State v. Hilpipre, 2--58426

• Decision Date: 19 May 1976
• Docket Number: No. 2--58426,2--58426
• Citation: 242 N.W.2d 306
• Parties: STATE of Iowa, Appellee, v. Kervin M. HILPIPRE, Appellant.
• Court: Iowa Supreme Court

Page 306

242 N.W.2d 306

STATE of Iowa, Appellee, v. Kervin M. HILPIPRE, Appellant.

No. 2--58426.

Supreme Court of Iowa.

May 19, 1976.

William A. Long, Eagle Grove, for appellant.

Richard C. Turner, Atty. Gen., William D. Scherle, Asst. Atty. Gen., and Larry E. Ivers, County Atty., for appellee.

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

RAWLINGS, Justice.

Defendant, Kervin M. Hilpipre, appeals from judgment on jury verdict finding him guilty of terrorizing dwelling inhabitants in violation of Section 714.2, The Code 1973. We reverse.

The factual situation, hereinafter set forth, is gleaned entirely from the record made upon defendant's pretrial motion to suppress any self-incriminating statements he had made or given, upon the premise they were obtained by means which violated privileges accorded him under specified constitutional provisions, both federal and state.

The above charge stemmed from an alleged firing by defendant of three rifle shots into the Eagle Grove mobile home of his employment supervisor on January 31, 1975. Defendant's former wife, with whom he was living at time of the incident, purportedly drove the vehicle from which the weapon was discharged.

Wright County Deputy Sheriff Michael A. Wilson and William A. Adams, engaged by Northwestern Transportation Company, defendant's employer, conducted the instantly involved investigation. As a result of an initial inquiry, they went to Hilpipre's residence in Webster City about 4:00 p.m., February 1, for the purpose of questioning him. He was there orally given the so-called Miranda warnings. The investigators then inquired as to whether Hilpipre had any weapons in his home and he produced two rifles.

Defendant was thereupon taken to the Webster City Police Station where he was given a written Miranda warning and signed a 'Waiver of Rights' form. Shortly thereafter, Hilpipre stated this was apparently a serious matter and he had better talk to an attorney. In the ensuing hour and a half defendant unsuccessfully attempted, at least eight times, to contact a lawyer by phone. Nevertheless the interrogation continued.

At approximately 7:30 p.m., the investigators returned with defendant to his home where he is said to have orally admitted commission of the above stated offense. Upon return to the station Hilpipre signed a written confession.

Prior to trial defendant moved to suppress any admission or confession made or given by him. Upon hearing before Judge Wild this motion was overruled.

Also, before commencement of trial Hilpipre ineffectively moved for a review of the prior suppression motion by Judge Draheim, then and thereafter presiding.

Later, in course of trial, defendant interposed a standing objection to introduction in evidence of any oral or written inculpatory statements he may have made because they were not voluntarily given.

Other relevant facts will be later set forth as they pertain to issues presented for review.

In support of a reversal defendant contends trial court erroneously overruled his suppression motion and objection to introduction in evidence of any inculpatory statements, oral or written, because he (1) did not effectively waive right to counsel and (2) was induced to confess by promised leniency and the assurance that if he did so his former wife would not be prosecuted.

As a preface to consideration of the questions thus presented, certain applicable principles are noted.

I. Unquestionably, Hilpipre was subjected to custodial interrogation. See State v. Franks, 239 N.W.2d 588, 591 (Iowa 1976), and citations.

II. It is well settled an individual may legally waive his or her constitutional rights. But the State must prove by a preponderance of evidence such was knowingly, voluntarily and intelligently done. See State v. Iowa Dist. Court In & For Linn Cty., 236 N.W.2d 54, 56 (Iowa 1975), and citations; State v. Allen, 224 N.W.2d 237, 238 (Iowa 1974).

And even though there be an effective waiver of rights by an accused the State must still establish by like proof an accused's subsequent incriminatory statements were voluntarily made or given, i.e., the product of a 'rational and free will', as a prerequisite to their admission as evidence in chief against him or her. See Schneckloth v. Bustamonte, 412 U.S. 218, 223--226, 93 S.Ct. 2041, 2045--2047, 36 L.Ed.2d 854 (1973); State v. Franks, supra.

To the same effect is this statement in State v. Ware, 205 N.W.2d 700, 703 (Iowa 1973), quoting from Brady v. United States, 397 U.S. 742, 753, 90 S.Ct. 1463, 1471--1472, 25 L.Ed.2d 747 (1970):

"* * *. To be admissible, a confession must be "free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence." * * *."

