State v. Drosos

• Citation: 114 N.W.2d 526,253 Iowa 1152
• Decision Date: 03 April 1962
• Docket Number: No. 50462,50462
• Parties: STATE of Iowa, Appellee, v. Gust DROSOS, Appellant.
• Court: United States State Supreme Court of Iowa

Page 526

114 N.W.2d 526

253 Iowa 1152

STATE of Iowa, Appellee, v. Gust DROSOS, Appellant.

No. 50462.

Supreme Court of Iowa.

April 3, 1962.

Rehearing Denied June 12, 1962.

George A. Gorder, Sioux City, for appellant on appeal; Donald E. O'Brien, Sioux City, for appellant on trial.

Evan Hultman, Atty. Gen., John H. Allen, Asst. Atty. Gen., Des Moines, and Edward L. Samore, County Attorney, Sioux City, for appellee.

LARSON, Justice.

Pursuant to a grand jury indictment November 15, 1960, charging the defendant Gust Drosos with the crime of murder for killing George D. Pappas, and his plea of not guilty, and not guilty by reason of insanity under Section 777.18, Code of Iowa, 1958, I.C.A., a trial by jury was had and defendant was found guilty of murder in the first degree. He was sentenced to imprisonment in the Iowa State Penitentiary for life. From this conviction and sentence he appeals.

This record discloses that George D. Pappas was an attorney for the estate of William Drosos, defendant's brother, that defendant contested his brother's death-bed will, that Pappas was a witness in support of the will, and that subsequent to a final decision of this court in the contest Pappas advised defendant that he had lost. When so informed in church on Sunday, September 4, 1960, defendant rejected that conclusion and told Pappas, 'I will come to your office sometime this week.' He came on Tuesday, but Pappas was in court and he left. About 8:30 the next morning he was back, armed with a knife and a revolver. Pappas was sitting behind his desk counting some money and when he 'didn't agree with my questions or answers', defendant stabbed Pappas in the stomach. Pappas fled into the hall and fell in an attempt to reach a doctor's office. Defendant followed and, in front of witnesses, shot him as he lay on the floor. After retrieving his five-inch blade boning knife, defendant disposed of it in a trash can where it was later found by the police, and still later became an exhibit herein without objection. He then proceeded to the police station, told of his deed, and surrendered the revolver. Pappas died on September 13, 1960, as a result of the knife wound.

Defendant relies upon six assignments of error to sustain his contention that he failed to receive a fair trial. Being somewhat doubtful of their sufficiency, counsel in oral argument asks us to carefully search the record for any other prejudicial error that might appear. This being our duty, we have done so, and find none.

I. In his first assignment defendant questions the sufficiency of the evidence to support the verdict. He contends the evidence compels a finding that he was insane at the time he committed the crime, and that due to certain alleged statements made to the jury by the prosecutor in final arguments, the verdict did not reflect his guilt or innocence of the crime charged.

It is well settled in this jurisdiction that in a criminal prosecution the question of defendant's mental competency is for the jury if there is a material conflict in the testimony. State v. Brewer, 218 Iowa 1287, 254 N.W. 834; State v Geier, 111 Iowa 706, 83 N.W. 718. We do not try the issue anew on appeal, but simply review the evidence to determine whether there is substantial conflict. State v. Berry, 241 Iowa 211, 223, 40 N.W.2d 480, and citations. Of course it is defendant's burden to prove his defense of insanity by a preponderance of the credible evidence. State v. Bruntlett, 240 Iowa 338, 346, 36 N.W.2d 450; State v. Thomas, 172 Iowa 485, 496, 154 N.W. 768; State v. Humbles, 126 Iowa 462, 463, 102 N.W. 409. It is the jury that weighs the evidence and from it finds the fact.

Defense evidence of insanity was given by Dr. Carroll Brown, a physician and surgeon specializing in brain or neurological surgery, and Dr. Gerald Rausch, a physician specializing in neurology, psychiatry, and electro-psychiatry. They testified as to certain physical ailments afflicting defendant, including high blood pressure, a malignancy of the throat being treated at Iowa City, and a stroke suffered in 1949 affecting his speech and memory due to brain damage. Mentally he was disturbed about the will contest. Neither doctor felt able or competent to express an opinion as to appellant's mental condition at the time of the crime, some months prior to their examination of him. Neither testified that defendant was unable to comprehend the nature and consequences of his act or that he was unable to distinguish right from wrong. Dr. Rausch said the stroke left him abnormal, that he had lost his ability to have 'feeling' and 'emotions', that he had paranoid trends with impaired judgment and that it was not curable. He felt persecuted and blamed it all on Pappas, and was a borderline mental deficient. Dr. Brown was not impressed with anything unusual in his behavior or in the manner in which he spoke, which was calm and cordial. It is true the doctor found defendant believed Pappas helped execute and administer a will which deprived him of sums he claimed were his and which he expected to receive from his brother's estate, that Pappas helped put him out of 'my own house' located on lands willed to his brother's widow, that he charged Pappas with robbing him, that he believed he was being persecuted by Pappas, and that he believed his act was in 'self-defense'. The state contends this evidence did little more than indicate a motive for the killing, and was certainly not conclusive as to his inability to comprehend the nature and consequence of his acts, the sanity test we apply in this state.

