State v. Nichols, 58966

• Decision Date: 17 November 1976
• Docket Number: No. 58966,58966
• Citation: 247 N.W.2d 249
• Parties: STATE of Iowa, Appellee, v. Roger C. NICHOLS, Appellant.
• Court: Iowa Supreme Court

Page 249

247 N.W.2d 249

STATE of Iowa, Appellee, v. Roger C. NICHOLS, Appellant.

No. 58966.

Supreme Court of Iowa.

Nov. 17, 1976.

Mark Belz, Cedar Rapids, for appellant.

Richard C. Turner, Atty. Gen., Richard H. Doyle, IV, Asst. Atty. Gen., David W. Newell, County Atty., for appellee.

Submitted to MOORE, C.J., and MASON, LeGRAND, UHLENHOPP and McCORMICK, JJ.

MASON, Justice.

Roger Clarence Nichols appeals from judgment entered following his conviction by a jury of the crime of breaking and entering with intent to commit larceny in violation of section 708.8, The Code. Defendant was sentenced to the Men's Reformatory at Anamosa for a period not to exceed ten years, with credit for time served pending trial.

The factual circumstances giving rise to the charge occurred the early morning hours of August 29, 1975, when defendant was apprehended by Muscatine police inside Cook's Music Shop, a Muscatine business establishment. A county attorney's information charging defendant with the crime referred to above was filed September 11.

As a witness defendant admitted entering the building through an allegedly unlocked door. Thus, the only issue for the jury's consideration was defendant's intent at the time of the breaking and entering.

Defendant testified that shortly before his arrest he had been driving through the downtown area of Muscatine and noticed a man standing in the doorway of the Beneficial Finance office. Defendant became suspicious of the man's activities and concerned 'because my father--he cleans there; and its my father's responsibility, just as much as it would be the manager of Beneficial.' Defendant's concern prompted him to investigate and ultimately to enter the allegedly unlocked door. Once inside defendant looked around to see if anything had been tampered with and in so doing activated a burglar alarm in the Muscatine police station by opening a door leading from the Beneficial Finance office into Cook's Music Shop. Defendant's explanation of his presence in the building in question was obviously not accepted by the jury.

In light of defendant's assignments of error the only facts relevant to this appeal concern statements made by the trial court at defendant's sentencing. Defendant's contentions on appeal are based upon the emphasized portion of the following remarks of the trial court:

'THE COURT: Well, quite frankly, Mr. Nichols, But for the story which the jury must have believed was concocted, therefore perjurous, to-wit: That you went into this building in the interest of protecting your father, who was the--had the janitorial service contract there, and so forth, And the rather glib way that you told that on the witness stand, I might be willing to go along with these recommendations. In other words, I think I'm saying to you, Had you said 'Okay. I have done this, and I'm willing now to face the consequences of my acts,' you might then be able to persuade the court that sufficient turn-around had occurred, that you should be afforded another chance. However, under the record here, I just don't believe that I can do that. You're 27 years of age. * * * (K)eeping a job for a few weeks, I would hope that that is--it indicates a complete turn-around; but I'm in no way certain that it is. And in view of the story that you told at the trial, I don't feel disposed to go along with that. * * *.'

Defendant's appeal presents the following questions for this court's review:

(1) Did the statement of the trial court that it might have been more lenient had defendant admitted committing the crime charged demonstrate defendant was penalized for demanding his constitutional right to a trial and for exercising his constitutional right not to testify against himself?

(2) Did the statement of the trial court that it might have been more lenient had defendant not, in the opinion of the trial court, perjured himself demonstrate defendant was penalized for demanding his constitutional right to a trial?

(3) If it is determined resentencing of defendant is mandated by this record is defendant entitled to be sentenced by a different judge?

I. Defendant directs this court's attention primarily to the first two sentences in the trial court's remarks set out above. It is conceded the first sentence, taken alone, could be construed to mean the trial court might have been more lenient had defendant not, in the trial court's opinion, perjured himself. However, defendant maintains the second sentence, which begins with the phrase 'In other words,' more clearly defines what it was the trial court wanted of defendant. The contention is that the trial court conditioned leniency on defendant's admission of guilt and thus violated defendant's right to a trial and his right not to testify against himself.