III. It is also understood that where, as here, constitutional safeguards are invoked, we are obliged to make our own evaluation of the circumstances in totality upon which rulings were made below. This means evidence relative to a given issue is reviewed de novo. See Rinehart v. State, 234 N.W.2d 649, 658 (Iowa 1975), and citations.

IV. Furthermore, in weighing voluntariness of any inculpatory statements made by an accused, it is not for us to consider or determine whether they are true or false. See Lego v. Twomey, 404 U.S. 477, 485, 92 S.Ct. 619, 624--625, 30 L.Ed.2d 618 (1972).

V. Finally, an adverse ruling on a pretrial suppression motion will suffice to preserve error for appellate review even though there is no attendant trial objection to the controverted material when offered in evidence. See State v. Untiedt, 224 N.W.2d 1, 3 (Iowa 1974). See also State v. Feddersen, 230 N.W.2d 510, 512 (Iowa 1975); State v. Liesche, 228 N.W.2d 44, 46 (Iowa 1975); State v. Vest, 225 N.W.2d 151, 152 (Iowa 1975).

VI. Mindful of the foregoing, we turn to specifics of the case.

First considered is defendant's claim to the effect investigators Wilson and Adams wrongfully persisted in questioning him after he had expressed a desire to consult an attorney.

On that subject the record discloses this dialogue between the prosecutor and Michael A. Wilson while the latter was testifying in chief as a State's witness:

'Q. (By Mr. Ivers) When you were at the Webster City Police Station, did the defendant ask for an attorney or state that he desired to speak with an attorney or have an attorney present? A. Yes, sir, he did.

'Q. And did he attempt to contact an attorney? A. Yes, sir, he did.

'Q. Did you assist in that attempt? A. I handed him a telephone book and a phone and that's it.

'Q. Did he call more than one lawyer? A. He tried several, and received no answer at any of them.

'Q. Did he continue his pursuit or at some point did he stop and indicate that he was willing to go ahead with the interrogation without the presence of an attorney? A. He had made the statement and the exact words I cannot tell you, it was something to the effect to hell with it, all they do is cost money anyway.

'Q. Are those the only words he utilized? A. He made reference that he didn't feel they were going to do him anything except take money from him as far as doing him any justice.'

Later, at close of defense counsel's cross-examination of William A. Adams this exchange occurred between the presiding judge and said witness:

'THE COURT: Now, what time was it that you went to the police station? A. It must have been getting real close to 4 or 4:30, right in that neighborhood.

'THE COURT: And did the defendant immediately start trying to contact the lawyer after he was given his Miranda warnings? A. Yes, sir.

'THE COURT: Now, various times you referred to interrogation of the defendant, you referring to interrogation while he was at the police station? A. Yes, sir.

'THE COURT: You continued to ask him questions after he requested a lawyer? A. Yes, sir.'

In the same vein, when Adams was asked by the prosecutor whether defendant had requested an attorney his answer was 'Yes, sir, and we gave him a telephone book and he placed several telephone calls.' Also, as to waiver of counsel, this same witness, in response to another inquiry by the presiding judge, stated: '* * * I Guess he (defendant) decided he didn't want one * * *.' (emphasis supplied).

The question now posed is whether any inculpatory statements made by Hilpipre after he had manifested a desire to consult an attorney should have been suppressed.

At the outset, this statement in Miranda v. State of Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966), comes into play: 'If the individual states that he wants an attorney, the interrogation must cease until an attorney is present at that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning.'

The same principle was thus applied in State v. Moon, 183 N.W.2d 644, 649 (Iowa 1971): '(W)henever an in-custody accused In any manner or at any time invokes his right to counsel, any questions thereafter asked * * * constitute a part of the Miranda proscribed interrogation process.' (emphasis supplied).

As already noted, an accused may waive right to counsel during any custodial interrogation process. In that event, however, the State must prove by a preponderance of the evidence such waiver was knowingly, voluntarily and intelligently affected. In this respect the record discloses nothing more than confusion, uncertainty and ambivalence on defendant's part as to whether he should continue his previously futile efforts to secure legal advice. Such patently falls far short of a knowing, voluntary and intelligent waiver of right to counsel.

VII. We need not, however, rest a reversal upon the foregoing alone. More specifically, it is to us evident any self-incriminating statements given by defendant were elicited by proscribed 'promissory leniency'.

This is first demonstrated by these...