State v. Johnston

406 N.W.2d 794, 1987 Iowa App. LEXIS 1554

• Court: Court of Appeals of Iowa
• Decided: March 31, 1987
• Docket: No. 85-1352
• Status: Published

Opinions

SACKETT, Judge.

Defendant Monte L. Johnston appeals from his conviction, after a jury trial, of robbery in the first-degree in violation of Iowa Code §§ 711.1 and 711.2 (1985). Defendant contends the trial court erred in overruling his motion to suppress certain inculpatory statements he made while in police custody after his arrest. Defendant argues the statements were obtained in violation of his fifth, sixth and fourteenth amendment rights. We agree and reverse and remand for a new trial.

At approximately 2:35 a.m., March 6, 1985, Kelly Page robbed a Des Moines convenience store with a handgun. Page fled from the scene in a vehicle driven by defendant. A Des Moines police officer was parked across the street during the robbery. When the officer gave chase Page and defendant abandoned the vehicle and fled on foot. The police apprehended Page a short distance from the vehicle but were unable to locate defendant.

Defendant testified later that as he was running from the police a dog bit him on the hand. Defendant testified he hid for several hours. Later that morning, a cab driver picked up defendant and drove him to a southside residence. Later that same day police received information defendant could be located at the southside residence.

The county attorney’s office filed a preliminary complaint before a magistrate accusing defendant of first-degree robbery. The magistrate issued a warrant for defendant’s arrest based on this complaint and accompanying affidavits. Defendant was arrested and read his Miranda rights. There is conflicting evidence about whether defendant requested at that time to talk with his attorney. Officers then discovered defendant had been bitten and transported him to Broadlawns Medical Center for treatment.

While at the hospital, where he was guarded by two police officers outside his room, defendant was questioned about the dog bite by an animal control officer employed by the Des Moines Police Department. During the course of the questioning, the animal control officer asked defendant what he was doing at the time he was bitten. Defendant replied that he had been involved in a robbery and had been bitten while attempting to elude the police.

Defendant filed a motion to suppress these statements. After a hearing, the trial court overruled defendant’s motion. At trial, the animal control officer testified as to these statements. Defendant testified he did not know Page intended to commit a robbery. The jury returned a verdict finding defendant guilty as charged. This appeal followed.

I.

Because we are confronted with an alleged constitutional violation, we resolve the issue by making our own independent evaluation of the totality of the circumstances. State v. Conger, 375 N.W.2d 278, 279 (Iowa App.1985); State v. Losee, 353 N.W.2d 876, 878 (Iowa App.1984). Our review is de novo. State v. Hillesheim, 291 N.W.2d 314, 316 (Iowa 1980). In determining whether the district court erred in overruling the motion to suppress we may consider not only evidence adduced in the motion to suppress but also later trial testimony. State v. Donnell, 239 N.W.2d 575, 578 (Iowa 1976).

II.

This appeal presents questions of waiver of both defendant’s fifth and sixth amendment rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). We find it necessary to address only the question of waiver of defendant’s sixth amendment right to counsel. State v. Jackson, 380 N.W.2d 420, 421 (Iowa 1986).

The Sixth amendment provides: “In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.” U.S. Const. Amend. VI, Iowa Const. Art. I. § 10. This guarantee maintains the fair administration of the criminal justice system by assuring aid to the defendant when confronted by the government adversary. Moran v. Burbine, 475 U.S. 412, -, 106 S.Ct. 1135, 1146, 89 L.Ed.2d 410, 427 (1986); State v. Nelsen, 390 N.W.2d 589, 591 (Iowa 1986).

In resolving the issue of whether defendant’s incriminating statements were obtained in violation of his constitutional rights, two questions must be answered:

(1) Whether the right to counsel had attached at the time the statements were made, and

(2) If so, whether the defendant had effectively waived that right.

Jackson, 380 N.W.2d at 421; State v. Johnson, 318 N.W.2d 417, 432 (Iowa), cert. denied, 459 U.S. 848, 103 S.Ct. 106, 74 L.Ed.2d 95 (1982).

