State v. Wallace

• Decision Date: 18 September 1991
• Docket Number: No. 90-682,90-682
• Citation: 475 N.W.2d 197
• Parties: STATE of Iowa, Appellee, v. John William WALLACE, Appellant.
• Court: Iowa Supreme Court

Page 197

475 N.W.2d 197

STATE of Iowa, Appellee, v. John William WALLACE, Appellant.

No. 90-682.

Supreme Court of Iowa.

Sept. 18, 1991.

Linda Del Gallo, State Appellate Defender, and Shari Barron, Asst. State Appellate Defender, for appellant.

Bonnie J. Campbell, Atty. Gen., Thomas S. Tauber, Asst. Atty. Gen., John Sarcone, County Atty., and Daniel Voogt, Asst. County Atty., for appellee.

Considered by McGIVERIN, C.J., and LARSON, LAVORATO, SNELL, and ANDREASEN, JJ.

LAVORATO, Justice.

John William Wallace was charged with the crime of willful injury. See Iowa Code § 708.4 (1989). Before the district court submitted the case to the jury, Wallace attempted to waive all lesser-included offenses. After an extended colloquy with Wallace, the court refused to accept the attempted waiver. The court was not convinced that Wallace had made a knowing, intelligent, and voluntary waiver. The court then submitted three lesser-included offenses, and the jury convicted Wallace of one: assault with intent to inflict serious injury. See Iowa Code §§ 708.1, 708.2(1). Wallace contends the district court's refusal to accept his attempted waiver was error. We agree and reverse and remand with directions to dismiss.

In October 1989 Brian Mainers sold Wallace a car. Several days later Mainers went to Wallace's home where, after some discussion, the two began fighting. Wallace wanted his money back because he had discovered the car had rust in its underbody. One thing led to another, and before long the two were trading punches on the front lawn.

A neighbor joined in the fracas, apparently to help Wallace. While the three were fighting, Mainers was hit in the head with a brick. Mainers suffered a skull fracture from the blow.

Wallace claimed the neighbor threw the brick; Mainers claimed Wallace threw it. By the time the police were called in to investigate the claims, the neighbor had disappeared.

The State charged Wallace with willful injury. At trial Wallace's defense, of course, was that the neighbor, not he, had thrown the brick.

After both sides rested, the court gave the parties a set of proposed jury instructions. The instructions were informally discussed off the record. During this discussion Wallace's counsel advised the court that Wallace wanted to waive all lesser-included offenses and have the case submitted solely on the willful injury charge. Wallace's counsel and the court questioned Wallace in detail on the record attempting to insure that Wallace understood what he was doing.

Following a private discussion with his counsel and his woman friend, Wallace was steadfast in his decision to waive the lesser-included offenses. The prosecutor made his record on the attempted waiver and stated he had no objections to it.

The court then ruled it would give the lesser-included offenses. The court was convinced that Wallace did not fully understand his rights. The court was also convinced that Wallace did not have a full understanding of what the consequences might be.

Wallace's counsel objected to the ruling, the court submitted the lesser-included offenses, and the jury found Wallace guilty of the lesser-included offense of assault with intent to inflict serious injury. See Iowa R.Crim.P. 21(3) (allows jury to find the defendant guilty of "any offense the commission of which is necessarily included in that with which the defendant is charged"). The court later sentenced Wallace to an indeterminate sentence of two years. See Iowa Code § 903.1(2).

Wallace appeals, contending the district court's action in submitting the lesser-included offenses was error. He argues a waiver of such offenses need not be knowing, intelligent, and voluntary to be effective because the lessers' submission does not involve a fundamental right. In any event, Wallace is convinced his waiver did meet these three conditions.

The State apparently agrees with Wallace that no fundamental right is involved. The State feels that the issue is important and likely to recur so it wants us to resolve it. We agree the issue is important so we address it.

Our review is on error. Iowa R.App.P. 4; State v. Johnson, 328 N.W.2d 918, 919 (Iowa 1983).

Iowa Rule of Criminal Procedure 6(3) requires the district court to instruct the jury on all lesser-included offenses. But if the State consents, the defendant can waive the submission of such offenses. State v. Greer, 439 N.W.2d 198, 200 (Iowa 1989).

The State thinks the question we face is this: What quality of waiver suffices to relieve the district court of its duty to instruct on lesser-included offenses? The State suggests the quality of the waiver is proportional to the nature of the right waived. We agree in both instances.

The United States Supreme Court has defined waiver:

A waiver is ordinarily an intentional relinquishment ... of a known right or privilege. The determination of whether there has been an intelligent waiver of [that] right ... must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.

Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938).

Courts have set high standards of proof for the waiver of fundamental rights. Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694, 724, reh'g denied, 385 U.S. 890, 87 S.Ct. 11, 17 L.Ed.2d 121 (1966). Fundamental rights are those which have their origin in the express terms of the United States Constitution or which are necessarily to be implied from those terms. See San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 33-34, 93 S.Ct. 1278, 1297, 36 L.Ed.2d 16, 43, reh'g denied, 411 U.S. 959, 93 S.Ct. 1919, 36 L.Ed.2d 418 (1973). Courts indulge every reasonable presumption against a waiver of such rights. And courts do not presume acquiescence in the loss of fundamental rights. Johnson, 304 U.S. at 464, 58 S.Ct. at 1023, 82 L.Ed. at 1466. Because of the importance of fundamental rights, the State must prove the waiver of such rights was knowingly, intelligently, and voluntarily given. State v. Whitsel, 339 N.W.2d 149, 152 (Iowa 1983). Whether the waiver is knowingly, intelligently, and voluntarily given is a factual rather than a legal determination. Id.

In sum, courts have recognized the need to look upon waivers of fundamental rights with skepticism. It is clear through the language of the cited cases that fundamental rights shall not be readily uprooted without a knowing, intelligent, and voluntary waiver.

In capital cases, a state may not prohibit lesser-included offenses. Beck v. Alabama, 447 U.S. 625, 637-38, 100 S.Ct. 2382, 2389-90, 65 L.Ed.2d 392, 402-03 (1980) (invalidating statute prohibiting trial court from instructing on lesser-included offenses in capital cases). Such a prohibition is a violation of due process. Id. In Beck, the Supreme Court stopped short of extending the holding to noncapital cases. Id. at 638 n. 14, 100 S.Ct. at 2390, 65 L.Ed.2d at 403.

The Supreme Court cited a "significant constitutional difference between the death penalty and lesser punishments." Id. at 637, 100 S.Ct. at 2389, 65 L.Ed.2d at 403. The Court reasoned that

[w]hen the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense--but leaves some doubt with respect to an element that would justify conviction of a capital offense--the failure to give the jury the "third option" [the other two options being conviction of the highest offense or acquittal] of convicting on a lesser-included offense would seem inevitably to enhance the risk of an unwarranted conviction.

Id., 100 S.Ct. at 2389, 65 L.Ed.2d at 402-03. Without the "third option," a jury might convict believing the defendant had committed some serious crime deserving of punishment. Or it might acquit to avoid the ultimate sanction of death. These possibilities, the Court held, "introduce[ ] a level of uncertainty and unreliability into the fact finding process that cannot be tolerated in a capital case." Id. at 643, 100 S.Ct. at 2392, 65 L.Ed.2d at 406.

A few courts have faced the question whether the right to a jury instruction on lesser-included offenses is a fundamental one in the context of noncapital cases. All have held that it is not. Look v. Amaral, 725 F.2d 4, 8-9 (1st Cir.1984) (counsel's waiver on record held sufficient); State v. Whistnant, 179 Conn. 576, 583, 427 A.2d 414, 418 (1980) (no fundamental right to jury instruction on every lesser-included offense supported by evidence or indictment; defendant must preserve error by requesting the instruction); Jones v. State, 484 So.2d 577, 578-79 (Fla.1986) (counsel's waiver on record held sufficient); see also, 23A C.J.S. Criminal Law § 1357, at 271 (1989).

Florida has a death penalty. Relying in part on Beck, the Florida supreme court has held that a capital defendant, as a matter of due process, is entitled to have the jury instructed on all necessary included offenses. The court found that the right could be waived. But the waiver must be a personal, knowing, and intelligent one and on the record. Harris v. State, 438 So.2d 787, 797 (Fla.1983), cert. denied, 466 U.S. 963, 104 S.Ct. 2181, 80 L.Ed.2d 563 (1984) (record was sufficient to show valid waiver by defendant). The three conditions arose out of the court's belief that the right to lesser-included offenses is integral to due process in the capital context. Id. at 796-97.

In Jones, however, the Florida supreme court refused to extend its holding in Harris to noncapital offenses. In refusing to do so, the court said:

While we acknowledged in Harris the fundamentality of the right to [lesser-included] instructions to due process in the capital context, we here decline to apply that case's requirement of an express personal waiver outside of the context in which it was found necessary. As petitioner himself suggests, due process is not a technical conception of...