Petition — McGhee v. Iowa
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IN THE SUPREME COURT OP THE UNITED STATES
October Term, 1979
No, 79-766
CURTIS WILLIAM MC GHEE, JR.,
Petitioner,
Ve
STATE OF IOWA,
Respondent,
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE
STATE OF IOWA
ALFREDO G. PARRISH
906 Savings & Loan Bldg.
Des Moines, IA 50309
515-244-5737
ATTORNEY POR PETITIONFR
INDEX
Page
Opinions Below. . . « « © «© »« «© «© « 2
Jurisdietion. . e . © . o 7 . ° . . 2
Questions Presented . . « « «© « « « 2
Statutes Rules and Regulations 3
Beatement . - «© «© «© «© «© « « « 3
Reasons for Granting the Writ 7
Ll. Whether petitioner's Fifth
Amendment right to silence
was violated when an incrim-
imating statement was taken
from him during custodial
interrogation without the
police having first advised
him of his right to termin-
ate questioning at any time?. 7
2. Whether a minor in custody
has the right to a speedy
trial which attaches when a
judicial determination is
made that probable cause
exists to believe he has
committed an offense? .... 14
Conclusion. e a e . 7 es a e ° a ° * be
Appendix A. . . « © «© © «© © « « » -App.A-l
Appendix - ° e . . . « e . 7 . . -App.B-l
afis
CITATIONS
Cases
Bergman v. Nelson, 241 N.W.
oe 29) €2Rs 2078) sk es
Commonwealth v. Alston, 456
Pa. 128, 317 A.2d 241
(Se T SN. 6 oS A ee ee
Commonwealth v. Lewis, 371
N.E.2d 775 (Mass. 1978) .
Crafton v. State, 545 S.W.2d
437 (Tenn. App. 1976) ..
Dickey v. Florida, 398 U.S.
we UAB TOrs S K
Flannigan v. State, 289 Ala.
177, 266 So.2d 643 (1972)
Green v. State, 45 Ala. App.
549, 233 So.2d 243 (1976)
In Re Gault, 387 U.S. 1 (1967)
In Re Interest of Johnson, 257
N.W.2d 47 (Ia. 1977)...
Page
16
10
10
20
17
6 Ne ne ELE
-iii-
In Re Winship, 397 U.S. 358
[Ae 7e bes 8 SS 8 Se
Katzensky v. State, 228 Ga.6,
183 S.E.2d 749 (1971) ...
Klopfer v. North Carolina, 386
ete Baa (20GTIis & ee * 8
Mack v. State, 348 So.2d 524
(Ada, Chim« AMO. ISTI)« « 5
Micale v. State, 76 Wis. 2d
370, 251 N.W.2d 458 (1977).
Michigan v. Mosley, 423 U.S.
we faeeey 4 «a « & eS es
Miranda v. Arizona, 384 U.S.
MSO (190G)% «© 5 6+ © & © & *
Mock v. Rose, 472 F.2d 619
(6tn Circ. 2972), cert.
denied 411 U.S. 971 (1973).
People v. Hooper, 50 Mich. .
App. 186, 212 N.W.2d 786
Lares 6 oe Ge we ee ce
~15,20
1l
sip
Page
—Sg° State v. Lucero, 15l Mont.
People v. Swift, 300 N.Y.S.
931, 445 P.2d 731 (1968). .... 8
N.Y.A . D ce
2d 639 ) Ppp ep State v. Maluia, 56 Haw.
1963) 7 — . — o * — _ a — a * —_ . 5
ri 428, 539 P.24 1200 (1975) .... 8
People v. Washington, 115 Ill.
State v. Mays, 204 N.W.2d
.2d 318, 253 N.E.2d 677
APP 7 a ee,
l 69 2 * oo o _ ° 7 o . J - _ e o il
hates State v. McGhee, 280 N.W.2d
Ponzi v. Fessenden, 258 U.S.
Rees Ree ARN) wk we ee we wl le KO
294 NiSZ2) sss eee ee eee eee
State v. Parker, 44 Ohio
State v. Bledoe, 200 N.W.2d
St.2d 172, 339 N.E.2d 648
2 . ta. o oo eee
a Se tl gl a cr en
State v. Carlton, 83 N.M. 644,
scate v. Riddick, 291 N.C.
P.26 i098 (23972) 6 sa ku sO
vast , 399, 230 S.E. 2d 506
State v. Cobbs, 164 Conn.
nee Se a os fe ee ee ee
402, 324 A.2d 234, cert.
State v. Sherwood, 139 N.J.
denied, 414 U.S. 861
Supec, 201i, 353 A.2d 137
SZ} a 6s = oe Se eee eee eee
pose Se ae ee a a ee eK we ws EO
State v. Harbaugh, 132 Vt.
United States v. Anderson,
569, 326 A.2¢ 92) €1974). . . 2 cae
; ( 401 F.Supp. 996 (N.D.
State v. Harper, 465 S.W.
SREP. 5 6 & % « we é em at 9
eq 347 (Me. I97]) «sae 6 eee
-vi-
United States v. Di Giacomo,
579 F.2d 112
1978) . « -»
Statutes
Section 795.1,
ZeTts © 6%
(10tn Cir.
Code of Iowa,
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1979
No.
CURTIS WILLIAM MC GHEE, JR.,
Petitioner,
vw
re
STATE OF IOWA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE
STATE OF IOWA
To the Honorable Chief Justice
and Associate Justices of the Supreme
Court of the United States:
Curtis William Mc Ghee, Jr., peti-
tioner herein, prays that a Writ of
Certiorari issue to review the judgment
of the Supreme Court of the State of Iowa
entered in the above case, on June 27,
1979, rehearing denied July 20, 1979.