Defendant relies on Spevack v. Klein, 385 U.S. 511, 514--515, 87 S.Ct. 625, 628, 17 L.Ed.2d 574, where the Court said:

'We said in Malloy v. Hogan:

"The Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement--the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty * * * four such silence.' 378 U.S., at 8, 84 S.Ct., at 1493.

'In this context 'penalty' is not restricted to fine or imprisonment. It means, as we said in Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, the imposition of any sanction which makes assertion of the Fifth Amendment privilege 'costly.' * * *.'

He also relies on United States v. Jackson, 390 U.S. 570, 581--582, 88 S.Ct. 1209, 1216, 20 L.Ed.2d 138, where the following statements appear:

'Under the Federal Kidnapping Act, therefore, the defendant who abandons the right to contest his guilt before a jury is assured that he cannot be executed; the defendant ingenuous enough to seek a jury acquittal stands forewarned that, if the jury finds him guilty and does not wish to spare his life, he will die. Our problem is to decide whether the Constitution permits the establishment of such a death penalty, applicable only to those defendants who assert the right to contest their guilt before a jury. The inevitable effect of any such provision, is of course, to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial. * * *

'* * * Whatever might be said of Congress' objectives, they cannot be pursued by means that needlessly chill the exercise of basic constitutional rights. * * * (citing authorities). The question is not whether the chilling effect is 'incidental' rather than intentional; the question is whether that effect is unnecessary and therefore excessive. * * *.'

Defendant contends it is apparent from the trial court's remarks a price was exacted for defendant's exercise of his constitutional rights.

State v. Drake, 224 N.W.2d 476 (Iowa 1974), is also heavily relied upon by defendant. In that case, this court faced the very issue presented here and said:

'We have said a sentence which is within the statutory discretion of the trial court (as this one was) will not be disturbed on appeal except upon a showing of abuse of discretion. State v. Stakenburg, 215 N.W.2d 265, 266, 267 (Iowa 1974). However, we cannot permit a sentence to stand when the record shows it was imposed for reasons which violate defendant's right to assert her constitutional defenses to the charges against her.

'In the matter before us, the trial court denied defendant's request for probation with this statement:

"I am inclined to agree with you, Mr. Rosenberg, that this is a case where this lady would probably have been given probation had she entered a plea of guilty, but due to the large number of items that were involved and separate charges that were involved, my feeling is that the first step in rehabilitation is a willingness to admit you're wrong and to come in and offer to straighten the matter out entirely. * * *.'

'* * *

'It cannot be gainsaid that the sentence in the present case was imposed Only because defendant refused to plead guilty. The trial court frankly said as much in pronouncing sentence. Defendant had a right to her trial. The fact that the trial court felt it would have been a giant step toward eventual rehabilitation if she had admitted guilt does not override this constitutional right without penalty for exercising it. * * * (citing authorities). If it did nothing else, this procedure certainly violated defendant's Fifth Amendment protection against self-incrimination, for at that time she could still appeal from a conviction she claimed was unfairly reached. We find it was error to deny her the probation to which she was otherwise entitled simply because she refused to forego her constitutional rights.' 224 N.W.2d at 479--480. (Emphasis in original).

The State argues the Drake holding is inapplicable to the case at bar for the reason defendant was not denied leniency 'only because defendant refused to plead guilty.' The State insists the trial court examined the entire record and all relevant factors bearing upon a sentencing decision in keeping with the sentencing guidelines established by this court. The following language from State v. Davis, 195 N.W.2d 677, 678 (Iowa 1972), is illustrative of those guidelines:

'As we have frequently said, in determining proper sentence all pertinent matters, including the nature of the offense, the attending circumstances, defendant's age, character and propensities and chances of reform, should be considered. * * * (citing authorities).'

In reply to the State's contention State v. Drake, supra, has a limited scope of application, defendant points out the trial court in Drake in fact did consider other factors in its sentencing determination. Defendant reads Drake as requiring resentencing when defendant's exercise of a constitutional right weighs heavily as a...