State v. Hartman, 61690

• Decision Date: 31 May 1979
• Docket Number: No. 61690,61690
• Citation: 281 N.W.2d 639
• Parties: STATE of Iowa, Plaintiff-Appellee, v. Charles Gene HARTMAN, Defendant-Appellant.
• Court: Iowa Court of Appeals

Page 639

281 N.W.2d 639

STATE of Iowa, Plaintiff-Appellee, v. Charles Gene HARTMAN, Defendant-Appellant.

No. 61690.

Court of Appeals of Iowa.

May 31, 1979.

Henry M. Keyes of Keyes & Crawford, Cedar Rapids, for defendant-appellant.

Thomas J. Miller, Atty. Gen. of Iowa, and Thomas D. McGrane, Asst. Atty. Gen., for plaintiff-appellee.

Heard by OXBERGER, C. J., and DONIELSON, SNELL, CARTER and JOHNSON, JJ.

JOHNSON, Judge.

Defendant, Charles Hartman, appeals from a jury conviction for larceny in violation of section 709.1, The Code 1977. In his motion for new trial, which trial court overruled, he asserts that the trial court erred: 1) in admitting into evidence statements first made by defendant to his parole officer because a parole officer is a counselor subject to the testimonial privilege provisions of section 622.10, The Code; 2) in refusing to suppress similar statements later made to a police officer, while in his parole officer's presence, without a knowing and intelligent waiver of his constitutional rights; and 3) in allowing the jury to consider the case when there was insufficient circumstantial evidence to warrant submitting it to the jury. We affirm.

Defendant, a parolee in 1977, was suspected of the theft of two tires from a Cedar Rapids service station. A witness, who was unable to identify the person, saw someone load the tires into a car at a time when defendant admittedly and circumstantially had custody and control of the vehicle. Based on identification of the car, Cedar Rapids police questioned defendant about the theft on September 30, 1977. Prior to being questioned, defendant was read his Miranda rights, signed a written waiver of those rights, and voluntarily cooperated with police in a non-custodial interrogation. Defendant's parole officer learned of defendant's suspected involvement in the larceny and questioned him about it on October 4, 1977, without reading to him his Miranda rights or providing him an opportunity to waive his rights. The parole officer asked defendant to take a polygraph test but he stated he could not for the reason that, even though he had not taken the tires, he knew who had done so. At trial defendant testified that he was told by his parole officer's secretary to show up at the Cedar Rapids police station on October 24, 1977, for a second interview "or else" and that he was under the impression he could not leave once at the station. Immediately prior to the second questioning, and in the presence of the parole officer, defendant was presented with a waiver of Miranda rights form which he signed. Defendant testified that he understood the paper's content to be the same as on his previous visit to the station, that he understood the provisions, that he knew he was waiving the rights stated therein and that he subsequently did not ask for an attorney.

I. On appeal defendant first asserts that his statements to his parole officer regarding his knowledge about the tires are protected by the statutory privilege extended to counselors, among others, under section 622.10, The Code 1977, and consequently should have been excluded as evidence. Section 622.10 deals with testimonial privilege and extends this privilege to a practicing attorney, counselor, physician, surgeon, or the stenographer or confidential clerk of any such person who obtains such information by reason of his or her employment, a minister of the gospel or priest of any denomination, or qualified school guidance counselor. While this explicit list does not include a parole officer, defendant urges this court to find that the term "counselor," for policy reasons, should include such a person.

To fall within section 622.10 protections, the communication must be confidential, entrusted to the described person in his or her professional capacity, and "necessary and proper to enable him (or her) to discharge the functions of his (or her) office according to the usual course of practice or discipline." Allen v. Lindeman, 259 Iowa 1384, 1390, 148 N.W.2d 610, 614 (1967). Even in light of the fact that the section is to be liberally construed, Allen v. Lindeman, 259 Iowa at 1390, 148 N.W.2d at 614, the court will not extend it beyond its intended parameters and will strive to limit its applicability only to situations that foster the theory behind the privilege. See State v. Bedel, 193 N.W.2d 121 (Iowa 1971) (factors necessary to activate physician-patient privilege); Allen v. Lindeman, 259 Iowa at 1391, 148 N.W.2d at 615 (theory for application of minister-penitent privileges); Henke v. Iowa Home Mutual Casualty Co., 249 Iowa 614, 87 N.W.2d 920 (1958) (rule for privileged communication to an attorney is repose of confidence in the attorney).

In support of his contention, defendant cites 8 Wigmore Evidence § 2285 (1961) which sets forth four requisites for establishment of a privileged relationship: 1) the communications must originate in a confidence that they will not be disclosed; 2) confidentiality must be essential to the full and satisfactory maintenance of the relationship between the parties; 3) the relationship must be one which, in the opinion of the community, ought to be sedulously fostered; and, 4) the injury which would enure to the relationship by disclosure must be greater than the benefit thereby gained. These prerequisites were discussed in State v. Driscoll, 53 Wisc.2d 699, 193 N.W.2d 851 (1972), in which the court, on grounds of public policy, rejected extension of the privilege to communications to social workers.

This court likewise rejects the theory that a parole officer should be deemed a party to whom the testimonial privilege is extended. The nature of parole is not a suspension of sentence but a lower grade of punishment. Morrissey v. Brewer, 443 F.2d 942, 947 (8th Cir., 1971), Rev'd. on other grounds and remanded, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1971). To receive parole, the individual enters into a contract with the state. The parole officer is placed in a supervisory capacity to administer the contract. 770 I.A.C. ch. 26. To achieve discharge from parole, the parolee must receive a recommendation from the supervising parole officer 1) evaluating the risk to society presented by the parolee's unsupervised release and 2) determining any further assistance that might be rendered to the parolee. 770 I.A.C. § 26.11(1)(3). See also Morrissey v. Brewer, 443 F.2d at 948 (broad discretion must be vested in a responsible body to enable it in each individual case, to balance the need to protect the welfare and security of society with the desirability of placing a convicted person on parole in order to promote his rehabilitation and restoration to a useful life).

While defendant's argument for the extension of the privilege to parole officers is not without merit, the language of section 622.10 speaks to confidentiality being "necessary and proper to enable . . . (the professional) to discharge the functions of his (or her) office." It is clear from the posture of ch. 26 I.A.C. and the cited cases that the paramount function of a parole officer is to protect the welfare and security of society as a whole through a supervisory, not confidential, relationship with parolees. ¹ This position is more than sufficiently supported by the legislative decision not to include a parole officer among those persons expressly designated in section 622.10 as one to whom testimonial privilege shall be extended. Trial court, therefore, properly admitted as evidence defendant's statements to his parole officer.

II. Defendant's second contention is that certain inculpatory statements made to his parole officer on October 4 and in the police interview on October 24 should be suppressed because he had not voluntarily and intelligently waived his constitutional rights. Prior to trial defendant moved to suppress statements made in the alleged custodial setting claiming they were made "unwillingly, while defendant was under duress and without regard to defendant's constitutional rights of custodial silence and presence of counsel." The motion was denied. Defendant raised the issue again in his motion for new trial. ²

While defendant's motions are less than flawlessly drafted, we believe he has met his burden of preserving error with sufficient specificity to permit appellate review. See State v. Washington, 257 N.W.2d 890, 895 (Iowa 1977), Cert. denied 435 U.S. 1008, 98 S.Ct. 1881, 56 L.Ed.2d 390 (1978). Neither is review precluded by defendant's failure to raise the issues at trial. An adverse ruling by trial court at the suppression hearing has been held sufficient to preserve error for appellate review even though there is no...