State v. Sims, 47535

Decision Date10 January 1950
Docket NumberNo. 47535,47535
Citation40 N.W.2d 463,241 Iowa 641
PartiesSTATE v. SIMS.
CourtIowa Supreme Court

McCormick & McCormick, of Sioux City, for appellant.

Robert L. Larson, Attorney General of Iowa, Don Hise, First Assistant Attorney General, Bernard A. Brown, County Attorney, Woodbury County, Sioux City, for appellee.

MULRONEY, Justice.

The defendant appeals from his conviction of rape and here asserts the main error was the trial court's admission of his written confession.

There was abundant testimony that on the evening of January 14, 1949, Norma Flynn, a sixteen year old girl, was raped. The attack occurred shortly after 8 P.M. while Norma was walking from church to a home in Sioux City to keep a baby-sitting engagement. She made immediate complaint to her family and the police to whom she gave the story and a description of her assailant and she was examined by a doctor and taken to the hospital for further examination. She said her attacker was a Negro who had accosted her on a street corner and asked her where certain streets were located and after she answered him he followed her and came up behind her and put his hand over her mouth and a knife in her side and marched her to a school playground nearby where he attacked her. The officers made an investigation that night when the footprints of Norma and her assailant were still visible in the snow on the playground. They took pictures of the footprints and noticed that the footprints of the attacker, made by galoshes, had distinguishing ridges and grooves.

On January 21, 1949, an officer in plain clothes who had examined the footprints, was standing on a street corner about 5 P.M. when defendant, a Negro, walked past him. The officer noticed that the prints left in the snow by defendant's galoshes, corresponded to the prints he had seen in the playground so he followed him for a few blocks. The officer then stopped defendant, identified himself, and told defendant he would have to accompany him to the police station where he wanted to talk to him. The officer said defendant replied that 'he was expecting it.' The defendant accompanied the officer to the station, where his galoshes were removed and examined. Defendant's knife was found in one of the galoshes but he explained it had dropped out of his pocket. The defendant at first told conflicting stories as to where he had purchased the galoshes. Norma was brought to the police station and she identified defendant as the man who had raped her.

The officers questioned defendant until 1:30 or 2 o'clock in the morning. The officers testified that during the questioning he confessed to the crime about fifteen or twenty times and then he would retract and say he didn't do it. At one point he told the officers his brother did it, so the officers brought his brother to the jail around 11:30 but when confronted by his brother he did not continue this accusation. The next day, January 22nd, defendant signed the confession, known as Exhibit 'H'--the admission of which into the record is the first error asserted.

I. The exhibit which is largely in question and answer form occupies some ten pages of the printed record. It begins with the following paragraphs:

'I, Terry Lee Sims, make the following voluntary statement to Detective Sergeants A. E. Dik and A. A. Bucchino, in the presence of my wife, Marvelean Sims, and my brother Elix Sims, in the Detective Bureau, Sioux City, Iowa, this 22nd day of January, 1949. No threats nor promises have been made to me, and I know this statement will be used against me in Court.

'This statement taken in question and answer form, questions being asked by Detective Sergeant A. E. Dik, and answers being given by Terry Lee Sims.'

The exhibit then proceeds in question and answer form, the defendant stating in answer to interrogatories that his name was Terry Lee Sims; that he was 25 years old and lived at 710 1/2 West 7th Street with his wife and child. In his answers in the exhibit Terry Sims stated that about 8 o'clock in the evening of January 14, 1949 he raped a white girl. He gave a detailed description of his actions--how he first asked the girl the location of certain streets, his following the girl, and then his coming up behind the girl and placing his hand over her mouth and his knife in her side. He told of his marching the girl to the playground and in shocking detail he told of the sexual attack, over the girl's protests. He did say in answer to one question that he knew there was no actual penetration. In answer to other questions Terry Lee Sims identified his galoshes and knife and said the galoshes were the ones he wore the night of January 14th and the knife was the knife he threatened the girl with. The exhibit closes with the following paragraph:

'This statement taken in shorthand by Gertrude B. Taggart, Secretary in the Detective Bureau, this 22nd day of January, 1949.'

