State v. Davis

Decision Date13 April 1972
Docket NumberNo. 54755,54755
Citation196 N.W.2d 885
CourtIowa Supreme Court
PartiesSTATE of Iowa, Appellee, v. John D. DAVIS, Appellant.

Lewis H. Jordan, Winterset, for appellant.

Richard C. Turner, Atty. Gen., Larry S. Seuferer, Asst. Atty. Gen.,, and William W. Don Carlos, Adair County Atty., for appellee.

UHLENHOPP, Justice.

This appeal presents several questions which arose in a prosecution for manslaughter.

The case involves a daylight collision of motor vehicles on a straight east-west blacktop highway having narrow shoulders, in Adair County, Iowa, on May 18, 1970. A rather wide valley lies between two low hills. The incident occurred on the west side of the east hill. Three drivers were involved.

Viewing the evidence in the light most favorable to the verdict, the jury could find that defendant John D. Davis went to a tavern in Fontanelle, Iowa, about noon on the day in question, where, according to his version, he had three bottles of beer and two cheeseburger sandwiches ('approximately three or four beers and a cheeseburger sandwich,' according to the barmaid). He proceeded thence to another tavern in the town. There he spent the afternoon and, according to him, had four (or possibly five--the evidence is unclear) drinks of bourbon mixed with coke. He then got into his car, drove to the blacktop highway in question, and proceeded east.

That same day Fred I. Campbell was hauling rock from a quarry in a truck. He dumped his last load about 6:00 p.m. and started home. This took him east over the blacktop highway. He overtook defendant, who was proceeding at about 15 to 20 miles per hour. Defendant's car was weaving from the right side over the center line and back. Campbell passed defendant after following him some distance.

Campbell subsequently stopped at a stop sign. Defendant, going faster than previously, came up behind Campbell and stopped. Campbell saw the front end of defendant's car dip when the brakes were applied.

Campbell proceeded east, and defendant sat at the stop sign awhile. Presently defendant came up behind Campbell again. They eventually came to the west hill. As they started down the east slope of that hill, defendant came alongside Campbell. Both vehicles increased speed somewhat going down grade, but defendant did not increase his speed further to go around. At the bottom of the hill they were still side by side, so Campbell slowed up to let defendant pass. But defendant also slowed up. Campbell testified that defendant 'looked to me like he was asleep with his head laying clear over on his left shoulder, both of his hands were on the steering wheel.' The two drivers were then approaching a yellow no-passing line for the east hill ahead of them. Campbell testified further:

He was still alongside me. I knew one of us had to give going up the next hill, so I slowed up, and he slowed up, and I would speed up. He would speed up. He stayed right alongside me. My purpose in speeding up was that I wanted him to get in behind me. I knew we was up to the yellow line. My purpose in slowing down was to let him get ahead of me.

When the two vehicles approached the crest of the east hill in the no-passing zone, defendant was alongside Campbell, about even with the front of the box on the truck.

That afternoon Mrs. Helen E. Prichard and her young daughter had shopped in Creston, Iowa. Their trip home took them west over the blacktop highway. They came over the crest of the east hill and met defendant's car coming toward them on their side of the road, with the Campbell truck beside it. Mrs. Prichard, driving, stepped on the brakes and skidded partially across the center line, leaving skid marks for about 126 feet. Campbell drove as far to his right on the blacktop as he could. Defendant apparently saw the Prichard car at the last moment and skidded his brakes about 22 feet. The Prichard car glanced off of the left front part of Campbell's truck and into the front of defendant's car. Campbell kept his truck up-right and got it stopped. The front parts of the other two vehicles were badly damaged. Mrs. Prichard, who sustained a severed or damaged spinal cord from a fractured cervical spine as well as multiple skeletal injuries and lacerations, died at the scene. The marks and debris on the blacktop revealed the place that the collision occurred.

The prosecutor charged defendant with manslaughter in a three-count county attorney's information: count I charging generally wanton and reckless driving, count II charging driving while under the influence of intoxicating beverages, and count III charging wanton and reckless driving contrary to specified laws of the road. Defendant's demurrer to the information, objection to inclusion of count III, and motion for change of venue were overruled.

