State v. Kelley ( 1962 )

Larson, J.,

respectfully dissents: It may be the season of the year, the inadequacy of the record, the apparent confusion surrounding the plea of guilty and the hearing pursuant thereto, or the influence and dominance of a hardened criminal exercised on a physically and mentally disturbed youth, but nevertheless I cannot concur in an affirmance of the death sentence in this case. The majority seem to treat the matter as any other criminal appeal with all assumptions and inferences in favor of regularity in the proceedings. I do not. I feel a far greater degree of care must be exercised by the appellate courts in capital offenses involving the supreme penalty than in those that may later be corrected by due legal procedures.

I. Subsequent to defendant’s trial before a jury on the charge that he “did, with malice aforethought, while attempting to perpetrate a robbery, kill * * * Alvin E. Koehrsen”, the jury, selected from a county where persons suffering from ailments such as those afflicting defendant are treated, disagreed. For some undisclosed reason, two days later he changed his plea to guilty and threw himself upon the mercy of the court. One week later, at a hearing I shall discuss later, it was stipulated that the Judge could again consider the evidence submitted in the previous trial. However, we are not favored with that record and, while this exclusion appears to be overlooked by the majority, I feel we cannot properly pass upon the competency and relevancy of that testimony unless it is shown in the record before us. We cannot fully perform our function as required by section 793.18, Code of Iowa, 1958, by simply considering the testimony produced at the May 25 hearing. It will not do for us to assume the learned Judge accepted and considered only proper, competent and relevant matters in performing his duty to determine the degree of the crime, in the absence of the full record upon which he acted.

It must be recognized that there were two distinct and different issues to decide, upon which different types of evidence were applicable. The somewhat unlimited evidence properly admissible to determine the punishment to be given must be materially restricted and much eliminated upon the issue of the degree of the crime. Too many vital assumptions are necessary here for us to say without doubt that the defendant had a fair trial and received a just and reasonable sentence.

What was the record in the prior trial? Did the court act properly in overruling all of defendant’s objections to testimony received in that trial? The State argues that we should assume those rulings were correct and that only relevant and proper evidence was considered, citing Bowermaster v. Walker, 196 Iowa 30, 33, 194 N.W. 208; Thrasher v. Haynes, 221 Iowa 1137, 1141, 264 N.W. 915; 22A C. J. S., Criminal Law, section 589(1), pages 352-354. I do not find this authority extends so far as to presume the regularity of all court rulings in capital offenses. In fact, our statute provides otherwise. Section 793.18, Code, 1958, provides: “If the appeal is taken by the defendant, the supreme court must examine the record * * To me this means the whole record. In State v. Brainard, 25 Iowa 572, 581, we said: “It is made the duty of this court to decide criminal appeals according to the very justice of the case as shown by the record, without regard to technical errors. It does not harmonize with the humane spirit of this statute to lay down the iron rule that the defendant must inevitably and in all cases be visited with the consequences of the omissions or errors of counsel.” Also see State v. Martin, 243 Iowa 1323, 1327, 55 N.W.2d 258, 260, 34 A. L. R.2d 904, and citations.

It is, therefore, submitted that although defendant’s counsel stipulated that the Judge could consider the evidence and objections before it in the previous trial, we are not performing our statutory duty in this serious matter by assuming the evidence introduced in the prior trial was proper and would sustain a finding that the degree of this crime was first degree. The very least we should do in this regard is to require a record of those proceedings so we can determine for ourselves whether it alone would justify such a finding.

II. The requirement of section 690.4, Code, 1958, that a defendant charged with murder be given a hearing to determine the degree of the crime cannot be waived even by the defendant himself. When he pleads guilty to the crime of murder, it then becomes the court’s duty to hear the evidence, to examine the witnesses, and to consider only competent, relevant and proper testimony in determining the degree. State v. Martin, supra, 243 Iowa 1323, 55 N.W.2d 258, 34 A. L. R.2d 904, and citations. The State does not dispute this rule, and the majority recognize it.

Did the court in this instance comply with that rule, and did it set a hearing for that purpose! The court’s record in its “court minutes” of May 18, 1961, leaves me with a feeling of doubt as to just what was meant and what was understood by the parties concerned at that time. It states defendant “* * * 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 court 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 ma/y fix the punishment herein as provided by law.” (Emphasis supplied.)

