State v. Bester

• Decision Date: 06 May 1969
• Docket Number: No. 53189,53189
• Citation: 167 N.W.2d 705
• Parties: STATE of Iowa, Appellee, v. Eugene Anthony BESTER, Appellant.
• Court: Iowa Supreme Court

Page 705

167 N.W.2d 705

STATE of Iowa, Appellee, v. Eugene Anthony BESTER, Appellant.

No. 53189.

Supreme Court of Iowa.

May 6, 1969.

Holmes & Ralph, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., David A. Elderkin, Asst. Atty. Gen., Ray Fenton, County Atty., and James D. McKeon, Asst. County Atty., for appellee.

BECKER, Justice.

Defendant Eugene Bester was indicted, tried by a jury of twelve and found guilty of murder in the first degree. His appeal assigns as error the giving of two instructions dealing with evidence of flight and the weight to be given defendant's testimony. We reverse and remand for new trial.

The fatal shooting was an outgrowth of the relationship of two men and a woman. Defendant was seeing and often in the company of Mrs. Rose Washington in February 1968. Mrs. Washington and her husband, Bobby Washington, were separated. Part of the marital trouble was the relationship between defendant and Mrs. Washington. About a week after the separation Bobby saw defendant in a filling station. A fight ensued. Bobby threatened to kill defendant when they met at the filling station and repeated the threat when he found defendant and his wife together driving across the bridge on Walnut street in Des Moines. Washington had one or more guns; defendant testified he knew this and was afraid Washington would shoot him.

The borrowed car defendant was using at this time had an old shotgun in the trunk. The gun had a loose trigger guard, a loose stock and was in general disrepair. Defendant got some shells for the gun. Shortly thereafter Washington and his wife engaged in a street fight over damage done to Washington's apartment by his wife. Washington knocked his wife down. Defendant went to the car, got the shotgun and fired two shots in the direction of Washington but did not hit him. Defendant reloaded the gun, turned and shot Carl Cooley in the leg, severing the femoral artery which caused Cooley to bleed to death. The precise details of this altercation are in sharp conflict. Defendant fled the scene and was later picked up by the police in the near vicinity. Because of the ruling here made the conflict over what actually happened at the scene need not be spelled out in detail. Suffice to say, the State produced sufficient evidence to justify a jury finding of murder in the first degree. Defendant claims the gun was discharged in the direction of Cooley entirely by accident. This story is not entirely uncorroborated. The jury accepted the State's version.

I. Defendant's first assignment of error attacks the validity of instruction No. 14 which reads: 'The law gives the defendant the right to testify in his own behalf, and it is for the jury to determine the weight to be given to his testimony, as in the case of any other witness.

'In considering and weighing his testimony you are not required to receive the testimony of the defendant as true, but to give it full and careful consideration, and determine whether it or any part of it is true or false, and whether such testimony is given by the defendant in good faith or for the purpose of avoiding conviction. You may take into consideration his interest in the outcome of this case as a person charged with a crime, and you should give his testimony such weight as you deem it entitled to in view of all the facts and circumstances in evidence before you.'

The court gave the usual instruction on the law governing the weight to be given all evidence which read in part: 'In passing on the credibility of the witnesses and weighing their testimony, you may and should consider * * * their interest or lack of interest in the result of the trial, the motives, if any, actuating them as witnesses, their candor, fairness, bias or prejudice, the reasonableness and probability of their statements or the want thereof, * * *.'

In 1940 we considered such an instruction which was attacked on fair trial (nonconstitutional) grounds, State v. Gibson, 228 Iowa 748, 754, 292 N.W. 786, 788. In disposing of the contention the court noted: 'We think this complaint is not justified. Some members of this court feel that this instruction might well have been omitted but instructions of the same substance and effect have frequently been approved by this court and the majority is of the view that these cases should not be overruled. It follows that the court did not err here.'

The identical instruction withstood similar attack on constitutional and fair trial grounds in State v. Ford (October 1966), 259 Iowa 744, 145 N.W.2d 638, three justices dissenting. We have recently considered identical or very similar instructions five times; State v. McClelland, Iowa, 164 N.W.2d 189; State v. Miskell, Iowa, 161 N.W.2d 732; State v. Allnutt, Iowa, 156 N.W.2d 266; State v. Alford, Iowa, 151 N.W.2d 573; State v. Shipley, 259 Iowa 952, 146 N.W.2d 266, and beginning with State v. Alford recommended the instruction be omitted.

