State v. Kelley

115 N.W.2d 184, 253 Iowa 1314, 1962 Iowa Sup. LEXIS 770

• Court: Supreme Court of Iowa
• Decided: May 8, 1962
• Docket: 50517
• Status: Published

Opinions

Thornton, J.

Defendant, Charles Kelley, was indicted by the Grand Jury of Pottawattamie County on March 14, 1961. In the indictment he was charged with murder in that county in thát on or about February 22, 1961, he, “Did, with malice aforethought kill a human being, namely, Alvin E. Koehrsen, in violation of section 690.1, Code of Iowa, 1958.” The indictment was amended to read, “Did, with malice aforethought, while attempting to perpetrate a robbery, kill a human being, namely, Alvin E.. Koehrsen; * * *.”

Defendant pleaded not guilty. A change of venue to Mills County was granted defendant. The case was tried to a jury, commencing May 8, 1961. This trial was concluded on May 16, 1961. The jury failed to return a verdict. On May 18, 1961, the court minutes of the trial court show defendant appeared with his counsel. Counsel for the State was present. At the request of his counsel the defendant took the stand and was questioned by his counsel. He and his counsel were called before the bench and questioned by the court.

In answer to questions propounded by both his counsel and theceourt, “* * * he stated that he had been fully advised and had counseled with his attorney and that he now wished to withdraw his plea of not guilty and enter a plea of guilty to the crime of first-degree murder as provided by the 1958 Code of Iowa as amended. Such plea of guilty to the said crime of murder in the first degree was then entered in open conrt and the court now orders that May the 25th at the hour of ten o’clock A.M. in the Mills County Courthouse hearing is fixed so that the court may fix the punishment herein as provided by law. * *

The court minutes for May 25 open with this statement:

“Court convened at ten o’clock A.M. pursuant to an order made on May 18, 1961, for the purpose of permitting the State of Iowa and the defendant to make showing and introduce evidence as either might deem proper for assisting the court in determining the punishment and the degree of murder to be adjudged against the defendant.”

Defendant and his counsel were present. The court again inqnired of the defendant if he realized and understood the import of his plea of guilty to the charge of first-degree murder. He replied he did and had been fully advised by his counsel as to applicable law. Opening statements were made and evidence taken. The record shows defendant offered evidence from 2:15 p.m. to 2:45 p.m. and from 3:05 p.m. to 3:08 p.m. Arguments were made for the defendant and the State, concluding at 3:20 p.m. The court fixed June 7 at 11 a.m. for the pronouncement of judgment and sentence.

At this hearing held May 25,1961, counsel for the State and defendant stipulated the evidence heard in the trial before the jury previously heard by the same trial judge “would be the same if it were resubmitted” and “it is agreed by the parties hereto that the court shall consider all of that testimony as if it were and had been resubmitted to the court.” This stipulation included all exhibits introduced in the jury trial. All objections to evidence including exhibits made by defendant in the jury trial were again interposed and overruled by the court. Additional exhibits were offered and admitted over defendant’s objection in the May 25 hearing.

The judgment entry of June 7, 1961, shows the case was called, defendant and his counsel were present, and contains the following: “* * *, and the court haying now fully investigated and considered all the evidence, facts and circumstances as shown by the record in this ease, and after exhaustive study, now finds that the defendant Charles Kelley is guilty of the crime of murder in the first degree, * *

The defendant was informed of the charge against him, of his guilty plea, and inquiry was made by the court if there was any reason why judgment and sentence should not now be pronounced and none was stated. Judgment and sentence were entered imposing the death penalty.

The defendant urges six errors for reversal. Two of them are related and will be considered together. They are, the court erred in failing to determine the degree of murder by the examination of witnesses, and erred in considering the appellant’s plea of guilty as a plea of guilty in the first degree.

I. Neither the defendant nor his counsel took any exceptions or objections in the trial court to the entry of the plea as shown by the court minutes nor to the procedures in the trial court except his objections to evidence which will be discussed later. We are asked to, and do apply section 793.18, Code of Iowa, 1958, which provides:

“If the appeal is taken by the defendant, the supreme court must examine the record, without regard to technical errors or defects which do not affect the substantial rights of the parties, and render such judgment on the record as the law demands; it may affirm, reverse, or modify the judgment, or render such judgment as the district court should have done, or order a new trial, or reduce the punishment, but cannot increase it.”

