State v. Myers

• Decision Date: 08 March 1966
• Docket Number: No. 51679,51679
• Citation: 258 Iowa 940,140 N.W.2d 891
• Parties: STATE of Iowa, Appellee, v. Hall Elton MYERS, Appellant.
• Court: Iowa Supreme Court

Page 891

140 N.W.2d 891

258 Iowa 940

STATE of Iowa, Appellee, v. Hall Elton MYERS, Appellant.

No. 51679.

Supreme Court of Iowa.

March 8, 1966.

Norman G. Jesse, Des Moines, for appellant.

Lawrence F. Scalise, Atty. Gen., Don R. Bennett, Asst. Atty. Gen., Ray A. Fenton, County Atty., and Jack Harvey, Asst. County Atty., for appellee.

LARSON, Justice.

Defendant, a sixty-one-year-old janitor, was convicted of sodomy (fellatio) on a nine-year-old boy. He appeals, urging three errors for reversal.

The principal issue in this case involves the admission into evidence of defendant's statement to summoned officers as they were taking him to the police station for investigation and interrogation. For the reasons which we set out hereinafter, we have concluded the statement was properly admitted and its acceptance was not reversible error.

The State's evidence shows defendant took a nine-year-old boy and his eight-year-old brother into his apartment on June 27, 1964, at about 1 P.M., and performed the act charged on the older boy. The boys notified their grandmother, parents, and older brothers of the incident. They called defendant from his apartment and he was 'mauled' by the stepfather. The police were called and, when they arrived, the nine-year-old boy identified defendant and in his presence told the police what had happened. The mother testified defendant denied the accusatory statements, but the boy and the officers claimed defendant said nothing. As a crowd gathered, the police placed defendant in the squad car and took him directly to the police station. One of the officers testified that on the way to the station 'I asked the defendant how he could explain the boys being in the apartment. He stated that they were in the apartment. * * *'

Q. Was that the extent of the conversation? As you recall it at that time? A. The defendant objected to being detained. He didn't think he had done anything to go to jail for.'

'Q. But he did admit the boys were in his apartment, is that right? A. Yes.'

The second officer's testimony was to a like effect, and timely objection to this evidence was made.

I. Defendant contends when he was taken into custody by the police he became an accused, that thereafter he was entitled to advice of counsel, and that he did not waive that right but was effectively deprived thereof when the foregoing question was asked him by the officers on the way to the police station. He contends the right to counsel attaches as soon as one becomes an accused, extends to all periods of police interrogation when constitutional rights must be intelligently exercised or waived, and does not depend upon a request for counsel. He relies upon Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and the cases therein cited; People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361; State v. Neely, 239 Or. 487, 395 P.2d 557, 398 P.2d 482; United States ex rel. Russo v. State of New Jersey, 351 F.2d 429 (3 Cir. 1965); People v. Schader, 62 Cal.2d 716, 44 Cal.Rptr. 193, 401 P.2d 665; State v. Turner, Or., 404 P.2d 187; State v. Dufour, R.I., 206 A.2d 82.

It is clear that until defendant reached the station and was turned over to the detectives for questioning, he was not advised of his right to remain silent or his right to counsel. There was no contention defendant waived any of his constitutional rights. The issue is whether these rights were violated. Thus we face the very controversial issue of when one is entitled to be considered an 'accused' so as to bar the admission into evidence of any voluntary statements made to the investigating officers. Reams have been written in opinions and Law Review articles on this subject since the Escobedo decision, and the controversy goes on. See Annotation, 1 A.L.R.3d 1251.

Recently in State v. Fox, Iowa, 131 N.W.2d 684, we said at page 686 of 131 N.W.2d: 'The rule is well settled that one accused of a crime may refuse to answer questions of the police and, before doing so, is entitled to advice of counsel.' However, we held voluntary statements made in response to police questions when defendant's counsel weas absent but access to him was not denied, were admissible, especially when no objections thereto were made. We expressed the view then that Escobedo was limited to its particular facts, which disclosed that Escobedo was accused of the crime of murder and was being extensively interrogated by the relays of officers when his attorney was being excluded and could not advise him. In fact, the United States Supreme Court on at least three occasions said the same thing in Escobedo v. State of Illinois, supra. In the opinion it said: 'The critical question in this case is whether, under the circumstances, the refusal by the police to honor petitioner's request to consult with his lawyer during the course of an interrogation constitutes a denial of 'the Assistance of Counsel' * * *.' (Emphasis supplied.) The opinion continues: 'We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolvedcrime 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' * * *.' (Emphasis supplied.) The opinion concludes: 'We hold only that when the process shifts from investigatory to accusatory--when its focus is on the accused and its purpose is to elicit a confession--our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer.' (Emphasis supplied.)

