State v. Bass

• Decision Date: 16 May 1984
• Docket Number: No. 69503,69503
• Citation: State v. Bass, 349 N.W.2d 498 (Iowa 1984)
• Parties: STATE of Iowa, Appellee, v. Clyde Jack BASS, Appellant.
• Court: Iowa Supreme Court

Page 498

349 N.W.2d 498

STATE of Iowa, Appellee, v. Clyde Jack BASS, Appellant.

No. 69503.

Supreme Court of Iowa.

May 16, 1984.

Paul H. Rosenberg of Rosenberg & Margulies, Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., Teresa M. Baustian, Asst. Atty. Gen., and William Thomas, Asst. County Atty., for appellee.

Considered by UHLENHOPP, P.J., and HARRIS, McCORMICK, McGIVERIN, and LARSON, JJ.

McGIVERIN, Justice.

Defendant Clyde Jack Bass appeals his conviction for first-degree murder in violation of Iowa Code sections 707.1 and 707.2 (1981). He asserts: (1) that the evidence was insufficient to support the jury's verdict of guilt; (2) that he was denied due process and a fair trial due to prosecutorial comment on his post-arrest silence; (3) that he was denied due process and a fair trial as a result of the State's failure to preserve evidence of a photo array, and because of the court's failure to instruct the jury that it was permitted to draw an inference adverse to the State as a result of the missing photo array evidence; and (4) that he was denied a fair trial due to the cumulative effect of various specified errors. Defendant also reasserts the speedy trial issues decided adversely to him in State v. Bass, 320 N.W.2d 824 (Iowa 1982), solely for the purpose of error preservation. We find no merit in any of defendant's assignments of error and therefore affirm defendant's conviction.

Defendant was charged with first-degree murder, Iowa Code sections 707.1 and 707.2, arising out of the slaying of William "Billy" Grimm, who was pulled out of a burning Holiday Inn motel room in Des Moines on June 11, 1978, with multiple gunshot wounds to his head and torso along with third-degree burns over sixteen percent of his body.

Facts concerning defendant's arrest in California, his extradition to Iowa, and his motion to dismiss the trial information were discussed in State v. Bass, 320 N.W.2d 824, and will not be repeated here. Additional facts brought out at trial will be noted where deemed pertinent to defendant's assignments of error.

I. Sufficiency of the evidence. At trial, defense counsel made timely motions for a judgment of acquittal, specifically claiming the evidence was insufficient on the issue of identity of the perpetrator. The court overruled the motions. The jury subsequently returned its verdict finding defendant guilty of first-degree murder.

Defendant contends "there was insufficient evidence that [he] was the person who shot Billy Grimm."

The principles of law for reviewing a motion for judgment of acquittal based on sufficiency of the evidence are well established:

When reviewing the sufficiency of evidence, we view the evidence in the light most favorable to the State, including all legitimate inferences and presumptions which may fairly and reasonably be deduced from the evidence in the record. It is necessary to consider all of the evidence and not just the evidence supporting the verdict. A jury verdict is binding upon this court and will be upheld unless the record lacks substantial evidence to support the charge. Substantial evidence means evidence which would convince a rational trier of fact that the [defendant is] guilty of the crime charged beyond a reasonable doubt.

State v. Blair, 347 N.W.2d 416, 418 (Iowa 1984).

From the evidence presented at trial, the jury could have found the following facts.

In the early part of June 1978, defendant Clyde Jack Bass and victim Billy Grimm, both residents of California, burglarized the Las Vegas, Nevada, home of Ty Havas. A large amount of jewelry and numerous guns were taken including a .38 caliber Smith & Wesson.

Grimm then drove alone to Des Moines in a car registered to Bass with the stolen goods while Bass travelled to Des Moines via a commercial airline. Bass and Grimm intended to sell the stolen goods in Des Moines because of the reputed relatively high price being paid there for stolen goods by dealers of such commodities.

Bass and Grimm rendezvoused in Des Moines on June 9, 1978, at the Holiday Inn-North where Grimm had registered two guests for room 151. Grimm indicated on the registration card that his automobile was a 1967 Oldsmobile with California license plate VEP864.

On June 11, motel guests heard an explosion and thereafter discovered smoke pouring out of room 151. Billy Grimm's body was retrieved from his motel room through a heroic effort by a motel guest, Arlan Main, who spotted Grimm lying on a bed in the burning room and then placed his own life in peril by entering the room, which by that time had become engulfed in flames and dense smoke. Grimm was pronounced dead on the scene. It was apparent to onlookers that Grimm's body was punctured with four gunshot wounds, two in the head and two in the upper torso.

