State v. Findling, 88-799

• Decision Date: 22 February 1990
• Docket Number: No. 88-799,88-799
• Citation: 456 N.W.2d 3
• Parties: STATE of Iowa, Appellee, v. Steven Scott FINDLING, Appellant.
• Court: Iowa Court of Appeals

Page 3

456 N.W.2d 3

STATE of Iowa, Appellee, v. Steven Scott FINDLING, Appellant.

No. 88-799.

Court of Appeals of Iowa.

Feb. 22, 1990.

As Corrected March 5, 1990.

Raymond E. Rogers, State Appellate Defender's Office, Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., Ann E. Brenden, Asst. Atty. Gen., Stephen E. Barbour, Webster County Atty., James J. Koll and Cynthia L. Goins, Asst. County Attys., for appellee.

Heard by OXBERGER, C.J., and DONIELSON and HAYDEN, JJ.

OXBERGER, Chief Judge.

Steven Scott Findling (Findling) appeals the judgment entered following his conviction by jury of murder in the first degree. Findling asserts that the trial court erred in: (1) overruling his motion for change of venue, (2) not suppressing a videotape of his statements made to Montana police; and (3) overruling his hearsay objection to his codefendant's testimony regarding what the victim told him. We affirm the decision of the district court in all respects.

In early January 1988 Steve Findling, Thomas Kitner, and Ray Carson spent time together in Mason City taking drugs. Findling told Kitner that he knew of a man in Fort Dodge who owned a large diamond ring, that it could be taken, but that murder might be involved. Findling stated that he planned to sell the ring in a diamond exchange in Chicago.

Findling and Kitner left Mason City and went to the home of Vernon White. Kitner had brought along a pair of rubber gloves and a pistol. The two men stayed at White's home for several hours and then left. Kitner then gave Findling his pistol. The two men subsequently returned to White's home, Findling claiming to have lost his wallet in White's basement. The three men went to the basement. Kitner began walking up the stairs and heard a shot. Kitner heard another shot and ran to the car.

Findling and Kitner then drove to Chicago to sell the ring. Findling subsequently found out that the stone in the ring was a fake. Several days later police searched Kitner's apartment and found the pistol.

Eleven days later, Findling was arrested at a rest stop in Montana after undersheriff George Ames spotted Findling's car and radioed in to check the license number. The dispatcher informed officer Ames that Findling was wanted for first-degree murder. Findling was subsequently arrested and taken into custody. At headquarters the officer then conducted a videotaped interview wherein Findling stated that he knew about parts of the murder, was familiar with White and Kitner, but that he was not guilty of the crime. He stated he had no idea where the ring was. Findling was subsequently returned to Iowa.

The trial court denied Findling's pretrial motion for change of venue based on pretrial publicity. The case was subsequently submitted to the jury which returned a verdict of guilty. Before judgment and sentencing were entered, Findling filed a motion for new trial and a motion for arrest of judgment based on numerous grounds of evidence inadmissibility and improper venue. The trial court denied both motions. Findling has appealed.

I. Change of Venue

First, Findling contends the district court erred in overruling his motion for a change of venue. Findling's venue claim is based on pretrial publicity. He urges that because of pervasive and inflammatory media coverage in Webster County the district court should have granted him a change of venue. Findling claims that as a result of such coverage it was impossible for him to receive a fair trial.

Iowa Rule of Criminal Procedure 10(10)(b) provides that a court shall grant a change of venue where the evidence demonstrates that "such degree of prejudice exists in the county in which the trial is to be had that there is a substantial likelihood a fair and impartial trial cannot be preserved with a jury selected from that county...." In seeking a reversal of a conviction based on the denial of a change of venue, the defendant must show " 'either actual prejudice on the part of the jury or ... that the publicity attending the case was so pervasive and inflammatory that prejudice must be presumed.' " State v. Harris, 436 N.W.2d 364, 367 (Iowa 1989) (citing State v. Spargo, 364 N.W.2d 203, 207 (Iowa 1985)). Upon our de novo review of the record, we will not overturn a trial court's decision rejecting a motion for change of venue unless we find an abuse of discretion. Harris, 436 N.W.2d at 367; State v. Wilson, 406 N.W.2d 442, 445 (Iowa 1987).

In this case the pretrial publicity consisted of numerous newspaper articles and radio broadcasts. The publicity was extensive and it thoroughly covered the pretrial proceedings. Findling claims that the media coverage showing the victim, Vernon White, as a member of the community who was "widely known, highly respected, and well liked," along with repeated reports of Findling's criminal history was inflammatory pretrial publicity.