Two questions of great concern are immediately raised. Was this court action a compliance with the requirements of section 690.4 of the Code, and did it give defendant and his counsel due notice of the time and place of a hearing for determining the degree of his crime? If these questions are answered in the negative, which I think they must be, then defendant’s rights were not fully protected and he was not given fair opportunity to prepare for this formal and most important trial issue. This alone would be reversible error. •

The majority assume defendant knew the purpose of the hearing May 25 and contend he was then given every opportunity to present his ease on the issue of degree, that he did not object to the hearing, and that he did not offer any further evidence although the opportunity was afforded him. This fact, if it is a fact, cannot cure the error created by a lack of due notice and an opportunity to fully prepare on this issue of degree of guilt. At this hearing it appears defendant’s evidence all related to mitigation of punishment and his disabilities and weakness. Section 690.5, Code, 1958. Therefore, serious doubts do arise that he was given full opportunity to properly prepare for the issue on degree of the crime. Unless that issue was properly tried, under the Martin case, there was reversible error.

The purpose of the May 25 hearing is further left in doubt by the court’s minutes of that date. They stated in part: “Court convened # # * for the purpose of permitting the State of Iowa and the defendant to make showing and introduce evidence * * * for assisting the court in determining the punishment [and then almost as an afterthought] and the degree of murder to be adjudged against the defendant. * * '* The court again inquired of the defendant if he * * * understood * * * the import and seriousness of his plea of guilty to the charge of first-degree murder * * (Emphasis supplied.)

I submit the plea defendant entered was not to first-degree murder but only to murder, and that the court’s duty was first to determine the degree of his crime by the examination of witnesses, and thereafter to consider evidence as to the punishment it should inflict upon the accused — not to determine them together, or in the reverse order. The most violent presumption of all is that the court in admitting all the evidence, whether proper or improper, considered only proper evidence to fix degree. If that be the law, our appellate function disappears.

I submit further that the evidence the court may consider in determining the degree is governed by the same rules of evidence applicable to a trial to a jury, and no less. It must be relevant and proper to the issue of degree of guilt. State v. Martin, supra. This brings us to one of the principal issues in this appeal. Was the evidence of a second shooting properly considered, if it was, in determining the degree of the crime charged herein? Was Yencel’s testimony proper for any purpose except in fixing punishment after the issue of degree had been determined ?

III. The general rule in such matters is well settled. The State cannot prove or produce evidence that the accused has committed a crime not alleged in the indictment as aiding the proof of his guilt of the crime charged. State v. Porter, 229 Iowa 882, 885, 294 N.W. 898, and citations; State v. Rand, 238 Iowa 250, 25 N.W.2d 800, 170 A. L. R. 289, and citations. The basic reason is that the commission of another crime ordinarily has no proper relevance to the commission of the crime for which defendant is being tried. The proof of an independent crime, entirely different, may incline the mind of the fact finder to the belief that the defendant might also commit the crime with which he is under charge. If there is fair doubt as to its relevance, and if there is possibility of danger of the misuse of that evidence, it should be excluded. State v. Rand, supra.

Here there were timely objections to the testimony of one Kenneth Yencel, who stated he was assaulted by the defendant about twenty minutes after the crime alleged in this indictment. He told a story which, if believed or if proven, would seriously prejudice any trier of fact against the defendant, whether Judge or jury. He said the defendant and one Charles Brown accosted him about 8:30 p.m. and wanted a ride to a beer joint. He refused and Brown pulled a gun and took the driver’s seat. Defendant, Kelley, then held a gun on him while Brown drove to a vacant lot. Brown told Kelley he knew what to do, and when Yencel got out of the car Kelley shot him near the heart. When his next shot did not fire, Yencel ran, but he was shot twice more in his attempt to escape. The clearly-intended inference of this testimony is that defendant planned the crime and intended to kill Yencel when the car was stolen. Unless, then, it was properly admissible, it was highly prejudicial.

