State v. Whitsel

• Decision Date: 19 October 1983
• Docket Number: No. 68637,68637
• Citation: 339 N.W.2d 149
• Court: Iowa Supreme Court
• Parties: STATE of Iowa, Appellee, v. Jess Ellsworth WHITSEL, Appellant.

Page 149

339 N.W.2d 149

STATE of Iowa, Appellee, v. Jess Ellsworth WHITSEL, Appellant.

No. 68637.

Supreme Court of Iowa.

Oct. 19, 1983.

Henry M. Keyes of Keyes, Bennett & Kucera, Cedar Rapids, for appellant.

Thomas J. Miller, Atty. Gen., Mary Jane Blink, Asst. Atty. Gen., and Jane Spande, Asst. County Atty., for appellee.

Considered by REYNOLDSON, C.J., and McCORMICK, McGIVERIN, CARTER and WOLLE, JJ.

McGIVERIN, Justice.

On appeal from his conviction of kidnapping in the first degree in violation of Iowa Code sections 710.1-.2 (1981), defendant asserts the trial court erred in: (1) Overruling his motion to suppress incriminating statements made by defendant; (2) denying his requested jury instruction that an unfavorable inference be drawn from the State's failure to introduce certain evidence; and (3) overruling defendant's motion for new trial and motion in arrest of judgment which were premised on allegations of prosecutorial misconduct and newly discovered evidence. Additionally, defendant contends he was denied effective assistance of trial counsel. Finding no reversible error, we affirm the conviction.

Jess Whitsel was arrested on November 24, 1981, and charged by information with first-degree kidnapping, Iowa Code sections 710.1-.2, and second-degree sexual abuse, Iowa Code sections 709.1, .3, on the basis of the sexual abuse and abduction of a young woman on October 2, 1981. Whitsel was found guilty on both counts by a jury but was convicted and sentenced only on the first-degree kidnapping charge because second-degree sexual abuse is a lesser included offense of first-degree kidnapping. See State v. Whitfield, 315 N.W.2d 753, 755 (Iowa 1982).

While walking home on a Cedar Rapids street shortly after midnight, during the early morning hours of October 2, 1981, the victim was attacked and subjected to sexual abuse and then taken by pickup truck to a secluded area, a considerable distance away, where she was again sexually abused.

On the basis of information supplied by defendant's wife, defendant was arrested on November 24, 1981, by Marion police. Defendant was detained at the Marion police station for about thirty minutes. No interrogation occurred at the police station and defendant made no incriminating statements. Defendant did request that he be allowed to talk to his wife. A call was placed to his wife but she could not be reached at her residence.

The defendant was then transported to the Linn County sheriff's office. There, defendant was advised of his Miranda rights. He read a waiver of rights form, expressed his understanding of his rights and signed the waiver. Whitsel was then questioned, during which time he made an inculpatory statement detailing the abduction and sexual abuse of the young woman involved here, as well as other victims.

On November 24, the State seized a piece of carpet from the bed of Whitsel's impounded pickup truck and sent it for analysis to the Divison of Criminal Investigation for the State of Iowa (D.C.I.).

On December 4, 1981, defendant filed a motion for discovery seeking to "review police reports and evidence in the possession of the County Attorney."

On January 25, 1982, defendant filed a motion to suppress his confession on grounds that he did not voluntarily, knowingly and intelligently waive his Miranda rights and that his confession was not voluntary. After an evidentiary hearing, the trial court denied defendant's motion to suppress and his statement was later admitted into evidence at trial.

On January 26, the D.C.I. sent its lab report to the county attorney. A copy promptly was forwarded to defense counsel. The report stated that the tests did not show the presence of semen, blood or pubic hairs on the carpet from defendant's truck bed.

During trial, defendant timely requested that the court instruct the jury that it could draw unfavorable inferences against the State's case from its failure to produce certain evidence at trial. Defendant's request was denied.

After the guilty verdict, but prior to sentencing, new counsel was appointed for the defendant. Defendant filed a motion for new trial and in arrest of judgment, as amended, which was overruled after a hearing. Defendant was sentenced and then appealed.

I. Motion to suppress. Defendant contends that the court erred in overruling his motion to suppress the typewritten and signed inculpatory statement he gave to law enforcement officers while in custody. He argues that the statement was taken in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that it was not voluntary.

