State v. Shephard

• Decision Date: 12 November 1963
• Docket Number: No. 50987,50987
• Parties: STATE of Iowa, Appellee, v. Sarah E. Thompson SHEPHARD, Appellant.
• Court: Iowa Supreme Court

Page 712

124 N.W.2d 712

255 Iowa 1218

STATE of Iowa, Appellee, v. Sarah E. Thompson SHEPHARD, Appellant.

No. 50987.

Supreme Court of Iowa.

Nov. 12, 1963.

Rehearing Denied Jan. 14, 1964.

William C. Starke, Chicago, Ill., and Alvin Hayes, Jr., Sioux City, for appellant.

Evan Hultman, Atty. Gen., John H. Allen, Asst. Atty. Gen., and Edward F. Samore, Woodbury County Atty., for appellee.

STUART, Justice.

Defendant was convicted of murder in the second degree in connection with the death of her newborn child. She has appealed and assigns these errors: (1) failure to suppress evidence and testimony secured by virtue of an illegal search and seizure; (2) failure to suppress evidence of certain conversations between defendant and the medical examiner; (3) admission into evidence of the medical examiner's report; (4) failure to sustain defendant's motion for a bill of particulars; (5) failure to sustain defendant's objections to certain instructions; (6) refusal to give a requested instruction cautioning the jury that the law applies equally to colored and white; (7) failure to sustain a motion for acquittal or new trial on the ground that the state failed to prove its case beyond a reasonable doubt. The facts will be stated as they become pertinent.

I. Prior to the trial, defendant filed a motion to suppress evidence obtained by a search and seizure of 'property, things and information' in her home in Sioux City on the ground the search was illegal and in violation of her rights guaranteed by the 4th and 14th Amendments to the Constitution of the United States and the Constitution of Iowa. Evidence was taken as to the circumstances surrounding the search. The trial court overruled the motion to suppress the exhibits obtained in the search and the testimony of the officers making the search. They were introduced at the trial without further objection from defendant.

Defendant argues that evidence obtained during an illegal search is not admissible at the time of trial where a timely motion to suppress the evidence has been filed. She cites Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, in which the Supreme Court of the United States held the due process clause of the 14th amendment precluded the admission of unconstitutionally seized evidence in a state proceeding. For an interesting discussion of the Mapp case and the increasing involvement of the Supreme Court in the state administration of criminal law see 49 Iowa Law Review 14.

The state does not quarrel with the pronouncements of the Mapp case, nor does it claim that a warrant was issued or that the search was in connection with an arrest. The state claims the protection afforded by the 4th and 14th amendments to the constitution was waived when the husband of the defendant consented to the search. It is well settled that one may freely consent to a search. State v. Post (1963) Iowa, 123 N.W.2d 11, 16; Foley v. Utterback, 196 Iowa 956, 195 N.W. 721. We must determine first, whether the facts in the instant case support a finding that the husband did freely and voluntarily give his consent to the search and seizure without 'implied coercion'. If we determine the consent was voluntary, we must then decide whether a husband under these circumstances can voluntarily waive his wife's constitutional guarantees to the right of privacy.

The burden of demonstrating that evidence has been illegally procured normally devolves upon the accused in a motion to suppress such evidence. Rigby v. United States, 101 U.S.App.D.C. 178, 247 F.2d 584; Watson v. United States, 101 U.S.App.D.C. 350, 249 F.2d 106; see also Wilson v. United States, 10 Cir., 217 F.2d 754; United States v. Lipshitz, D.C., 132 F.Supp. 519. However, where the government relies upon consent to an otherwise illegal search and seizure, it has the burden of proving by clear and convincing evidence that the consent was voluntary and free from duress and coercion. Rigby v. United States, supra; Watson v. United States, supra; Nelson v. United States, 93 U.S.App.D.C. 14, 208 F.2d 505; Kovach v. United States, 6 Cir., 53 F.2d 639.

It is for the trier of fact to determine whether the consent was voluntary or coerced. The evidence in this instance must be viewed in the light most favorable to the state. We are to determine if the evidence so considered is sufficient to support the trial court's finding that Mr. Shephard gave his consent freely and voluntarily.

