State v. Russell

• Decision Date: 18 January 1978
• Docket Number: No. 59345,59345
• Citation: 261 N.W.2d 490
• Parties: STATE of Iowa, Appellee, v. Donald F. RUSSELL, Appellant.
• Court: Iowa Supreme Court

Page 490

261 N.W.2d 490

STATE of Iowa, Appellee, v. Donald F. RUSSELL, Appellant.

No. 59345.

Supreme Court of Iowa.

Jan. 18, 1978.

Timothy G. Pearson, of Hyland & Laden, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Thomas A. Evans, Asst. Atty. Gen., and Jerrold B. Oliver, County Atty., for appellee.

Heard by MOORE, C. J., and RAWLINGS, LeGRAND, UHLENHOPP and HARRIS, JJ.

MOORE, Chief Justice.

Defendant appeals his conviction for arson in violation of Code section 707.2. He asserts trial court erred in overruling his motion to suppress testimony concerning conversations he had with police after his arrest and while he was hospitalized for severe burns in University Hospital in Iowa City. Additionally, he claims the court erred in permitting a tape of conversation to be admitted into evidence and played at trial where no proper foundation had been laid. We affirm.

Viewed in a light most favorable to the verdict, the evidence showed that in the early morning hours of July 14, 1975, a major fire broke out in downtown Earlham, Iowa, which completely destroyed a commercial building housing the Acme Tent and Awning Company. Several spectators of the blaze testified they observed an individual, later identified as the defendant, standing near the burning building with his pants rolled up, wearing no shoes and carrying a broom. All noted it appeared he had been severely burned.

However, when the sheriff's deputies arrived at the scene they were unable to locate this individual even after an extensive search throughout the downtown area.

At approximately 7:45 a. m., four hours after the fire was reported, the deputies noticed the Earlham Tavern had been broken into. Upon entering the establishment they observed a badly burned individual, later identified as defendant, wearing no shoes and fanning a burning yellow jacket with an aluminum pie pan. They noted he had a broom nearby. After containing the fire they arrested defendant for the illegal breaking and entering of the tavern. Arresting Deputy Sheriff John Toppenberg read defendant his Miranda rights and later testified defendant stated he understood them. When defendant later complained to Deputy Sheriff Edward Powell that he had not been read his rights, Toppenberg repeated the procedure. Sheriff Rex Rouse then arrived at the tavern and was made aware the Miranda rights had been read to defendant. Thereafter a brief discussion ensued during which defendant admitted he had broken into the tavern. He stated he did so because he needed liquid due to his burned condition.

Defendant was then taken by Rouse and Toppenberg to the Madison County Hospital for treatment. Later he was transferred to Broadlawns Hospital in Des Moines. During the ambulance ride, Deputy Toppenberg continued questioning defendant about his activities on the evening of July 14. The evidence discloses the following exchange took place:

"Q: (Officer Toppenberg): No, the big fire. You had to go in there to get burned like this.

"A: (Defendant Russell): It was because I heard voices or animals or something inside."

Deputy Toppenberg testified he did not believe defendant's condition affected his ability to understand the Miranda warnings. At the motion to suppress hearing he opined defendant's answers to questions were both "responsive" and "articulate." Sheriff Rex Rouse testified that while defendant was somewhat incoherent and bordering on shock he nonetheless "was understanding things right down the line."

Eventually defendant was transferred to University Hospital in Iowa City where he could obtain specialized treatment at the Burn Center. While there, on July 17, 1975, three days after he was arrested, he was interrogated in his hospital room by Sheriff Rouse and State Deputy Fire Marshall, Joe Beal.

Rouse testified he asked defendant whether he remembered he was under arrest for a breaking and entering charge and had been given his "rights." Defendant said he did. Rouse then asked whether their conversation could be taped. Defendant said he had no objection. Defendant evidenced an understanding of his rights and was not again read his Miranda warnings prior to questioning. However, these matters were not recorded together with some introductory "non-pertinent" conversation relating to defendant's physical condition prior to commencement of the actual taping. In the tape defendant described losing his brown boots (a similar pair was found at the fire scene), wearing a blue jacket on the night of the fire, getting burned when he looked in a window of the burning building, calling a friend to inform him of the fire and entering the tavern.

