State v. Larsen

• Citation: 415 P.2d 685,91 Idaho 42
• Decision Date: 14 June 1966
• Docket Number: No. 9645,9645
• Parties: STATE of Idaho, Plaintiff-Respondent, v. John Dee LARSEN, Defendant-Appellant.
• Court: United States State Supreme Court of Idaho

Page 685

415 P.2d 685

91 Idaho 42

STATE of Idaho, Plaintiff-Respondent, v. John Dee LARSEN, Defendant-Appellant.

No. 9645.

Supreme Court of Idaho.

June 14, 1966.

Rehearing Denied July 13, 1966.

Black & Black, Pocatello, for appellant.

Allan G. Shepard, Atty. Gen., M. Allyn Dingel, Jr., Asst. Atty. Gen., Boise, and Hugh C. Maguire, Jr., Pros. Atty., Pocatello, for respondent.

McQUADE, Justice.

In 1964 appellant John Dee Larsen was convicted of murder in the first degree for the 1962 slaying of Vicki Jo Quinn near Pocatello, for which crime he was convicted and sentenced to life imprisonment. From the judgment of conviction, Larsen appeals.

Appellant assigns error to the trial court's denial of his motion to dismiss at the close of the State's case because the testimony of the prosecution's chief witness, Richard Burt, was 'fantastic and incredible and could not be believed.' Appellant cites numerous alleged inconsistencies and contradictions in Burt's testimony and claims that Burt's testimony was contradicted by, and in conflict with, other facts adduced at the trial. We have long held that:

'It is within the province of the jury to believe or disbelieve the testimony of any witness, or any portion of such testimony, since the jury are the exclusive judges of his credibility. I.C., § 9-201; State v. Cacavas, 55 Idaho 538, 44 P.2d 1110, and authorities therein cited; State v. Hansen, 67 Idaho 359, 181 P.2d 92; State v. Davis, 69 Idaho 270, 206 P.2d 271.' State v. Johnson, 77 Idaho 1, 8, 287 P.2d 425, 429, 51 A.L.R.2d 1386 (1955).

The trial court correctly denied appellant's motion to dismiss.

Appellant also assigns error to the introduction of certain allegedly incriminating statements made by him. In March 1964, pursuant to a warrant, appellant was arrested in Las Vegas, Nevada. Two Idaho law enforcement officials, Sheriff Parker and Deputy Sheriff Aikens, drove to Las Vegas for the purpose of returning Larsen to Pocatello. Before reaching Las Vegas the heater in the automobile ceased to operate. They sought repairs at Las Vegas and the defective hearter apparently was remedied. On the evening of March 17th the sheriffs arrived in Las Vegas and visited Larsen in jail. At that time Sheriff Parker knew that Larsen previously had been represented by counsel and asked him if he had spoken to his attorney, to which Larsen replied that he had not, but that his wife had contacted his parents and Larsen assumed that they had spoken with his attorney. Sheriff Parker stated the only mention of an attorney during that evening was his question to Larsen. Larsen testified that the sheriffs asked him to make a statement but that he told them he would rather talk to this attorney before saying anything. Larsen does not complain that he was denied an opportunity to telephone his attorney that evening from the Las Vegas jail.

The following day, March 18th, Larsen and the two sheriffs began their return trip to Pocatello. Larsen, who was handcuffed and chained, set on the rear seat of the car. The two sheriffs sat on the front seat. Shortly after deparing Las Vegas the heater again refused to function properly and during the remainder of the trip of approximately nine hours, the car was without heat. There was evidence that for a considerable portion of the trip the weather was cold, but not to the point of being unbearable. During the trip they stopped on two occasions to eat. On one occasion Larsen had a hamburger. On the other occasion he had a cup of coffee and a doughnut. He went to the restroom once. Larsen made no other requests for the remainder of the trip. The sheriffs had advised Larsen at the outset of the trip that if he was hungry or had to take care of any needs, he should inform them and they would stop at the first opportunity.

During the trip from Las Vegas to Pocatello, Larsen was questioned by the sheriffs with regard to the crime. Larsen told them that he would rather wait and speak to his attorney before making any statements. Nevertheless, pursuant to further intermittent questioning, Larsen, during the trip, did respond to about five questions, and these questions and Larsen's answers thereto were admitted into evidence at the trial. Objections to introduction of this testimony were overruled and the officers were permitted to testify as to the substance of these conversations. Error is assigned to this ruling.

