State v. Fetters, 55091

• Decision Date: 15 November 1972
• Docket Number: No. 55091,55091
• Citation: 202 N.W.2d 84
• Parties: STATE of Iowa, Appellee, v. Francis D. FETTERS, Appellant.
• Court: Iowa Supreme Court

Page 84

202 N.W.2d 84

STATE of Iowa, Appellee, v. Francis D. FETTERS, Appellant.

No. 55091.

Supreme Court of Iowa.

Nov. 15, 1972.

Ulstad & Guinan, Fort Dodge, for appellant.

Richard C. Turner, Atty. Gen., Allen J. Lukehart, Asst. Atty. Gen., Richard C. Lunn, Asst. County Atty., for appellee.

Heard before MOORE, C.J., and MASON, RAWLINGS, LeGRAND and REES, JJ.

MASON, Justice.

Francis D. Fetters appeals from judgment entered on a jury verdict convicting him of breaking and entering in violation of section 708.8, The Code. The State charged by county attorney's information that defendant intended to commit larceny at the time of breaking and entering the dwelling house.

Defendant filed a pretrial motion to suppress certain written and oral statements made by him April 9, 1971, to the Webster County sheriff and his deputy, alleging several violations of defendant's constitutional rights. After hearing, the motion was overruled and the matter proceeded to trial.

In the course of investigation an earlier breaking and entering of the Elmer Gerken farmhouse near Callendar in Webster County, the sheriff and his deputy went to a farm where Fetters was residing with his stepmother, Lorraine Schoonover, to question him about the theft of property from the Gerken residence. At the time, Larry Sego, who was involved in the Gerken break in, was being held in custody in the Fort Dodge city jail in connection with a parole violation. At the Schoonover farm the sheriff told Fetters he and his deputy wanted to talk to him and asked Fetters to come and sit in the officer's car. After they were in the car, the sheriff told Fetters they wanted to ask him some questions. During this questioning Fetters admitted involvement in the Gerken incident.

Defendant was then taken to the sheriff's office in Fort Dodge where his statement was first taken in longhand, exhibit 5. This statement was later typed and is identified in the record as exhibit 2. Fetters signed these statements as well as a typed statement, exhibit 1, in which there were set forth the four essential elements enunciated in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974, of a proper warning to an individual being held for interrogation of his privilege against self-incrimination and his right to counsel under Amendments 5 and 6 of the federal constitution. See State v. Sefcheck, 261 Iowa 1159, 1170, 157 N.W.2d 128, 134 and State v. Davis, 261 Iowa 1351, 1354, 157 N.W.2d 907, 908.

Defendant assigns four errors relied upon for reversal. He asserts the court erred: (1) in admitting evidence of other crimes; (2) in refusing evidence of what defendant and Larry Sego relied upon in entering the other residence; (3) in admitting into evidence defendant's confession; and (4) in admitting evidence showing that the accomplice had been convicted of the same crime.

These assignments will be considered other than in the order argued.

I. Defendant's third assignment stems from the court's determination that statements made by him to the sheriff and his deputy were voluntary and admissible into evidence at his trial.

In motion to suppress these statements defendant had alleged they were obtained in violation of his privilege against self-incrimination and the right to counsel as protected by the constitution. He further alleged he did not have the mental capacity to understand his constitutional rights when advised thereof and did not understand he was waiving these rights and, hence, the statements were not voluntary.

As stated, the trial court held a pretrial suppression hearing to determine the admissibility of these statements as being voluntarily made. Defendant's testimony at this hearing describing the events leading to his signing of the statements conflicts with the version of those circumstances as narrated by the sheriff and his deputy. The officers testified in detail concerning the manner in which they advised defendant of his privilege against self-incrimination and the right to counsel both at the Schoonover farm before interrogation was commenced and again at the sheriff's office before the statements were signed. They stated that in their opinion Fetters fully understood his rights, waived them and voluntarily signed the statements.

However, defendant contends his signed statements were not voluntarily given because of his illiteracy and inability to comprehend what his constitutional rights were.