The statement of the question involved and the pronouncements above clearly disclose the court held only that under these circumstances the accused must be permitted to consult his counsel. In reaching this result the court does say that an accused has a constitutional right to demand counsel when the police investigation becomes accusatory. It then pointed out: 'The 'guiding hand of counsel' was essential to advise petitioner of his rights in this delicate situation' and that 'This was the 'stage when legal aid and advice' were most critical to petitioner', thus advancing the time formerly considered 'critical', i. e., when one is brought before a magistrate as by law provided. For that time in Iowa, see section 755.17, Code, 1962.

In State v. Mabbitt, Iowa, 135 N.W.2d 525, 530, we held a defendant was not denied the assistance of counsel under Escobedo or of his right to remain silent where, before interrogating him in the absence of counsel, police officers fully advised him of his right to remain silent and that anything he said might be used against him. Also see State v. Tharp, Iowa, 138 N.W.2d 78.

There is no suggestion that defendant's statements to the officers here were not voluntary. In fact, in the trial he denied making them. There is no claim of coercion, physically or mentally. Therefore, if defendant's contention is to be upheld, we must hold any statements voluntarily made by one at the time of his arrest when he has not been advised of his constitutional right to remain silent and to have the assistance of counsel, cannot be admitted in evidence in the absence of an intelligent waiver of such rights. This we cannot do, and doubt the correctness of his contention that United States ex rel. Russo v. State of New Jersey, supra, and People v. Dorado, supra, so hold or that State v. Neely so holds as to the failure to remain silent. In each of those cases a crime had been committed, the investigative efforts of the authorities were focused upon the accused, and the purpose of their lengthy and exhaustive interrogation was to obtain a confession from him. Regardless of the value of these distinctions, most state courts and the United States circuit courts have rejected the view of Escobedo advanced here by appellant. They apply the Escobedo rule only under factual situations comparable to those in the cited cases. Among these states are Illinois, New York, Nevada, Wisconsin, Idaho, New Jersey, Kansas, Minnesota, Missouri, Ohio, Pennsylvania, Texas and New Hampshire.

Furthermore, most state and federal circuit courts have refused to hold that any interrogation of one arrested or suspected of a crime can make no voluntary statement admissible in evidence against him, unless it appears the accused or suspect has first been advised of his right to counsel and to remain silent, and has intelligently waived that right. See United States v. Cone, 354 F.2d 119, decided November 22, 1965, by the Circuit Court of Appeals, 2d Cir., covering the states of New York, Connecticut, and Vermont; People v. Lewis (1965), 32 Ill.2d 391, 207 N.E.2d 65; People v. Golson (1965), 32 Ill.2d 398, 207 N.E.2d 68, 71, and citations. The Illinois Supreme Court, which carefully considered this vital question in the field of police investigation and interrogation prior to arraignment, held the authorities were not under a duty to advise an accused of his right to counsel and of his right to remain silent. Generally, we agree with that conclusion especially as to voluntary statements made prior to any formal, basic, or purposeful interrogation by trained investigators. Also see People v. Hartgraves, 31 Ill.2d 375, 202 N.E.2d 33; State v. Scanlon, 84 N.J.Super. 427, 202 A.2d 448; People v. Gunner, 15 N.Y.2d 226, 257 N.Y.S.2d 924, 205 N.E.2d 852; Bean v. State, 398 P.2d 251 (Nevada); Browne v. State, 24 Wis.2d 491, 129 N.W.2d 175, 131 N.W.2d 169; 379 U.S. 1004, 85 S.Ct. 730, 13 L.Ed.2d 706.

Only California, Oregon, and the Third Circuit seem to support appellant's position and, as stated, those cases can be...