State v. Moon, 54278

• Decision Date: 09 February 1971
• Docket Number: No. 54278,54278
• Citation: 183 N.W.2d 644
• Parties: STATE of Iowa, Appellee, v. William Arnold MOON, Appellant.
• Court: Iowa Supreme Court

Page 644

183 N.W.2d 644

STATE of Iowa, Appellee, v. William Arnold MOON, Appellant.

No. 54278.

Supreme Court of Iowa.

Feb. 9, 1971.

Paul H. Kinion and Thomas L. Koehler, Cedar Rapids, for appellant.

Richard C. Turner, Atty. Gen., Max A. Gros, Michael J. Laughlin, and G. Douglas Essy, Asst. Attys. Gen., and Robert Jensen. County Atty., for appellee.

RAWLINGS, Justice.

Charged by county attorney's information with aggravated robbery, defendant entered a not guilty plea. Trial jury found him guilty of robbery, an included offense. From judgment accordingly entered, he appeals. We reverse.

About 7:00 A.M., November 6, 1969, Moon was arrested by Cedar Rapids officers for a robbery committed in Iowa City the preceding night. At time of apprehension he was given what is commonly referred to as the Miranda warnings and soon thereafter transported to the county jail in Iowa City. The same day defendant was there arraigned in the police court and again advised of his rights. An attorney was then appointed to represent the accused.

At approximately 6:30 that evening, a Cedar Rapids officer, Detective Schultz, visited defendant in the Iowa City Jail for the express purpose of questioning him with regard to some Cedar Rapids crimes, not related to that for which he was incarcerated. After first reading to Moon the Miranda warnings, and having defendant then read them aloud, the officer told defendant he need say nothing before consulting a lawyer. Schultz was then unaware of the fact an attorney had already been appointed.

Defendant testified he expressed a desire to confer with his lawyer but knew neither the name nor telephone number of appointed counsel. There is also testimony by Moon that Schultz was asked to confer with the county attorney about dropping charges against defendant's girlfriend if he confessed some crimes, and the officer stated he could but would make no promises. These is other evidence to the effect Schultz told Moon, if he confessed the police could send a letter to the judge recommending leniency. All this is denied by Schultz.

Without question the officer was told by Moon, he understood his privileges and thereupon signed a waiver of rights, including benefit of counsel. This done, Schultz proceeded with his interrogation relative to the aforesaid unrelated offenses, with no apparent success in that direction.

Moon, however, started talking about the crime for which he had been arrested. Schultz was not familiar with that matter so he called Iowa City Detective Snider, then started to put defendant's oral statements in writing. This written instrument had not been completed when Snider arrived.

Defendant read aloud the prepared statement, including an additional waiver of rights, and was told he need not sign it.

Snider, being aware of the fact an attorney had been appointed to represent Moon, so advised Detective Schultz.

Pursuant to Snider's suggestion, another waiver of counsel was prepared, read to, and signed by defendant. With that done the Iowa City detective directed several questions to Moon regarding waiver by him of right to presence of his attorney during the Schultz interview. About that time defendant said he would like to consult counsel before signing the prepared statement. No assistance was accorded him in connection therewith. In fact Snider stated, 'When you backed your cake and it 'Well you baked your cake and it this statement or not. That's entirely up to you. * * * The only reason that would have any indication of signing the statement would be to put a little more frosting on the cake.' The written confession was thereupon signed.

An examination of the record further discloses, defendant admitted being in the house when the claimed offense was committed, but maintains he was present, with others, for the purpose of buying some hashish and marijuana. There is additional testimony connecting this accused with the crime here involved.

Defendant's pretrial motion to suppress his confession was overruled.

In course of trial to attempt was made to introduce in evidence the oral statements made by Moon to Officer Schultz. Rather, the State relied entirely upon the written confession, admitted over timely and proper objections.

These adverse rulings constitute the sole error relied on by defendant for a reversal.

More specifically it is contended, trial court erred in overruling defendant's motion to suppress on the ground it was obtained at a time he was represented by, and without notice to or presence of counsel, thereby denying defendant right to effective assistance of his attorney as defined by the Sixth Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment.

I. At the outset it is apparent defendant premises the foregoing assignment upon alleged denial of effective assistance of counsel, rather than deprivation of right to counsel. While the two concepts are related and the latter encompasses the former, they are basically severable.