The duty placed on this court by section 793.18 is to decide criminal appeals according to the very justice' of the case as shown by the record without regard for technical errors. State v. Martin, 243 Iowa 1323, 1327, 55 N.W.2d 258, 34 A. L. R.2d 904, and citations. It requires us to enter such judgment as the law demands. State v. Nutter, 248 Iowa 772, 779, 81 N.W.2d 20, 24. And we are not to consider mere technical errors which do not affect the result. State v. Jensen, 245 Iowa 1363, 66 N.W.2d 480; and State v. Neuhart, 228 Iowa 1055, 292 N.W. 791.

II. Defendant contends the words “first degree” included in his plea of guilty must be regarded as surplusage. We agree. In State v. Martin, supra, we held the addition of the words “in the first degree” was surplusage only. The indictment in Martin contained allegations while in the perpetration or attempt to perpetrate a rape or robbery contrary to section 690.2. The import assigned to the indictment there was the same as alleging A. B. murdered C. D. under the short form indictment act, section 773.34, Code of Iowa, 1958, as any other construction would nullify the provisions of section 690.4, Code of Iowa, 1958, providing for the ascertainment of the degree of murder. It is there pointed out there is under our law but one crime of murder and the degrees do not constitute distinct crimes, but gradations of the same crime devised to permit punishment according to the circumstances. State v. Phillips, 118 Iowa 660, 92 N.W. 876. When we consider section 777.12, Code of Iowa, 1958, providing the plea of guilty can only be made in open court and by the defendant himself, in substantially the following form: “ ‘The defendant pleads that he is guilty of the offense charged in the indictment’ ”, it follows the plea admits only the necessary allegations in the indictment and unnecessary words in the plea are surplusage the same as unnecessary words in the indictment.

III. It therefore follows the trial court was required to treat the plea as simply a plea of guilty to murder and hold a hearing to determine the degree as provided in section 690.4, Code of Iowa, 1958. It is there provided, “* * *; but if the defendant is convicted upon a plea of guilty, the court must, by the examination of witnesses, determine the degree, * *

The question here is, was this done? The record shows by stipulation of the parties the trial court was to consider all of the evidence produced by either party in the trial before the jury as well as whatever evidence either the defense or the State wished to offer. Defendant does not complain any offer of evidence on his behalf was refused or he was in any way limited in presenting evidence bearing on the question of the degree of murder. The fact the trial court by stipulation considered evidence previously heard by it in the jury trial does not constitute a failure to determine the degree by the examination of witnesses. This is particularly true here where it was stipulated the evidence would be the same. Nor does it appear defendant’s right to cross-examine the State’s witnesses was in any manner curtailed. The court heard and considered all of the evidence that would have been produced if the witnesses had been called to testify in the hearing held May 25, 1961. Under the circumstances defendant’s rights under section 690.4, Code of Iowa, 1958, were fully protected.

In an early case, M’Cauley v. United States, 1 (Morris) Iowa 641, 642, 643, our predecessor, the Supreme Court of Iowa Territory, in considering a statute similar to section 690.4, Code of Iowa, 1958, was faced with a similar situation.

The statute then provided: “* * * and if such prisoner be convicted by confession in open court, the court shall proceed by examination of witnesses in open court to determine the degree of the crime, and shall pronounce sentence accordingly.”

The defendant there withdrew his plea of not guilty after the prosecution had presented its case to the jury, and pleaded guilty to the crime charged, and was thereupon sentenced to be hanged. The record did not show witnesses were examined after the guilty plea, or that the court in any manner determined the degree of the crime as contemplated by the statute.

The court said: “* * * but an inquiry and decision as to the more precise nature of the offense are rendered necessary. That inquiry and decision should appear of record. The record shows that before the plea of not guilty had been withdrawn, the testimony in chief, on the part of the prosecution, had all been presented. We see no valid objection, therefore, on the ground that the court did not hear testimony to enable it to decide on the precise nature of the offense, * *

The case was reversed because the court’s conclusions did not appear of record.

