State v. Elam

• Citation: 328 N.W.2d 314
• Decision Date: 22 December 1982
• Docket Number: No. 67714,67714
• Parties: STATE of Iowa, Appellee, v. Daniel Sullivan ELAM, Appellant.
• Court: United States State Supreme Court of Iowa

Page 314

328 N.W.2d 314

STATE of Iowa, Appellee, v. Daniel Sullivan ELAM, Appellant.

No. 67714.

Supreme Court of Iowa.

Dec. 22, 1982.

James F. Whalen, Dunbar, Dunbar & Whalen, Waterloo, for appellant.

Thomas J. Miller, Atty. Gen., Mary Jane Blink, Asst. Atty. Gen., and David H. Correll, Black Hawk County Atty., for appellee.

Considered by REYNOLDSON, C.J., and HARRIS, LARSON, SCHULTZ, and CARTER, JJ.

CARTER, Justice.

Defendant Daniel Elam appeals from his conviction of first-degree murder in violation of Iowa Code section 707.2 (1979). He contends the trial court erred in the following particulars: (1) in excluding expert testimony offered in support of his claim of justification, (2) in instructing the jury that it might infer malice from the use of a dangerous weapon, (3) in admitting a witness's testimony concerning a threat made to her by a person who was with defendant at the time of the murder, and (4) in not directing a verdict of acquittal for defendant on the issue of justification. We consider all of these claims and affirm defendant's conviction.

Defendant was tried for the murder of Chris Stevens, alleged to have been committed in Waterloo, Iowa during the early morning hours of February 1, 1981. The evidence offered at trial revealed that on the previous evening defendant had been with Lynette Lee and Vickie Barrett at a Waterloo bowling alley. The bowling concluded about 9:30 p.m. and following a trip to purchase some marijuana the three had assembled at Lynette's house on Oak Street in Waterloo. Sometime thereafter, Chris Stevens arrived at Lynette's house.

Stevens, who had been keeping company with Vickie Barrett for approximately two years, proceeded to interrogate her as to where she had been that evening. This conversation culminated with Stevens striking Vickie in the face. When Lynette Lee threatened to call the police, Stevens left. On his way out he broke the glass in the storm door causing a splinter of glass to lodge in the defendant's eye. Later, when defendant left Lynette Lee's house, he saw Stevens standing near a window. At this time Stevens accused defendant of being involved with Vickie, which defendant denied. As defendant moved away, Stevens informed him that he (Stevens) knew where defendant lived.

Defendant then returned to the apartment complex where he resided. He stopped in at Dianne Mims's apartment where he discussed his fear of Stevens with Dianne Mims and with defendant's aunt. Later, defendant went to his grandfather's apartment in the same apartment complex and unsuccessfully attempted to borrow a shotgun. He then asked his aunt for a pistol which she claimed not to have.

Still later in the evening, Ferman Jones, an acquaintance of the defendant, arrived outside the housing project. At this time defendant, who was listening through an open door, heard Chris Stevens ask Jones "Did you see a keen face guy come through here?" Defendant testified at the trial that at this point he believed that Stevens was after him and his reaction was "I have to face this guy. I have to face him. I can't be running. I have to face him and see what he wants." Defendant testified that he then approached Stevens with an ax and asked him "Why you chasing me, man?" Stevens replied, "That [the ax] ain't going to do you no good." Defendant then retreated to his aunt's apartment. Stevens approached the door of that apartment and invited defendant to come out.

Defendant did not come out at Steven's request and ultimately Stevens left the area. Ferman Jones then came to defendant's aunt's apartment. He offered to persuade defendant's grandfather that he should give defendant his shotgun. Defendant agreed to this course of action and Jones was successful in obtaining the weapon. Defendant and Jones then proceeded outside the apartment complex armed with the shotgun. Outside the building they encountered Stevens. The defendant testified that when Stevens ran toward him defendant tried to fire the shotgun but it did not go off. Stevens then turned, raising his hands, and Jones yelled at the defendant to look out. At this point the defendant successfully fired the shotgun killing Stevens. Defendant testified that he believed Stevens had a weapon but that after the shooting it was ascertained that this was not so.

