State v. Niccum

• Citation: 190 N.W.2d 815
• Decision Date: 13 October 1971
• Docket Number: No. 53718,53718
• Parties: STATE of Iowa, Appellee, v. Michael Charles NICCUM, Appellant.
• Court: United States State Supreme Court of Iowa

Page 815

190 N.W.2d 815

STATE of Iowa, Appellee, v. Michael Charles NICCUM, Appellant.

No. 53718.

Supreme Court of Iowa.

Oct. 13, 1971.

Anthony M. Critelli, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Michael J. Laughlin, Asst. Atty. Gen., Ray Fenton, County Atty., Des Moines, for appellee.

MASON, Justice.

February 6, 1969, Michael Charles Niccum was indicted by a Polk county grand jury for murder as defined in sections 690.1 and 690.2, The Code 1966. Defendant entered a plea of not guilty, being represented by counsel previously appointed. Trial to a jury resulted in his conviction of murder in the first degree. Motion for new trial was overruled and defendant was sentenced to imprisonment in the state penitentiary for life at hard labor. He seeks reversal of his conviction.

About 6:15 p.m. November 20, 1968, an employee of Slinker's Sporting Goods located in the Wakonda Shopping Center in Des Moines heard screams and 'thudding sounds' coming from the Arnold Palmer Cleaners located next door. Further investigation led to discovery of Linda Lea Boothe, an employee of the cleaners, lying on her back on the floor in the back room or office of the cleaners. Her head was covered with blood, the head of a golf club was on her chest and a 'black sealer type hose' around her neck. She was still alive. The fire rescue squad was called and Miss Boothe was removed to a Des Moines hospital where she died at 8:25.

The Polk county medical examiner performed an autopsy at a Des Moines funeral home and expressed the opinion her death was due to multiple fractures of the facial bones and skull caused by bludgeoning or beating with a semi-blunt instrument in contrast to a sharp instrument such as a knife and that the injuries could have been casued by golf club and more than likely, a wood.

After an extensive police investigation a warrant was issued December 4, 1968, for the arrest of Michael Niccum for the crime of murder. Defendant was arrested by the St. Louis, Missouri, police in that city December 28, 1968. December 30 Niccum appeared in a St. Louis court without the presence of counsel and waived extradition. His custody was taken by R. E. Weichman, a Des Moines detective, and Roland O. Hoffman, an agent of the Iowa Criminal Bureau of Investigation, under the Iowa warrant. The officers and Niccum drove from St. Louis to Des Moines arriving the evening of December 31. The trip covered approximately nine hours during which time defendant made statements which tended to connect him with commission of the crime for which he was arrested. Upon arrival at the Des Moines police station there was more exchange between defendant and Weichman involving the same subject.

Defendant was arraigned in the Des Moines municipal court January 1, 1969, and held without bond. Counsel was appointed for defendant. On place in the record indicates the appointment was made January 1 and in another, January 7.

Following defendant's plea, his counsel filed various pretrial motions which were heard and later determined by the court March 26 and 27. Insofar as rulings on these motions are challenged by defendant's assignments of error, they will be discussed in considering defendant's assignments.

Trial commenced April 7. At the conclusion of the State's evidence defendant moved to dismiss the indictment. The motion was overruled and defendant, in offering his defense, testified in his own behalf. At the close of all evidence defendant's motion was renewed and again overruled and the matter submitted to the jury.

Defendant's motion for new trial was overruled and he was sentenced. He appeals from this judgment assigning six errors relied on for reversal which will be considered in the order argued.

I. Under his first assignment defendant contends the court committed reversible error in failing to sustain his motion to suppress testimony of Weichman and Hoffman relating to incriminating admissions made by Niccum and in denying him a new trial because of such failure to suppress testimony.

Defendant maintains, that aside from these incriminating statements admitted over objection, there would have been no other testimony or evidence introduced in the State's case in chief which would to any significant or sufficient manner corroborate testimony of Tom Logsdon whom the jury determined was an accomplice in answer to a special interrogatory submitted to them. Under section 782.5, The Code, a conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence tending to connect defendant with commission of the offense.