In a criminal prosecution, proof which tends to show that the accused is guilty of the commission of other crimes and offenses at other times, even though they are of the same nature as the one charged in the indictment, is generally inadmissible for the purpose of showing the commission of the particular crime charged. The accused is to be convicted, if at all, on evidence showing his guilt of the particular offense charged in the information. It is not competent to prove that the accused committed other crimes of a like nature for the purpose of showing that he would likely commit the crime charged in the information or indictment. Evidence of other crimes, of course, compels a defendant to meet charges of which the information or indictment gives no information, confuses him in his defense, and raises a variety of false issues. Kempe v. United States, 8th Cir., 151 F.2d 680 ; Gart v. United States, 8th Cir., 294 F. 66; Paris v. United States, 8th Cir., 260 F. 529, 531; Fish v. United States, 1st Cir., 215 F. 544; 20 Am. Jur., section 309, page 287.

There are several exceptions to that general rule, and it has been said this braneh of evidence law has not yet developed into a set of rigid rules and formulae. 29 Mich. L. Rev. 483. Long ago we classified such exceptions in State v. Vance, 119 Iowa 685, 686, 687, 94 N.W. 204. Also see State v. Crabbe, 200 Iowa 317, 204 N.W. 272, and State v. Porter, supra. It was announced in the Vance case that “The State cannot prove against a defendant any crime not alleged in the indictment, either as a foundation for separate punishment or as aiding the proofs that he is guilty of the crime charged. The exceptions to the rule may be classified as follows: Evidence as to other offenses is competent to establish (1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme embracing the commission of two or more crimes so related to each other that proof of one tends to prove the others, and (5) the identity of the person charged with the commission of the crime on trial.” Cases were cited as illustrating some of these exceptions applied in this statej not applicable here.

While perhaps much evidence of collateral offenses can be found relevant to the issue of guilt or innocence of an accused, the rule of prohibition was established because of its probable misuse by the finder of fact. The exceptions recognized are those which tend to limit and restrict such misuse and allow little chance for improper inferences.

Thus evidence of a common scheme, plan or design is generally held admissible. Brickey v. United States, 8th Cir., 123 F.2d 341. This seems to be the exception under which the majority would hold Vencel’s testimony proper. I must disagree. There is no evidence that Brown and defendant set out to steal cars, to kill owners of automobiles, or to kill anyone as a purpose. On the other hand, it appears they set out to steal a car, that one was stolen, and later when it refused to start, the owner v?as blamed, shot and killed. That car was then abandoned, and that crime complete. Some twenty minutes later it appears they decided to steal another car, did so, and then apparently decided to suppress the evidence by shooting the owner. I fail to find in these two separate and distinct crimes, although somewhat similar, any showing of a plan, scheme or design, which would permit evidence of the second shooting in the charged offense. It simply is not there, and the only remaining purpose for which the second shooting would be offered would be to show the propensity of the accused to commit such crimes. In other words, the fact that the second assault was committed is used as a basis of predicting that defendant committed the first crime with malice and forethought. Thus, in the absence of a common scheme, plan or design, not present here, that is the only purpose for which this evidence could be used, and that is prohibited under well established rules of evidence. Ladd, Cases and Materials on Evidence, Second Ed., Evidence of Other Crimes, pages 370 to 379 inclusive; Wigmore on Evidence, section 302; Wharton’s Criminal Evidence, Volume 1, Eleventh Ed., sections 344, 345, pages 486-491; 20 Am. Jur., Evidence, sections 310, 311, pages 289-292; Uniform Rules of Evidence, rule 55, page 193.

The majority seem to believe that because these separate assaults were committed within a short time, the second shooting was admissible. That position is not sound, for most authorities recognize the element of remoteness as bearing only upon the weight of evidence otherwise admissible, not the competency or propriety of the evidence.

IV. In this record there is nothing to indicate the court did not consider Vencel’s testimony for an improper purpose. It is evident that it considered degree of crime and punishment as a combined issue without thought of the limitations of the fact that the alleged second offense could not be used to determine the degree of guilt. Thus it committed prejudicial error and reversal is required.

In Fish v. United States, supra, 215 F. 544, 549, the court said: “Evidence of this character necessitates the trial of matters collateral to the main issue, is exceedingly prejudicial, is subject to being misused, and should be received, if at all, only in a plain ease.”

In Paris v. United States, supra, 260 F. 529, 531, it is said: “Such evidence tends to draw the attention * * * away from a consideration of the real issues on trial, * * * and to lead * * * unconsciously to * * * verdicts in accordance with * * * false issues rather than on the true issues on trial.”

