State v. Albers, No. 53034

CourtUnited States State Supreme Court of Iowa
Writing for the CourtBECKER; MOORE; RAWLINGS; REES; STUART; SNELL
Citation174 N.W.2d 649
Docket NumberNo. 53034
Decision Date10 February 1970
PartiesSTATE of Iowa, Appellee, v. Fred ALBERS, Appellant.

Page 649

174 N.W.2d 649
STATE of Iowa, Appellee,
v.
Fred ALBERS, Appellant.
No. 53034.
Supreme Court of Iowa.
Feb. 10, 1970.

Page 651

R. L. Donohue, West Union, and Frank R. Miller, Decorah, for appellant.

Richard C. Turner, Atty. Gen., James C. Sell, Asst. Atty. Gen., and William L. Wegman, Chickasaw County Atty., for appellee.

BECKER, Justice.

Fred Albers was indicted for the crime of murder in the first degree in violation of section 690.1, 1966 Code of Iowa. He pleaded not guilty claiming his wife was killed accidentally. A Chickasaw County jury found him guilty of the included offense of second degree murder. He appealed from the court's judgment sentencing him to twenty years in the state penitentiary at Fort Madison and assigns ten grounds for reversal.

I. Defendant claims the trial court abused its discretion in failing to grant a change of venue. The shooting incident occurred February 4, 1967. On September 15 the case was assigned for trial November 13, 1967. November 6, defendant filed a motion for change of venue alleging 28 out of 80 or about 35% Of the jurors on the panel resided in close proximity to defendant's residence and it would be difficult to obtain a fair and impartial jury as his wife had lived on this farm all her life, taught school in Nashua and was well known in that part of Chickasaw County which received mail through Nashua or Ionia post offices. He also claimed radio and press coverage of the incident created excitement and prejudice against him. Attached to the motion were the affidavit of his attorney and those of six other affiants swearing each 'was of the opinion that due to the feeling and prejudice existing in Chickasaw County, Iowa against Fred Albers that he would not be able to obtain a fair and impartial trial on the charge of murder filed against him'.

The State's resistance was accompanied by 25 affidavits identical in form, except as to the names of the affiants, their residence, occupation, and the length of time they had resided in the county. Each stated he had occasion to converse with and see many people in the course of his occupation and he was unaware of any general excitement or prejudice in the county regarding the case.

The movant has the burden of showing the trial court abused its sound discretion in overruling the motion for change of venue. State v. Loney (1968), Iowa, 163 N.W.2d 378, 383 and citations. Section 778.9, Code of 1966. We are unable to say the court abused its discretion here.

The newspaper stories and the television and radio broadcasts were no more than short concise reports of the incident and the actions taken by the State. They appeared about 8 months before trial. They

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contained no inflammatory statements or opinions. It is true they didn't state defendant claimed the shooting was accidental, but there was no attempt to recite any details of the incident.

The radio and newspaper publicized the fact that the county attorney would seek a first degree murder indictment. In one edition a story headed by the statement 'Wegman to Crack Down on Crime' was directy above a story headed 'Albers, Nashua Farmer, Posts $10,000 Bond'. The publicity here was nothing more than ordinary reporting which always accompanies an event such as this.

There was no doubt prejudice and excitement in the Nashua-Ionia area, but as we will discuss more in detail later there was little difficulty picking a jury from the other parts of the county which exhibited little knowledge of and no excitement or prejudice about the case. All jurors challenged for cause were excused.

Defendant claims the affidavits filed by the State were not sufficient as they do not state he could obtain a fair and impartial trial in Chickasaw County. We do not agree. They go to the basic question of excitement or prejudice. They may have been so drawn to avoid the criticism leveled at counter affidavits filed in State ex rel. Fletcher v. District Court (1931), 213 Iowa 822, 833, 238 N.W. 290, 295, 80 A.L.R. 339. We said: 'The purpose of the affidavits in the form presented evidently was not to dispute the factual assertions in the state's application but to qualify the affiants to give and set forth their opinions that the prejudice and excitement would not preclude a fair and impartial trial.' The affidavits here deny knowledge of the existence of any prejudice or excitement. They do not express an opinion as to the effect of existing prejudice or excitement. If none exists there is no reason why defendant could not receive a fair and impartial trial.