The exhibit bears defendant's signature on each of the eleven pages and the initials of two or three officers and Mrs. Taggart who had taken the statement in shorthand and reduced it to its typewritten form.

The only objection made by defendant's counsel to the introduction of Exhibit 'H' when it was offered was 'that there is no showing that it is his (defendant's) statements other than his signature on each piece of paper.' But the parties seemed to feel this raised the question as to the voluntary character of the confession and the court reserved ruling at the time to grant defense counsel's request to permit him to cross-examine the police officer, then on the stand. Before such cross-examination the state went forward and introduced direct testimony that there were no promises or threats made to defendant; that he was not abused or beaten in any manner; and that the statement after it was transcribed was read to defendant and he read it and he was asked if he wanted to change it in any manner and he replied that he did not. No evidence of threats, abuse, or promises was brought out on the cross-examination of this officer. The defendant did not at that time offer any further evidence to show the confession was involuntary so when defendant renewed his objection previously made the court ruled: 'The exhibit will be admitted and will be instructed on.'

The court was clearly right in this ruling. At the time it was made there was no evidence at all that the confession was involuntary. The admissibility of a confession is a question for the court to determine and the court must decide on the state of the record at the time he is called on to rule on the admissibility of the offered exhibit as to whether it was made freely and voluntarily and without compulsion or inducement. State v. Johnson, Iowa, 39 N.W.2d 123, 125, and cases there cited. In the Johnson case we also said if a substantial conflict arises as to the voluntary character of the confession 'the question becomes one for the jury under proper instructions.' Here the correctness of the instructions are not questioned.

As we read defendant's argument it is based on the rule announced in State v. Thomas, 193 Iowa 1004, at page 1021, 188 N.W. 689, 696: 'If, however, it clearly appears from the record that the alleged confession was not freely and voluntarily made, or if the state, by its own evidence, negatives these essentials to its use in evidence, it is the duty of the court to sustain the objection and refuse its submission to the jury.'

This rule was approved in State v. Harding, 204 Iowa 1135, 216 N.W. 642 and State v. Johnson, supra. The argument of defendant is that from this record it 'clearly appears' the confession was not voluntarily made. But the only dispute or conflict in the evidence on the question of the voluntary character of the exhibit is that made by the testimony of the defendant as a witness. When he took the stand he testified he was beaten and struck by the officers frequently during the questioning the night he was arrested. He said the officers struck him with their fists on his face and head time and time again and threatened him in order to make him confess. He said the officers' blows did not mark him up any and there is nothing in the record that he ever complained to his brother or wife that he had been beaten. Mrs. Taggart, testifying for the state in rebuttal, said defendant's wife and brother were present during the taking of the questions and answers in Exhibit 'H'. Neither of them were called as a witness. Before making the confession he asked to see Buck Johnson, a Negro, described as a sort of 'father confessor' to colored people in Sioux City. The officers brought Buck Johnson to the station on January 22nd and the state put him on the stand in rebuttal and he testified as to seeing the defendant and talking to him in the police station. He testified:

'Well, as far as I can remember he say he trial her from Thompson's Drug Shop up to Myrtle Street, when he gets up there he claim that he grab her and put his left hand--place his left hand over her eyes and the knife in her side and tell her if she holler he would kill her.

'Q. Did he say what happened after that? A. Well, he admit to what he did.

'Q. I see. And did he tell you exactly what he did or did he just say, 'I did it?' A. No, I was sitting there listening at him, yes, I was sitting right there listening at him.

'Q. Did he go ahead and--A. What?

'Q. Did he go ahead and state what the things were he did? A. Yes, he explained what he did.

'Q. And do you want to repeat that to the jury, what it was, he said he did? A. I wouldn't care--I don't care...

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