We consider the problem once more. It is argued here, as it was argued in each of the cited cases, that the giving of the instruction violates defendant's rights under Amendment 5 to the United States Constitution. Heavy reliance is placed on Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106. We do not reach the constitutional issue but approach the problem from the standpoint of defendant's right to a fair trial.

II. State v. Ford, supra, cites many Iowa cases holding the giving of such an instruction is not reversible error under Iowa law. The case refers to the annotation at 85 A.L.R. 523, 538 (1933), for a full discussion of the problem. The annotation, with its wealth of citations, indicates the problem has plagued all of the courts of these states from time to time through the years. The annotator states: 'In a majority of the jurisdictions, the view obtains that it is proper for the trial court, in an instruction, to direct the attention of the jury to the fact that the defendant is interested in the result of the trial, or to the fact that he is the defendant, as matters affecting the jury's determination of the credibility of the defendant as a witness.'

However, the rule is not universal. Arizona, California, Idaho, Kentucky, Louisiana, Mississippi, Missouri, Nevada, Oklahoma, South Carolina and Texas are cited as holding such an instruction is prejudicially erroneous. 85 A.L.R. 577. The rule recognized by those states has also been recognized by this court in a general way but we have consistently refused to apply it to a defendant's testimony.

In State v. Asbury, 172 Iowa 606, 614, 154 N.W. 915, 918, we considered admissibility of certain evidence but in so doing we stated a general rule recognized in Iowa: '* * * This court has held, as have many others, very many times, that though an instruction upon the weight and credibility to be given to testimony was abstractly correct, it was yet error to single out some one witness or some party for its application. * * *' The reasons for the minority view should be examined.

State v. Rogers, 30 Idaho 259, 163 P. 912, 916 states: 'As to instruction No. 30, we have to say that this instruction has, no doubt, been frequently given by trial courts of this state. Nevertheless, upon a careful examination of the language here used, and of the authorities, we are convinced that it is erroneous. This instruction reads as follows:

"The court instructs you, as a matter of law, that when the defendant testified as a witness in this case, he became as any other witness, and his credibility is to be tested by, and subject to, the same tests as are legally applied to any other witness; and in determining the degree of credibility that shall be accorded his testimony, The jury have a right to take into consideration the fact that he is interested in the result of the trial, as well as his demeanor and conduct upon the witness stand, and during the trial, and whether or not he has been contradicted or corroborated by other witnesses or circumstances.' (Italics ours.)

'The words italicized, it is insisted by counsel for appellant, are prejudicial, for the reason that the defendant is singled out and the attention of the jury is particularly directed to his credibility as a witness. We think the better rule for the court to follow is not to single out any special witness personally and burden his testimony with any suggestions which might indicate to the jury that in the opinion of the court such witness was liable to testify falsely. Instructions as to the credibility of a witness should be ganeral and apply equally to all of the witnesses for the state and the defendant alike. Because a witness may be the defendant is no particular reason why he should be visited with condemnation upon the one hand or clothed with sanctity upon the other. He is before the court as a witness, and should be treated by both the court and the jury just as other witnesses are treated, no better and no worse. And the giving of such instruction cannot be regarded as otherwise than erroneous. People v. Maughs, supra (149 Cal. 253, 86 P. 187); Fletcher v. State, 2 Okl.Cr. 300, 101 P. 599, 23 L.R.A.,N.S., 581; Culpepper v. State, supra (4 Okl.Cr. 103, 111 P. 679, 31 L.R.A.,N.S., 1166); Buckley v. State, 62 Miss. 705; State v. Webb, supra (6 Idaho 428, 55 P. 892); People v. Vereneseneckockockhoff, 129 Cal. 497, 58 Pac. 156, 62 Pac. 111; vol. II Thompson, Trials (2d Ed.) § 2421; Banks v. State, 2 Okl.Cr. 339, 101 Pac. 610; Crow v. State, 3 Okl.Cr. 428, 106 Pac. 556.'

In condemning the giving of general instructions to consider the interest of witnesses where defendant was the sole witness for the defense, the Supreme Court of Mississippi in Hall v. State, 250 Miss. 253, 165 So.2d 345, 351, said: 'In the case of Buckley v. State, 62 Miss. 705, the Court said: 'A defendant has the right to submit his testimony to the jury to be judged by it, uninfluenced by any suggestions of its probable falsity or an authorization...