The Illinois Supreme Court considered this specific problem in People v. Speice, 23 Ill.2d 40, 177 N.E.2d 233, 235, in which defendant claimed the consent of the wife was not freely given but was the result of implied coercion on the part of police officers. 'In support of this contention the defendant relies strongly upon Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654, and People v. Lind, 370 Ill. 131, 18 N.E.2d 189. In these cases it was held that the circumstances showed that the consent of the wife was not freely given but was the result of implied coercion brought about by the presence of the police officers. In both of these cases there was a conflict in the testimony as to whether the wife in fact consented. The defendant points out that there is such a conflict in the present case and argues that because of this conflict in the testimony this case should be covered by Lind and Amos rather than Shambley and Perroni, for in the latter cases there was no conflict in the testimony as to the consent. This argument would have the effect of taking from the trial judge the right to pass upon the credibility of the testimony and would require us to hold that in the event of a conflict in the testimony as to whether consent was given we must decide that the consent was not freely given. * * * The question of whether consent was in fact given is a factual matter to be determined by the trial court and where the evidence is conflicting this court will accept the finding of the trial court unless it is clearly unreasonable.'

As the determination is one of fact, each case must be decided upon its own circumstances. Although precedents are of little value, the following cases hold under the facts therein that consent was freely and voluntarily given. Crawford v. United States, 5 Cir., 219 F.2d 207; People v. Faulkner, 166 Cal.App.2d 446, 333 P.2d 251; State v. Post, Iowa, 123 N.W.2d 11, 16; State v. Hall, 164 Tenn. 548, 51 S.W.2d 851; Watson v. United States, 101 U.S.App.D.C. 350, 249 F.2d 106; Nelson v. United States, 93 U.S.App.D.C. 14, 208 F.2d 505; Kovach v. United States, 6 Cir., 53 F.2d 639; People v. Stacey, 25 Ill.2d 258, 184 N.E.2d 866; People v. Speice, 23 Ill.2d 40, 177 N.E.2d 233.

In the following instances it was held that there was implied coercion which tainted the consent. Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654; Channel v. United States (1960) 9 Cir., 285 F.2d 217; Judd v. United States, 89 U.S.App.D.C. 64, 190 F.2d 649; Waldron v. United States, 95 U.S.App.D.C. 66, 219 F.2d 37; United States v. Marquette, D.C., 271 F. 120; Cofer v. United States, 5 Cir., 37 F.2d 677; Fitter v. United States, 2 Cir., 258 F. 567.

The evidence in the instant case supports the following findings of fact:

Defendant, her husband and their children at all times material here were residing together and jointly occupying a rented apartment in Sioux City. On December 15 1961 she was taken to St. Joseph Mercy Hospital in a weakened condition from vaginal bleeding. Upon being questioned by officers of the law while in the hospital, she admitted giving birth to a baby the night before and claimed she had given it to a man named George. About 10:00 a. m. the next day three police officers went to the apartment occupied by defendant and her husband to find out what Mr. Shephard knew about the man named George. It is conceded the officers had no search warrant and were not at the premises to make an arrest.

Mr. Shephard met the officers in the hallway outside of his apartment. On being told who they were, he invited them into his apartment. Mr. Shephard talked very freely but denied any knowledge of the person his wife said had been give the baby. He denied knowledge of the birth of the bady but said his wife told him 'she had passed something'.

Officer Dennison testified: 'Before we decided to leave the house I told Mr. Shephard that under the circumstances as long as he had not made a thorough search I thought it would be a mightly good idea if we would search the house to see if this baby that was missing might be hidden in the house some place, closet, dresser drawers or most anywhere where a small package could be. He said, 'I have no objections, okay.' He got up off where he was sitting and started showing us different rooms in the house.'

Mr. Shephard accompanied the officers on the search and 'opened the closet door, took down suitcases and hat boxes and all kinds of different kinds of boxes that was stored up in the closet, opened them up, he looked in the dresser drawers and emptied some suitcases out on the floor that had clothing in them, and finally he looked under the baby crib where there was a suitcase slid in under the baby crib and he said, 'Well here is one, a suitcase that we haven't looked at,' and he had to raise the baby crib up a couple inches to slide the suitcase out from under it, and he pulled this in the middle of the floor and he knelt down and opened the suitcase and started taking pieces of clothing out of this suitcase * * *'. It was in this suitcase the body of the child and other evidence sought to be suppressed was found.

Although Mr. Shephard denied the degree of cooperation and participation testified to by the officers, he generally supports their testimony. He denies specific consent to the search, but does not claim to have made any objection. There is no claim of any threats of force or display of arms. Later in the week Mr. Shephard brought a pair of scissors ...