A. Attachment of the right to counsel. In Johnson, the Iowa Supreme Court held an individual’s right to counsel attaches at the time that “adversary judicial criminal proceedings” are initiated against the person, “whether by way of formal charge, arraignment, preliminary hearing, information, or indictment.” Johnson, 318 N.W.2d at 432.

In Iowa, the commencement of criminal proceedings by the government is statutorily defined. Nelsen, 390 N.W.2d at 591, Jackson, 380 N.W.2d at 423. Iowa Code § 804.1 (1985) provides a criminal proceeding is commenced “by the filing of a complaint before a magistrate.” In Johnson, the court held defendant’s sixth amendment right to counsel attached upon the county attorney’s filing of a complaint and procuring of a warrant, followed by the arrest of the defendant. Johnson, 318 N.W.2d at 434-35. The supreme court followed the Johnson reasoning in Jackson:

[T]he filing of a complaint and procuring of a warrant will constitute a formal charge against the defendant for purposes of the sixth amendment when the circumstances show a State commitment at that time to prosecute the individual.

Jackson, 380 N.W.2d at 423 (emphasis added). See Nelsen, 390 N.W.2d at 591-92. In Johnson, the court found the county attorney’s filing of a complaint requesting issuance of arrest warrant to be significant level of prosecutional involvement and was a sufficient showing the state had solidified in a position adverse to defendant. Johnson, 318 N.W.2d at 435.

In the instant case, we find there was a showing of the state’s commitment to prosecute the defendant. See Nelsen, 390 N.W.2d at 592; Johnson, 318 N.W.2d at 434-35. The county attorney filed a preliminary complaint on the basis of a report filed by the officer who had arrested Page. A magistrate made a probable cause determination, approved the prosecutor’s complaint and issued a warrant for defendant’s arrest. See Nelsen, 390 N.W.2d at 592. Defendant had been arrested and read his Miranda rights. In our de novo review we find a state commitment to prosecute the defendant. We hold defendant’s sixth amendment right to counsel had attached prior to his questioning by the animal control officer which resulted in the incriminating statements.

B. Waiver of the Right to Counsel. Once the defendant’s right to counsel attaches “the state must sustain a heavy burden to prove” an intentional relinquishment or abandonment of a known right or privilege. Nelsen, 390 N.W.2d at 592 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938)). See Jackson, 380 N.W.2d at 424; Johnson, 318 N.W.2d at 435. In order to demonstrate waiver, the state must prove by a preponderance of the evidence:

1. The defendant understood his or her right to counsel, and

2. The defendant intentionally relinquished it.

Brewer, 430 U.S. at 404, 97 S.Ct. at 1242, 51 L.Ed.2d at 439, Nelsen, 390 N.W.2d at 592, Jackson, 380 N.W.2d at 424.

Defendant’s right to counsel is not dependent upon his or her request or assertion of the right. Michigan v. Jackson, - U.S. -, - n. 6, 106 S.Ct. 1404, 1409 n. 6, 89 L.Ed.2d 631, 640 n. 6 (1986); Nelsen, 390 N.W.2d at 592. In addition, where the right to counsel has accrued, a valid waiver of counsel rights should not be inferred from the mere response by the defendant to overt or more subtle forms of interrogation or other efforts to elicit incriminating information. Jackson, — U.S. at - n. 9, 106 S.Ct. at 1410 n. 9, 89 L.Ed.2d at 642 n. 9. Instead, the sixth amendment imposes an affirmative obligation on the state separate and distinct from the fifth amendment. Maine v. Moulton, 474 U.S. 159, -, 106 S.Ct. 477, 487, 88 L.Ed.2d 481, 496 (1985); United States v. Henry, 447 U.S. 264, 274, 100 S.Ct. 2183, 2189, 65 L.Ed.2d 115, 125 (1980). Once the right to counsel has attached the state must refrain from creating a situation likely to induce the defendant to make incriminating statements without the assistance of counsel. Moulton, 474 U.S. at -, 106 S.Ct. at 487, 88 L.Ed.2d at 496; Henry, 447 U.S. at 274, 100 S.Ct. at 2189, 65 L.Ed.2d at 125. We indulge in every reasonable presumption against waiver. Nelsen, 390 N.W.2d at 592.