Similar holdings are found in State v. Grattan, 222 Iowa 172, 268 N.W. 489; State v. Ferranto, 112 Ohio St. 667, 148 N.E. 362; State ex rel. Christopher v. Amrine, 75 N.E.2d 227, 230 (Ohio Com. Pl. 1947); and annotation, 34 A. L. R.2d 929.

IV. How the trial court treated the plea can only be determined from the record. On May 18, 1961, when the plea was entered it appeared like a plea to first-degree murder and the court then set a hearing for May 25, “so that the court may fix the punishment herein as provided by law.” The court minutes for May 25 state, court was convened “for the purpose of permitting the State of Iowa and the defendant to make showing and introduce evidence as either might deem proper for assisting the court in determining the punishment and degree of murder to be adjudged against the defendant.” Though the court did inquire of the defendant again if he fully understood the import of his plea of guilty to a charge of first-degree murder, it does not appear the court considered the question closed as to the degree, but rather that the court was giving the defendant every opportunity to understand the effect of his plea and that the purpose of the hearing was twofold, to determine the degree, and fix punishment. Here again, defendant does not claim now any witness of his was not heard. If such a right had been denied our course would be clear. If the court was considering the plea solely as a plea of guilty to first-degree murder there would be no reason to state the purpose as including “for assisting the court in determining * * * the degree of murder * * The court minutes for June 7 show clearly the court considered all the evidence and did in fact determine the degree of murder. We find no merit in defendant’s contention the court considered the plea of guilty as a plea of guilty to first-degree murder and not as including second-degree murder and manslaughter if the evidence would so warrant. The record affirmatively shows the court fully performed the duty to determine the degree of murder as required by section 690.4, Code of Iowa, 1958.

Defendant argues that penal statutes are strictly construed. We agree. But we do not agree something required by statute has not been done, when the record before us shows it has. There is no question of the duty placed on the trial court, and there is no question but this duty was performed. All of the evidence either the defendant or the State wished to offer was before the court. The court made a finding based on and substantiated by such evidence. We do not for a moment overlook the solemn duty cast on us in a case of this kind, but we cannot reverse a case where a defendant has been accorded his full rights, no more than we can affirm where he has not. Our duty is not to the defendant alone, but the State of Iowa as well. Defendant vigorously urges State v. Martin, supra, requires a contrary result here. It should be pointed out, in Martin the defendant was accorded no hearing, here the defendant had a full and complete hearing.

Y. Defendant contends the evidence is insufficient to sustain the finding of first-degree murder. He argues specifically there is no evidence of premeditation and intent to kill. The record does show this defendant with two companions, Charles Brown (see State v. Brown, 253 Iowa 658, 113 N.W.2d 286), and a girl friend of Brown, came to Council Bluffs from Omaha on February 22, 1961, in a cab. The men left the girl at a tavern. Defendant and Brown, both armed, defendant with a .32-caliber revolver, and Brown with a .38, asked the deceased, Alvin E. Koehrsen, for a lift for a few blocks. After they were in the ear they directed the deceased where to go and when to stop. While the car was stopped the deceased tried to get out of the car and the defendant shot him. At the scene of the crime a Mr. Leroy R. Harmon testified he was within 50 feet of the car, he heard three sharp reports, he heard a groan and saw the deceased slump to the ground. He saw defendant get out of the car and walk past him. At the scene of the crime the deceased told a police officer both men shot him. He had been shot seven times, once in the left cheek, once through the neck, once in the right wrist, and four times in the left side of the rib cage. The defendant himself says, “I do not know how many times I fired * * The defendant’s statement also shows Brown and defendant were in the process of stealing the deceased’s car and neither of them could start it. Defendant had pulled his gun on the deceased while telling him where to go. This evidence is not contradicted in any way in the record. It constitutes substantial evidence of malice, deliberation, premeditation and intent to kill, as well as substantial evidence defendant killed deceased while engaged in the perpetration of a robbery.