Defendant pleaded not guilty and the case went to trial. The evidence disclosed the circumstances we have related. Several witnesses who observed defendant at the scene or in the ambulance testified that he was under the influence of intoxicating liquor. Defendant's motion for a directed verdict was overruled, and several rulings were made adverse to him on points of evidence and on the instructions. The jury found defendant guilty. Defendant's motions for new trial and in arrest of judgment were overruled, and he was sentenced. Hence this appeal by him.

Defendant presents numerous assigned errors, which may by grouped thus: (1) Should a change of venue have been ordered? (2) Was the information demurrable? (3) Is driving while under the influence of an intoxicating beverage, resulting in the death of a person, a legal basis for the crime of manslaughter? (4) Was substantial evidence introduced in support of the information? (5) Was the jury instructed correctly on efforts to avoid collision? (6) Was recklessness submitted properly? (7) Did defendant have a fair trial? (8) Was error committed in evidentiary rulings? We have concluded that the judgment must be reversed because of error in one of the evidentiary rulings.

I. Change of Venue. Defendant's reliance in his motion for change of venue was on four newspaper articles which he contends engendered local prejudice. He cites Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600, and Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543.

The first article appeared in the Creston News Advertiser the day after the collision. It contained a factual account of the occurrence, without the detail we have related. The second article appeared a day later in the Adair County Free Press, also containing an account of what happened, somewhat longer but not in complete detail. (Defendant contends this second article reported the circumstances incorrectly. While the account may have been subject to misinterpretation in a couple respects, it was in substantial accord with the facts subsequently developed by the evidence.) The third article appeared a week later in the Adair County Free Press. That article related to a defferent collision, in which two boys on a motorcycle were killed. In the same issue of the Free Press, the fourth article appeared--an editorial pointing out that nine highway deaths had occurred in the county during the year, that most accidents are preventable, that many people are occasionally careless, and that motorists should not feel resentment if they receive traffic tickets for infractions. No specific reference to the present collision, ot any collision, was made. In none of the articles was the matter of intoxication mentioned.

Our statute provides, 'The court, in the exercise of a sound discretion, must, when fully advised, decide the matter of the petition (for change of venue) according to the very right of it.' Code, 1971, § 778.9. The statutory ground asserted in this petition (or motion, as it is denominated) is 'that such defendant cannot receive a fair and impartial trial owing to . . . excitement or prejudice against the defendant in such county'. § 778.2.

Actually, two legal bases are urged by defendant. One stems from the Sheppard and Estes cases: Such extensive, repeated, and hostile publicity that prejudice to the accused and inability to receive a fair trial must be presumed. The principle applicable to this basis is stated thus in A.B.A. Standards Relating to the Administration of Criminal Justice, Standards Relating to Fair Trial & Free Press, 3.2(c) (1968):

A motion for change of venue or continuance shall be granted whenever it is determined that because of the dissemination of potentially prejudicial material, there is a reasonable likelihood that in the absence of such relief, a fair trial cannot be had. This determination may be based on such evidence as qualified public opinion surveys or opinion testimony offered by individuals, or on the court's own evaluation of the nature, frequency, and timing of the material involved. A showing of actual prejudice shall not be required.

The other basis is the traditional one of actual excitement and hostility among the populace--a showing of prejudice in fact. Harnack v. District Court of Woodbury County, 179 N.W.2d 356 (Iowa) (approximately 100 affidavits showing hostility and excitement); see Spring, Change of Venue: A Need for Traditional Reemphasis, 54 Judicature 15.

Under the facts before the trial court, we think that the court did not abuse its discretion in overruling the motion as to both bases. The situation did not approach the continued and inflammatory publicity in Sheppard or in Estes. Defendant was not 'tried in the press,' nor was any showing made that any juror was misled or prejudiced by the articles. The articles were not inflammatory in tone, and the subject was not pursued in subsequent issues of the papers. The articles were typical of those which appear in county weeklies when a fatal automobile mishap occurs. Moreover, at the time of the ruling on October 13, 1970, the trial court could also conclude, in its discretion, that...

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