The record discloses that Fetters had been in special education and had completed either the sixth or seventh grade. He was 24, married and had been living with his wife and child in Webster county while working for $2.50 an hour. Although he had passed a test and secured a license to operate a motor vehicle, defendant claims he can read only a little English, not much. Defendant maintains the officers told him they wanted him to sign some papers 'on Larry Sego' whom he had known for about five or six years. He did not read either exhibit 2 or 5 and thought he was signing statements against Sego, not a confession of his own crime. He admitted the deputy read the statements to him but insists he did not understand all the words.

At the conclusion of the hearing the court held defendant had been duly advised of his constitutional rights guaranteed by Amendments 5 and 6 of the federal constitution before the officers instituted any process of interrogation which lent itself to eliciting incriminating statements.

The court expressed some concern as to whether the statement identified as exhibit 5 was in fact voluntary because of defendant's I.Q. of 67. It concluded it had been established beyond a reasonable doubt the statements were voluntarily made. The court explicitly advised defendant's counsel its ruling did not preclude defendant from presenting at trial the circumstances under which the alleged statements were made to aid the jury in determining the weight to be given such statements.

The procedure adopted by the trial court in holding a pretrial suppression hearing was in accordance with the pronouncement made in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, where the Court held that a criminal defendant who challenges the voluntariness of a confession made to officials and sought to be used against him at his trial has a due process right to a reliable determination that the confession was in fact voluntarily given and not the outcome of coercion which the constitution forbids. However, the Court apparently left the states free to choose between the Massachusetts rule and the orthodox rule as to the procedure to be adopted.

In State v. Holland, 258 Iowa 206, 214--215, 138 N.W.2d 86, 90--91, this court in adopting the orthodox rule announced the procedure to be followed by trial courts in determining the question of the voluntariness of a defendant's confession and its admissibility in evidence. The trial court followed the prescribed procedure in making an initial determination that defendant's statements were voluntary before permitting the jury to hear testimony regarding defendant's incriminating statements.

It is noted the trial court concluded in determining admissibility of defendant's statements that the State had established beyond a reasonable doubt they were voluntary. In this connection we call attention to Lego v. Twomey, 404 U.S. 477, 487--489, 92 S.Ct. 619, 626--627, 30 L.Ed.2d 618, 626--627, where the Court announced that the prosecution must prove at least by a preponderance of the evidence that a confession of a criminal defendant was voluntary; that proof beyond a reasonable doubt was unnecessary before admitting a confession into evidence. The decision left states free, pursuant to their own law, to adopt the higher standard.

Before the Lego decision which was announced January 12, 1972, there had been a considerable variety of opinions, both state and federal, as to the quantum of proof required to sustain the state's burden.

In State v. Clough, 259 Iowa 1351, 1357, 147 N.W.2d 847, 851, a divided court indicated that the state in order to sustain its burden must establish the defendant was Clearly advised of his constitutional rights. The question was not reached in State v. Holland, supra.

As a guideline for trial courts we now hold when a confession of a criminal defendant is challenged at a pretrial suppression hearing as involuntary, the burden is on the state to prove by a preponderance of the evidence that the confession was voluntary as a prerequisite to its admissibility into evidence at his trial; the more stringent standard of proof beyond a reasonable doubt is not required on this challenge.

In State v. Niccum, 190 N.W.2d 815, 822 (Iowa 1971), this court acknowledged awareness 'of the heavy burden the State has to demonstrate defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Miranda v. State of Arizona, 384 U.S. at 475, 86 S.Ct. at 1628, 16 L.Ed.2d at 724.'

Between them, the sheriff and his deputy testified Fetters was warned as to his constitutional rights under Amendments 5 and 6 of the federal constitution at least three times, twice before the formal statement was taken at the sheriff's office. Fetters denied the warnings had been given more than once, at the farm. He admitted there was no coercion, threats, or promises.

The State has fully demonstrated under the record before us Fetters was adequately advised of these constitutional rights after he was taken into custody at the Schoonover farm before any process of interrogation had been instituted by the officers.

However, even though Fetters was properly advised of these constitutional rights by the sheriff and the deputy, the State still had the additional burden of establishing Fetters voluntarily, knowingly and intelligently waived his right to remain silent and his right to assistance of counsel.

...