State v. Gilmore

• Decision Date: 23 November 1977
• Docket Number: No. 60095,60095
• Parties: STATE of Iowa, Appellee, v. Charles Walter GILMORE, Appellant.
• Court: Iowa Supreme Court

Page 846

259 N.W.2d 846

STATE of Iowa, Appellee, v. Charles Walter GILMORE, Appellant.

No. 60095.

Supreme Court of Iowa.

Nov. 23, 1977.

Gerald T. Sullivan, Cedar Rapids, for appellant.

Richard C. Turner, Atty. Gen., J. Susan Carney, Asst. Atty. Gen., Eugene J. Kopecky, County Atty., for appellee.

Heard before MOORE, C. J., and MASON, LeGRAND, REYNOLDSON and HARRIS, JJ.

MASON, Justice.

Defendant, Charles Walter Gilmore, appeals from judgment imposing sentence on his conviction by a jury of the crime of manslaughter. Gilmore had been charged by county attorney's information with the murder of Howard Cook in Linn County August 14, 1976. He admitted he had shot and killed Cook but maintained it was in self-defense.

Before trial defendant had filed a motion to suppress all statements made by him to the Cedar Rapids police. Following an evidentiary hearing the trial court suppressed all statements following the phrase, "I don't want to talk about it any more." All statements preceding that phrase were admissible.

Defendant urges two grounds as a basis for reversal of his conviction. He contends the police did not adequately explain to him his constitutional rights under Amendments 5 and 6 as mandated in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (hereinafter constitutional rights) and he did not understand the reading of the waiver of rights he signed because his reading achievement only reaches the third grade level. After considering expert opinion as to defendant's reading level, the trial court concluded defendant knowingly, willfully and voluntarily waived his rights and the court then allowed the playing to the jury of a taped interview containing inculpatory remarks of defendant.

Defendant also contends the trial court erred in admitting the prior statement of a State's witness, Mary Jo Blackcloud. The statement was admitted at the State's request for impeachment of the State's own witness but was later withdrawn from the jury's consideration by the trial court.

Defendant was arrested by Cedar Rapids policemen McLeod and Sliger in the early morning of August 14. At 3:49 a.m. while they were on the way to the police station, Officer McLeod read defendant his constitutional rights and asked him if he understood and if he would like to talk. Defendant talked to him and admitted he had shot Cook. At trial defendant stated he had not heard the rights read to him.

Upon their arrival at the police station, the officers turned defendant over to Detectives Millsap and Rosdail. Millsap gave an oral statement of defendant's constitutional rights to him but left out the fact anything defendant said could and would be used against him. Millsap then had defendant read aloud a standard rights waiver which was used by the Cedar Rapids Police Department. There is some dispute in the record as to whether defendant omitted some portions of the warning while reading it aloud. In any event, after ascertaining to their satisfaction defendant understood the rights waiver which he signed, the detectives began their questioning.

Under questioning defendant made several inculpatory statements and several claims the killing had been in self defense. At some point in the questioning, defendant expressed his desire not to speak further with the detectives. They persuaded him to continue and upon culmination of the session, Millsap dictated a statement containing his summary of the discussion. This summary was read to defendant after it was typed and was subsequently signed by him.

Before trial defense counsel moved to suppress the entire interview. After the hearing on defendant's motion the trial court ruled in pertinent part as follows:

" * * *

" * * * The Court further finds that the State has established by a preponderance of the evidence that any oral statements made by the Defendant to Officers McLeod or Sliger following said arrest were either voluntary statements, not the result of in-custody interrogation, or were made following such time as Defendant was fully advised of his Fifth and Sixth Amendment rights and knowingly, willfully and understandingly waived such rights and agreed to talk to the officers.

"The Court further finds that the State has established by a preponderance of the evidence the following additional facts:

"(a) * * *

"(b) Considering all of the evidence produced, including the evidence pertaining to the ability of the Defendant to read and understand, the Court finds that the State has established by a preponderance of the evidence that prior to answering questions propounded by Detectives Millsap or Rosdail the Defendant had been fully advised of and knowingly, willfully, and voluntarily waived his Fifth and Sixth Amendment rights and agreed to answer the questions propounded to him by the Detectives. The evidence established that oral statements thereafter made in the presence of Detectives Millsap and Rosdail were voluntary until such time as (approximately three-fifths of the way through the tape-recorded interview) the Defendant stated 'I don't want to talk about it anymore.' The Court believes and finds that any statements made by the Defendant after the making of the quoted statement were not voluntary, and to admit same in evidence upon the trial of this case would be a violation of the Defendant's Fifth Amendment rights. The finding of involuntariness just made encompasses the written statement signed by the Defendant at the conclusion of the interview, * * *."

