State v. Cuevas

• Decision Date: 25 July 1979
• Docket Number: No. 61947,61947
• Parties: STATE of Iowa, Appellee, v. Phillip Benito CUEVAS, Appellant.
• Court: Iowa Supreme Court

Page 74

282 N.W.2d 74

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

No. 61947.

Supreme Court of Iowa.

July 25, 1979.

Philip F. Miller, Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., Thomas A. Evans, Jr., Asst. Atty. Gen., and James W. Ramey, Asst. Polk County Atty., for appellee.

Considered by REYNOLDSON, C. J., and UHLENHOPP, McCORMICK, McGIVERIN, and LARSON, JJ.

REYNOLDSON, C. J.

On January 1, 1977, George Weeks was found shot to death outside his Des Moines home. After several months of investigation the State filed a murder charge against defendant Cuevas. Following jury trial defendant was convicted of first-degree murder, sections 690.1-.2, The Code 1977. He now appeals from judgment sentencing him to life imprisonment. We reverse and remand for new trial.

From the evidence the jury could have found the following facts. On the evening of December 31, 1976, defendant, his wife Mary, and Peter Miover went out in the Cuevas car to burglarize a home. They abandoned their first target when someone in the house turned off a light. Defendant proposed another home, saying Weeks, the occupant, liked to keep hundred dollar bills in his bib overalls. Defendant and Miover approached the house on foot, wearing stocking masks and gloves. Defendant was armed with a .380 Llama pistol. Miover carried a sawed-off shotgun belonging to defendant.

According to plan, defendant jerked open a screen door. Miover threw himself at the interior wooden door, but was unable to break it and fell dazed to the ground. Apparently Weeks came to the door and was shot once in the head by defendant.

Defendant and Mary took Miover back to his hotel and told him to keep quiet. They spent the remainder of the night at Sandra See's residence.

The jury could have found the murder weapon was initially purchased by Edward J. Thomas who sold it and a .22 Ruger pistol to Rod McBlaine within the year prior to Weeks' death. Both guns were stolen from McBlaine four months before this homicide. The evidence put defendant in possession of the Ruger in December, 1976, and the Llama two weeks after Weeks was killed.

Miover testified that as he lay collapsed on the ground after his unsuccessful encounter with Weeks' door he heard a shot and saw defendant running back toward the car. He did not see Weeks nor was he able to detail the circumstances further. After he had "hobbled" to the auto he heard Cuevas tell Mary, "I had to shoot him." On cross-examination Miover, for the first time and contrary to his prior statements, testified he returned to the crime scene later the same night, determined Weeks was dead, and took some money and clothes from the house.

Defendant's brief raises issues which we treat in divisions one through ten. Our eleventh division relates to printing costs.

I. Did preaccusatorial delay deny defendant due process and a fair trial?

Defendant became a suspect on January 17, 1977, when ballistics tests established the Llama pistol found in his possession during an unrelated arrest was the weapon used to kill Weeks. The State did not file a preliminary information against defendant until October 14. A county attorney's information was filed November 1.

October 25, defendant moved to dismiss, alleging the "delay of 8 1/2 months constitutes prejudicial preaccusatortorial (sic) delay contrary to Defendant's right to a fair trial and due process of law." No other facts were alleged. The motion was unsupported by affidavit. The hearing on the motion was unreported. From the ruling denying the motion we assume defendant was contending an alibi witness died during the delay, and another had become hostile. The State apparently produced testimony it had insufficient evidence to support a charge until October 14, 1977, when a detective obtained information from Miover.

Of course the statute of limitations, "the primary guarantee against bringing overly stale criminal charges," United States v. Ewell, 383 U.S. 116, 122, 86 S.Ct. 773, 777, 15 L.Ed.2d 627, 632 (1966), did not prohibit this prosecution. See S 752.1, The Code 1977 (no limitation in murder prosecution).

The due process clause, U.S.Const. amend. V, invokes dismissal "if it were shown at trial that the pre-indictment delay . . . caused substantial prejudice to (defendant's) rights to a fair trial And That the delay was an intentional device to gain tactical advantage over the accused." United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468, 481 (1971) (emphasis added). See also United States v. Lovasco, 431 U.S. 783, 789-90, 97 S.Ct. 2044, 2048-49, 52 L.Ed.2d 752, 758-59 (1977); State v. Williams, 264 N.W.2d 779, 782-84 (Iowa 1978); State v. Davis, 259 N.W.2d 843, 845 (Iowa 1977), Cert. denied, 435 U.S. 973, 98 S.Ct. 1618, 56 L.Ed.2d 66 (1978); See generally, Note, Preindictment Delay in the Eighth Circuit,27 Drake L.Rev. 110 (1977-78).