The adverse ruling on defendant's pretrial suppression motion preserved error for our review. State v. Hilpipre, 242 N.W.2d 306, 309 (Iowa 1976).

The basic issues are whether the State proved by a preponderance of the evidence that the statement received was made by defendant after an effective waiver of his Miranda rights and whether such statement was voluntary. These are separate issues. State v. Hodges, 326 N.W.2d 345, 347 (Iowa 1982).

Because defendant is asserting a violation of basic constitutional safeguards, our scope of review is de novo whereby we will make an independent evaluation of the totality of the circumstances. Id.

A. Waiver of Miranda rights. It is well settled that an individual may legally waive his or her constitutional rights. State v. Hilpipre, 242 N.W.2d at 309. However, the State must prove by a preponderance of the evidence that such waiver was knowingly, voluntarily and intelligently given. Id. We have previously stated that:

An express written waiver "is usually strong proof of the validity of that waiver." It is not sufficient alone, however, to establish waiver; we must find from the facts and circumstances that the waiver was voluntarily, knowingly and intelligently made.

Fryer v. State, 325 N.W.2d 400, 409 (Iowa 1982) (emphasis added) (citations omitted).

The record reveals that Whitsel was arrested at about noon on November 24, 1981, by the Marion police. Whitsel was detained at the Marion police station for approximately thirty minutes and then released into the custody of the Linn County sheriff's office.

At the sheriff's office, Whitsel was taken to an interview room to be questioned by two detectives. Prior to questioning, the detectives advised Whitsel of his Miranda rights and obtained Whitsel's signature on a Waiver of Rights form. Whitsel subsequently stated, "Do you think I need an attorney?" The detectives replied that they could not advise him on that question. Whitsel was then handed a phone book and permitted to look through the "yellow pages" for a lawyer. Whitsel looked at the phone book for a couple of minutes, then set it down on a desk and said, "I guess I don't want to talk to an attorney." Whitsel, thereafter, did not request to talk to an attorney at any time during the questioning. Miranda provides that:

If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease .... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.

384 U.S. at 473-474, 86 S.Ct. at 1627-1628, 16 L.Ed.2d at 723. Accord State v. Moon, 183 N.W.2d 644, 649 (Iowa 1971).

Whitsel argues that his general reluctance to answer questions should be viewed as an implied request to (1) remain silent, and (2) talk to an attorney. Whitsel also argues that his inquiry about whether he needed an attorney was actually a request for an attorney. Under both arguments, he concludes that his incriminating statement, made subsequent to his written waiver of rights, was not constitutionally admissible into evidence because questioning should have been stopped after he allegedly made an implicit invocation of his rights.

We find that Whitsel's actions and expressions were not a sufficient indication of a desire to exercise his rights under Miranda. Whitsel at no time expressed his desire to remain silent. He expressed a general reluctance at times to answer questions which is a natural reticent posture taken by one being questioned. However, the record does not reveal a single instance of Whitsel indicating in any manner at any time that he wished to remain silent or have the services of an attorney. In fact, Whitsel expressly stated that he did not want to talk to an attorney after he had been given an opportunity to call a lawyer.

Furthermore, Whitsel's argument that his inquiry concerning the need for an attorney should be viewed as a request for an attorney has no merit. We have previously held that a defendant's inquiry as to the advisability of having an attorney present during questioning is not a sufficient statement to request counsel. State v. Johnson, 318 N.W.2d 417, 430 (Iowa 1982).

Under the totality of the circumstances, which include Whitsel's express written waiver of rights and subsequent statement that he did not want to talk to an attorney, we find that the State satisfied its burden of proving that Whitsel did voluntarily, knowingly and intelligently waive his Miranda rights.

B. Voluntariness of the statement. The issue concerning the voluntariness of Whitsel's inculpatory statement was recently addressed by this court in State v. Hodges, 326 N.W.2d at 347. We stated:

In order to establish the voluntariness of a defendant's inculpatory statements, the State must demonstrate from the totality of circumstances that the statements were the product of an essentially free and unconstrained choice, made by the defendant at a time when his will was not overborne nor his capacity for self-determination critically impaired. State v. Cullison, 227 N.W.2d 121, 127 (Iowa 1975).

Id. (emphasis added).

This standard essentially addresses the extent to which defendant's statements are affected by the use of coercion by law enforcement officers. We continued to say that:

[T]he issue of...