-2-
OPINIONS BELOW
The opinion of the Supreme Court of
Iowa is reported in 280 N.W.2d 436 (Iowa
1979) and is also contained in Appendix A
hereto, infra, App.A-l. The judgment of
the Iowa District Court for Pottawattamie
County, Iowa, is not printed. Petitioner
was tried in the Iowa District Court by a
jury and convicted and there is no
opinion of that court.
JURISDICTION
The judgment of the Iowa Supreme
Court (Appendix A) was entered on June
27, 1979, rehearing was denied July 20,
1979. The jurisdiction of the Supreme
Court is invoked uinder the provisions of
Title 28 U.S.C. Section 1257(3).
QUESTIONS PRESENTED
ae Whether petitioner's Fifth
Amendment right to silence was violated
when an incriminating statement was taken
-3-
from him during custodial interrogation
without the police having first advised
him of his right to terminate quest#oning
at any t ime?
2 Whether a minor in custody has
the right to a speedy trial which attaches
when a judicial determination is made
that probable cause exists to beleive he
has committed an offense?
CONSTITUTIONAL AND STATUTORY
PROVISIONS
The pertinent portions of the
United States Constitution, United States
Code, Code of Iowa and Supreme Court
Rules are set forth in Appendix B at
Page App. B-2.
STATEMENT
This case arises from the conviction
of Curtis McGhee, Jr. of the crime of
Murder in the First Degree in violation
-4-
of Sections 690.1 and 690.2, Code of
Iowa, 1977. Curtis Mc Ghee, who was 17
years old at the time of the commission
of the offense, and two companions
entered the lot of an auto dealership in
Council Bluffs, Iowa on the night of July
21, 1977, intending to steal acar. One
of the —— (not the petitioner) was
carrying a shotgun. The following morning
a security guard at the dealership was
found dead of a single shotgun wound.
Curtis Mc Ghee was in custody on
September 7, 1977 when he was interro-
gated by a police officer for the City of
Omaha, Nebraska. Before interrogation,
Curtis McGhee was told by the officer
that he had a right to remain silent,
that anything you say can and will be
used against you in Court, you have a
right to consult with a lawyer and have
the lawyer with you during the question-
-5-
ing, and if you can't afford the lawyer,
the Court will appoint one to represent
you. Mc Ghee was asked if he fully
understood that. And after he. replied
"ves", he indicated he was willing to
make a statement.
Mc Ghee was then asked questions
about the events leading up to the July
homicide. When he was asked about the
victim, Mc Ghee said that he wanted to
return to his cell and think about it.
About three hours later Mc Ghee was
advised of the same rights and interro-
gated again. During this second interro-
gation Mc Ghee made incriminating state-
ments which were subsequently used at his
trial over defense objections on the
ground that at no time had Curtis Mc Ghee
been informed that he had the right to
terminate the interrogations at any
time.
ee Ere e-em nee
-6-
After the interrogations Curtis Mc
Ghee was released from custody, but was
taken into custody again on December 27,
1977, on suspicion of murder. On December
23, 1977 the cause was transferred to
juvenile court, as Mc Ghee was only 17
years old at that time. On that same date
was filed a Petition of Delinquency
against Mc Ghee. On December 27, 1977, a
hearing was held on whether detention
should continue, the Juvenile Court
finding probable cause that the offense
charged was committed as alleged in the
delinquency petition. After a hearing
on January 20, 1978 the Juvenile Court
transferred the cause back to the Criminal
Division of the District Court. Mc Ghee
was charged with one count of murder in
the County Attorney's Information filed
on February 24, 1978, fifty-nine days
after probable cause had been found that
Mc Ghee had committed the crime. Mc Ghee
filed a Motion to Dismiss for failure to
indict within 30 days under Section
7O8.1, Code of Iowa, 1977, which motion
was overruled by the trial court.
The Iowa Supreme Court affirmed the
actions of the trial court in its opinion
of June 27, 1979. A petition for Re-
hearing was denied on July 20, 1979.
REASONS FOR GRANTING THE WRIT
I.
An important Fifth Amendment
self incrimination problem is
raised in this case where the
Towa Supreme Court has
adopted one of four different
positions taken by the State
Courts regarding a criminal
suspect's right to terminate
custodial interrogation
at any time.
aie
A Writ of Certiorari should be
granted in this case to determine
whether a person in custody must be
told of the right to terminate question-
ing at any time before that person is
interrogated. Petitioner contends that
Arizona, 384 U.S. 436 (1966) requires
that a person be informed of this right
before interrogation starts. This
question has caused a split among
the state's highest Courts and this Court
should clarify the point by granting a
Writ of Certiorari.
The first position taken by some
state courts is that the right must be
given as part of the Miranda Warning.
State v. Maluia, 56 Haw. 428, 539 P.2d
1200 (1975): State v. Lucero, 151 Mont.
wQu
531, 445 P.2d 731 (1968); People v.
Swift, 300 N.Y.S. 2d 639 (N.Y. App. Dept.
1969); State v. Riddick, 291 N.C. 399,
“ome -
76 Wis.2d 370 251 N.W.2d 458 (1977), See
also, United States v. Anderson, 401
F.Supp. 996 (N.D. Tenn. 1975).
Some states prefer giving the
right under the Miranda Warnings,
but do not require it. Mack v. State,
348 S.2d 524 (Ala... Crim. App. 1977);
Flannagin v. State, 289 Ala. 177, 266
S.2d 643 (1972); Commonwealth v.
Lewis, 371 N.E.2d 775 (Mass. 1978).
