State v. Bizzett, 54955

• Decision Date: 14 November 1973
• Docket Number: No. 54955,54955
• Citation: 212 N.W.2d 466
• Parties: STATE of Iowa, Appellee, v. Darrell E. BIZZETT, Appellant.
• Court: Iowa Supreme Court

Page 466

212 N.W.2d 466

STATE of Iowa, Appellee, v. Darrell E. BIZZETT, Appellant.

No. 54955.

Supreme Court of Iowa.

Nov. 14, 1973.

O'Brien, Galvin & O'Brien, Sioux City, for appellant.

Richard C. Turner, Atty. Gen., Ray Sullins, Asst. Atty. Gen., and Edward F. Samore, County Atty., for appellee.

Heard before MOORE, C.J., and MASON, RAWLINGS, LeGRAND and UHLENHOPP, JJ.

LeGRAND, Justice.

Defendant was convicted by a Woodbury County jury for the murder of Dr. Robert Stukel, Jr. He appeals from judgment sentencing him to serve a term of life imprisonment in the penitentiary as provided by section 690.1, The Code, 1966. We affirm the trial court.

For the present we give only a brief background of the circumstances leading up to this tragedy, reserving until later a discussion of those facts which are important to a consideration of the errors alleged by defendant.

Dr. Stukel, a veterinarian practicing in nearby Nebraska, came to Sioux City on the evening of August 31, 1970, apparently bent on making a round of the taverns and coincidentally in finding a 'party' or 'getting a girl.' The record shows he was at one or two drinking establishments early in the evening and sometime around midnight found his way to the 711 Club, where the events culminating in his death got underway. There he met defendant who was working as a bartender. The two engaged in conversation from time to time as defendant served him a number of drinks, the number of which remains the subject of some dispute.

When the 711 Club closed at about 2:00 A.M., defendant and Stukel left together. They walked several blocks toward the home of one Gerald Lee, who is described as a bootlegger, intending to buy more whiskey. Apparently defendant was forbidden to take whiskey from his place of employment. On the way toward Lee's house, the two met Debra Eggers and Tom Farmer. Debra and defendant had been acquainted for several years but defendant had not known Farmer previously. The group then continued on toward Lee's house, during which time Debra overheard defendant suggest to Farmer that they 'roll this buy.'

At Lee's house, defendant went in alone to buy the whiskey. The other three remained outside. Defendant shortly returned with a bottle of whiskey and the four proceeded, at Debra's suggestion, to the playground at Webster school, which was both secluded and close at hand.

Arriving there, they indulged in further drinking. It was here defendant told Debra he would give a signal by snapping his fingers and Farmer should then 'knock Stukel out.' At defendant's request, Debra passed this bit of information along to Farmer. Within a few moments, defendant gave the prearranged signal, Farmer knocked Stukel to the ground, and the two men--Farmer and defendant--began going through their victim's pockets. When it appeared Stukel was not out, defendant said he would 'take care of that.' According to Debra, he then jumped and stomped on the doctor's head and face. Almost immediately he began to bleed profusely, the attackers became alarmed, and all fled from the scene.

After leaving the school yard someone--both defendant and Debra take credit for it--called the police to report an injured man lying in the school yard. The police came, found Stukel in a dying condition, and removed him to St. Vincent's Hospital, where he expired within the hour.

Later defendant was arrested and his subsequent trial ended in a conviction as already noted. His appeal raises three issues upon which he claims the trial court committed reversible error. They are:

(1) The trial court erred in overruling his motion for a directed verdict;

(2) The trial court erred in refusing to instruct the jury that Willie Earl Rucker was an accomplice as a matter of law; and

(3) The trial court erred in instructing the jury that an assailant's feet could be so violently used as to constitute a deadly weapon.

I. Defendant's first assignment raises two related matters. First, he says there was no competent evidence that defendant stomped and jumped on Dr. Stukel because Debra Eggers, who gave that testimony, was defendant's accomplice who lacks the statutory corroboration required by section 782.5. In this same connection, he argues there was also a total absence of evidence that such stomping or jumping, if it occurred, was the cause of death.

The issue of corroboration is also raised in defendant's second assignment of error with respect to Willie Earl Rucker, who was present during part of the events already described. We postpone for the moment a discussion of his status and consider first the issue of corroboration exclusive of his testimony. We should mention here, too, that Tom Farmer, prominently mentioned throughout the record as a participant in the attack, was not called as a witness.

Defendant's argument that his conviction lacks evidentiary support is clearly without merit if the testimony of Debra Eggers is corroborated. Her version of the events leading to Dr. Stukel's death is alone enough, if corroborated, to sustain the jury's verdict.

II. Everyone concedes this young lady was an accomplice, and the trial court so instructed the jury as a matter of law. Admitting to her own complicity, she testified to a conversation in which defendant suggested 'rolling' the doctor; to a prearranged signal for attacking him; and to the heartless act of jumping and stomping on the doctor's face and head when it appeared the original attack had not done the job.

Whether there is enough evidence to submit the question of corroboration is originally for the trial court to decide. If so, it should go to the jury under proper instructions for a determination by that body as to its sufficiency. State v. Jennings, 195 N.W.2d 351, 357 (Iowa 1972). We have frequently said corroboration need not be strong nor need it go to every material fact testified to by an accomplice. The statutory requirement is met if it can be fairly said the accomplice is corroborated in some material fact tending to connect the defendant with the commission of the crime. Furthermore, the defendant himself may furnish the required corroboration of accomplice testimony. State v. Williams, 207 N.W.2d 98, 107 (Iowa 1973); State v. Gray, 199 N.W.2d 57, 59 (Iowa 1972); State v. Jennings, supra, 195 N.W.2d at 357; State v. Morrison, 183 N.W.2d 696, 698 (Iowa 1971); State v. Latham, 251 Iowa 513, 515, 117 N.W.2d 840, 842 (1962).

In State v. Williams, this appears at page 107 of 207 N.W.2d:

'The corroboration of an accomplice necessary under section 782.5, The Code, to justify conviction may come from defendant himself in the way of his admissions, declarations, conduct, writings or other documentary evidence.'

In that same opinion we also said this:

'The corroboration * * * need be neither strong nor corroborative of every material matter testified to by an accomplice, being sufficient if the evidence adduced legitimately tends to connect the accused with the commission of the crime charged and thereby lends support to the credibility of the accomplice.'

We believe defendant's doom is sealed by his own testimony. He admits being in Dr. Stukel's company, both at the 711 Club and while going for the bootleg whiskey, for several hours before his death, except for a few minutes during which he argues the crime was planned and committed. Defendant manages this version by saying he left Debra Eggers, Tom Farmer and Stukel standing outside Lee's house while he went in to make the whiskey purchase. When he came out, he says, they were gone and he then went his separate way. A few minutes later, while walking near Webster school, by strange coincidence he again met up with Debra Eggers, who was running away from the school yard crying, 'He's down, he's down.' Although professing that he did not understand what this referred to, defendant says he nevertheless went into the school yard to investigate and there...