State v. Jacoby, 59756

Decision Date21 December 1977
Docket NumberNo. 59756,59756
Citation260 N.W.2d 828
PartiesSTATE of Iowa, Appellee, v. Kandee JACOBY, Appellant.
CourtIowa Supreme Court

Donna L. Paulsen, of Keyes & Crawford, Cedar Rapids, for appellant.

Richard C. Turner, Atty. Gen., Thomas A. Evans, Jr., Asst. Atty. Gen., and Eugene J. Kopecky, County Atty., Cedar Rapids, for appellee.



Defendant Kandee Jacoby shot and killed her husband Douglas in their home in Cedar Rapids on January 3, 1976. She was charged with first-degree murder. A jury found her guilty of the included offense of manslaughter. Defendant was sentenced to serve an eight-year term in the Women's Reformatory and fined $1000. Upon her appeal, we remand for the purposes set out in division IX.

From this record the jury could have found the following facts. Defendant and Douglas were married January 3, 1970. In a short time the latter joined The Chosen Few, a motorcycle club which apparently earned its unsavory reputation. Although both defendant and Douglas seemed to enjoy many club activities, this organization also was a source of occasional violent quarrels, as well as defendant's lingering dissatisfaction with the couple's life-style.

Defendant and Douglas spent the evening of January 2, 1976, drinking at a local tavern. Douglas took defendant home shortly after 2:00 a.m. The latter went to bed, but Douglas proceeded to the club headquarters where he continued to drink and socialize with other members.

At approximately 6:00 a.m. Douglas returned home. He awoke defendant and confronted her with another woman's clubhouse comments that defendant no longer loved him and was using him for support while completing her college education. The couple went to bed, where the argument intensified.

Defendant left the bedroom through an interior door, declaring, "I can't take any more of this, I'm getting out." Douglas replied, "______, you're never leaving this house again."

Defendant picked up a loaded revolver Douglas kept on a shelf and reentered the bedroom, which she had to cross to leave the house. She said, "Doug, lie down, let me out of here."

The gun discharged twice, fatally wounding Douglas. Defendant walked to the bed. Through what defense claimed was defendant's involuntary movement, the gun again fired, inflicting an additional superficial wound.

Defendant called the Cedar Rapids police, initially reporting her husband had fired the shots, and later indicating she might have triggered the third one.

Other evidence will be referred to in the following divisions.

I. Did trial court erroneously overrule defendant's pretrial motion to suppress her written statement to the police?

Defendant's motion raised a voluntariness issue both as to waiver of her Miranda rights and as to a typed statement she signed at the police station shortly after the shooting. She contends emotional distress made her incapable of waiving her rights at the interrogation, the interrogating officers knew her husband was dead but failed to tell her despite her repeated inquiries, and they implied she could join him at the hospital if she cooperated at the police station.

Our controlling principles are well established. The State must prove by a preponderance of evidence a defendant's confession was voluntarily, knowingly and intelligently made. State v. Winfrey, 221 N.W.2d 269, 271 (Iowa 1974); State v. Fetters, 202 N.W.2d 84, 88 (Iowa 1972). The burden is heavy when defendant is not represented by counsel in a custodial interrogation. State v. Swanson, 228 N.W.2d 101, 104 (Iowa 1975). Review of a voluntariness question requires examination of the totality of circumstances shown by the pretrial hearing record. State v. Cullison, 227 N.W.2d 121, 127 (Iowa 1975); see State v. Snethen, 245 N.W.2d 308, 311 (Iowa 1976).

The evidence indicates defendant was distraught when the police arrived at her home. She attempted an overdose of pills. But after being taken to the police station defendant was more composed. She drank some coffee and smoked a cigarette.

Officer Millsap orally advised her of her Miranda rights and testified he asked her to read aloud a Miranda -waiving, standard-form document, which she did. Defendant had no questions concerning this instrument and appeared calm and rational both before and after signing it.

After signing the waiver, defendant told Millsap her husband had shot himself. Millsap testified (without contradiction):

"I then talked with her regarding the situation and the facts that I felt were inconsistent with what she told us. * * * I told her at that point that I felt she needed an attorney, that she wasn't telling us the whole truth, and that I in fact thought she was responsible for her husband's death."