That issue here is the degree of the crime charged. While little evidence of the proper kind will suffice to prove premeditation in a killing (State v. Haffa, 246 Iowa 1275, 71 N.W.2d 35, and citations), the evidence here of an independent assault tending to show a malicious intent to kill Vencel at another time falls squarely within the prohibition set out above. How does it properly tend to prove such intent at the time of the killing of Koehrsen?

Care should always be exercised in admitting evidence of other and distinct offenses; otherwise, trials and hearings might soon become so involved in collateral matters that the real issue would be lost. Sauvain v. United States, 8th Cir., 31 F.2d 732, 733.

In Wharton’s Criminal Evidence, Volume 1, supra, at page 568, it is said as to the exceptions: “In any loose relaxation of the rule, the danger to the accused is that evidence may be adduced of offenses that he has not yet been called upon to defend, of which, if fairly tried, he might be able to acquit himself. In the first place, the collateral offense for which an accused has not been tried tends to prove his inclination toward crime, that is, to render more probable his guilt of the charge under trial, which is an absolute violation of the rule.” (Emphasis supplied.)

Also see People v. Carvalho, 112 Cal. App.2d 482, 246 P.2d 950, 956; People v. Albertson, 23 Cal.2d 550, 145 P.2d 7, as to the “extreme caution” required in considering evidence of other offenses, and Douglas v. Commonwealth, 307 Ky. 391, 394, 211 S.W.2d 156, 158, as to resulting prejudice when a “finely intentioned and faithful prosecuting attorney in his zeal goes a little too far in attempting to bring evidence of other crimes which are not necessary at all to the establishment of his case.”

In State v. Atkinson, Mo., 293 S.W.2d 941, the court in passing on this question said: “Generally, evidence is not admissible to shoAv that defendant is guilty of the commission of other independent crimes, either as foundation for a separate punishment * * * even though they are of the same nature as the one charged in the indictment.” Also see State v. Atkinson, Mo., 285 S.W.2d 563.

This is not the situation where one assaults one person and several others are injured in the fray (People v. Lopez, 135 Cal. 23, 66 P. 965), nor where several were attacked, one killed outright and others were fired upon (People v. Marble, 38 Mich. 117). It was not all one transaction or even another offense committed in an attempt to escape, usually held admissible. It was under no stretch of the imagination an included offense, and there was nothing to show any motive or continuing purpose in the second assault. It was simply a separate and unrelated crime, and under no exception to the rule was the testimony of Yencel proper upon the issue of degree of the crime charged, or to which defendant pleaded guilty. Furthermore, we must assume there was no such evidence introduced in the prior jury trial. If it was not then submitted because it was considered improper, why would it be different when the court was performing the usual jury function of fixing the degree of the crime ? Obviously the State felt such evidence before a jury would have been prejudicial error, and I see no difference in this hearing.- Who can say a Judge is not vulnerable to such improper evidence and would not be influenced by that evidence? I prefer not to take the chance, with a man’s life at stake.

Y. As pointed out in the case of State v. Martin, supra, 243 Iowa 1323, 1327, 55 N.W.2d 258, 260, 34 A. L. R.2d 904, it is generally held that in capital eases the appellate courts will disregard technical rules for the purpose of determining whether the defendant had a fair trial. “* * * an exception to the general rule that questions not raised in the trial court will not be considered on appeal exists in case of material defects which are apparent on the face of the record and which are fundamental in their character, or which clearly show manifest injustice, especially in capital cases.” 24 C. J. S., Criminal Law, section 1669, pages 270, 271.

We further said in the Martin case: “The most solemn duty devolving upon any court is the imposition of the death sentence, in a proper case. No human life should be taken by judicial order until every requirement of statutory law and justice has been complied with. And the more cruel and revolting the crime of which the defendant stands accused, the stronger the popular feeling and public indignation, the more meticulous should the courts be in observing these rules, that no man may be convicted and executed because of the hue and cry raised against him, but only after a trial fair in every respect.”

At the very least, the evidence accepted to determine defendant’s degree of guilt on May 25 is questionable. Without it we have no full record before us as to the evidence of degree. AVithout such evidence of the degree of his guilt, under State v. Martin, supra, the cause should be remanded for a full hearing to determine degree.

For all of these reasons a great shadow is cast over these proceedings. Was a hearing as required by statute held to determine the degree of his crime? Section 690.4, Code, 1958. AVas the notification given defendant of that hearing adequate when set? Was the evidence taken on May 25 relevant, competent and proper, or was it prejudicial? The benefit of all doubts, 1 contend, should be given the condemned man by this court, and I am not convinced the majority have done so.

