State v. Kellogg

• Decision Date: 22 March 1978
• Docket Number: No. 59659,59659
• Citation: 263 N.W.2d 539
• Parties: STATE of Iowa, Appellee, v. Francis Vern KELLOGG, Appellant.
• Court: Iowa Supreme Court

Page 539

263 N.W.2d 539

STATE of Iowa, Appellee, v. Francis Vern KELLOGG, Appellant.

No. 59659.

Supreme Court of Iowa.

March 22, 1978.

Humphreys & Associates, by Lloyd E. Humphreys and Brian L. Gruhn, Cedar Rapids, for appellant.

Richard C. Turner, Atty. Gen., Faison T. Sessoms, Jr., Asst. Atty. Gen., and David H. Correll, Black Hawk County Atty., for appellee.

Considered by MOORE, C. J., and MASON, RAWLINGS, REES and UHLENHOPP, JJ.

UHLENHOPP, Justice.

This appeal involves several problems which arose in a prosecution on a murder indictment.

The crucial fact question at trial was whether defendant Francis Vern Kellogg shot his wife, Constance Kellogg, or whether she committed suicide by shooting herself. On the evening of August 22, 1975, defendant and his wife were in their home in Waterloo, Iowa. They both frequently drank and quarreled. On this occasion they were in their bedroom quarreling. The State adduced evidence of circumstances from which the jury could find that defendant shot Mrs. Kellogg. On the other hand, defendant, the only eyewitness, made statements following the occurrence and testified at trial that Mrs. Kellogg said she was going to shoot herself and did so; he never deviated from that version of the occurrence. Mrs. Kellogg died at a hospital from the gunshot wound soon after the bedroom occurrence.

Defendant went to the hospital with officers after the occurrence and thence to the station house. At the latter place, after Miranda warnings, defendant gave his suicide version of the occurrence, orally, in writing, and on tape.

The officers booked defendant, and someone later contacted an attorney, Mr. Frederick G. White, who conferred with defendant. Mr. White left and contacted Attorney James C. Dunbar, who came to the jail and conferred with defendant. Mr. Dunbar as a retained attorney represented defendant in district court in proceedings before, during, and after trial. Following the verdict, however, Attorney Lloyd E. Humphreys also represented defendant in district court and prepared a motion for new trial. Mr. Humphreys and his associate, Attorney Brian L. Gruhn, represent defendant in this appeal.

In the district court proceedings, a grand jury indicted defendant for murder, defendant stood trial, the trial court after hearing the evidence removed first-degree murder from the case, and the trial jury found defendant guilty of second-degree murder. After the trial court overruled defendant's motion for new trial and passed sentence, defendant appealed. In this court he urges several contentions.

I. Johnson Testimony. Officers went first with defendant to the hospital where Mrs. Kellogg was. The officers became suspicious that the case involved more than suicide and informed defendant of his rights under Miranda. Subsequently, at the police station, defendant read and signed a waiver form. Officer Lawrence Johnson then interrogated defendant, who related his version of the occurrence as suicide. Over defendant's objections of self-incrimination and absence of counsel at the interrogation, the trial court admitted into evidence Johnson's testimony regarding defendant's statements. Defendant challenges the ruling as error.

Since the situation involves a fundamental constitutional safeguard, we independently review the totality of the circumstances, State v. Snethen, 245 N.W.2d 308 (Iowa), to determine whether defendant's waiver and statements were knowing, intelligent, and voluntary. State v. Walton, 247 N.W.2d 736 (Iowa). The question under this record is factual.

While some pieces of evidence point in the opposite direction such as defendant's prior drinking and the locale of the interrogation, in the station and while defendant presses this evidence forcefully to our attention, we are convinced from our examination of the totality of the circumstances, including the State's evidence, that defendant knowingly, intelligently, and voluntarily made the waiver and the statements. Nothing will be gained by setting out the evidence at length, as the case does not present new legal principles at this point. As did the trial court, we arrive at the conclusion that the Johnson testimony is admissible. We thus reject defendant's contention to the contrary.

II. Kehoe Testimony. Following Mrs. Kellogg's death, the police arrested defendant, booked him, and placed him in jail. The following morning Mr. White came to the jail and talked with defendant. Mr. White then left and contacted Mr. Dunbar. A decision was reached that Mr. Dunbar would represent defendant. Charges had not yet been filed.

Before Mr. Dunbar came to the jail, defendant asked the jailer to see a detective. Accordingly detective Donald Kehoe talked with defendant, orally telling him his rights and asking him whether he understood them. Defendant stated he understood his rights and had signed a waiver.

