State v. Cuevas

• Decision Date: 20 February 1980
• Docket Number: No. 62598,62598
• Citation: 288 N.W.2d 525
• Parties: STATE of Iowa, Appellee, v. Phillip Benito CUEVAS, Appellant.
• Court: Iowa Supreme Court

Page 525

288 N.W.2d 525

STATE of Iowa, Appellee, v. Phillip Benito CUEVAS, Appellant.

No. 62598.

Supreme Court of Iowa.

Feb. 20, 1980.

Philip F. Miller, Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., Selwyn L. Dallyn, Asst. Atty. Gen., Dan L. Johnston, Polk County Atty., and James W. Ramey, Asst. Polk County Atty., for appellee.

Considered by REYNOLDSON, C. J., and HARRIS, ALLBEE, McGIVERIN and LARSON, JJ.

ALLBEE, Justice.

Defendant Phillip Benito Cuevas stands convicted by a jury of murder in the first degree, in violation of sections 690.1 and 690.2, The Code 1977; he was sentenced to imprisonment for life. The charge arose out of the brutal slaying of William Turk, which occurred in Des Moines on October 5, 1977. On appeal, defendant assigns a number of errors for reversal of his conviction, which we will consider in the order presented to us in his brief.

The victim's body was discovered on October 6, in the late afternoon. When found Turk's hands and feet were bound behind his back. He was gagged and lying face down in a pool of blood. He had sustained nine stab wounds in the chest and back and a crushing skull fracture. A sixteen centimeter knife blade, with the handle broken off, was embedded about half its length into the middle of his back. The medical examiner attributed the cause of death to massive cranial trauma. On December 1, 1977, by County Attorney's Information, defendant, his wife Mary Ellis Cuevas and Albert Leo Galvan were charged with the crime. Other facts will be related as necessary for the treatment of the issues raised by defendant.

I. The refusal of a change of venue. Defendant made three motions for a change of venue but only the last one, made at the outset of trial, is the subject of our review. The first such motion, filed February 2, 1978, and amended on March 6, was overruled; however, trial of the case was ordered continued. The second motion, requesting either a change of venue or a continuance, was filed on March 23. Judge J. P. Denato thereafter continued defendant's scheduled trial from April 3 until September, thereby making moot the motion for a change of venue. State v. Weiland, 202 N.W.2d 67, 70 (Iowa 1972). The first two motions for a change of venue were predicated upon both prejudice within the community, supported by affidavits, and media reports of defendant's trial and conviction of another murder, his ensuing attempt to gain a new trial after that conviction, the trials of his confederates and a gruesome mass murder which occurred in downtown Des Moines in February 1978. Judge Denato took specific cognizance of those events and their attending media attention when granting the second continuance to September.

The third and final motion for a change of venue was dictated by counsel on September 12, following defendant's pretrial presentation of testimony regarding station WHO television and radio coverage of the case. This motion also asked the court to take notice of past publicity surrounding defendant and his confederates. Defendant, in the alternative, again asked for a continuance.

Our examination of defendant's motion for a change of venue and trial court's denial is, in this case, to be guided by standards that prevailed prior to the effective date of the new Iowa Criminal Code, January 1, 1978. 1976 Session, 66th G.A., ch. 1245(4), § 529. This is because the offense with which defendant was charged was committed before that date; thus the prosecution of the case, even though it took place after that date, is governed by the prior law, § 801.5(1), The Code 1979, as we find no request by defendant that procedural provisions of the new code be applied, § 801.5(2)(b)(1), The Code 1979. ¹

Consequently, in asking for a change of venue in this case, the movant had the burden to either establish prejudice in fact, or to show the publication of material which is so potentially prejudicial that prejudice must be presumed. Pollard v. District Court, 200 N.W.2d 519, 520 (Iowa 1972). Defendant's third motion for a change of venue rested upon the latter showing. Thus the critical question here is whether under the record made by defendant a reasonable likelihood existed that a fair trial would not be had because of the media dissemination of potentially prejudicial publicity. Id.