Premeditation and deliberation need not exist for any particular length of time previous to the killing. Use of a deadly weapon with opportunity to deliberate is evidence of malice, deliberation, premeditation and intent to kill. State v. Brown, 253 Iowa 658, 664, 113 N.W.2d 286, 290, and citations; State v. Jackson, 251 Iowa 537, 545, 101 N.W.2d 731, 736; State v. Nutter, 248 Iowa 772, 81 N.W.2d 20; and State v. Leedom, 247 Iowa 911, 76 N.W.2d 773. Certainly when a man repeatedly fires a .32-caliber revolver at another within the short range of the width of an automobile he cannot be heard to say he did not intend the natural and obvious consequences of such act. As stated in State v. Jackson, supra, at page 545 of 251 Iowa, page 736 of 101 N.W.2d:

“He who goes armed with a deadly weapon, such as a loaded revolver, for the purpose of committing a robbery, and uses it in the course of the robbery, is not in a strong position to urge that there was no evidence of deliberation or premeditation.”

The evidence supports the trial court’s finding.

VI. Defendant urges the trial court was in error in admitting the testimony of Kenneth Earl Vencel at the hearing to determine the degree of murder and the punishment, because it showed an offense independent of the one with which he was charged. Mr. Vencel’s car and his money were taken from him by defendant and Brown. He was shot by the defendant when they were standing two feet apart. He was able to run away, as he ran he was hit by two more shots in the back. More shots were fired. Miraculously Mr. Vencel was able to run away, and lived. This happened about 8:20 or 8:30 p.m., February 22, 1961. Mr. Harmon, the witness first on the scene when the deceased, Mr. Koehrsen, was shot, placed the time at about 8:10 p.m. Defendant’s confession or statement, discussed later, shows Brown and defendant came to Council Bluffs for the purpose of stealing a car. The testimony of Mr. Harmon and Mr. Vencel shows that within a half-hour’s time defendant murdered Mr. Koehrsen in 'an attempt to' steal his automobile, abandoned the attempt because neither he nor Brown could start the car, and then stole Mr. Vencel’s ear and while so doing shot him. Certainly the acts of stealing Mr. Vencel’s car and shooting him are so closely related in time and place and so intimately associated with attempting to steal Mr. Koehrsen’s car and murdering him that they form a continuous transaction — in this instance, of stealing a car at all cost. We have repeatedly held such evidence is admissible to show the whole transaction, what immediately preceded and what immediately followed the act complained of, for the purpose of showing the scienter or quo animo of the party charged. State v. Brown, 253 Iowa 658, 668, 113 N.W.2d 286, 292; and State v. Holoubek, 246 Iowa 109, 113, 66 N.W.2d 861, 863, and citations.

In this hearing to determine the degree of murder, defendant’s guilt or innocence of the crime of murder was not in issue, it was the degree of murder. The state of mind of defendant is an element to be determined on such an inquiry. Mr. Veneel’s testimony was material and relevant to that issue and was properly admitted. State v. Schlak, 253 Iowa 113, 116, 111 N.W.2d 289, 291; State v. Linzmeyer, 248 Iowa 31, 79 N.W.2d 206; and State v. Triplett, 248 Iowa 339, 79 N.W.2d 391.

VII. It is defendant’s thought that his confession and statements to the officers regarding the crime charged, the circumstances and shooting of Mr. Vencel and another shooting in Omaha, were inadmissible on the issue of the degree of guilt and the punishment to be inflicted because defendant was a minor, 20 years old at the time. This is the only reason urged. He concedes there are no Iowa cases so holding. He cites two Oklahoma cases, Olivera v. State, 354 P.2d 792 (Okla. Cr. 1960), and Clark v. State, 95 Okla. Cr. 375, 246 P.2d 422. We have examined these two cases thoroughly. In Olivera the confessions of two defendants, 17 and 18 years old, were under consideration. In Clark the defendant was 17 years old. In neither case were the convictions reversed. In each of these cases there are statements that may be thought to sustain defendant’s position, however, as we read them the fact the defendants were minors was considered as only one indicium the confessions were involuntary. In Olivera, at page 794 of 354 P.2d, is this statement: “We are of the opinion that this fact [minority] standing alone is not sufficient to void a confession when the same is validly made under the law.” This view does not differ from ours. There is no evidence in the record that defendant did not know the statements and confession made by him could be used against him, or that he did not know he had a right to remain silent. This is not presumed. On the contrary, a confession is presumed to be voluntary. State v. Jones, 253 Iowa 829, 113 N.W.2d 303, and citations; State v. Brandt, 242 Iowa 382, 44 N.W.2d 690; and 23 C. J. S., Criminal Law, section 829, page 230. It should be pointed out, defendant had entered a plea of guilty. On the issues to be determined it was proper to consider what defendant himself said.