Several states take the posi-
tion that failure to advise a suspect of
the right to terminate questioning at any
time is not error per se, but a factor to
be considered in determining the volun-
tariness of subsequent statements.
—— eee
-10=
This is the position Iowa adopted in
deciding Petitioner's case. State v.
Mc Ghee, 280 N.W.2d 436 (Ia. 1979);
State v. Cobb, 164 Conn. 402, 324
ee
A.2d 234, cert. denied, 414 U.S. 861
(1973); Katzensky v. State, 228 Ga.6
183 S.E2d 749 (1971); State v. Harper,
465 S.W.2d 547 (Mo. 1971); State v.
Sherwood, 139 N.J. super 201, 353 A.2d
137 (1976); State v. Carlton, 83 N.M.
644, 495 P.2d 1091 (1972); State ve.
Parker, 44 Ohio St. 2d 172, 339 N.E.2d
648 (1975); Commonwealth v. Alstron,
456 Pa.128, 317 A.2d 241 (1974); Crafton
v. State, 545 S.W.2d 437 (Tenn. App.
1976); State v. Harbaugh, 132 Vt. 569,
326 A.2d 821 (1974); see also, United
States v. Di Giacomo, 579 F.2d 1211 (10th
Cir. 1978).
-ll-
Finally, some states do not require
that the right be given as part of the
Miranda Warning. Green v. State, 45 Ala.
App. 549, £55 Su.420 £445(1976); People
v. Washington, 115 Ill. App.2d 318, 253
N.W.2d 677(1968); People v. Hooper, 50
Tee ai Ta te ek at
“Mich. App.186, 212 N.W.2d 786(1973).
See also, Mock v. Rose, 472F.2d 619(6th
Cir. 1972), Cert... @enitee, 6... ee
971 (1973).
The Opinion in Miranda v. Arizona,
384 U.S. 437(1966) supports Petitioner's
contention that, of the four different
positions taken by the states, requiring
the warning of the right to terminate
questioning is a prerequisite to inter-
rogation.
If the individual indicates
in any manner, at any time
prior to or during question-
ing, that he wishes to
In discussing this passage,
said
-l12-
remain silent, the interroga-
tion must cease. At this point
he has shown that he intends to
exercise wis Fifih Amendmeur
Privilege; any statements taken
after the person invokes his
privilege cannot be other
than the product of compul-
sion, subtle or otherwise.
Without the right to cutoff
questioning, the setting
of an incustody interroga-
tion operates on the indivi-
dual to overcome free choice
in producing a statement
after the privilege has once
invoked. Miranda v. Arizona,
384 U.S.473,474.
in Michigan v. Mosley, 423 U.S.
96(1975):
this Court
=~) 3=
"A reasonable and faithfull
interpretation of the
Miranda opinion must rest on
the intention of the Court
in that case to adopt fully
effective means... to notify
the person ‘of his right to
silence and to assure the
exercise of the right will
be scrupulously honored...'.
394 UsB., at 479. The
Crucial safeguard indentified
in the passage at issue is a
person's right to cutoff
Questioning Id. at 474.
Through the exercise of his
opinion to terminate question-
ing, he can control the time
at which questioning occurs,
the subjects discussed and
the duration of the inter-
rogation." Id. at 103, 104.
-|14-
A Writ of Certiorari should be granted so
this Court can determine which of the
four positions adopted by the state
Courts is the most fully effected means to
notify a person of the right to silence
and to assure that the exercise of that
right will be scrupulously honored.
>
An important Sixth Amendment
speedy trial problem is
raised if the Iowa Supreme
Court is permitted to delay
the attachment of the right
to a speedy trial in a
juvenile case until the case
is transferred from the Iowa
Juvenile Court System to the
Criminal Division of the Iowa
District Court.
A Writ of Certiorari should be
granted because Petitioner raises an
-|5-
issue of fundamental importance to our
society in the Administration of Juvenile
Justice. Petitioner contends that the
right to a speedy trial should be af-
forded to juveniles, and the attachment
of that right should not be delayed while
the case is in the juvenile courts before
being transferred to the criminal courts.
In Klopfer v. North Carolina, 386
U.S. 213, (19€"), Chis Comet Bere Chee
the Sixth Amendment standards governing
speedy trials are made obligatory on the
states by the Fourteenth Amendment.
Sections 795.1, Code of Iowa 1977,
provides in pertinent part:
"795.1 PFaiilwute t0 t86e7es.
When a person is held to
answer for a public offense,
if an indictment be not found
against him within 30 days,
the court must order the
prosecution to be dismissed."
-16-
Section 795.1 is intended to implement
the Sixth Amendment and the Bill of
Rights which grant to an accused the
right to a speedy and public trial.
State v. Bledoe, 200 N.W.2d 529 (Iowa
1972). In Iowa, in Juvenile cases if an
indictment is not filed within thirty
days of the transfer of a case from
juvenile court to criminal court then the
case must be dismissed under Section
795.1. Bergman v. Nelson, 241 N.W.2d 14
(Iowa 1976). However, the Iowa Supreme
Court refuses to apply Section 795.1 to a
juvenile case until the case is trans-
ferred to the district criminal court,
even though Iowa's preliminary juvenile
detention hearings satisfy the "held to
answer" requirements in that a juvenile
officer determines if a crime has been
committed and sufficient reason exists to
beleive the defendant to be guilty.