Logsdon, age 17 living with his mother in Pleasantville, became acquainted with defendant early in the summer of 1968. He and Niccum drove from Pleasantville to Des Moines November 20. He testified as a State's witness and detailed their activities that day including being at the Arnold Palmer Cleaners. Logsdon told of the events leading up to Niccum's entering the cleaners, his return to the car and of Niccum's admission he had to kill the girl. He specified the points where they discarded defendant's clothes, sap, golf club and other items on the trip back to Pleasantville. Logsdon had not been indicted in connection with the crime involved. He testified he had been promised immunity.

'We think under modern hildings of the Supreme Court of the United States we are bound to consider any infringement on the constitutional rights of those accused of crimes as denials of due process.' Sewell v. Lainson, 244 Iowa 555, 564, 57 N.W.2d 556, 562.

Defendant argues both in motion to suppress and at hearing on motion that he was not afforded his constitutional rights during his incarceration at St. Louis. Specifically, he asserts that while in St. Louis he was not afforded the benefit of a warning of his full constitutional rights as enunciated in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974.

According to defendant, upon arrest by St. Louis police, he was advised only that he did not have to talk. Defendant claims he was not told of his right to counsel. Furthermore, he insists he made requests for an attorney on many occasions but was denied the right to see one. Finally, he contends he appeared without counsel to waive extradition, but was examined by the judge only as to whether he was acting of his own free will.

However, at no point does Niccum contend he was interrogated by St. Louis authorities, whom he said had been instructed not to question him. He is not appealing admissions of any statements made in St. Louis, for indeed no statements from that period of time were introduced in the present trial; defendant is not appealing extradition.

The events in St. Louis assume importance only with relation to statements made to Des Moines police officers on the return trip to Des Moines. Defendant does not contend and there is no evidence in the record Niccum was subjected to interrogation in St. Louis by Weichman or Hoffman either before he waived extradition or at any time before they started the return trip to Des Moines. All statements objected to were made after Niccum's custody had been changed from the St. Louis police to the Iowa authorities and after the trip to Des Moines was started. The proposition that these statements were made is uncontroverted. Nevertheless, defendant insists the alleged denial of his constitutional rights in St. Louis so tainted subsequent statemtns as to make them inadmissible at trial. Such is not necessarily the law.

In Westover v. United States, 384 U.S. 493, 494, 86 S.Ct. 1602, 1638, 16 L.Ed.2d 694, 734, announced simultaneously with and incorporated in Miranda, defendant was arrested by local authorities and subjected to lengthy and intense interrogation extending over 14 hours without being advised of his constitutional rights. Without significant break in time, federal agents continued interrogation but advised defendant of his constitutional rights. Defendant subsequently confessed and was convicted by a jury. The Supreme Court reversed stating that the cumulative effect of the interrogation procees cannot be denied or ignored and in such circumstances an intelligent waiver of constitutional rights cannot be assumed.

The court further concluded:

'We do not suggest that law enforcement authorities are precluded from questioning any individual who has been held for a period of time by other authorities and interrogated by them without appropriate warnings. A different case would be presented if an accused were taken into custody by the second authority, removed both in time and place from his original surroundings, and then adequately advised of his rights and given an opportunity to exercise them. But here the FBI interrogation was conducted immediately following the state interrogation in the same police station--in the same compelling surroundings. Thus, in obtaining a confession from Westover the federal authorities were the beneficiaries of the pressure applied by the local in-custody interrogation. In these circumstances the giving of warnings alone was not sufficient to protect the privilege.'

The factual situation in Westover is distinguishable from the case before us. Niccum was arrested Saturday, taken before the St. Louis court on the extradition matter Monday and transported from St. Louis to Des Moines Tuesday, December 31. While in the custody of the St. Louis police, Niccum was not interrogated. According to his own testimony, these authorities advised him he did not have to talk to them, and, as stated, Niccum also testified the St. Louis authorities had been instructed not to question him. As pointed out, statements objected to were given after the accused had been taken into custody by the Iowa authorities and removed from the St. Louis jail for return to Des Moines. It cannot be claimed as in Westover that the second authorities, here the Iowa officers, were the...