Defendant also claims the fact the whole jury panel was exposed to the examination and excuse of 18 jurors for cause on voir dire must have affected them and made it impossible for defendant to obtain a fair and impartial trial from those who previously had no opinion. There is merit in the American Bar Standard, 54 A.B.A. Journal 349, that under some circumstances each juror should be examined out of the presence of the other jurors, this has never been the practice in Iowa but the defendant cannot claim prejudice as an after-thought when he made no effort at the time to segregate the jurors under examination.

The record here is not as strong as that made in State ex rel. Fletcher v. District Court (1931), 213 Iowa 822, 238 N.W. 290, 80 A.L.R. 339; State v. Meyer (1917), 181 Iowa 440, 448, 164 N.W. 794; State v. Crafton (1893), 89 Iowa 109, 115--116, 56 N.W. 257, and State v. Canada (1878), 48 Iowa 448, 451, in which we held the trial court abused its discretion in not granting a change of venue. While a change of venue might well have been granted, we hold the trial court did not abuse its discretion in failing to grant the change. State v. Loney (1968), (Iowa), 163 N.W.2d 378, 382--383; State v. Ferguson (1957), 249 Iowa 361, 364, 86 N.W.2d 901, 904.

II. As a ground for new trial defendant argues the trial court abused its discretion by requiring the jury to continue its deliberations until 4:30 a.m. thus depriving defendant of a fair and impartial trial.

After a nine day trial, the jury was excused for Thanksgiving Day. They reported back at 10:00 a.m. Friday, November 24, to hear arguments and to receive the court's instructions. They retired to the jury room to deliberate at 5:30 p.m. An ample meal was provided at about 6:00 p.m. Around midnight the jury was given their choice of several varieties of sandwiches and drinks. Twice during the night the bailiff was instructed to clear the courtroom and permit the jury to walk around. About 2:00 a.m., while defendant's attorney was in the judge's chamber,

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the jury asked the bailiff to report to the judge. Defendant's counsel recalled the bailiff reported they were hopelessly deadlocked. The court remembered that the bailiff said one or more of the jurors inquired how long they were supposed to deliberate on a verdict.

At this time the court and defendant's counsel considered the advisability of giving a verdict urging instruction and agreed it should not be given. It his ruling the trial court stated: 'Counsel for defendant at that time, appeared willing to let the jury continue its deliberations without further instructions. At no time during the night, was the court urged to provide lodging for the jurors and permit them to retire for the night. Accommodations for them would have been difficult if not impossible to find.'

Defense counsel states in his affidavit that the trial court infomed the bailiff there was nothing the court could do and that the jury must continue their deliberations. The trial court states his answer to the bailiff was that there was no specific time limit.

In Kracht v. Hoeppner, 258 Iowa 912, 917, 918, 140 N.W.2d 913, 916, we said: 'We find no valid reason to require a jury to deliberate all night. If the attorneys are unwilling to agree the jurors be released under proper admonition until the next morning the jury should be furnished proper sleeping quarters as authorized by rule 202, Rules of Civil Procedure which provides: 'Food and Lodging. The court may order the sheriff to provide suitable food and lodging at the expense of the county for a jury being kept together to try or deliberate on a cause. " This case was cited with approval in both State v. Kittelson (Iowa), 164 N.W.2d 157, 167 and Gibbs v. Wilmeth (Iowa), 157 N.W.2d 93, 100. The point was not determinative in either case.

The local practice of failure to provide for jury lodging does not vitiate the error. In State v. Green, 254 Iowa 1379, 121 N.W.2d 89, 95 A.L.R. 810, we noted: 'In its order overruling the motion for new trial the court gave two reasons for not providing for lodging for the jury. The first was that it had 'never been the practice in said judicial district to separate the jury after final submission, and lodging has not been furnished jurors after commencement of their deliberations.' The custom in any district does not control the matter of what procedure would be the best as to the deliberations of a jury. * * *.'

This was a murder case; it has been tried for nine days; it involved a very difficult decision for the 12 jurors. One could reasonably anticipate these people would not, and perhaps could not, reach a verdict at a reasonable hour after the 4:30 p.m. submission time. Therefore the court had a duty to anticipate the possible need and provide for lodging as it did for meals. Lodging may well have been unattainable at 2:00 a.m. when the jury made inquiry. It is not shown accommodations could not be provided with forethought before the preceding trial day started. In this era of rapid transportation and availability of motels as well as hotels it is inconceivable that the State could not arrange a night or two lodging for 12 people.

