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State of Iowa v. James Dismore

April 24, 2013

STATE OF IOWA, PLAINTIFF-APPELLEE,
v.
JAMES DISMORE, DEFENDANT-APPELLANT.



Appeal from the Iowa District Court for Scott County, Paul L. Macek (motions to suppress) and Mark D. Cleve (trial), Judges.

The opinion of the court was delivered by: Potterfield, J.

James Dismore appeals from his convictions for sponsoring a gathering where controlled substances were unlawfully used and contributing to the delinquency of a minor. AFFIRMED.

Considered by Vogel, P.J., and Potterfield and Doyle, JJ.

James Dismore appeals from his convictions for sponsoring a gathering where controlled substances were unlawfully used and contributing to the delinquency of a minor. He contends the district court improperly denied his motions to suppress his incriminating statements and insufficient evidence was presented to support his convictions. We affirm.

I. Facts and Proceedings.

On February 24, 2011, James Dismore overdosed on heroin and was found unconscious on his bathroom floor by two young men who consumed drugs with him. One of the men contacted paramedics, who revived Dismore. Once conscious, Dismore refused the request of police officers to search his apartment before he was transported to a hospital. At the hospital, police once again attempted to obtain Dismore's consent for the search of his apartment, which he denied. At this time, Dismore was given warnings under Miranda v. Arizona, 384 U.S. 436, 478--79 (1966). He responded to officers that he did not want to speak with them because he had previously been told "by an attorney not to talk to the police." Questioning ceased, and shortly thereafter the officers obtained and executed a search warrant for Dismore's apartment.*fn1

Police returned to Dismore's apartment the next day, February 25, 2011, after Dismore was discharged from the hospital. Dismore allowed the officers to enter; two other men were present in the apartment. The officers noted the apartment smelled of marijuana. When asked whether one of the occupants had smoked marijuana in the apartment, Dismore responded that he did not "really want to do any talking right now without a lawyer." The officer replied Dismore was not under arrest and he did not have to talk with the officer, the officer was concerned about getting heroin off the streets and wanted Dismore's cooperation, though Dismore would likely be facing charges. Dismore and the officer at some point in the conversation moved to Dismore's bedroom and shut the door. The officer stated, "If you want to talk to an attorney, you can talk to an attorney. I'm not reading you your rights, [you] are not under arrest. . . . Do you want to talk with me?" Dismore responded he did. The officer proceeded to ask Dismore about the circumstances of his overdose, including how the heroin was acquired, who was present when he used the heroin, and who else used heroin. Dismore answered these questions. The entire discussion lasted about forty minutes; an audio recording was made of the interaction.

Dismore was later arrested and charged with sponsoring a gathering where controlled substances are unlawfully used, solicitation to commit a felony, and contributing to the delinquency of a minor.*fn2 He pleaded not guilty, and filed two motions to suppress his statements to police officers on Fifth and Sixth Amendment grounds, arguing he invoked his right to remain silent and his right to an attorney. Hearings were held on these motions in June 2011 and January 2012. In addition to testimony, the court listened to the audio recording of the February 25 conversation between Dismore and the officer. The court found the two interviews-at the hospital and at Dismore's apartment-were not custodial interrogations, no coercion or promissory leniency occurred, and Dismore voluntarily made his statements. The court ruled Dismore did not invoke his Fifth Amendment right to counsel the second day,*fn3 and the contacts twenty hours apart did not overcome Dismore's free will.

Trial was held to the bench, and Dismore was found guilty of sponsoring a gathering where controlled substances were unlawfully used and contributing to the delinquency of a minor. Dismore appeals.

II. Analysis.

Dismore appeals from the denial of his motions to suppress, asserting his statements "were obtained in violation of his constitutional privilege against self-incrimination, his right to counsel, due process voluntariness requirement or Miranda requirement." He also asserts the evidence against him was insufficient to sustain the conviction. We review the denial of a motion to suppress on constitutional grounds de novo. State v. Palmer, 791 N.W.2d 840, 844 (Iowa 2010). We evaluate the totality of the circumstances as shown by the whole record. Id. We give deference to the fact findings by the trial court but are not bound by those findings. Id. We review a challenge to the sufficiency of the evidence for the correction of errors at law. State v. Henderson, 696 N.W.2d 5, 6 (Iowa 2005).

A. Sixth Amendment right to counsel.

Our Sixth Amendment analysis involves two steps: (1) whether the right to counsel had attached when the accused made the incriminating statements, and (2) if so, whether the accused waived his or her right before making the statements. An accused's Sixth Amendment right to counsel attaches upon initiation of adversary criminal judicial proceedings. Such proceedings are initiated by formal charge, preliminary hearing, indictment, information, or arraignment.

State v. Peterson, 663 N.W.2d 417, 426 (Iowa 2003) (internal citations and quotation marks omitted). The statements Dismore seeks to suppress occurred during interactions with police officers before initiation of adversary criminal judicial proceedings. See id. ...


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