State v. Leiss

• Decision Date: 08 February 1966
• Docket Number: No. 51924,51924
• Parties: STATE of Iowa, Appellee, v. Dale Christiansen LEISS, Appellant.
• Court: Iowa Supreme Court

Page 172

140 N.W.2d 172

258 Iowa 787

STATE of Iowa, Appellee, v. Dale Christiansen LEISS, Appellant.

No. 51924.

Supreme Court of Iowa.

Feb. 8, 1966.

Arthur J. Crawford, Jr., Fort Dodge, for appellant.

Lawrence Scalise, Atty. Gen., of Iowa, Don R. Bennett, Asst. Atty. Gen., Francis E. Tierney, County Atty., and Mark McCormick, Asst. County Atty., for appellee.

LARSON, Justice.

Appellant was charged with one of the most despicable crimes against society, that of lascivious acts with a minor child, in violation of section 725.2 of the 1962 Code of Iowa. He was tried to a jury, found guilty, and sentenced to a term in the reformatory at Anamosa of not to exceed three years. He appeals. We affirm.

While no useful purpose could be accomplished by a recitation of the evidence relating to the crime, including the testimony of the ten-year-old girl and her brother a year older, we must observe at the outset the testimony which the jury evidently believed was sufficient to sustain a conviction of assault with intent to commit rape under section 698.4 of the Code, which carries a penalty of not to exceed twenty years in the penitentiary. It, therefore, seems the county attorney had some compassion for appellant when he filed the information under which appellant was tried. The trial court apparently thought so too for it sentenced him to the maximum penalty under section 725.2.

Nevertheless, appellant must be furnished a fair trial and, if errors were made below, he should have a new trial. We, therefore, consider the errors assigned and review the matter to see that the previous proceedings did not deprive him of that right.

Appellant assigns as error the following: (1) In accepting into evidence his oral statements made to the police officers when he was taken into custody and a written statement taken from him at that time, on the ground that they were involuntary and were taken in violation of the due process clause of both the Federal Constitution, Amendments 5, 6 and 14, and the State Constitution, Article I, sections 9 and 10; (2) in refusing to submit the question of involuntariness of defendant's admissions and confession to the jury; and (3) in permitting such misconduct on the part of the county attorney as to deprive defendant of a fair trial. We shall consider the second assignment first.

I. Prior to trial defendant requested a separate hearing to determine whether the admissions and written statement given the officers at the Fort Dodge police station on the night of his apprehension were voluntary and admissible. The hearing was granted and the trial court carefully considered the objections raised and held the admissions and confession were voluntary and admissible evidence.

At that time this court had not announced its position as to the procedure trial courts should follow in order to comply with the requirements of separate hearings announced in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205. Since then we have adopted the so-called 'orthodox' rule rather than the 'Massachusetts' rule, as our method of determining the question of voluntariness. See State v. Holland, Iowa, 138 N.W.2d 86, 91, and State v. Tharp, Iowa, 138 N.W.2d 78. Appellant conceded in oral argument his contention that the jury should have considered that issue has been decided adverse to him. Under the rule we have adopted in Holland, the trial 'court's determination of admissibility is final', and if admitted, the weight to be given that evidence is left to the jury in the main trial. If the court determines the admissions and confession were involuntary, it is excluded and does not go before the jury. See comment on Jackson v. Denno in 50 Iowa Law Review 909-917.

II. Appellant contends the trial court erred in its determination that his admissions and confession were voluntary and admissible. He maintains the circumstances of his arrest and confinement prior to his arraignment require a finding that his oral and written statements were not voluntary. We, therefore, must examine the testimony in that regard. According to the record it appears the chief detective of the Fort Dodge police department, acting upon information contained in a preliminary information and statements given him by the complaining witness and her mother, went to the defendant's home located just outside the city limits of Fort Dodge, asked defendant about the charge, falsely advised him he had a warrant for his arrest, and 'told him he was going to have to go with me to the police station.'