In State v. Siegel, 221 Iowa 429, 264 N.W. 613, the jury deliberated 90 hours before reaching an agreement, but the opinion does not show such deliberation to have been without sleep. We...

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24 practice notes
  • State v. Lass, No. 56960
    • United States
    • United States State Supreme Court of Iowa
    • April 16, 1975
    ...such litigation by its nature involves a grisly subject. The test of admissibility of the pictures is relevancy. State v. Albers, 174 N.W.2d 649 (Iowa). Defendant pleaded not guilty and the State had to prove each element including intent to kill, willfulness, deliberation, and premeditatio......
  • State v. Hall, No. 57467
    • United States
    • United States State Supreme Court of Iowa
    • November 12, 1975
    ...of admissibility is relevancy. State v. Lass, supra, 228 N.W.2d at 771; State v. Hummell, 228 N.W.2d 77, 83 (Iowa 1975); State v. Albers, 174 N.W.2d 649, 657 (Iowa 1970); State v. Dillon, 161 N.W.2d 738, 741 (Iowa 1968). The trial court was careful to avoid duplication in the admission of p......
  • State v. Davis, No. 54755
    • United States
    • United States State Supreme Court of Iowa
    • April 13, 1972
    ...of a fair trial were not shown. This assigned error cannot be sustained. State v. Niccum, 190 N.W.2d 815 (Iowa); State v. Albers, 174 N.W.2d 649 (Iowa); State v. Loney, 163 N.W.2d 378 (Iowa); State v. Ferguson, 249 Iowa 361, 86 N.W.2d We will say that since we conclude the case must be reve......
  • Com. v. Valliere
    • United States
    • Massachusetts Supreme Judicial Court
    • December 11, 1974
    ...here. State v. Kelley, 45 S.C. 659, 663--666, 24 S.E. 45 (1895). State v. Simon, supra, at 445--446, 120 S.E. 230. See State v. Albers, 174 N.W.2d 649, 652--656 (Iowa, 1970); Wilke v. Milwaukee Elec. Ry. & Light Co., 209 Wis. 618, 625--626, 245 N.W. 660 8. The Tuey charge; polling the jury.......
  • Request a trial to view additional results
24 cases
  • State v. Lass, No. 56960
    • United States
    • United States State Supreme Court of Iowa
    • April 16, 1975
    ...such litigation by its nature involves a grisly subject. The test of admissibility of the pictures is relevancy. State v. Albers, 174 N.W.2d 649 (Iowa). Defendant pleaded not guilty and the State had to prove each element including intent to kill, willfulness, deliberation, and premeditatio......
  • State v. Hall, No. 57467
    • United States
    • United States State Supreme Court of Iowa
    • November 12, 1975
    ...of admissibility is relevancy. State v. Lass, supra, 228 N.W.2d at 771; State v. Hummell, 228 N.W.2d 77, 83 (Iowa 1975); State v. Albers, 174 N.W.2d 649, 657 (Iowa 1970); State v. Dillon, 161 N.W.2d 738, 741 (Iowa 1968). The trial court was careful to avoid duplication in the admission of p......
  • State v. Davis, No. 54755
    • United States
    • United States State Supreme Court of Iowa
    • April 13, 1972
    ...of a fair trial were not shown. This assigned error cannot be sustained. State v. Niccum, 190 N.W.2d 815 (Iowa); State v. Albers, 174 N.W.2d 649 (Iowa); State v. Loney, 163 N.W.2d 378 (Iowa); State v. Ferguson, 249 Iowa 361, 86 N.W.2d We will say that since we conclude the case must be reve......
  • Com. v. Valliere
    • United States
    • Massachusetts Supreme Judicial Court
    • December 11, 1974
    ...here. State v. Kelley, 45 S.C. 659, 663--666, 24 S.E. 45 (1895). State v. Simon, supra, at 445--446, 120 S.E. 230. See State v. Albers, 174 N.W.2d 649, 652--656 (Iowa, 1970); Wilke v. Milwaukee Elec. Ry. & Light Co., 209 Wis. 618, 625--626, 245 N.W. 660 8. The Tuey charge; polling the jury.......
  • Request a trial to view additional results

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