At trial the court allowed the playing of the entire portion of the tape not suppressed.

The second issue raised by defendant concerns the admission and subsequent withdrawal of part of the testimony of Mary Jo Blackcloud. Mary and her sister, Marilyn, were with Howard Cook when he was shot. Sometime after the shooting Mary was interviewed by Detectives Millsap and Rosdail who made a statement of her remarks which Mary signed.

At trial the State called Mary as its witness. Her testimony prior to the testimony in question here was in pertinent part as follows:

"Q. Okay. And what did you do when the tavern closed? A. We then drove to the to this other house and I

"Q. Who was it that drove over? A. Howard.

"Q. Okay. And who all went along? A. Howard, myself, and my sister Marilyn.

"Q. Okay. Was anybody else along? A. No.

"Q. Okay. And where was it that you drove to? A. To this house, Tenth Avenue and between Sixth and Seventh Street.

"Q. Okay. Would that be 617 Tenth Avenue, S.E.? A. I think so.

"Q. That's here in Cedar Rapids? A. Right.

"Q. Okay. Can you tell us what kind of place that is, what kind of establishment that is? A. It's an after-hours place.

"Q. Okay. What did you do after you got in after you went in?

" * * *

"A. Well, after we had gotten our drinks, me and my sister sat down and he went into the other room to shoot some dice.

"Q. Okay. And what happened after that? A. Well, he was in there shooting dice for about a couple minutes. Then I went in there and we were just standing there. I was just watching them, and pretty soon this guy comes in I don't know who he was and Howard well, this guy was staring at Howard, and then Howard asked him what he was staring at, and I don't know whether that guy said anything. So I then asked Howard to leave for us to leave, so we left.

"Q. Okay. When you left, who all left together? A. Me, Howard, my sister, and somebody else. I don't know who it was.

"Q. Okay. What did you do as you walked out? A. Well, me and Howard had gone ahead of Marilyn and the other guy and went out the door and I saw I can't remember

"Q. Do you know who the man was that was staring at Howard? A. No.

"Q. Now, Mary Jo, do you remember anything that happened after you walked out of the house? A. Well, the next thing I remember well, Howard was laying (sic) on the ground and my sister came by and said then, of course, to go with the hospital with them.

"Q. Okay. Do you remember any shots being fired? A. No.

"Q. You don't remember anything that happened after you came out until Howard was lying on the ground? A. Right.

"Q. Could you tell us why you don't remember any of that happening? A. Because I was tired, plus I had quite a few drinks. It was just a lot of excitement, I guess.

"Q. Do you remember if Howard was carrying a gun when you had a gun on him when you walked out the door? A. I don't know if he did or not.

"Q. Did you see what happened to the man who was staring at Howard when you left? A. No.

"Q. Did you see him leave? A. No.

"Q. Do you recall going down to the police department? A. Yes.

"Q. Do you recall giving a statement to a policeman on the night or the morning that this happened? A. Yes.

"Q. Did you go to the hospital first? A. Yes."

At this point the court excused the jury and asked the prosecutors if they had something they wanted to bring up out of the presence of the jury. The prosecutor, Mr. Denton, answered:

"Yes, Your Honor. What we would propose to do our copy of the statement that the witness signed probably not our copy of the statement the witness signed, but, in any event, a copy of the deposition what we would propose to do now is to ask the witness if she gave a statement on the night that this event occurred to Detectives Millsap and Rosdail, and she took the statement and she signed it. And it's my understanding that this witness would testify she has she indicated a few minutes ago she didn't remember what happened. In the statement she gives a much more complete statement as to the facts that occurred, and we would propose to introduce the statement and ask her to identify it and ask her if she made the statement and so forth."

The prosecution then explained it wished to use the statement to impeach its own witness. There followed a lengthy discussion in which the defense attorneys interposed many objections to the introduction of the statement. They objected it was improper to impeach one's own...