Kehoe asked defendant what he wanted and defendant stated he desired to get out of jail to make arrangements for Mrs. Kellogg's funeral. Kehoe stated no bond had been set and he had no control over getting defendant out.

Kehoe asked defendant about the events of the previous evening, and defendant repeated his version of the occurrence as suicide. Kehoe's report of the incident concludes: "Just before the interview was ended, did receive a call from the Front Counter that Attorney Dunbar was out front wanting to talk to Kellogg. Informed the Front Desk Officer to have Dunbar have a seat and he could talk with his client shortly. Also, during the interview with Kellogg, received a call from Attorney White stating that he wasn't going to handle the case and that he, White, had talked to Dunbar about representing Kellogg. After completing the interview with Kellogg, did take him to the small interview room where he and Dunbar talked. After their conversation, Kellogg was returned to the jail at or about noontime."

The State questioned Kehoe as a witness at trial about his conversation with defendant. Over defendant's objection, the trial court admitted Kehoe's testimony.

Defendant insists that this testimony is inadmissible, as Kehoe deprived defendant of his constitutional right to counsel. Defendant leans heavily on Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424, reh. den. 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 240. See also Moore v. Illinois, 98 S.Ct. 458, 54 L.Ed.2d 424 (U.S.).

We find no necessity to say whether an Escobedo violation occurred. The night before the Kehoe interview defendant gave his version of the death as suicide, at trial in his testimony his version was suicide, and to Kehoe his version was suicide. We find no ground for reversal at this point. Sweeney v. United States, 408 F.2d 121 (9 Cir.); State v. Moore, 27 Ariz.App. 275, 554 P.2d 642; Fletcher v. State, 352 N.E.2d 517 (Ind.App.); People v. Talamo, 58 A.D.2d 946, 397 N.Y.S.2d 197; State v. Siler, 292 N.C. 543, 234 S.E.2d 733; State v. Cradle, 281 N.C. 198, 188 S.E.2d 296; Commonwealth v. Padgett, 428 Pa. 229, 237 A.2d 209; State v. Boggs, 16 Wash.App. 682, 559 P.2d 11.

III. Branstetter Testimony. Branstetter's testimony involves a question of relevancy. We have said, "Questions of the relevance and materiality of evidence rest largely within the sound discretion of the trial court." State v. Clark, 187 N.W.2d 717, 720 (Iowa).

To prove murder, one of the elements the State had to establish was malice aforethought. Code 1975, § 690.1. Since this element constitutes a state of mind, the prosecutor in murder cases may show prior relations between the parties including incidents of quarrels and physical acts, as bearing on the defendant's quo animo. This rule is firmly established in our law. State v. Moelchen, 53 Iowa 310, 314, 5 N.W. 186, 189 (prior altercation at which blows were struck "The evidence was competent, because it tended to show that the parties had not lived together agreeably"); State v. Cole, 63 Iowa 695, 697, 17 N.W. 183, 184 ("evidence of conduct exhibiting a bad state of feeling on the part of the defendant towards the deceased is admissible"); State v. O'Donnell, 176 Iowa 337, 157 N.W. 870; State v. Flory, 198 Iowa 75, 199 N.W. 303; State v. Johnston, 221 Iowa 933, 267 N.W. 698. See also, 40 Am.Jur.2d, Homicide § 274 at 540-541 (quarrels, altercations, and hostile acts); 40 C.J.S., Homicide § 241 at 1176.

As tending to show defendant's prior relations with his wife, the State introduced testimony by defendant's cousin, Jo Ann Hoffman, and by Mrs. Kellogg's mother, Louise Hicks, that defendant and Mrs. Kellogg had a stormy marriage. The marital trouble was of a continuing nature. Numerous arguments and quarrels occurred and indeed defendant and Mrs. Kellogg were arguing on the evening in question. In addition, over defendant's objection the State introduced testimony by Gerald L. Branstetter that about six weeks prior to Mrs. Kellogg's death defendant and Mrs. Kellogg had a heated argument and "he hauled off and slapped her." Continuing:

Q. All right. And immediately after striking the defendant excuse me, the victim, with the open hand, what did the defendant next do? A. Well, they was in a heated argument and he doubled up his hand and he said he would knock her down.

Q. And can you demonstrate for the jury please what the defendant did on that occasion? Can you show us? A. Just pulled his hand back like this and said, "I'll " like that. I don't remember the exact words, or anything like that. And I stood up and I took hold of Bud's (defendant's) arm and I said, "Bud, come on, sit down, let's have a drink and we'll go down to the Jet."

Testimony of this nature was admissible under the rule we have set out. Under the cases we have cited the relevancy issue was largely for the trial court. In a recent case we upheld the discretion of a trial court in admitting evidence running back about a year, relating to the defendant's...