State v. Fox
| Decision Date | 15 December 1964 |
| Docket Number | No. 51301,51301 |
| Parties | STATE of Iowa, Appellee, v. George Allen FOX, Appellant. |
| Court | Iowa Supreme Court |
Arthur J. Crawford, Jr., Fort Dodge, for appellant.
Evan Hultman, Atty. Gen., John H. Allen, Asst. Atty. Gen., Francis E. Tierney, County Atty. and Mark McCormick, Asst. County Atty., Fort Dodge, for appellee.
The defendant George Allen Fox was indicted and tried for the crime of rape in violation of section 698.1, Code of Iowa, 1962, I.C.A. From a jury verdict of guilty and an imposed sentence of fifty years in the state penitentiary he appeals. There is no contention made that the evidence of this horrible crime was not sufficient to sustain the conviction.
The errors assigned, as we understand them, are (1) that inadmissible evidence was received of oral admissions of defendant made in the absence of counsel after arraignment, of a conversation regarding defendant's refusal to take a lie detector test, and of admissions of other offenses not germaine to the crime charged; (2) that the court erred in overruling defendant's motion to dismiss the indictment because of an admitted variance in the testimony of witnesses as given before the grand jury and as given in this trial; (3) that the court erred in overruling defendant's motion for a mistrial on the grounds that he was on one occasion denied access to his counsel between sessions of his trial. We find no merit in any of these assignments.
The details of this crime are so revolting that we shall refer only to them generally where necessary. For more than two hours prosecutrix, a slight girl of twenty years, battled three strong men before they succeeded in their unholy purpose. It appears the prosecuting witness and her steady boy friend, Robert Christiansen, were parked in a narrow lane off the public highway north of Fort Dodge, Iowa, at about 1:00 A.M. on May 21, 1963. They were engaged in some unusual petting, and the girl had removed her clothing, when a car bearing the defendant and two other men, David Sexauer and Ronald Torrence, pulled into the lane and blocked their exit. All three men got out of their car and approached the Christiansen car. Noting the girl wrapped in a blanket, Fox and Sexauer, with drawn pistols, threatened to shoot unless Christiansen unlocked the car door. When he did so, Fox and Torrence dragged the girl from the car and laid her on the ground. After beating and pistol-whipping Christiansen, Sexauer joined in the attempt to ravish the girl. For about an hour they struggled without success, and then Fox laid her in the front seat of his car where she was subjected to additional abuses and indignities. Finally Fox succeeded in his efforts, shouted to the others, and all three completed the act of sexual intercourse with the girl several times before Torrence, sickening of the affair, tried to stop defendant's animal behavior. A fight resulted and Torrence ran away. Fearing he had gone to the Fox farmhouse a quarter of a mile away for a gun, the defendant and Sexauer permitted Christiansen and the girl to leave. Threats were made if the police were informed, so Christiansen drove to the place he worked and called them. The police responded promptly and, after taking the girl to the station, rushed her to the hospital for examination and treatment. Her testimony as to the assault and some indignities was corroborated by Christiansen. The doctor told of his findings, of bruises and scratches on her body, of medical confirmation of recent sexual relations by force and violence, and the lady with whom she stayed told of a conversation with the girl over the phone and at the hospital when she was hysterical and distraught some two hours after the attack. All this was admissible evidence showing the girl was forcefully raped at gun point by the defendant, who she accurately described and later that morning identified at the police station. See State v. Torrence, Iowa, 131 N.W.2d 808, filed December 15, 1964.
The state offered the testimony of several police officers and of Sheriff McCoy concerning the detection and apprehension of these men at the Fox farm, which adjoined the lane involved. The pistols used by Fox and Sexauer were found and identified by the prosecuting witness and Christiansen. Captain Lamb, of the Fort Dodge police, testified that he talked to the defendant shortly after he was brought in, but that he made no statement at that time, that he denied he was guilty, and that he called his attorney, Louie Beisser, who came right over and advised Fox that he didn't have to talk to the officers more than to tell them his name. Lamb was present that morning when the girl identified Fox as the worst of the three who had raped her.
I. After Fox waived to the grand jury he was removed to the county jail where a conversation between Fox and Captain Lamb took place in the presence of Sheriff McCoy. McCoy, testifying for the state, said that when Lamb asked Fox, 'Will you tell the sheriff and me how you got loused up in a deal like this'. Fox never did 'come out with an answer', but he said There was no objection made to this testimony, although it is now claimed evidence of that admission was inadmissible. Clearly, these statements of the defendant were voluntary. There is no claim they were obtained as a result of coercion or when access to his counsel was denied him.
While evidence of statements obtained by force or duress is not admissible, we have often said, 'The sole test in this state as to the admissibility of inculpatory statements or confessions is: Were the same voluntary or not?' State v. Stump, 254 Iowa 1181, 1191, 119 N.W.2d 210, 216; State v. Beltz, 225 Iowa 155, 163, 279 N.W. 386, 390; State v. Mikesh, 227 Iowa 640, 644, 288 N.W. 606. It is clear Fox was not denied the aid of counsel at any time prior to trial, that he was aware of his rights, and that there admissions were not obtained by force or duress.
The rule is well settled that one accused of a crime may refuse to answer questions of the police and, before doing so, is entitled to advice of counsel. These safeguards of one's rights appear in both federal and state constitutions. Amendments 5, 6, and 14, Constitution of the United States; Article I, Sections 9 and 10, Constitution of the State of Iowa, I.C.A. The courts have recognized these safeguards and interpreted them. State v. Stump, supra; Mapp. v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, decided June 22, 1964. It appears from the Escobedo case that each case must largely turn upon its own facts, but we are sure there is no departure in that case from our rule that evidence as to purely voluntary statements made by one accused of a crime, otherwise material, is admissible. True, the latest Supreme Court pronouncement in the Escobedo case perhaps leaves one with the thought that any evidence of a statement made by one accused either before or after arraignment, not made in the presence of counsel, is inadmissible (see dissent therein), but we are satisfied the holding in that case was predicated upon those facts which disclosed a police interrogation of the accused when his attorney was being excluded and was unable to advise him. There are no such circumstances here, and we think the testimony as to Fox's admission was properly accepted, especially so where no objection to it appears in the record.
Defendant himself first testified regarding a proposed lie-detector test and as to other crimes committed by him, not related to the crime charged. He admitted on his direct examination a California conviction for larceny, and told of their activities the night of May 20th when he said they drove around and 'went up around Badger' and stopped at a vacant place. On cross-examination he admitted they stole some building materials at that place. He said, ...
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