State v. Mayhew

Decision Date16 September 1969
Docket NumberNo. 53169,53169
Citation170 N.W.2d 608
PartiesSTATE of Iowa, Appellee, v. Willie MAYHEW, Appellant.
CourtIowa Supreme Court

Walter W. Rothschild, Waterloo, and Richard Knock, Cedar Falls, for appellant.

Richard C. Turner, Atty. Gen., William A. Claerhout, Asst. Atty. Gen., and Roger Peterson, Black Hawk County Attorney, Waterloo, for appellee.

GARFIELD, Chief Justice.

Following trial on a county attorney's information which accused Willie Mayhew of murder in the first degree by killing Ellis McClellan on November 4, 1967, the jury found defendant guilty of murder in the second degree in violation of section 690.3 Code 1966. From sentence on the verdict defendant has appealed.

Nine errors are assigned. They relate mainly to rulings on evidential matters although two relate to instructions to the jury. Since sufficiency of the evidence to support the verdict is not an issue, a detailed statement of the facts at the outset is not deemed necessary.

Defendant lived in a basement room in the residence of George Penn at 219 Bates Street in Waterloo. Decedent lived in a small building at the rear of the Penn home. LeRoy Dixon lived in an adjoining residence at 223 Bates. Both homes were gathering places for a number of acquaintances with a weakness for strong drink. The gatherings were larger and noisier on Saturday nights than at other times. The homicide occurred on one of these nights as the result of an argument between defendant and decedent as to whether the latter would buy the next bottle of wine. There is evidence both were intoxicated.

Dixon ordered the two men to leave his home because of the intensity of the argument and they went to the Penn home to resume the debate.

Decedent claimed to be an ex-prize fighter. When he had been drinking to excess he would go through the motions of a boxer and threaten to knock out others in the gathering. There is evidence he threatened to throw defendant on the floor and stomp on him shortly before the fatal stabbing. Defendant pulled a knife from his pocket and stabbed decedent in the chest. The knife pierced the aorta, causing massive hemorrhage which resulted in death within ten minutes. Other knife wounds were also inflicted but they were not deep. 'Mims' Brown broke a wine bottle over defendant's head during the stabbing and it left a gash in his chin.

Mrs. Penn called the police who soon arrived and took defendant into custody. An ambulance was summoned to take decedent to a hospital. Defendant was taken to his doctor for treatment of the cut on his chin. While at the doctor's office the officer who took defendant there received word decedent had died and that defendant was to be brought to the police station. The officer so informed defendant when the two left the doctor's office.

Before defendant was booked at the police station the officer told him he was not required to say anything, that anything he did say could be used in court and he could make a phone call. Defendant declined to make a phone call and said he either wanted to go to jail or go home. The officer asked defendant if he understood what he was being booked for. Defendant said there had been a fight and if he killed a man he didn't give a G_ _ d_ _. The officer testified there was a doubt in his mind, because defendant had been drinking and due to the manner of his speech, whether he understood what he had been arrested for, although the officer had told him as the two left the doctor's office the arrest was for murder.

I. Admission in evidence of the above statement attributed to defendant is the basis for his first assigned error. A motion to suppress the evidence was made before trial commenced and overruled by the court during the trial after defendant's counsel examined the officer in the jury's absence in support of the motion. The error assigned is the ruling on the motion.

Grounds of the motion were that defendant was so intoxicated and lacking in mental capacity as to understand his rights as explained by the officers; the statement was made by defendant in response to a question by the officers if he knew what he was being booked for; defendant was not then represented by counsel nor had he consulted one, all in violation of amendments 5, 6 and 14 to the Federal Constitution. The motion did not allege the warning given defendant of his rights by the officers was incomplete.

The only testimony offered in support of the motion to suppress was from the officer (Kimball) who took defendant to his doctor, then to the police station and later testified to the statement attributed to defendant after the motion was overruled. The officer said at the hearing on the motion it was apparent defendant had been drinking but he did not know whether defendant was intoxicated. The witness gave no testimony as to defendant's mental capacity.