The state also produced testimony of the police tending to show that defendant knew his acts at that time were wrongful, that he appeared normal, and that immediately after the attack he went to the police station 'because that is the law.' Others who knew him testified his appearance and demeanor immediately after the assault were no different than they had been for the past twenty years, and that his speech impediment was due to a lack of education and had not changed in recent years. The testimony taken as a whole, we think, discloses a material and substantial conflict in the evidence.

Furthermore, defendant himself took the stand and the jury observed his conduct, appearance, speech and demeanor. We being satisfied that there was a substantial conflict as to his sanity at the time of the crime, the jury-finding that he was not innocent by reason of insanity is binding upon us. State v. Berry, supra, 241 Iowa 211, 223, 40 N.W.2d 480, and citations; 23A C.J.S. Criminal Law § 1130, pp. 284, 286.

Under this assignment defendant also complains of a statement allegedly made by the county attorney in his argument to the jury to the effect that if defendant were found not guilty by reason of insanity he would go free and walk the streets. While it may be true such a statement would be improper and, if true, might well be such misconduct as to justify a reversal, such misconduct to be considered on an appeal must be preserved by a timely objection and proper exception. It cannot with certainty now be considered a record of misconduct. State v. Berry, supra; State v. Walker, 200 Iowa 341, 343, 204 N.W. 215. In the latter case, as here where the record did not contain the challenged argument, it was held fatal to the assignment. There also the only reference to the statements in question is found in the motion for a new trial. Those statements were flatly denied, and we found no occasion to review the situation.

In State v. Williams, 238 Iowa 838, 849, 28 N.W.2d 514, this matter was fully discussed and it was flatly held that when first raised in the motion for a new trial such an objection comes too late, citing State v. Banks, 227 Iowa 1208, 1211, 290 N.W. 534, and State v. Lounsbury, 178 Iowa 555, 159 N.W. 998. As further bearing on this matter, see State v. Kobylasz, 242 Iowa 1161, 1170, 47 N.W.2d 167; State v. Stennett, 220 Iowa 388, 395, 260 N.W. 732; State v. Peacock, 201 Iowa 462, 464, 205 N.W. 738.

Such a holding, of course, does not affect the rule that a finding of innocence by reason of insanity requires acquittal. It is simply that we cannot interfere if the record fails to show the statements made in the challenged argument. Here they were not recorded or preserved. However, the record does disclose no objection was made to any such statements at the time, and recites a denial by the county attorney when the motion for a new trial raised the question for the first time. The matter, therefore, is not subject to review by us in this appeal.

II. In his second assignment of error defendant contends the trial court improperly excluded testimony of a state's witness in cross-examination. While the extent of cross-examination is largely left to the sound discretion of the trial court (State v. Davis, 236 Iowa 740, 19 N.W.2d 655; State v. Grimm, 206 Iowa 1178, 1180, 221 N.W. 804; 2 Underhill's Criminal Evidence, 5th Ed., § 503,) under the circumstances here we agree that such matter inquired of was properly excluded.

As a general rule the admissibility of testimony from a preliminary hearing or former trial rests upon the unavailability of the witness whose testimony is introduced. State v. Brown, 152 Iowa 427, 436, 132 N.W. 862, and citations.

On cross-examination Detective Warnstadt was asked if he heard the questions and answers given by defendant at the preliminary hearing. The state objected on the grounds that it was irrelevant, incompetent, hearsay, and not the best evidence because it asked about testimony the defendant necessarily present at this trial gave at the preliminary hearing. By way of explanation defendant offered to show defendant had stated in Warnstadt's presence, in answer to the question, 'And you were going to kill him then?' the following: 'No, no, not going to kill him. I was going to say to him, I was going to talk to him.' Counsel stated it was not for the purpose...