Prior to trial defendant moved to suppress the statements made at the tavern, during the ambulance ride and the tape-recorded hospital conversation. He challenged the first statements on the basis his mental and physical condition prevented him from understanding his Miranda rights. The tape-recorded statement was challenged on the basis the tape was incomplete and did not contain his permission for the recording. Trial court overruled the motion, holding that defendant had been properly advised of his rights, the Miranda warnings were of continuing validity, not "stale", and thus new warnings were not required three days later at the hospital.

At trial the State offered the tape into evidence after Sheriff Rouse testified he operated the machine, explained the "chain of custody" and said who was present during the session. Defense counsel objected to the introduction of the tape asserting no proper foundation had been laid.

The objection was overruled and the tape was then played to the jury with Rouse identifying the voices of the participants.

The jury later returned a guilty verdict and defendant was thereafter sentenced to a term not to exceed 10 years at the penitentiary.

I. Defendant-appellant first contends the statements to the officers were taken in violation of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The crux of his argument is two-pronged. First he asserts although he was given the "Miranda warning" on July 14th when he was arrested, his physical condition affected his ability to understand the warning and consequently he was unable to knowingly and understandably waive his right to remain silent. Second, he asserts that even if he was capable of understanding the warnings when originally given, the time lapse of three days rendered his waiver invalid because it was remote from and not contemporaneous with the time of the original warnings.

Since this assignment of error presents federal constitutional issues, we make an independent evaluation of the totality of the circumstances from which the assertion of unconstitutionality arises. We review the evidence de novo. State v. Snethen, Iowa, 245 N.W.2d 308, 311; State v. Conner, Iowa, 241 N.W.2d 447, 453.

It is well established an individual may waive his constitutional rights, that is, he may intentionally relinquish or abandon a known right. State v. Hilpipre, Iowa, 242 N.W.2d 306, 309; State v. Fetters, Iowa, 202 N.W.2d 84, 89; State v. Niccum, Iowa 190 N.W.2d 815, 822. However, it is incumbent upon the State to prove by a preponderance of evidence such waiver was knowingly, voluntarily and intelligently done. State v. Hilpipre, supra, 242 N.W.2d at 311.

Initially we must determine whether defendant effected a valid waiver at the Earlham Tavern when he was arrested. There is no question defendant was seriously burned on his legs and one arm which required treatment at the Iowa University Hospital's Special Burn Unit. The crucial point of our inquiry is the effect of these injuries on his capacity to understandably and intelligently relinquish his constitutional rights.

At the hearing on defendant's motion to suppress the State offered the testimony of Madison County Deputy Sheriff John Toppenberg and Madison County Sheriff Rex Rouse. Toppenberg testified he twice gave defendant the Miranda warnings and although defendant was injured he was "coherent, responsive and articulate." Rouse, who arrived on the scene after defendant had been given the Miranda warnings, stated defendant was evidently in great pain from his burns, "probably in shock", but "was understanding things right down the line." "We would ask him something again and he would give us the same answers." The officer's testimony was not contradicted.

In previous cases we have dealt with the issue of psychological stress, impaired judgment and waiver of rights. Recently in State v. Hahn, Iowa, 259 N.W.2d 753, 757, 758, although reversing on other grounds, we rejected defendant's contention that her mental subnormality deprived her of the capacity to understand the meaning and effect of the warnings, thus precluding a valid waiver. Also see State v. Fetters, supra. We held mental subnormality is but one factor to be considered in the totality of the circumstances and it does not, by itself, negate an otherwise valid waiver. Earlier, in State v. Youngbear, Iowa, 229 N.W.2d 728, 736, we applied the same analysis where defendant claimed impairment by alcohol.

Similarly in State v. Jacoby, Iowa, 260 N.W.2d 828, 832, 833 (1977) we held defendant's emotional distress was not so great under the circumstances as to vitiate an otherwise valid waiver of her Miranda rights.

As with the above factors, we do not believe the fact defendant was in a "state of shock" at the time he was given the Miranda warnings necessarily vitiates waiver of constitutional rights. Two opinions from the Missouri Court of Appeals graphically underscore this view. In State v. Ambus, Mo.App., 522 S.W.2d 306, 311, 312, defendant had been shot several times, his hand had been severely injured and his thumb had been nearly torn off. Defendant made an inculpatory statement after the Miranda warnings were given and later moved to suppress the statement based on an argument similar...