-li/- -15-
‘
State v. Mays, 204 N.W.2d 862 (Iowa labels and good intentions do not obviate
_— Oo oer ere ere rr ee
1973). : the need for criminal due process safe-
The Iowa Supreme Court's reasoning guards in juvenile courts, for a proceed-
is that proceedings in juvenile court are ; ing where the issue is whether the child
not prosecutions for crime, but rather will be found to be delinquent and
are special proceedings which serve as an Subject to the loss of his liberty for
ameloriated alternate to criminal prose- years is comparable in seriousness to a
cution of children. In Iowa a child is felony persecution. In re Winship, 397
not amenable to prosecution under the U.S. 358, 365-366, (1970); In re Gault,
criminal statutes until the transfer 387 U.S. 1, 36, (1967). In light of
order is entered. In re Interest of this, lLIowa's distinction is especially
Johnson, 257 N.W.2d 47 (Iowa 1977). weak in that Petitioner was arrested for
The Iowa Supreme Court draws the murder and there could be no doubt that
distinction between criminal and other he would be prosecuted as an adult.
proceedings. But this Court in In The Iowa Supreme Court's decision
re Gault, 357 U.S. 1, (1967) expressly in Petitioner's case applied the standard
rejected such distinctions as a reason set by this court in In re Winship, 397
for holding the Due Process Clause U.S. 358 (1970), whether direct applica-
inapplicabie to juvenile proceedings. tion of the particular right would be
This Court has made it clear that civil consistent with "fair treatment" and.
would not “risk destruction of beneficial
o19=
aspects of the juvenile process."
(Appendix p. 32). The Iowa Court found
that Petitioner's contentions would
disrupt potential benefits of junvenile
proceedings, place unreasonable time
constraints on the junvenile and criminal
courts, and was beyond the scope of
Gault. (Appendix p. 32). But in the
Gault decision itself this Court said
that the observance of due process
standards intelligently and not ruthlessly
administered, will not compel the states
to abandon or displace any of the substan-
tial benefits of the juvenile process.
Gault, Supra 287 U.S. at 21. And Peti-
tioner submits that it is inherently fair
that he be afforded as soon as possible
the consitutional protection of the right
to a speedy trial. Resolving juvenile
=20-
proceedings with all due speed is a
consideration of this court. See, In Re
Winship, 397 U.S. 358, 367, (1970).
Tne right to a prompt inquiry into
criminal charges is fundamental, Dicky v.
Florida, 398 U.S. 30, (1970). “It is one
of the most basic rights reserved by our
constitution." Klopfer v. North Carolina,
S66 UG. 213, ° 226 (4967). A major
concern of this court in interpreting
this right is with when during the
criminal process the speedy trial guaran-
tee attaches. Dicky v. Florida, 398 U.S.
30, 41 (1970) (Justice Brennan, con-
curring). Petitioner's case presents this
issue in the juvenile court context,
where the right would attach if the
accused were an adult. In a broader
societal interests, as well as those of
the accused, See, Ponzi v. Fessenden,
ati~
258 U.S. 254, 264 (1922). The applic-
ability of the right to a speedy trial in
the administration of juvenile justice
presents issues of grave importance to
our society, and should merit a Writ of
Certiorari.
CONCLUSION
For the foregoing reasons Petitioner
respectfully requests that the Court
grant this Petition for a Writ of
Certiorari.
Respectfully submitted,
ALFREDO G. PARRISH
906 Savings & Loan Building
Des Moines, IA 50309STATES
515-244-57371979
ATTORNEY FOR PETITIONER
APPENDIX A
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1979
No.
CURTIS WILLIAM MC GHEE, JR.,
Petitioner,
V.
STATE OF IOWA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE
STATE OF IOWA
ALFREDC G. PARRISH
906 Savings & Loan Bldg.
Des Moines, IA 50309
515-244-5737
ATTORNEY FOR PETITIONER
IN THE SUPREME COURT OF IOWA
STATE OF IOWA, )
Appellee, ) NO. 62210
VS. )
CURTIS MCGHEE, JR.,) ORDER
Appellant. )
After consideration by the court en
banc, appellant's petition for rehearing
in the above-captioned case is hereby
overuled and denied.
Done this 20th day of July, 1979.
Ca i622 Vestice ~
Supreme Court of Iowa
Copies to:
Alfredo G. Parrish, Lawyer
906 Savings & Loan Building
Des Moines, Iowa 50309
Attorney General's Office
Att: Criminal Appeals Division
App. A-3
IN THE SUPREME COURT OF IOWA
STATE OF TOWA,
Appellee, ) Filed June 27, 1979
VS. )
CURTIS MCGHEE, JR.,) 87
62210
Appellant. )
Appeal from Pottawattamie District
Court, J.L. Larson, Judge.
Appeal by defendant from judgment
of conviction of murder in the first
degree in violation of sections 690.1 and
690.2, The Code 1977. AFFIRMED
Alfredo G. Parrish of Des Moines
for appellant.
Thomas Miller, Attorney General,
Lona Hanson, Assistant Attorney General,
and David E. Richter, County Attorney,
for appllee.
Considered by LeGrand, C.J. and
Rees, Uhlenhopp, McCormick and McGiverin,
JJ.
REES, J.
This is an appeal by the defendant,
Curtis William McGhee, Jr., from his
conviction of the crime of murder in the
first degree in violation of Sections
690;:l1 and 790.2, The Code 1977. We
affirm.
The record indicates the defendant,
who was 17 years of age at the time of
the commission of the offense, and two
companions entered the lot of an auto
dealership in Council Bluffs on the night
of July 21, 1977, intending to steal a
car. One of the three (not the defendant)
waS carrying a shotgun. The following
morning a security guard at the dealer-
Ship was found dead of a shotgun wound.
McGhee was taken into custody
App. A-5
on December 22, 1977, and the case was
transferred to the Juvenile Court the
following day. On January 20, 1978, after
hearing, jurisdiction over the defendant
was transferred to the district court.