Defendant subsequently "stated that she hadn't done anything that she was worried about and she didn't feel she needed an attorney," and orally confessed to shooting her husband. About 25 minutes had elapsed from start of the interview.

Millsap dictated a statement in defendant's presence. This was typed by a secretary and, after making a few minor corrections, defendant signed it. This statement essentially disclosed the facts surrounding the incident as above set out.

Millsap testified he suspected but did not know Douglas was dead until after defendant acknowledged she fired the shots. Confirmation of the death was communicated to him before the statement was signed. From the totality of evidence we find defendant must also have known Douglas was gravely wounded, if not dead. Her knowledge of handguns was sufficient to shoot him twice in the head from a distance of several feet. Much of the large quantity of blood disclosed by the police photos must have been visible almost at once, for defendant had it on her hands and nightgown.

In State v. Cooper, 217 N.W.2d 589 (Iowa 1974), we turned back a Miranda challenge to a confession obtained when an assistant county attorney lied to a defendant during an interrogation. Cooper had inquired about the condition of the woman he shot. The interrogator replied he did not know, although he knew she was deceased. We there stated deception of any nature by State agents cannot be condoned. However, deception standing alone does not render a waiver of constitutional rights involuntary as a matter of law unless the deceiving acts amount to a deprivation of due process. It is a factor in reviewing the totality of circumstances in making the determination as to voluntariness of the waiver. Id., 217 N.W.2d at 597; see State v. Boren, 224 N.W.2d 14, 16 (Iowa 1974), cert. den., 422 U.S. 1008, 95 S.Ct. 2630, 45 L.Ed.2d 671 (1975).

Applying these authorities to the case before us, we hold defendant was not deceived by police into waiving her rights. They practiced no substantial deceit relating to the gravity of Douglas' condition or the charges defendant might face. Nor does it appear the officers made any promises that defendant would be allowed to visit Douglas at the hospital if she cooperated with them at the station. Although she expressed her desire to go to the hospital, she must have known from the show of authority that she was in custody and not at liberty to leave the station.

Neither does defendant's emotional distress appear to have been so great in light of the totality of circumstances as to impair her capacity for self-determination or make her statements involuntary.

We hold trial court properly overruled defendant's suppression motion as it related to Miranda grounds.

We also hold defendant's waiver of her right to remain silent under the fifth amendment, United States Constitution, was voluntary. As bearing on this issue, see State v. Snethen, supra, 245 N.W.2d at 315; State v. Winfrey, supra, 221 N.W.2d at 273.

II. Did trial court err in overruling defendant's motion for continuance?

Defendant contends trial court deprived her of effective assistance of counsel by overruling two motions for continuance filed seven days and four days, respectively, before trial.

Our civil rules apply. § 780.2, The Code. Rule 183(a), Rules of Civil Procedure provides in relevant part:

"A continuance may be allowed for any cause not growing out of the fault or negligence of the applicant, which satisfies the court that substantial justice will be more nearly obtained. * * *"

The grant or refusal of a continuance lies within trial court's sound discretion. State v. Youngbear, 229 N.W.2d 728, 734 (Iowa 1975), cert. den., 423 U.S. 1018, 96 S.Ct. 455, 46 L.Ed.2d 390 (1975). On review we will not interfere unless there has been a clear abuse of discretion. State v. Hines, 225 N.W.2d 156, 160 (Iowa 1975).

A recital of the relevant circumstances surrounding these motions would add nothing to our jurisprudence. Although trial court would have been justified in granting either or both of the motions, defendant has not demonstrated overruling of these motions constituted a clear abuse of discretion.

We hold this assignment of error is without merit.

III. Did trial court abuse its discretion in overruling defendant's motion in limine?

Defendant argues trial court abused its discretion in overruling her motion in limine to require the State to make no mention and to introduce no photographs relating to the book "Helter Skelter," found on a couch in defendant's home.

Millsap testified without objection he discussed the book with defendant, who said she just finished reading it. In view of defendant's first statements that Douglas had shot himself, the State deemed it significant the book described a murder of a Manson "family member" in which the fatal gunshot wound was claimed to be self-inflicted.

A photograph of the book, lying on the couch where it was found, was allowed in evidence over defendant's objections it was incompetent, irrelevant and immaterial. But Millsap's testimony, outlined above, came in without objection. He was thoroughly...

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