Prior to his interrogation at the station the officer testified he advised appellant that he did not have to say anything, that he had a right to counsel, and that 'what he would tell me could be used in court as evidence.' After the interrogation the officer asked defendant if he would be willing to put what he had said in writing. Appellant advised the officer he could not read or write too well, but agreed to sign a statement if the officer typed it. When the statement was finished, another officer was called in, the statement was read to appellant, and he signed it, saying it was true to the best of his knowledge. Both officers witnessed his signature and the statement was introduced into evidence as State's Exhibit 1.

In passing on the contentions of defendant that his admissions and statement were not admissible because he was not in legal custody, the trial court held the issue of voluntariness was not dependent upon whether he was legally arrested, that if it appeared defendant voluntarily gave the statement, it is admissible whether or not he was legally arrested prior thereto.

The trial court also properly found defendant had been told of his right to counsel, that access to counsel was never denied him, and that Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, did not apply. It nevertheless gave consideration to the fact that defendant did not have counsel, that he was of limited intellect and restrained at the time, in determining whether his confession was voluntary. Its conclusion that 'Despite all the circumstances urged by defendant, the court is abidingly convinced beyond reasonable doubt that defendant did make the admissions and give the confession voluntarily' must be sustained.

III. Of course, evidence of statements obtained by force or duress are not admissible in the trial of one accused of a crime. But in the absence of statutory prohibitions, which we do not have, the test is not whether the statements are taken by officers before or after an arrest, but as we have often said, the sole test in this jurisdiction is whether the admissions or confessions were made freely and voluntarily without compulsion or inducement of any kind. State v. Fox, Iowa, 131 N.W.2d 684, 686, and citations; State v. Tharp, supra; State v. Williams, 245 Iowa 494, 500, 62 N.W.2d 742, and citations; State v. Shephard, 255 Iowa 1218, 1228, 124 N.W.2d 712.

Recent decisions by the Supreme Court of the United States have injected additional constitutional considerations which must be recognized by the trial court in passing on the admissibility of such admissions. Escobedo v. State of Illinois, supra. These rights were recognized and observed here as indicated in Division II.

Thus, the trial court correctly submitted the issue of voluntariness of the admissions and confession to the jury for its consideration only as to the weight to be accorded them, and to allow the jury to pass upon the credibility of the witnesses who testified regarding them. There was no error in this assignment.

IV. That appellant had been duly and timely advised of his rights to counsel, to remain silent, and that anything he said could be used in court, and understood their import, even though he was somewhat mentally retarded and illiterate, cannot be seriously questioned. Although a clinical psychologist, called on behalf of defendant, testified defendant was mentally defective on the intelligence scale, with an I.Q. of 68, and found his basic adjustment level for reading and arithmetic to be at about the first or second grade level, it also appeared defendant had taken and passed a driver's license test, had been able to hold a steady job, had been married, and was the father of one child. There was no showing he did not understand the import of the alleged offense or the questions asked him. We are convinced he could and did distinguish right from wrong and that the evidence would sustain a finding to that effect.

V. We next consider appellant's alleged error in overruling his motion for a new trial due to misconduct of the county attorney. He claims the county attorney, in substance, stated in argument to the jury, 'I want the jury to remember when the question of the written statement is brought up, the difficulty defendant had in lying.' Defendant objected to the statement as prejudicial.

We may agree with counsel that prosecuting attorneys should not be allowed to make inflammatory or prejudicial statements regarding a defendant in a criminal action, but we do not believe this language falls into that category. While it is true, words such as 'liar', 'crook', and 'pathological liar', in rebuttal arguments to the jury have been frowned upon, we have found no instance where the statement by the prosecutor that defendant was lying has been held so prejudicial as to warrant a new trial on that ground alone. Counsel could cite us no such authority. As bearing on the problem, he cites Fox v. Bellon (N.D.), 136 N.W.2d 134, 140; 53 Am.Jur., Trial, § 502; and 88 C.J.S. Trial § 196b.

In the Fox case the court recognized that '[c]ounsel in his argument had the right to analyze the testimony and the exhibits and to point out to the jury any reason or reasons why he thought the witness was not worthy of belief; * * *.' The court there was critical of the trial court in not instructing on the language used or to the ...