Right to counsel by an accused is per se the unrestricted right of access to an attorney with attendant benefit of his advice and assistance. See Escobedo v. Illinois, 378 U.S. 478, 490--491, 84 S.Ct. 1758, 1765, 12 L.Ed.2d 977. As pointed out in Miranda v. Arizona, 384 U.S. 436, 465--466, 469--470, 86 S.Ct. 1602, 1623, 1625--1626, 16 L.Ed.2d 694, the foregoing is one of the procedural safeguards provided in order to protect a suspect against deprivation of basic rights, specifically with regard to self-incrimination. See also Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 2002, 26 L.Ed.2d 387; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; Wright v. Denato, 178 N.W.2d 339 (Iowa). See generally ABA Standards Relating to Providing Defense Counsel, approved Draft (1968); 21 Am.Jur.2d, Criminal Law, § 312.

On the other hand, right to effective assistance of counsel denotes the right of a suspect to benefit of effective legal representation, usually measured by fair trial standards, which necessarily presupposes the foregoing right to counsel. Ordinarily it involves the matter of counsel's competency. See McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763; State v. Cooper, 180 N.W.2d 424, 426--427 (Iowa); State v. Kendall, 167 N.W.2d 909, 910--911 (Iowa); Blanchard v. Brewer, 429 F.2d 89, 90 (8 Cir.); Scott v. United States, 138 U.S.App.D.C. 339, 427 F.2d 609; 14 So.Dak.L.Rev. 287.

We are satisfied defendant instantly alludes to claimed denial of right to advice of counsel, and his assignment is so entertained.

II. That, in turn, poses a question relative to admissibility in evidence of Exhibit 8, being the written instrument signed by defendant in the presence of Schultz and Snider.

As heretofore disclosed, there is a material discrepancy in the evidence as to when defendant first voiced any desire to consult with his appointed attorney.

If, prior to expression of any inculpatory statements, absent effective waiver, the accused expressed a wish to confer with counsel, nothing thereafter said by defendant would be admissible in evidence. Miranda supra. See also Escobedo v. Illinois, Supra; Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381.

Under these circumstances we review the record anew in order to determine the voluntariness of Moon's statemetns to Detective Schultz, and written confession latter signed. Greenwald v. Wisconsin, 390 U.S. 519, 520--521, 88 S.Ct. 1152, 1153--1154, 20 L.Ed.2d 77; The Code 1966, Section 793.18.

It is thus revealed that first on arrest, and later in course of arraignment, the Miranda warnings were given defendant. Additionally, and within a limited period of time thereafter, Officer Schultz read the Miranda warnings to Moon, then had him restate them aloud, after which the latter signed a waiver of rights, including advice of counsel.

In light of these and other attendant factors, heretofore set forth, absent any persuasive showing to the contrary, it is to us apparent that Moon, being first fully advised as to all his rights, specifically waived right to advice of an attorney immediately prior to and within the period of time during which he made the oral statements to Detective Schultz. See Miranda, supra at 384 U.S. 475, 86 S.Ct. 1602.

But, since no attempt was ever made by the State to offer those oral statements in evidence, the foregoing is not alone determinative.

III. Defendant argues, any confession by him was still inadmissible in evidence because there could be no intelligent and voluntary benefit of counsel waiver absent advice of his attorney in that regard.

So the problem presently to be resolved is whether an accused, in custody, must be constitutionally accorded benefit of his attorney's advice as a condition precedent to a knowing and intelligent waiver of right to counsel.

Inceptionally it, is understood, there can be no presumption of waiver regarding right to assistance of an attorney. Miranda, supra at 384 U.S, 475, 86 S.Ct. 1602. And when admissibility of inculpatory statements, made absent counsel, is placed in question there is imposed on the State the heavy burden of proving an effective waiver. See Miranda, supra, 384 U.S. 475, 86 S.Ct. 1602; Jackson v. Denno, 378 U.S. 368, 377--379, 84 S.Ct. 1774, 1781--1782, 12 L.Ed.2d 908. See also United States v. Smith, 379 F.2d 628, 633 (7 Cir.); State v. Holland, 258 Iowa 206, 214, 216, 138 N.W.2d 86; State v. Johns, 185 Neb. 590, 177 N.W.2d 580, 585--588.

On the other hand, the court squarely held in Miranda at 384 U.S. 444--445, 475--476, 479, 86 S.Ct. 1602, a suspect can at any time waive right to counsel. All apparently required in this direction is that the waiver be voluntarily, knowingly and intelligently exercised. Miranda, supra at 384 U.S. 444, 479, 86 S.Ct. 1602.

In support...