Following the shooting, Ferman Jones returned to defendant's grandfather's apartment where he washed the shotgun and concealed it under a mattress. Defendant returned to Dianne Mims's apartment and changed clothes. Defendant and Jones then left the apartment complex. Later, but still during the early morning hours of February 1, defendant and Jones returned to the apartment complex where the defendant stayed at the apartment of Jones's common-law wife. Later defendant traveled to St. Louis where he remained until sometime in April when he voluntarily returned to Waterloo and gave himself up to police.

I. Exclusion of Expert Testimony Relating to Defendant's Fear or Apprehension. The first legal issue which we consider is defendant's claim that the trial court erred in excluding the expert psychological testimony of Dr. Sannito, a clinical psychologist. In preparation for his defense of justification pursuant to Iowa Code section 704.6 (1979), the defendant was examined by Dr. Sannito for four hours while incarcerated in the county jail. Dr. Sannito prepared a written report which concluded that the defendant's life was "dominated by an ever-present fear." The report also indicated that personality tests administered to the defendant indicated an "inordinate wariness" and "an unusual fear of death." The State moved in advance of trial to exclude the testimony of Dr. Sannito on the ground that his testimony would be irrelevant to the issue of justification. The trial court sustained the State's motion. The defendant made an offer of proof that Dr. Sannito would testify in substantial conformity with his written report.

The defendant claims on appeal that it was error to exclude Dr. Sannito's testimony because it would have been relevant and material to the issue of whether he believed he was in danger at the time of the shooting. In support of this contention the defendant relies on State v. Brown, 91 N.M. 320, 323, 573 P.2d 675, 678 (N.M.Ct.App.1977), cert. denied, 436 U.S. 928, 98 S.Ct. 2826, 56 L.Ed.2d 772 (1978). There, the defendant was charged with shooting a police officer with intent to kill. The defendant tendered the testimony of a social psychologist concerning perception by minority groups that police are a threat. The ultimate opinion rendered by the witness, however, was tied to the defendant's apprehension in the particular circumstances which he faced at the time of the shooting. The trial court excluded the testimony and that ruling was held to be error.

Based on the Brown decision and the general test of relevancy the defendant argues that he should have been permitted to show that he was "extremely wary, and unusually prone to fear." We disagree with this contention for two reasons. First, unlike the evidence offered in Brown, the offer of proof in the present case is in no way related to the situation which faced the defendant at the time of the shooting. Secondly, the test of justification is both subjective and objective. The actor must actually believe that he is in danger and that belief must be a reasonable one. 4 J. Yeager and R. Carlson, Iowa Practice: Criminal Law and Procedure § 82 (1979). Defendant was therefore required to show an actual, reasonable fear under the circumstances which he faced. Evidence of an inordinate fear does not satisfy this requirement. See State v. Bess, 53 N.J. 10, 17, 247 A.2d 669, 672 (1968) (expert psychological testimony that defendant would overreact because of emotional instability properly excluded); see also State v. Matthews, 301 Minn. 133, 136, 221 N.W.2d 563, 565 (1974).

Furthermore, we have consistently held that the determination of relevancy is a matter within the discretion of the trial, court and this court will interfere only upon a showing of an abuse of that discretion. State v. Windsor, 316 N.W.2d 684, 688 (Iowa 1982); State v. Zaehringer, 280 N.W.2d 416, 419-20 (Iowa 1979). Under the circumstances which were presented, the trial court appears to have acted well within its discretion.

II. Instructions on Inferences of Malice and Premeditation. Defendant also contends that the trial court erred by giving, over defendant's objection, the following jury instruction:

You are instructed that a shotgun is a dangerous weapon.

You are further instructed that when a person intentionally uses a dangerous weapon against another and death results, you may, but are not required to, infer that the killing was with malice aforethought.

You are also instructed that if a person, with opportunity to deliberate, intentionally uses a dangerous weapon against another and death results, you may, but are not required to, infer, in the absence of evidence to the contrary, that such weapon was used with malice, deliberation, premeditation and a specific intent to kill.

(Emphasis added).

The defendant asserts that this instruction violates his constitutional right to due process by shifting the burden of proof as it "creates the possibility that a reasonable juror could believe that the instruction relieved the State of the burden of proving [he] acted with malice." The defendant acknowledges that a similar...