We are unable to say, based on our independent evaluation of the record, that the state met its heavy burden to prove waiver by the defendant of his right to counsel. No one fact is controlling, however, taken together they compel this conclusion. See Jackson, 380 N.W.2d at 424.

The animal control officer who questioned the defendant was employed by the Des Moines Police Department. The officer was wearing a uniform which had a police department identification patch on it. In addition, the officer held himself out in an authority role. When the officer first entered the hospital room he told to defendant he was an animal control officer with the police department and he was there to get information for a report required by the city. As such, we find the instant case analogous to Nelsen, where the defendant’s probation contract required her to meet with and be truthful to her probation officer. Nelsen, 390 N.W.2d at 593. There the court determined the trial court should have suppressed defendant’s incriminating statements obtained in violation of her right to counsel. Id.

The record in the instant case also shows defendant did not initiate conversation with the officer nor volunteer any information. Defendant’s incriminating statements were in response to direct questioning by the officer. The state argues the officer’s questioning of defendant did not amount to the kind of “interrogation” which Miranda seeks to prohibit. The state argues the animal control officer was only obtaining basic or “incidental identifying information” from defendant and not conducting “questioning designed to investigate crimes.” State v. Beatty, 305 N.W.2d 496, 498-99 (Iowa 1981) (quoting United States ex rel. Hines v. LaVallee, 521 F.2d 1109, 1112-13 (2nd Cir.1975), cert. denied, 423 U.S. 1090, 96 S.Ct. 884, 47 L.Ed.2d 101 (1976)). However, we determine the officer’s questioning of defendant regarding what defendant was doing when he was bitten was more than mere identification information necessary or relevant in locating the animal in question. Moreover, the animal control officer admitted at both the suppression hearing and at trial that he did not follow the standard question format when questioning the defendant. The officer admitted he did not have with him the standard question format. In addition, the officer testified that although there is a specific form for dogbite reports he jumped around rather than following the form exactly.

The question which elicited the incriminating statements was not the first one the officer asked resulting in a free-flow conversation by defendant. See Nelsen, 390 N.W.2d at 593 (“That the discussion did not take place in a strict question-and-answer format is not controlling”). Rather, the defendant was responding to a series of questions which the officer had stated were required by the city for the report. We find this questioning amounts to the level of interrogation which the guarantees of the sixth amendment are intended to protect. Thus, we find Johnson is distinguishable from the instant case. In Johnson, the court upheld the trial court’s denial of a motion to suppress because defendant had initiated conversation and volunteered the incriminating information in a free-flow conversation as opposed to an interrogation format. Johnson, 318 N.W.2d at 436.

Finally, the animal control officer knew the defendant was under arrest. The officer testified when he arrived at the hospital to question the defendant he assumed the defendant was in custody because he saw two police officers standing guard outside defendant’s room. In addition, the police officers themselves knew the animal control officer was going to question the defendant and a waiver of right of counsel had not yet been obtained. The record does not show defendant was given the opportunity to talk with his attorney or was aware of any danger resulting from interrogation in the absence of counsel. Rather, the record shows the police officers did not warn defendant about the implications of questioning by the animal control officer and allowed the officer to proceed without regard to defendant’s actual understanding of his Miranda rights. See Jackson, 380 N.W.2d at 424.

At the same time the police officers and the animal control officer took no precautions to protect the privacy of defendant’s meeting with the animal control officer. The door to defendant’s hospital room was open when the animal control officer questioned him. Both police officers were standing just outside the room where defendant’s responses to questions could likely be overheard.

Under this particular set of facts, we find the animal control officer was “allied ... with his fellow peace officers.” See Nelsen, 390 N.W.2d at 593 (quoting Fare v. Michael C., 442 U.S. 707, 720, 99 S.Ct. 2560, 2569, 61 L.Ed. 197, 209 (1979)). Indulging every presumption against waiver, we determine the state has not met its burden of proving an effective waiver by defendant of his right to counsel before he made incriminating statements. The trial court erred in overruling his motion to suppress. Because the statements he made to the animal control officer should not have been used against the defendant, we reverse the judgment and remand for a new trial.

REVERSED AND REMANDED.

All Judges concur except DONIELSON, J., who dissents.