We have reviewed the record de novo for the purpose of determining whether trial court abused its discretion in denying the requested change of venue, thereby, in result, holding that defendant failed to demonstrate a reasonable likelihood that he would not receive a fair trial in Polk County because of the publicity given his trial. State v. Paulsen, 265 N.W.2d 581, 588 (Iowa 1978); State v. Pelelo, 247 N.W.2d 221, 223 (Iowa 1976). Based upon our independent evaluation of the record, we conclude that trial court did not err in overruling the final change of venue motion. Suffice it to say that the publicity accorded the commencement of defendant's trial was only factually informative in nature; it was neither intensive nor inflammatory in tone. State v. Davis, 196 N.W.2d 885, 888-89 (Iowa 1972). We are satisfied that the publicity at the time defendant's case went to trial did not deprive him of a fair trial. Nor does it appear that the more intensive media coverage of defendant's earlier tried murder case, or the cases involving his confederates, or prior publicity and comment concerning other homicides, on the basis of which he was granted continuances in March and April, pervaded his trial in September.

In addition, heeding the suggestion made in State v. Davis, the voir dire examination of the jury was reported. Id. at 889. The transcript of that examination reveals careful questioning of each prospective juror concerning his or her knowledge of the persons and event in issue and his or her objectivity. Those jurors ultimately selected indicated they knew little or nothing about either the case or the defendant, and they uniformly declared that they could afford defendant a fair and impartial trial. The impanelled jury was then sequestered throughout the trial and was not permitted access to further media accounts of the trial.

For these same reasons, there also was no abuse of discretion in trial court's refusal to grant another continuance.

II. The admission of exhibits. Error is claimed in the admission of several articles of evidence. For an understanding of our resolution of this claim, we must relate additional facts which may be drawn from the evidence.

On the night of October 5, 1977, Albert Leo Galvan was at the home of his former wife, Jenny. At a little past ten o'clock, defendant telephoned and talked to Galvan, who then left that residence. Galvan returned after eleven and about five minutes later defendant and his wife arrived. They went directly to the bathroom, and Galvan went there, too. Running water could be heard. Then defendant's wife borrowed a pair of slacks from Jenny. Defendant also asked for and was given a paper sack and some charcoal starter fluid. He returned to the bathroom and, shortly thereafter, carried the grocery-sized sack, with something in it, along with the starter fluid, to the back porch. These four people then had some supper and watched television for awhile before defendant and his wife left. They were observed by Jenny entering and driving away in an automobile that had a white top and a red body. After they left, Jenny found a blood stain in her bathroom sink.

Later that same night, at around two a. m. of October 6, defendant was stopped by a deputy sheriff. Defendant was driving a 1974 Mark IV Continental, described as white over red in color. He was accompanied by a female. The deputy's attention was attracted to the automobile because of its speed. Defendant had neither a driver's license nor any other kind of identification; he said his name was Richard Cuevas. The deputy required that defendant perform some sobriety tests, but concluded that he was only a borderline suspect of driving while under the influence of an alcoholic beverage. The woman with defendant appeared to be sober, she had a driver's license, so the deputy released defendant to go home on the condition that his female companion take over the driving.

In the late afternoon of October 6, in Kansas City, Missouri, a white over red 1974 Mark IV Lincoln Continental automobile was observed illegally parked in a tow-away zone in front of the Federal Building, about half a block from the Greyhound Bus Depot. Kansas City police subsequently impounded the vehicle and inventoried personal property found in it. Among the numerous items inventoried were a sawed-off shotgun, an empty Hamm's beer can and a white t-shirt with a series of numbers on it. The automobile was subsequently identified as owned by the victim, William Turk.

At trial, exhibits were admitted, over objections, of fingerprints lifted from the shotgun barrel and the empty beer can which matched the known fingerprints of Mary Ellis Cuevas, and the white t-shirt, which was shown to be defendant's. Evidence was also admitted that dried blood taken from the butt of the shotgun was of the same blood type as the victim's; in addition, there was testimony that the physical outline of the butt-end of the shotgun appeared to match a wound imprint on the victim's back, that imprint being visible in a photograph received in evidence.

The medical examiner testified that in his opinion Turk's death occurred between five p. m. of October 5 and three a. m. of October 6.

Defendant introduced evidence that the victim was under investigation by the FBI on suspicion of being in possession of stolen travelers' checks of very substantial value, and that he was a suspect in the passing of counterfeit cashier checks. It was also shown that Turk had a felony conviction record.

A. We now turn to defendant's challenges to the propriety of the admission into evidence of specific exhibits. Defendant...