offered. We recognized this ground of waiver as valid in the recent case of State v. Anderson, 260 Iowa 122, 148 N.W.2d 414, but there we did not ground the decision alone on that somewhat-technical basis, nor need we do so here.

IV. The State argues that Officer Collins' testimony as to his statement and defendant's reply did not violate the Miranda holdings or any other of the United States Supreme Court decisions regarding procedural safeguards against self-incrimination. It points out that the...