State v. McClelland

• Decision Date: 14 January 1969
• Docket Number: No. 52825,52825
• Citation: 164 N.W.2d 189
• Parties: STATE of Iowa, Appellee, v. Jack McCLELLAND, Appellant.
• Court: Iowa Supreme Court

Page 189

164 N.W.2d 189

STATE of Iowa, Appellee, v. Jack McCLELLAND, Appellant.

No. 52825.

Supreme Court of Iowa.

Jan. 14, 1969.

Harold G. DeKay, Atlantic, for appellant.

Richard C. Turner, Atty. Gen., James C. Sell, Asst. Atty. Gen., and William W. Don Carlos, County Atty., for appellee.

MOORE, Justice.

On February 8, 1967 defendant, Jack McClelland, was indicted by the Adair County Grand Jury for breaking and entering with intent to commit a public offense, to wit: larceny, contrary to section 708.8, Code, 1966. On trial a jury verdict of guilty was returned. Thereafter he was sentenced to a term not to exceed ten years in the Men's Reformatory at Anamosa and has appealed. We affirm.

Between 1:30 and 2:00 a.m. December 19, 1966 Donald Carrick, Adair night marshal, observed an unfamiliar automobile emerge from an alley going west and then turn north onto Fifth Avenue. The vehicle proceeded north a block then turned east down Audubon Avenue. His suspicions caused him to get into his patrol car to investigate. When he reached Fourth and Audubon he saw the unfamiliar car stopped about a half block south on Fourth with its hood raised. It was stopped near the east entrance of Bruce Supply Store which is on the southwest corner of Fourth and Audubon in Adair.

The car's only occupant, Mike Chafa, told Carrick he was having generator and battery trouble. Carrick pushed the car with his patrol car and it started. As Chafa drove away Carrick took the car's Nebraska license number.

Carrick then began checking door locks in the area to determine if they were all secure. While so doing, he observed defendant walking down the street about 100 feet south of the east entrance to Bruce Supply. He shouted at defendant to stop and as Carrick reached defendant he noticed a large screwdriver between defendant's trousers and his person. Carrick then told defendant he did not have to say anything and took him to a nearby service station where Carrick briefly frisked him. Nothing was then taken from defendant. The highway patrol and sheriff's office were then notified of the arrest.

Very soon thereafter highway patrolman, Richard Curd, arrived and advised defendant he was being held on suspicion of breaking and entering and that he had a right to make a phone call, had an immediate right to an attorney, a right to remain silent, and anything he said could and would be used against him. Curd, however, did not inform defendant he had a right to appointed counsel if he could not afford one.

Curd then asked him why he had broken into the store and defendant replied he hadn't really broken into it, but had just pried the door open. Curd then left in response to another unrelated police call.

About 2:30 a.m. when Carrick was about to leave defendant in the custody of a deputy marshall and to resume his security check of local business establishments, defendant stated he would find an east door broken into. Carrick's investigation disclosed the east door to Bruce Supply had been forced open and the latch broken. Fresh pry marks were observed in the wood near the latch. Inside he observed a pile of slivers or wood chips in front of an old wooden cash register along with pry marks on the cash drawer. The attempts to pry open the drawer had been unsuccessful. Ironically the drawer which contained a small amount of money was unlocked and could easily have been opened by pressing the proper button on the face of the register.

Upon his return to the service station Carrick was told by defendant he was in the store when Carrick pushed Chafa's car and that he thought Carrick had seen him inside. Defendant then, in the presence of Curd and Carrick, removed a pry bar which he had hidden under his clothes.

A few minutes later sheriff Don Foster and his deputy, Malcom Herrick, arrived at the station. The sheriff then read to defendant, from a prepared form card, his Miranda rights which stated: 'You have a right to remain silent; anything you say can and will be used against you in a court of law; you have the right to talk to a lawyer and have him present with you while you are being questioned; if you cannot afford to hire a lawyer one will be appointed to represent you before any questions, if you wish one.' The reverse side of the card bore two questions relative to a knowing and intelligent waiver of the Miranda rights. These were also read to defendant. Defendant then stated he did not wish to answer any questions and accordingly no questions were asked of him. After handcuffing defendant the sheriff and Herrick departed to investigate an unrelated report of violence in another part of the county.

About 5:30 a.m. sheriff Foster and his deputy Herrick returned to the service station where defendant and Mike Chafa, who had been recently apprehended, were being held. Highway patrolman, John Novy, had arrived at the station a short time before the sheriff's return. At the sheriff's request the two suspects were placed in a patrol car and taken by Novy and Herrick to the jail in the nearby town of Greenfield. Defendant sat in the front seat next to Novy, and Chafa in the rear with Herrick.

On the way to Greenfield, which took less than thirty minutes, Novy asked defendant what had happened in Adair. Novy was not present when the sheriff gave defendant the Miranda warnings. Defendant answered he had broken into Bruce Supply and was inside when he saw the marshal's car pass by and stop by Chafa's. Thinking the marshal had seen him in the store he left as soon as the marshal's car was out of sight. At trial, Herrick testified he had not heard this conversation.

When they arrived at the Greenfield jail Herrick, before booking him, again read defendant the Miranda warnings and then asked him his name, address and occupation. He also asked him what had happened earlier in Adair. Defendant willingly related substantially the same story he had told Novy.

Before trial defendant filed a motion to suppress all evidence of claimed statements of defendant to Carrick, Curd, Novy and Herrick on the grounds he had not been adequately informed of his rights before said alleged statements and had stated he did not wish to answer any questions.

On hearing of the motion to suppress the claimed statements of defendant were brought to the trial court's attention. Defendant testified he had not been advised by Carrick that an attorney would be appointed if he could not afford one. He admitted sheriff Foster had read him the Miranda warnings but he could not remember Herrick later doing so. He denied making any of the claimed admissions to any of the officers.

The trial court ruled the claimed statements made to Carrick and Curd were inadmissible on the ground defendant had not been adequately informed of his rights before he made them. On trial Carrick and Curd did not testify regarding these claimed statements.

The court overruled defendant's motion to suppress the claimed statements of defendant to Novy and Herrick. The trial court found they were made after defendant had been given ample notice of his constitutional rights by sheriff Foster, there was no evidence they were coerced or induced as the result of any promises or threats of any kind and were voluntarily made by defendant. Novy and Herrick testified on trial, over defendant's objections, regarding defendant's statements to them.

I. Initially, defendant challenges the propriety of submitting to the jury his admissions to Novy and Herrick urging this was violative of his constitutional rights under the holding in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974. The prepared card read to defendant by the sheriff includes the required prerequisite warnings under Miranda which must be given to establish admissibility of admissions obtained from an accused during custodial police interrogation. Defendant argues his statements to Novy and Herrick were involuntary and did not result from a knowing and intelligent waiver of his rights.

In Miranda, pages 473, 474, 384 U.S., page 1627, 86 S.Ct., page 723, 16 L.Ed.2d, the majority opinion states: 'Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. * * *.'

At page 475, 384 U.S., page 1628, 86 S.Ct., page 724, 16 L.Ed.2d, the court quotes this from Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70, 77: 'Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.'

At page 478, 384 U.S., page 1630, 86 S.Ct., page 726, 16 L.Ed.2d, the court states: 'In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. * * * Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.'

The essence of defendant's contention, as we are able to understand it from the rather disjointed and rambling assignments of error, some of which are not argued, is that once defendant has stated he wishes not to answer questions, any information by subsequent...