On February 17, 1978, a county attorney's
information was filed ciuarging the
defendant with murder.
Following disposition of several
preliminary motions, the matter proceeded
to trial. A verdict of guilty of murder
in the first degree was returned by a
jury on May 11, 1978. Following denial
of defendant's motion for a new trial,
McGhee was sentenced to life imprisonment
On June 29, McGhee filed a timely notice
of appeal to this court.
Further elaboration upon the facts
of the case will be provided in the
discussion of the issues to which they
~s
pertain.
App. A-6
The following issues are presented
for review:
(1) Was the defendant not indicted
within the statutory time period set
by Section 795.1, The Code 1977, when
the county attorney's information was
filed less than 20 days after the trans-
fer of the case from the Juvenile Court
but more than 30 days following defen-
dant's arrest?
(2) When the minutes of the testi-
mony contained summaries of the expected
testimony of certain witnesses as well as
a general clause regarding "certain other
facts" relating to the offense, should
the trial court have sustained the defen-
dant's motion for a bill of particulars
requesting specific details concerning
such “other facts"?
(3) Does Section 781.10, The Code
1977 which permits a defendant to take
«
App. A-7
depositions from prosecution witnesses,
grant a criminal defendant the right to
obtain answers to interrogatories from
the prosecuting attorney?
(4) Did the trial court abuse its
discretion in admitting into evidence
photographs of the decedent prior to the
autopsy due to their alleged prejudicial
nature and lack of probative value?
(5) Were the Miranda warnings given
the defendant constitutionally inadequate
when he was not Specifically informed
that the interrogation would be termin-
ated upon his request?
(6) When a prisoner with whom the
defendant had been incarcerated testified
at trial that the defendant had confessed
to taking part in the crime with which he
was charged, should a new trial have been
granted upon motion accompanied by an
affidavit, executed by another prisoner
App. A-8
who had been incarcerated with the
witness, stating that the witness had
admitted perjuring himself at trial?
i Defendant first asserts the
trial court erred in ener ittin his
motion to dismiss the charges against him
due to alleged noncompliance with Section
795.1, The Code 1977, which requires
that either an indictment be found
against an individual within 30 days of
the person being "held to answer" for a
public offense or the prosecution dis-
missed, in the absence of good cause
for the delay. Here an information was
filed 57 days after the defendant was
taken into custody, but less than 30 days
lin revision of the criminal code this
provision was changed to require indictment
within 45 days of arrest, absent good cause, Iowa
R. Crime P.27 (2) (a), ch. 813, The Code 1979
(emphasis added). The amended statute was not
applicable to this case and we do not pass upon
how it would be applied to these facts.
App. A-9
following the transfer of jurisdiction
from the juvenile court to the district
court.
Defendant's motion to dismiss was
couched in statutory terms and thus does
not directly present an issue of consti-
tutional dimensions. Although constitu-
tional considerations are argued by the
defendant in support of his position,
we will consider them only as an aid in
construing the statute and making the
détermination essential to this issue:
is a juvenile "held to answer" for
purposes of Section 795.1 when he is
under the jurisdiction of the juvenile
court and not subject to the jurisdic-
tion of the district court for criminal
prosecution?
We have previously examined the
"held to answer" language of Section
App. A-10
795.1, relation to juveniles transferred
to the district court. In Bergman Vv.
Neilson, 241 N.W.2d 14, 15 (Iowa 1976),
and State v. White, 223 N.W.2d 173,
175-176 (Iowa 1974), we held that a
child subject to the jurisdiction of the
juvenile court is not “held to answer"
within the meaning of Section 795.1
until he or she is transferred to the
district court for prosectuion. We find
no compelling reasons to depart from
these holdings and thus do not find
error in the district court's overruling
of McGhee's motion to dismiss.
In State v. White we said: "Proceed-
ings in juvenile court are not prosecu-
tions for crime. They are special
proceedings which serve <2c an ameliora-
tive alternative to criminal prosecution
of children". Also, a child is not
App. A-1ll
amenable to prosecution under the
criminal statutes until the transfer
order is entered. In re interest of
Johnson, 257 N.W.2d 47, 48-49 (Iowa
1977).
The purpose of the juvenile proceed
ing is to determine the disposition of
the matter which would best meet the
interest of both the child and the State
in preventing the recurrence of dilin-
quent activity. It is not subject to
all the structures applicable to adult
criminal proceedings, although we note
the legislature has recently provided
additional procedural safeguards for the
rights of juveniles in revising the
juvenile justice provisions of the
Code. See ch. 232, The Code 1979. An
investigation into the particular
circumstances of each child is necessary
App. 12
before disposition. To adopt McGhee's
Proposed construction and find a minor
"held to answer" either when he is taken
into custody or when the juvenile court
finds probable cause the juvenile
committed the alleged act of delinquency
would be to place unreasonable time
constraints on both the juvenile author-
ities and the prosecutor in any eventual
criminal trial, due to the fact that a
transfer must occur before a criminal
Prosecution may be commenced against
a minor.
McGhee seeks support from the
decision of the United States Supreme
Court in In re Gault, 387 U.S. is 87
S.Ct. 1428, 18 L.Ed.2d 527 (1967), where
the court held that certain constitu-
tional guarantees applicable to adult
criminal prosecutions, such as the right
to counsel, right to notice of charges,
App. A-13
and right against self incrimination,
are also applicable to juvenile proceed-
ings under a due process analysis. In
so doing, the Supreme Court has acknowl-
edged that a juvenile delinquency
proceeding has several criminal character-
istics and left for case-by-case determ-
ination the applicability of all rights
available to adult-defendants. McKeiver
ve Pennsylvania, 403 U.S. 528, 533,
91 S.Ct. 1976, 1980, 29 L.Ed.2d 647, 654
(1971). The standard which has evolved
from this line of cases is one of
whether direct application of the
particular right would be consistent
with "fair treatment" and would not
"risk destruction of beneficial aspects
of the juvenile process", Matter of
Winship, 397 U.S. 358, 359, 90 S.Ct.