The trial court ruled the officer's question whether defendant understood what he was arrested for was asked in good faith, not to elicit information not called for by the question, the statement attributed to defendant was not in response to interrogation by the officer in violation of defendant's rights but, in effect, was voluntarily made and admissible in evidence.

In support of his first assigned error defendant relies on Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974.

In argument here it is pointed out defendant was not fully advised of his rights in accordance with the rule there adopted. It is true defendant had not then been told of his right to appointed counsel at public expense if he was unable to afford one. As before indicated, inadequacy of the warnings required by Miranda was not a ground of the motion to suppress. Nor was it raised as an objection to Officer Kimball's testimony before the jury nor in the motion for new trial after verdict.

An objection to offered evidence must be sufficiently specific to advise the trial court why it is inadmissible. When specific objections are made that do not include the reasons urged on appeal, as a general rule the latter will not be considered. State v. Davis, Iowa, 157 N.W.2d 907, 909--910 and citations. See also State v. McClelland, Iowa, 164 N.W.2d 189, 197 and citations; State v. Brown, Iowa, 168 N.W.2d 922, 923; Carlson v. Manughmer, Iowa, 168 N.W.2d 802, 805.

We are not persuaded it was error to overrule the motion to suppress on the grounds there asserted. Inability of defendant to understand, by reason of intoxication or mental incapacity, his right to remain silent does not appear.

The question Officer Kimball put to defendant was whether he understood what he was being arrested for. The statement attributed to defendant, that he had had this fight and if he killed the man he didn't give a G_ _ d_ _, was not an answer to the question. As the trial court found, it was in the nature of a volunteered statement. Such statements do not come within the prohibitions of Miranda.

That opinion states (page 478 of 384 U.S., page 1630 of 86 S.Ct. page 726 of 16 L.Ed.2d) 'Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.' In further support of our conclusion see State v. Brown, Iowa, 155 N.W.2d 416, 419; State v. McClelland, supra, Iowa, 164 N.W.2d 189, 193; Haire v. State, 245 Ark. 289, 432 S.W.2d 828, 829--830.

Section 755.7 Code 1966 provides that a person making an arrest must inform the one to be arrested of the cause of the arrest. See State v. Medina, Iowa, 165 N.W.2d 777, 782. As stated, Officer Kimball testified he informed defendant that he was being arrested for as they left the doctor's office but was not sure, because he had been drinking and the manner of his speech, defendant understood him. Under these circumstances it would seem natural and proper for the officer to ask the question he put to defendant during the booking process so he could repeat the information given when the two left the doctor's office if it were not then understood.

II. After the state rested and defendant's motion to withdraw from jury consideration the issues of first and second degree murder was made and overruled, defendant requested authority to subpoena as a witness a psychiatrist employed by the Veterans Administration said to have examined defendant on February 8, 1963 and diagnosed him as having a chronic brain syndrome. According to defendant's counsel, it was defendant's belief the psychiatrist was located at Knoxville, Iowa. As stated at the outset, the homicide was committed November 4, 1967.

Denial of the request is assigned as the second error. The ruling was placed upon the ground defendant's counsel had asked and obtained a court order two months before the trial that defendant be sent to the State Mental Health Institute at Independence for mental examination and evaluation at county expense, with the report to be made to defendant's counsel. The ruling was placed upon the further ground the state offered no psychiatric testimony.

It appears the order sending defendant to Independence was carried out, he was examined and evaluated there for a month beginning from issuance of the order and the clinical director made a written report to defendant's counsel which he had in his file while interrogating the director as a witness at the trial.

Code section 781.2, so far as pertinent, provides: 'Witnesses for the defense shall be subpoenaed at the expense of the county only upon the order of the court or judge thereof before which the case is pending, made upon a satisfactory showing that the witnesses are material and necessary for the defense, which order may be made at the time of the trial or other disposition of the case.'

Constitutionality of the quoted provision was not challenged in the trial court, nor seriously here. Principal contention is it was an abuse of discretion to deny the request for the subpoena. As defendant apparently concedes...

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