We note that media accounts which are "factual and informative in tone do not support a claim that they must be presumed to have created prejudice against a defendant." Wilson, 406 N.W.2d at 445. Upon our review of the record we believe the newspaper articles and radio broadcasts were largely factual in tone and contained no view on Findling's guilt or innocence. Further, we do not find the media coverage to be inflammatory.

Our review of the record reveals three nonfactual reports among the newspaper articles. These articles consisted of two editorials and one letter to the editor. Two of these articles amounted to tributes to the victim. The third article commended the law enforcement officials for their expeditious conclusion of the case. Specifically the article stated, "alert police and DCI work so quickly solving the heinous crime merits praise for our local and state law enforcement authorities." We believe these nonfactual articles do not rise to the level of pervasive and inflammatory publicity that would deny Findling a fair trial. See Wilson, 406 N.W.2d at 445. (Media report of sheriff's statement jail escapee Wilson was "one of the most dangerous inmates we've had here" not cause for change of venue in trial for crime unrelated to escape). Cf. State v. Robinson, 389 N.W.2d 401, 403 (Iowa 1986) (county saturated with media reports strongly suggesting defendant's involvement in attempted murder with which he was charged; held, trial court abused its discretion in denying motion for change of venue).

Findling also suggests that the juror responses during voir dire demonstrated the pervasive and inflammatory media coverage that denied him a fair trial. During jury selection, only two of forty-seven prospective jurors and alternates stated they were unfamiliar with the case. We note that familiarity or "[e]xposure to newsworthy events will not give rise to presumption of prejudice." State v. Wagner, 410 N.W.2d 207, 222 (Iowa 1987). Juror impartiality does not mean complete juror ignorance of issues and events. State v. Gavin, 360 N.W.2d 817, 819 (Iowa 1985). Additionally, a community's knowledge of a defendant's prior criminal history does not entitle him to a change of venue. State v. Spargo, 364 N.W.2d 203, 207 (Iowa 1985); State v. Shipley, 429 N.W.2d 567, 571 (Iowa App.1988).

"The crucial determination is whether, as a result of pretrial publicity or for other reasons, a substantial number of prospective jurors hold such fixed opinions on the merits of the case that they cannot impartially judge the issues to be determined at trial." Harris, 436 N.W.2d at 367. The reported voir dire questioning in the present case fails to indicate that this type of pervasive prejudice existed so as to poison the available pool of jurors. In consideration of all the factors set out above and based upon our independent evaluation of the record, we conclude the district court did not abuse its discretion in overruling the defendant's motion for change of venue. Findling failed to show that such degree of prejudice existed in Webster County that he could not receive a fair and impartial trial.

II. Motion to Suppress

Next, Findling asserts the district court erred in admitting his videotaped statements into evidence in violation of the state and federal constitutions. He suggests that since he had not formally signed a waiver of his Miranda rights and was interrogated after he told the assistant sheriff he didn't want to say anything incriminating the videotaped statement should not have been admitted into evidence.

Findling claims that the statement should not have been admitted because it was obtained in violation of Article I, Section 10 of the Iowa Constitution which provides "[i]n all criminal prosecutions ... the accused shall have a right ... to have the assistance of counsel." Since the issues raised are constitutional questions, our review is de novo. State v. Newsom, 414 N.W.2d 354, 357 (Iowa 1987).

In analyzing Findling's assistance of counsel claim we engage in a two-part inquiry. We first determine whether the right to counsel had attached at the time of the statement. Next, we determine whether the defendant effectively waived that right. State v. Jackson, 380 N.W.2d 420, 421 (Iowa 1986). The State concedes that Findling's right to counsel had attached when he gave his statement. The dispute lies in whether Findling effectively waived his right to counsel under the Iowa Constitution.

Findling does not claim the admission of the videotaped statement violated his sixth amendment right to counsel. He concedes that the Miranda waiver also constituted a waiver of his sixth amendment right to counsel as the United States Supreme Court held in Patterson v. Illinois, 487 U.S. 285, 288-90, 108 S.Ct. 2389, 2393, 101 L.Ed.2d 261, 271-77 (1988). Findling, however, contends that a mere waiver of the Miranda rights is insufficient to waive his right to assistance of counsel under Article I, Section 10 of the Iowa Constitution. The State contends that there should not be a different standard applied to Findling's state...