1068, 1073, 25 L.Ed.2d 368, 372 (1970).
See also Matter of Tony W., 91 Misc2d
700, 398 N.Y.S.2d 528 (Fam.Ct. 1977);
State in Interst of H.M.T., too NJ.
Suprer,. 104, 327 A.2d 368 (15978);
Pauley v. Gross, 1 Kan.App.2d 736, 574
P.2d 234 (1977).
*7O@ @PPpiy Section 795.1 in the
manner in which McGhee advocates would
not only disrupt the potential benefits
of the juvenile proceeding, but would be
to apply the 30-day period simultan-
eouSly to both juvenile and, in the
event of a waiver, district court
proceedings. Such an application would
be beyond the scope of the doctrine
of equal treatment underlying Gault and
could place unreasonable time cons-
traints on proceedings. We therefore
reaffirm our holding in Bergman v.
—-
Nelson and State v. White.
i oe McGhee next contends the
district court erred in not granting
certain clauses of his motion for a bill
of particulars dealing with the inclusion
in the minutes of testimony of language
that witnesses would testify to “certain
other facts" concerning the alleged
offense of which they had knowledge.
Because we conclude that the indictment
and the minutes of testimony sufficiently
informed the defendant of the nature and
extent of the charges against him to
enable him to prepare his defense, we
find no abuse of discretion on the
part of the district court requiring
reversal.
A motion for a bill of particulars
is authorized, for purposes of this
appeal, by Section 773.6, The Code (now
Section 813.2, Iowa R. Crim. P. 10(5),
The Code 1979). It is addressed to the
App. A-16
sound discretion of the trial court and
the trial court will not be reversed
unless the discretion is abused. State
Vv. Bean, 239 N.W.2d 556, 562 (Iowa 1976).
In State v. Conner, 241 N.W.2d 447, 452
(Iowa 1976), and State v. Lass, 228
N.W. 2d 758, 765 (Iowa 1975), we set
forth the following principles regarding
a bill of particulars:
(1) A bill of particulars is in
legal effect a more specific state-
ment of the details of the offense
charged.
(2) Its purpose is to give the
defendant information which the
indictment (or information) and
minutes of testimony by reason of
their generality do not Supply.
(3) .-A motion for a bill of particu-
lars should be sustained when the
court, in its discretion, finds
App. A-17
the charge and the minutes %9% not
inform the defendant of the specifc
acts of which he is accused.
(4) A motion for bill of particu-
lars cannot be used merely as a
devise to obtain the State's evi-
dence or theory of the case or
unessential allegations.
Here the information and the minutes
of testimony adequately informed McGhee
of the nature of the charge against him
and the evidence by which the State
intended to prove he committed the
offense. Each of the statements in the
minutes of testimony on which the defen-
dant sought elaboration was preceded by a
summary of the testimony which would
be presented by the individual witness.
The defendant sought and received
clarification of several other descrip-
tions within the minutes. Additionally,
App. A-18
the defendant does not show any prejudice
resulting from the court's ruling. Our
examination of the record leads us to
conclude that McGhee was adequately
informed of the nature of the case
against him and that those portions of
his bill of particulars which were
overruled constituted an attempt to
obtain"“unessential allegations,"
We find no reversible error in defen-
dant's contention to the contrary.
Iii. The defendant next contends
the district court erred in denying
him the right to file interrogatories
seeking information from the State as he
is allegedly entitled by Section 781.10,
The Code 1977 (now Section 813.2, Iowa R.
Crim. P. 12, The Code 1979). We find
no error, basing our conclusions on the
following reasoning.
McGhee cites State v. Peterson 219
App. A-19
N.W.2d 665, 669 (Iowa 1974), for the
proposition that civil discovery tech-
niques are availab’e tn a defendant
in a criminal prosecution. The scope of
the Peterson holding was much narrower:
Section 781.10 grants a defendant
the right to take deposition of defense
witnesses. Section 781.10 provides:
"A defendant in a criminal case, either
after preliminary information, indictment,
or information, may examine witnesses
conditionally or on notice or commission,
in the same manner and with like effect
as in civil actions". We have previously
stated, in construing Section 781.10,
that Peterson "Stands for the proposition
the defendant has a right to depose the
State's witnesses", and that the prosecu-
tor is not a State witness. State v.
Brewer, 247 N.W.2d 205, 211-12 (Iowa
1976).
App. A-20
While we have allowed the use of
interrogatories pursuant. to Secti-on
781.1, State v. Smith, 262 N.W.2d 567,
570 (Iowa 1978); State v. Brewer, 247
N.W.2d 211, we have not expanded tHe
definition of witness to include the
prosecutur, see Brewer, nor do we think
the statute can be reasonably corfstrued
to allow such an inclusion. ener is no
indication in the record that the
defendant sought to depose any of the
State's witnesses pursuant to Section
781.10 and was denied that right. We
therefore hold the district court did not
Eire in Gdéenyiuy McGhee the right to
file interrogatories directed to the
prosecutor pursuant to Section 781.10.
The prior decisions of this court, as
well as the literal language of the
Slatute, mandated this conclusion.
IV. Defendant alleges the trial
App. A-21l
court erred in overruling his objections
to the admission into evidence of photo-
graphs of the murder scene and of the
decedent's body prior to autopsy.