The autopsy report indicated that Grimm had died prior to the fire as a result of the gunshot wounds which had been inflicted by a .38 caliber firearm.

A ballistics expert testified that the bullets recovered from Grimm's body were identified as .38 caliber Smith & Wesson lead bullets.

A thorough search through the gutted motel room uncovered numerous firearms (but not a .38 caliber gun), ammunition, a red and yellow two gallon gas can which contained gasoline, a large quantity of jewelry, and a half-gallon whiskey bottle.

A fire inspector testified that the fire had been set deliberately by means of a flammable substance, apparently gasoline.

Defendant testified that he was visiting an uncle near Montezuma, Iowa, at the time Billy Grimm was found shot in the blazing motel room. He said that he returned to the motel, observed the commotion of police officers and firefighters near his motel room, and then fled to California out of fear that the police would connect him with the stolen weapons that were left in the motel room.

There was substantial circumstantial evidence, however, connecting defendant with the murder of Billy Grimm. Circumstantial and direct evidence are equally probative. Iowa R.App.P. 14(f)(16). "Whether the evidence is direct or circumstantial, however, it must raise a fair inference of guilt; it must do more than create speculation suspicion, or conjecture." State v. Blair, 347 N.W.2d at 421.

The State's evidence permitted the jury to find that the defendant was with the deceased throughout the day of the murder and present at the murder scene; that the defendant had access to a gun of the same make and style as the murder weapon; that the defendant purchased the gasoline which was used to set the motel room on fire; and that defendant fled the scene of the murder to California, changed his name, and concealed his location from his live-in girlfriend.

A. Proximity to crime. While mere presence of a person at the time and place of a homicide is not sufficient evidence alone to establish that person's participation in a murder, it is circumstantial evidence that may be considered, and which may, under the surrounding facts and circumstances in a given case, be entitled to great weight. State v. Schrier, 300 N.W.2d 305, 309 (Iowa 1981). Evidence of defendant's proximity to the crime in this case is particularly probative because it impeaches and substantially undermines defendant's alibi that he was near Montezuma visiting a relative when the victim was killed. See State v. Odem, 322 N.W.2d 43, 47 (Iowa 1982) ("A false story told by a defendant to explain or deny a material fact against him is by itself an indication of guilt. The false story is relevant to show that a defendant fabricated evidence to aid his defense.").

The State produced evidence that the defendant was in the motel room, which he shared with Grimm, on June 11. Steven Murray, a Holiday Inn employee, testified that he saw the defendant and the deceased several times on the day of the murder. He saw the two men together in the motel parking lot at about 3:00 p.m.; about one or two hours later he saw the defendant when he came to the motel restaurant to talk about paying for room service; and still later, at about 5:00-6:00 p.m. he saw both men inside room 151 when he delivered a room service food order. Murray testified that the defendant answered the door and gave him a tip. Murray identified the defendant in court as the same man he saw with the victim on June 11. Murray recalled that the man who answered the door when he delivered the room service order had a tatoo on his arm. Defendant was observed to have a tatoo on his arm when he was directed to roll up his sleeves in court before the jury. The evidence also showed that Murray made a correct identification of the defendant from a nonsuggestive photo array a few days after the murder. (See division III concerning Murray's initial misidentification.)

Defendant was also placed, shortly before the explosion and fire, within one block of the Holiday Inn purchasing gasoline in a two gallon container, similar to the gas can found in the charred remains of room 151. James Golden, an employee at a Clark service station located within one block of the Holiday Inn-North, testified that on June 12, 1978, after reading about the fire in the newspaper, he contacted the police to report that he suspected a man he sold gasoline to the night before might have been involved in the arson and murder. Golden told the police, and later testified, that a man, whom he identified in court and in a nonsuggestive photo array as the defendant, pulled into the Clark station at approximately 8:30 p.m. driving a 1965 or 1966 Oldsmobile with California license plates and with a large dent in the left front fender. He said the defendant purchased a red and yellow gas can and had it filled with gasoline. This can was similar to the one found in the motel room. The car, with the dent in the fender, was similar to the one defendant abandoned near Montezuma during his flight to California.

B. Access to firearm similar to murder weapon. Additional incriminating circumstantial...