State v. Beyer, 59816

• Decision Date: 19 October 1977
• Docket Number: No. 59816,59816
• Citation: 258 N.W.2d 353
• Parties: STATE of Iowa, Appellee, v. James Robert BEYER, Appellant.
• Court: Iowa Supreme Court

Page 353

258 N.W.2d 353

STATE of Iowa, Appellee, v. James Robert BEYER, Appellant.

No. 59816.

Supreme Court of Iowa.

Oct. 19, 1977.

Eugene P. Van Driel and Charles R. Servison, Davenport, for appellant.

Richard C. Turner, Atty. Gen., Raymond W. Sullins, Asst. Atty. Gen., Des Moines and Edward N. Wehr, County Atty., Davenport, for appellee.

Submitted to MOORE, C. J., and MASON, LeGRAND, UHLENHOPP, and REYNOLDSON, JJ.

REYNOLDSON, Justice.

Defendant was charged with murder after a shooting incident at Davenport on February 28, 1976. He was found guilty of the included offense of manslaughter. Defendant appeals from his conviction and sentence of imprisonment in the Men's Reformatory at Anamosa for a period not to exceed eight years. We affirm.

Defendant's wife Patricia previously had been married to Garland Sullivan, the shooting victim. Patricia had custody of the two young Sullivan children.

February 28, 1976, Garland and his then-wife Stella went to Davenport to visit the children. Upon learning defendant and Patricia were at a local tavern, they joined them. There ensued an evening of drinking extending from about 4 p. m. to 9:30 p. m.

Following a quarrel between defendant and Patricia the four became involved in an intense argument at defendant's apartment concerning the children's welfare. From the evidence the jury could have found Garland wanted to take them home overnight to avoid their exposure to the controversy between defendant and their mother.

Garland and Stella left the house but Garland, angry at leaving the children behind, returned. Defendant obtained a 357 magnum revolver from his bedroom. The two confronted each other on an interior stairway leading up to defendant's living quarters, defendant pointing his gun at Garland. The gun discharged, fatally wounding Garland in the chest.

For reversal, defendant relies on certain alleged trial court errors discussed in the divisions which follow.

I. Did trial court err in denying bail?

Defendant asserts trial court erroneously failed to admit him to bail, thereby handicapping him and his counsel in trial preparation.

We note at the time of trial court's action defendant did not seek relief by habeas corpus or certiorari. See Ford v. Dilley, 174 Iowa 243, 156 N.W. 513 (1916); 8 Am.Jur.2d Bail and Recognizance § 54, pp. 815-816 (1963). Under those circumstances different considerations would apply. See Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, 3, 96 L.Ed. 3, 6 (1951); Pugh v. Rainwater, 557 F.2d 1189, 1200 (5th Cir., filed August 22, 1977); Heikkinen v. United States, 208 F.2d 738, 742 (7th Cir. 1953).

Trial court based its ruling denying bail on § 763.1, The Code, 1975:

"All defendants are bailable both before and after conviction, by sufficient surety, except for murder in the first degree and kidnaping for ransom where the proof is evident or the presumption great."

The court found "the proof is evident and the presumption is great that the crime charged constituted murder in the first degree and that the defendant should be denied bail."

Apparently the above statute is rooted in that portion of article I, section 12, Iowa Constitution, which provides, "(a)ll persons shall, before conviction, be bailable, by sufficient sureties, except for capital offenses where the proof is evident, or the presumption great." See State v. Fowler, 248 N.W.2d 511, 514-515 (Iowa 1976); 8 Am.Jur.2d Bail and Recognizance §§ 28-31, pp. 800-802 (1963). Section 763.1, supra, was repealed effective January 1, 1978. Acts 66 G.A. ch. 1245, ch. 4 § 526 (1976). The substitute enactment will make all defendants bailable before conviction. Acts 66 G.A. ch. 1245, ch. 2 § 1101 (1976); see J. Roehrick, The New Iowa Criminal Code, A Comparison, p. 395 (1975).

The State argues this issue is moot. A question is moot when the issues it presents are merely academic, and any judgment rendered can have no practical legal effect. State v. Wilson, 234 N.W.2d 140, 141 (Iowa 1975), and citations. Ordinarily we will not decide moot questions unless the issue presented is of substantial public interest, in which case we will exercise a discretion to decide it. Catholic Char. of Arch. of Dubuque v. Zalesky, 232 N.W.2d 539, 543 (Iowa 1975); Board of Dir. of Ind. Sch. Dist. of Waterloo v. Green, 259 Iowa 1260, 1264, 147 N.W.2d 854, 856 (1967).

Trial court's bail ruling does not present an issue of substantial public interest warranting decision on the merits. Nor would even illegal detention in and of itself void a subsequent conviction. Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 865, 43 L.Ed.2d 54, 68 (1975); State v. Fowler, supra, 248 N.W.2d at 515; cf. State v. Grady, 231 N.W.2d 869, 874 (Iowa 1975).