He claims admission of the pictures to
have been an abuse of discretion on
grounds that the pictures were irrelevant,
cumulative, and prejudicial to his
defense.
The determination to admit or to
refuse admission into evidence of the
photographs lies initially in the discre-
tion of the trial court, and we will not
reverse except when an abuse of discre-
tion is shown, as where the evidence is
clearly irrelevant or prejudicial.
State v. Moore, 276 N.W.2d 437, 441 (Iowa
1979); State v. Cassady, 243 N.W.2d 581,
583 (Iowa 1976). Here the photographs
are relevant to material factual issues,
establishing the manner and means by
App. A-22
which the decedent was killed, and, while
not appealing to the eye, are not
SO gruesome or cumulative as to mandate
reversal. No abuse of discretion
is shown.
V. The defendant next challenges
the sufficiencv of the Miranda warnings
given him prior to police interrogation
in October of 1978 and the consequent
admissibility of certain inculpatory
Statements he made at that time. Specif-
ically, he objected at trial that he was
not informed that the interrogation would
cease upon his request. Although it does
not appear from the record that McGhee
was informed of his right to remain
Silent, his objection did not include
such a ground. Our review is limited to
those alleged errors properly preserved.
An objection which is overruled at
trial is reviewable only on the grounds
App. A-23 App. A-24
specified in the objection lodged at that evidence of the statements was
trial. State v. Winguist, 247 N.W.2d 256, properly admitted.
259 (Iowa 1976). We therefore address In State v. Jump, 269 N.W.2d 417,
- an Pe tes
only the issue :egarding termination of *23 (Iowa 1978), we sct out the warnings
which are required by Miranda prior to
the interrogation.
The trial court relied on dicta in custodial interrogation. They include:
State v. Holderness, 191 N.W.2d 642, 648 (1) the right to remain silent; (2) that
(Iowa 1971), in concluding that Miranda anything he or she might say may be used
v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, in evidence; (3) the right to have
16 L.Ed.2d 694 (1966), did not mandate counsel present; and (4) the right to
have counsel appointed if the person
bey)
the inclusion of language informing
person being questioned that the interro- being interrogated cannot afford counel.
gation would cease upon his request. We did not list the right to have inter-
There this court noted that Michigan no rogation cease as a required warning, nor
longer found the right to have interroga- do we find any indication in our case
tion cease to be a mandatory part of the law to mandate such an inclusion.
Miranda warnings. Concluding that A vast majority of the jurisdictions
the omission of the right to have ques- which have addressed this issue have
tioning cease from the Miranda warnings reached a conclusion similar to that
is not error, we find the ruling of the reached here. United States v. Di Giacomo,
trial court to have been correct, and 579 F.2d 1211, 1214 (10th Cir. 1978)
:
|
a
App. A-25
(finding the omission not to be error per
se but a factor to be considered in
determining the voluntariness of the
subsequent statements); Mock v. Rose, 4/72
F.2d 619, 622 (6thCir. 1972), cert.
denied, 411 U.S. 971, 93 S.Ct. 2165, 36
L.EG@ 693 (1973); Green v. State, 45 Ala.
(1970); State v. Cobbs, 164 Conn. 402,
416-19, 324 A.2d 234, 244, cert. denied,
414 U.S. 861, 94 S.Ct. 77, L.Ed2d 112
(1973); Katzensky v. State, 228 Ga 6, 8,
183 S.E.2d 749,( 751 (1971); People v.
Washington, 115 Ill. App.2d 318, 328, 253
N.E.2d 677, 682 (1969); People v. Hooper,
50 Mich. App. 186, 195-96, 212 N.W.2d
786, 790 (1973); State v. Harper, 465
S.W.2d 547, 548-49 (Mo. 1971); State v.
Sherwood, 139 N.J.Super. 201, 203-05, 353
A.2d 137, 139-40 (1976); State v. Carlton,
83 N.M. 644, 654, 495 P.2d 1091, 1101
App. A-26
(1972); State v. Parker, 44 Ohio St.24d
172, 177, 339 N.E.2d 648, 652 (1975)
(considered only as a factor toward
voluntariness determination);
Commonwealth v. Alston, 456 Pa. 128, 135,
317 A.w2d 241, 245 (1974); Crafton v.
state, 545 S.W.2d 437, 439 (Tenn.App.
1976; State v. Harbaugh, 132 Vt. 569,
arse, 326 A. 26 O21, A256 2376}.
Jurisdictions which have reached a
contrary conclusion include North
Carolina and Wisconsin. See State v.
Riddick, 291 N.C. 399, 408, 230 S.E.2d
906, 512 (19760; Micale v. State, 76
Wis.2d 370, 374, 251 N.W.2d 458, 460
(1977).
The result we reach is supported by
the language in Miranda in which the
mandatory warnings are listed, 384 U.S.
479, 86 S.Ct. at 1630, 16 S.Ed.2d at
726. The right to have interrogation
Ee
App. A-27
cease is not listed therein. Although it
is clear that questioning must cease upon
request of the person being interrogated,
Suci an inclusion is not required by
the Miranda decision and its omission
does not provide a basis for reversal in
this case on the ground alleged. Finding
our resolution of this issue bolstered by
the Miranda opinion, our prior case law,
and the decisions of other jurisdictions,
we hold that the right to have interroga-
tion cease is not among those rights of
which Miranda requires a person to be
informed prior to custodial interrogation.
Like the 10th Circuit Court of
Appeals and the Ohio Supreme Court, we
conclude the omission or inclusion of the
right to have interrogation cease goes to
the voluntariness of the later statements.
Here the issue arose as an abstract
determination of the elemental adequacy
App. A-28
of an evidentiary foundation rather than
a particular showing of voluntariness.