VIII. Defendant asks us to reduce the sentence of death to life imprisonment. He urges us to reconsider our position on the power granted this court by section 793.18, Code of Iowa, 1958. In effect he asks us to exercise the pardoning power and commute the sentence. That we do not have such power is the long standing holding of this court. We have not reduced a death sentence to life imprisonment where the same was assessed upon a plea of guilty to murder and after a hearing to determine the degree of murder and to'fix the punishment. This is a court for the correction of errors. We would be justified in setting aside or reducing the sentence in this case only if there is a clear showing of an abuse of the trial court’s discretion in imposing the maximum penalty. State v. Nutter, 248 Iowa 772, 81 N.W.2d 20; State v. Smith, 127 Iowa 528, 103 N.W. 769; State v. Hunter, 243 Iowa 361, 51 N.W.2d 409; State v. Bruntlett, 240 Iowa 338, 36 N.W.2d 450; State v. Wheaton, 223 Iowa 759, 273 N.W. 851; State v. Grattan, 222 Iowa 172, 268 N.W. 489; State v. Harper, 220 Iowa 515, 258 N.W. 886; State v. Tracy, 219 Iowa 1412, 261 N.W. 527; and State v. Olander, 193 Iowa 1379, 186 N.W. 53, 29 A. L. R. 306.

Defendant has offered much evidence bearing on his unfavorable past life. There is evidence he suffered from epilepsy and some that such diagnosis had not been confirmed. In a letter solicited by able counsel for defendant, written by Dr. Richard W. Anderson, M.D., Director, Adult Psychiatry Outpatient Clinic, The Medical School, University of Minnesota, we find, after a long history of the defendant, this conclusion, “* * * nor is there any evidence of a psychotic reaction which would indicate that Mr. Kelly [Kelley] is not responsible for his acts.”

The following statement from State v. Nutter, at page 780 of 248 Iowa, at page 24 of 81 N.W.2d, is appropriate here:

“In the instant case appellant did not make or claim any reason or justification for the killing. It was ruthless and vicious. There is no doubt about his being guilty of murder in the first degree as such has been defined by the legislature and construed by this court. The legislature has provided a choice of two penalties. The penalty imposed is one of those two. It was within the discretion of the trial court and so intended by the legislature. In the exercise thereof, we find no abuse of that discretion.

“Much of the record is devoted to evidence of appellant’s early life and his conceded mental complex. No claim is made that he is insane such as to excuse the act. These matters do not entitle appellant to relief at our hands.”

IX. When there is a division among the members of this court as to the proper determination of a case based upon a difference of opinion as to applicable rules of law, or as to fact situations giving rise to the application of rules of law, we are of the opinion it is unnecessary for the majority opinion to reply or to call attention to matters appearing in the dissent. However, in view of the dissent we may say we have considered the entire record of this case as submitted and just what was submitted. The defendant elected to proceed here upon a printed record and brief and argument as in a civil case. Section 793.17, Code of Iowa, 1958; and Court Rule 16. As stated, the evidence taken before the jury was by stipulation of counsel for the State and the defense to be considered by the trial court on the hearing to determine the degree of guilt and to fix the punishment. This stipulation appears in the printed record by the State’s amendment thereto at pages 12, 13 and 14 of Appellee’s Denial of and Amendment to Appellant’s Abstract of Record and Appellee’s Brief and Argument.

The evidence taken before the jury is set out both in the record prepared by counsel for the defense and in appellee’s Amendment. The defendant abstracted the testimony of three State witnesses, and the testimony of four defense witnesses, and that of the defendant consisting of 14 pages. The State in its amendment to the record abstracts the testimony of five additional witnesses and further testimony of two witnesses whose testimony had been abstracted by the defendant, consisting of seven pages.

Counsel for defendant point out very ably and clearly the matters submitted to the jury and considered by the trial court of which they complain. It is no reflection upon defense counsel to state it is apparent that they abstracted the record in a manner most favorable to their client, in fact it is a commendation on the ability with which defense counsel presented this case. Despite their efforts error does not appear. — Affirmed.

All Justices concur except Larson, J., dissenting, and Moore, J., not sitting.