At the outset it is to be noted that Larsen's responses to the sheriffs' questions were entirely voluntary and in no way attributable to coercion or the physical conditions attending the trip. At the trial, Larsen, on cross-examination, repeatedly stated this to be the fact. Some of his testimony in this regard is set forth in the footnote. ¹

Appellant contends, however, that because the statements were elicited from him before he had an opportunity to consult with his attorney, they were thereby rendered inadmissible in that he was denied his right to counsel as guaranteed by the Sixth Amendment to the United States Constitution, Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and made obligatory upon the states by the Fourteenth Amendment, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

In Escobedo the Supreme Court stated:

'We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied 'the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution as 'made obligatory upon the States by the Fourteenth Amendment,' Gideon v. Wainwright, 372 U.S. (335), at 342, (83 S.Ct. 792 at 795, 9 L.Ed.2d 799) and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.' (Emphasis added) 378 U.S. at 490-491, 84 S.Ct. at 1765.

The Court added, however, that:

'The accused may, of course, intelligently and knowingly waive his privilege against self-incrimination and his right to counsel either at a pretrial stage or at the trial. * * *' 378 U.S. at 490, n. 14, 84 S.Ct. at 1765.

The Supreme Court did not hold that all statements taken in the absence of counsel are rendered inadmissible. As was recognized by the Supreme Court in Crooker v. State of California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958), the facts and circumstances of each case must be considered before determining whether one's constitutional right to counsel has been violated. Although the authority of part of Crooker ² has been weakened somewhat by subsequent decisions of the court, ³ it has not been overruled or abandoned, for in Escobedo the Court distinguished Crooker on its facts.

The facts of the present case compel us to conclude that Larsen was not denied his constitutional right to counsel. Neither was he denied his constitutional right against self-incrimination because the record reveals that he answered the questions of the officers with knowledge of his constitutional right to remain silent. When Larsen was questioned by the police in 1962, shortly after the body of the deceased was discovered, he retained his present counsel, who apparently advised him of his rights at that time or at some time afterward for at the trial Larsen stated unequivocally that at the time of his arrest he was aware of his right to remain silent and to refuse to answer questions propounded by the authorities. Larsen's testimony on cross-examination is as follows:

'Q There was no misunderstanding in any event on your part as to why they came to get you, was there?

'A No, sir. I was informed of that from the time I was arrested.

'Q Well, you were well aware that the reason that Sheriff Parker and Sheriff Aikens were there, is that correct?

'A Yes, sir.

'Q Now I believe you stated that at this time they asked you to make a statement, but you told them you didn't wish to, is that correct?

'A Yes, sir.

'Q So you were well aware then, I take it, that if you didn't wish to make any statement to them you didn't have to?

'A Yes, sir.' (Emphasis added).

In addition, there was uncontroverted testimony that during the trip from Las Vegas to Pocatello, Larsen was advised by the sheriffs of his right to remain silent. ⁴

We believe that the Supreme Court in Escobedo did not intend to insulate suspects from reasonable police questioning after such suspects have been apprised of their constitutional rights and afforded on opportunity to exercise those rights. Under these circumstances Larsen's knowledge of his constitutional right to remain silent to interrogation dilutes any claim by him that his right against self-incrimination was infringed. We have reviewed the decisions of the federal courts and other state courts since Escobedo and they are almost unanimous in their holdings that, barring exceptional circumstances, confessions, admissions or incriminating statements made by a suspect after being informed of his right to remain silent are admissible. ⁵

And, we might have a very different case if Larsen, like Escobedo, while being questioned at police headquarters, repeatedly requested to speak to his attorney but was denied this request, even if he was aware of his right to remain silent. See Queen v. United States, 118 U.S.App.D.C. 262, 335 F.2d 297 (1964). In such a situation, as the Supreme Court said in Escobedo:

'Petitioner had become the accused, and the purpose of the interrogation was to 'get him' to confess his guilt despite his constitutional right not to do so.' 378 U.S. at 485, 84 S.Ct. at 1762.

In the case before us, Larsen was...