No issue of voluntariness is directly
presented in this case, only the adequacy
of the evidentiary foundation. We
therefore proceed to a consideration of
defendant's next alleged error.
VI. At the trial of this case,
Tyrone Pierce testified that the defendant
had confessed to him involvement with the
Schweer murder while they were incarcer-
ated in jail. As a part of his motion
for a new trial, the defendant submitted
the affidavit of a third person, one
Charles Reese, with whom Pierce had been
imprisoned, stating that Pierce had
admitted perjuring himself at trial.
He alleged such newly~discovered evidence
to justify or in fact mandate the grant
of a new trial. The trial court over-
ruled said motion. We find no abuse of
discretion and sustain the ruling of
the trial court.
Trial courts have a considerable
discretion in ruling upon motions for a
new trial and such rulings will not be
overturned absent an abuse of discretion,
State v. Sheffey, 234 N.W.2d 92, 98
(Iowa 1975). Additionally, we have said
that the recantation of the trial testi-
mony of a witness should be regarded
"with utmost suspicion". State v.
Jackson, 223 N.W.2d 229, 234 (Iowa
—= «See ee
1974); State v. Compiano, 261 Iowa 509,
516-17, 154 N.W.2d 845, 849 (1967).
When a new trial is sought on the basis
of newly-discovered evidence the follow-
ing must be shown: (1) the evidence was
discovered after trial and before judg-
ment; (2) it could not have been
discovered during the trial in the
exercise of due diligence; (3) it is
Aare seine a
App. A-30
material to the issue and not merely
cumulative and impeaching; and (4) such
evidence would probably change the
result if a new trial were granted.
State v. Overstreet, 243 N.W.2d 880,
886 (Iowa 1976); United States v. Frye,
>48 F.2d 765, 769 (8th Cir. 1977).
We find the following facts support
the ruling of the trial court. The
prisoner to whom Pierce allegedly admit-
ted his perjury, Charles Reese, assaulted
Pierce in jail prior to Pierce's recanta-
tion, which may well have come about from
Pierce's resultant fear of Reese. The
fact that the supposed recantation came
to the court by way of the affidavit of a
third person, rather than from the
witness, raises additional questions
concerning its accuracy. Most import-
antly, there remained the testimony of
two other witnesses to whom McGhee_ had
App. A-3l
confessed involvement in the murder. Our
analysis of the record leads us to the
conclusion that the new evidence would
not have changed the result in this
case if a new trial had been granted.
Thus, the fourth of the aforementioned
cirterias not met. The trial court
properly concluded that a new trial was
not justified by the newly-discovered
evidence.
On the whole record we find no merit
in defendant's allegations of error.
This case is therefore affirmed.
Affirmed.
APPENDIX B
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1979
No.
CURTIS WILLIAM MC GHEE, JR.,
Petitioner,
V.
STATE OF IOWA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE
STATE OF IOWA
ALFREDO G. PARRISH
906 Savings & Loan Bldg.
Des Moines, IA 50309
515-244-5737
ATTORNEY FOR PETITIONER
ore
»
|
g
|
a
App. B-l
United States Constitution, Amendment
V. No person shall be held to answer for
a captial, or otherwise infamous crime,
unless on a presentment or indictment ot
a Grand Jury, except in cases arising
in the land or naval forces, or in the
Military when in actual service in time
of war or public danger; nor shall any
person be subject for the same offense to
be twice put in jeopardy of life or limb;
nor shall be compelled in any criminal
case to be a witness against himself, nor
be deprived of life, liberty, or property,
without due process of law; nor shall
private property be taken for public use,
without just compensation.
United States Constitution, Amendment
VI. In all criminal prosecutions, the
accused shall enjoy the right to a speedy
and public trial, by an impartial jury of
the state and district wherein the crime
EEO
App. B-2 App. B-3
shall have been committed, which district on its own motion shall carry out the
shall have been previously ascertained by provisions of the sections as to dismissal.
law, and to be informed of the nature and
cause of the accusation; to be confronted
with the witness against him; to have
compulsory process for obtaining witnesses
in his favor, and to have the assistance
of counsel for his defense.
Section 795.1, Code of Iowa 1977.
When a person is held to answer for a
public offense, if an indictment be not
found against him within thirty days, the
Court must order the prosecution to be
dismissed, unless good cause to the
contrary be shown. An accused not admit-
ted to bail and unrepresented by legal
counsel shall not be deemed to have waived
the privilege of dismissal or be held to
make demand or request to enforce a
guarantee of speedy trial, and the court
2 SE
AFFIDAVIT OF SERVICE
STATE OF IOWA )
) 83:
COUNTY OF POLK)
I, Alfredo G. Parrish, depose and
state that I am the attorney of record for
Curtis William Mc Ghee, Jr., the peti-
tioner herein. Pursuant to Rule 33, Rules
of the Supreme Court, I served three
copies of the foregoing petition for a
Writ of Certiorari on each of the parties
required to be served herein, as follows:
On the Attorney General, State of
Iowa, respondent herein, by mailing three
copies in a duly addressed envelope with
first class postage prepaid; to Thomas
Miller, Attorney General of Iowa, Kermit
Dunahoo, Assistant Attorney General, State
Capitl Building, Des Moines, Iowa, 50319.
RMdy Pested
ate ae G. Parrish
906 Sa
Des Moines, IA 50309
515-244-5737
ATTORNEY FOR PETITIONER
Subscribed and sworn to before me
; +h
this ') day of Pevewbicr.
ings & Loan Building
1979.
[Qukéine se
Notary Public - State
of Iowa
My commission expires F/ 3E/8
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.