On the other hand, the larger issue would not be moot if trial court erroneously denied bail and thereby prejudicially handicapped defendant's trial preparation. See State v. Shea, 218 N.W.2d 610, 615 (Iowa 1974).

Defendant presented no proof his trial preparation was impaired. See State v. Ogle, 78 Wash.2d 86, 87, 469 P.2d 918, 919 (1970). The record before us shows he was accorded the full panoply of discovery processes. He was granted the right to depose 22 persons, which included those witnesses named in the county attorney's information. A court order allowed the defense to examine virtually all physical evidence including the gun, bullet, casing, fingerprints, clothing, autopsy, police photographs and sketches, and report of police dispatch orders. Defendant was permitted, and used, services of a private investigator at public expense.

We are not convinced denial of bail hampered defendant's trial preparation. We therefore hold no error can be predicated on trial court's bail ruling.

II. Did trial court err in failing to direct a verdict for defendant?

Defendant asserts trial court erroneously denied his motions for directed verdict at close of State's evidence and at close of all evidence, arguing State failed to negate his defense the homicide was in self-defense.

Reversible error cannot be posited on failure to direct a verdict at close of State's evidence where, as here, defendant subsequently presented evidence. State v. Evans, 248 N.W.2d 521, 522 (Iowa 1976); State v. Conner, 241 N.W.2d 447, 460 (Iowa 1976). However, the motion made at the conclusion of all evidence preserved defendant's challenge to the sufficiency of the evidence. State v. Conner, supra, 241 N.W.2d at 460; State v. Dahlstrom, 224 N.W.2d 443, 446 (Iowa 1974).

Our rules for reviewing a ruling on a motion for directed verdict recently were capsulated in State v. Overstreet, 243 N.W.2d 880, 883-884 (Iowa 1976). We view the evidence in the light most favorable to the State regardless of whether it is contradicted. Only evidence supporting the verdict need be considered. We accept all reasonable inferences tending to support the verdict. The evidence must generate more than a suspicion, speculation or conjecture, and must be sufficient to raise a fair inference of guilt. If any substantial evidence reasonably supported the charge, trial court's submission of the cause to the jury must be affirmed. See State v. York, 256 N.W.2d 922, 927 (Iowa, filed August 31, 1977).

Self-defense will justify homicide if four conditions are met:

(1) Slayer was not aggressor in provoking or continuing the difficulty that resulted in homicide,

(2) Slayer, except in own home or place of business, reasonably retreated before committing homicide,

(3) Slayer actually believed there was imminent danger of death or great bodily injury requiring an act of self-preservation, and,

(4) Reasonable grounds supported that belief. State v. Fisher, 246 N.W.2d 918, 920-921 (Iowa 1976); State v. Overstreet, supra, 243 N.W.2d at 884.

When a self-defense issue is raised, prosecution must prove nonexistence of self-defense beyond a reasonable doubt. Overstreet, supra,243 N.W.2d at 884; State v. Cruse, 228 N.W.2d 28, 30 (Iowa 1975). What particular facts will justify a self-defense killing is a question of law for trial court. Existence of such facts is a question for the jury. Overstreet, supra, 243 N.W.2d at 884; State v. Haffa, 246 Iowa 1275, 1288-1289, 71 N.W.2d 35, 43 (1955). Where evidence is conflicting or of such a character that different inferences might reasonably be drawn, the self-defense issue should be submitted to the jury for determination of the circumstances that existed at the time of the confrontation. State v. Fisher, supra, 246 N.W.2d at 920-921; State v. Haffa, supra, 246 Iowa at 1289, 71 N.W.2d at 43.

There is no dispute defendant was in his own home when he shot Sullivan. This eliminates the issue whether defendant reasonably retreated from Sullivan.

However, trial testimony regarding who instigated the confrontation that culminated in the killing, and whether defendant actually and reasonably believed himself in imminent danger, did create fact issues. The jury, not the court, is to judge credibility of witnesses. Overstreet, supra, 243 N.W.2d at 884.

Under our above review rules we may ignore at this point defendant's testimony he tried to avoid the confrontation, was afraid of Garland, believed the latter was armed with a shotgun, and Garland's sudden movement caused defendant to jump, discharging his revolver.

There was credible testimony defendant was in a belligerent mood and knew Garland was unarmed. An eyewitness testified Garland was quiet and stationary on the steps with both hands in plain view and empty when defendant fired.

There was substantial evidence upon which the jury reasonably could have found three elements of self-defense were absent. We hold trial court was right in overruling defendant's motions for directed verdict.

III. Were trial court's jury instructions erroneous?

Defendant urges trial court erred in submitting certain jury instructions over his objections, and in failing to submit some of his requested instructions.

A. Defendant unsuccessfully objected...