VI. Punishment of an individual should not be determined by the act he committed alone. That is one of the reasons why a broader field of evidence and other humanitarian considerations are rightfully examined in reaching a decision upon punishment in a given case. On the matter of punishment, the youth of a person, his physical and mental capacity, his weakness as a person, his capacity to avoid the domination of others, where such factors are present, and every other factor giving an insight as to the responsibility of the accused, provide the basis of judgment, by the court in pronouncing sentence.

.If we were to judge the accused by his acts alone, and first-degree murder had been properly determined as the crime committed, there might be little question that the maximum punishment could be given. But this is not the basis upon which a just determination may be reached. Other factors pertaining to the measure of responsibility must be explored to the fullest in a case involving the death penalty.

Then what is the situation in respect to this defendant? At the May 25 hearing defendant submitted a number of exhibits tending to show his mental and physical disability. These disclosed he had suffered from dizzy spells and blackouts since 1954, that his ailment was diagnosed as epilepsy in 1956, that he was given a medical discharge January 14, 1959, from the Marine Corps due to epilepsy after only 17 days in the service, that he had been found in need of psychiatric treatment at the medical school of the University of Minnesota in February 1960 and that a suggested treatment for his infirmity was Dilantin Sodium, grains 1% twice a day, and Mebaral, grains 1% at bedtime. He was further diagnosed as a “sociopathie personality”. The evidence showed he was easily led and the inference is clear that at the time of this crime he was under the domination of one Charles Brown, convicted by jury of killing Alvin E. Koehrsen.

It is time, any evidence the court believes may be of aid to it in fixing punishment may be received at the hearing set for that purpose. Section 690.5, Code, 1958. If all the evidence taken on May 25 was considered for that purpose alone, I would find no error, but if such was the case, then under State v. Martin no hearing has yet been had, as the law requires, for the determination of the degree of defendant’s guilt, and the hearing on the matter of punishment was premature.

Although we have in the past refused to act to reduce punishment, members of this court have many times pointed out that we do have the authority to do so. State v. Olander, 193 Iowa 1379, 186 N.W. 53, 29 A. L. R. 306; State v. Bruntlett, 240 Iowa 338, 36 N.W.2d 450. Section 793.18, Code, 1958, provides: “If the appeal is taken by the defendant, the supreme court must examine the record * * * 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.” (Emphasis supplied.) If there ever was an appeal presented to this court where the application of this section was called for, this is it. In no previous case have we been in the position of having to assume that the district court properly considered the evidence, including the objections in a previous trial, in determining the degree of defendant’s guilt, where there is no record for us to review as required in section 793.18 of the Code, and where there was an obvious commingling of proper and improper evidence at a hearing set to determine the punishment defendant would receive, and which turned out to be a hearing not only to determine the punishment but also the degree of his guilt.

I need not point out that a trial Judge is human, and that the normal effect of hearing evidence, irrelevant and improper under any standard, would affect his judgment on the issues before him. Under such confusion I submit neither question, as to degree or as to proper punishment, received proper consideration. This youth’s attempt to show his physical and mental defects, and their consequences, was lost sight of when the evidence of a subsequent attack and a so-called confession were considered. At any rate I feel, as apparently did the jury in the prior trial, and as did Judge Bliss in the Bruntlett case, at page 381 of 240 Iowa, that “Certainly hanging a madman will not deter other madmen from crime, nor perhaps, sane men.” Revenge by the State in such a case is unthinkable, and such punishment will never deter such mentally affected persons from acting antisoeially.

Due to the fact that great doubts exist as to the degree of this crime on the part of defendant, and as to the admissibility of evidence considered in fixing the degree, I would reduce the sentence to life imprisonment, which would be proper for the protection of the public and could be adjudged either for second-degree or first-degree murder. When a record discloses so many legal doubts, I think it is our duty to reduce the sentence. We should not pass that obligation to tbe Governor. A commutation of sentence of such an afflicted person is not probable.

In the alternative I would grant a new trial, and in case defendant continued his plea of guilty to murder, I would order a complete hearing to determine the degree in which only proper, relevant and competent evidence would be considered, and that subsequent to the fixing of the degree, testimony be received to aid the court in rendering judgment and sentence.