Defendant has not satisfied the "intentional delay" prong of the Marion test. Trial court properly relied on the Lovasco rationale:

(P)rosecutors do not deviate from "fundamental conceptions of justice" when they defer seeking indictments until they have probable cause to believe an accused is guilty; indeed it is unprofessional conduct for a prosecutor to recommend an indictment on less than probable cause. It should be equally obvious that prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect's guilt beyond a reasonable doubt. . . . From the perspective of potential defendants, requiring prosecutions to commence when probable cause is established is undesirable because it would increase the likelihood of unwarranted charges being filed, and would add to the time during which defendants stand accused but untried. These costs are by no means insubstantial . . . .

We therefore hold that to prosecute a defendant following investigative delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by the lapse of time.

431 U.S. at 790-96, 97 S.Ct. at 2049-52, 52 L.Ed.2d at 759-63 (citations and footnotes omitted). Accord, State v. Schlick, 257 N.W.2d 59, 61 (Iowa 1977).

In the case before us defendant has established nothing more than permissible "investigative" delay. Trial court did not err in overruling the motion to dismiss.

II. Did trial court err in refusing to instruct on second-degree murder and manslaughter?

Trial court instructed the jury only on felony-murder. Although the instruction did not comply with our decisions because it did not require the jury to find a Murder committed in the perpetration of a felony, See State v. Galloway, 275 N.W.2d 736, 738 (Iowa 1979), defendant posits no objections on this omission. Nonetheless, it complicates the issue before us. The new statute, section 707.2, The Code 1979, of course does not apply to this situation.

Defendant timely requested the court to instruct on second-degree murder and manslaughter. This was refused, as was defendant's request to instruct on first-degree murder in addition to felony-murder.

On two recent occasions we have been required to reverse felony-murder convictions for failure to submit second-degree murder and manslaughter as lesser included offenses. State v. Reese, 259 N.W.2d 771, 777-79 (Iowa 1977); State v. Millspaugh, 257 N.W.2d 513, 516 (Iowa 1977). Both crimes satisfy the legal test as lesser included offenses of first-degree murder. Id.

The State argues there was no factual basis in the record to justify submitting either included offense. It asserts if Miover is not believed defendant should be acquitted as "the only evidence put forth at trial was the fact that Cuevas shot the victim, with malice aforethought, in the attempted perpetration of a burglary."

But there is no direct evidence, from Miover's testimony or elsewhere, of defendant's intent. The jury had to infer an intentional killing (they were not instructed they had to find malice aforethought) from defendant's use of a deadly weapon in the robbery, See State v. Pepples, 250 N.W.2d 390, 395 (Iowa 1977), and from Miover's testimony that defendant said, "I had to shoot him." While unlikely, the jury could have found defendant shot Weeks during a burglary without finding the shooting was intentional. So finding, the jury could not have convicted defendant of first-degree murder. Or it could have disbelieved Miover's testimony concerning the purpose of going to Weeks' house while still finding defendant unintentionally shot Weeks.

The case State relies on, State v. Conner, 241 N.W.2d 447 (Iowa 1976), is factually distinguishable. Conner participated in the rape and shotgun murder of a young girl. There was no factual issue on intent; Conner either participated in a premeditated murder or he did not.

We find under the felony-murder instruction given, manslaughter was a lesser included offense and should have been submitted. On retrial there should be given an approved instruction on felony-murder. Assuming a similar record, second-degree murder would be included and should be submitted.

We are not persuaded by defendant's claim the court should have submitted a "straight" first-degree murder instruction. The State never varied from its theory that defendant shot Weeks in the course of an attempted burglary and larceny. Cf. State v. Fuhrmann, 257 N.W.2d 619, 626 (Iowa 1977) (trial court required to submit felony-murder and first-degree murder because of State's alternate theories). Here virtually all evidence of the burglary came from Miover's testimony. If the jury disbelieved him on the burglary plan, there was insufficient evidence from which the jury could have inferred a willful, deliberate and premeditated killing.

The failure to instruct on the lesser offenses necessitates a reversal. We discuss the remaining issues defendant raises only to the extent the problems may recur on retrial.

III. ...