State v. Faught

• Decision Date: 12 March 1963
• Docket Number: No. 50765,50765
• Citation: 254 Iowa 1124,120 N.W.2d 426
• Parties: STATE of Iowa, Appellee, v. Michael James FAUGHT, Appellant.
• Court: Iowa Supreme Court

Page 426

120 N.W.2d 426

254 Iowa 1124

STATE of Iowa, Appellee, v. Michael James FAUGHT, Appellant.

No. 50765.

Supreme Court of Iowa.

March 12, 1963.

Mahoney, Jordan, Statton & Smith, Boone, for appellant.

Evan Hultman, Atty. Gen., John H. Allen, Asst. Atty. Gen., Stanley R. Simpson, County Attorney, and T. W. Doran, Special Prosecutor, Boone, for appellee.

GARFIELD, Chief Justice.

Defendant Michael James Faught has appealed from his conviction of second degree murder.

On July 9, 1961, about 7:30 a. m. the body of a Mrs. Zenor was found in the vegetable room in the basement of the Hemlock building at the Woodward State Hospital and School. She was a cook in the building. The handle of a butcher knife protruded from her chest. Its 8-inch blade was inside the body and had almost completely severed the aorta and windpipe. She had bled to death within a minute or two after she was stabbed.

Defendant, then 17, was a patient and student at the Woodward institution, maintained by the state for the treatment of epileptics and training of the mentally retarded (chapter 223, Codes, 1958, 1962, I.C.A.). Defendant's mother testified he has had epileptic seizures since he was about seven. His father fixed such age at 11. He was also mentally retarded. On July 9 defendant was one of a 'kitchen crew' of six in the building. One of his duties was to peel potatoes and cut up other vegetables in the basement. He had gone there that morning to do such work, taking with him the knife with which Mrs. Zenor was stabbed.

Defendant promptly admitted to different employees at the Woodward school that he stabbed Mrs. Zenor. These admissions were also made to the sheriff and other law enforcement officers. He also dictated and signed that same afternoon a written confession of the crime.

Defendant was charged by county attorney's information with murder in violation of section 690.1, Codes, 1958, 1962, I.C.A. Able counsel was appointed to defend him. At his trial in March, 1962, the jury found him guilty of murder in the second degree. He was sentenced to the state penitentiary at Fort Madison for a term not to exceed 50 years. Upon this appeal defendant has assigned three errors.

Sufficiency of the evidence to support the verdict is not challenged. Nor could it be. No detailed recital of the facts is called for. Defendant told different members of the staff at Woodward he grabbed decedent around her neck with his left arm as she emerged from a door in the basement, picked up the butcher knife from the table where he was cutting up cabbages, and with his right hand plunged the knife into her chest. His written confession says he 'grabbed Mrs. Zenor and stabbed her. That was all there was to it.' Decedent was a frail arthritic, five feet, one or two inches tall, who weighed 110 to 115 pounds.

At the trial defendant admitted he signed the confession, told the officers about what is in it, and told 'a lot of people' he killed Mrs. Zenor. As a witness, however, he denied the killing. His explanation for signing the confession was that about two months previously he had been wrongfully accused of cutting three boys' throats and was tired of being accused of things he didn't do.

We consider now the three assigned errors in the order in which they are argued.

I. Defendant's first assignment is that the court erred in limiting his examination of the witness Dr. Wildberger as to defendant's mental age and brain damage.

Before trial defendant filed written notice under section 777.18, Codes, 1958, 1962, I.C.A., that he proposed to show insanity as a defense, setting forth names of witnesses on such issue. Dr. Wildberger, acting assistant superintendent and clinical director at Woodward, was not one of those so named. However, defendant called the doctor as a witness and asked him if he could tell from his records what defendant's mental age would be on July 9, 1961. The state objected on the ground the witness' name was not included in the written notice. Defendant's counsel stated he was not attempting to prove the defense of insanity but that the evidence was admissible with respect to the voluntary character of the confession and defendant's ability to distinguish when making it. The objection was overruled and the witness said he did not have a record of defendant's mental age on July 9.

Counsel later asked Dr. Wildberger if defendant had brain damage by reason of epilepsy. An objection to the question on the ground the witness' name was not included in the notice above referred to was sustained. Defendant then examined the doctor outside the jury's presence. Counsel stated this was in the nature of an offer of proof. The witness was reluctant to answer the question regarding brain damage of defendant. He insisted counsel say what he meant by brain damage and counsel insisted the witness say what he meant by the term. The doctor was next asked, 'On March 9 (1962) did you not tell me by letter that defendant appeared to be brain damaged?'

Dr. Wildberger answered that the statement referred to was an except from a letter to a doctor in Iowa City. Asked what he meant by the statement, the witness replied he was indicating to the other physician that 'in my opinion this boy was having problems that in a broad sense was located in his brain area and in this broad sense he could be said to be suffering from brain damage.' Finally the witness was asked if he did not have a report in his file from another doctorm, dated January 6, 1960 (18 months prior to the alleged murder), suggesting defendant should not have been placed in the Woodward hospital. Defendant's counsel interrupted the answer and announced that was the extent of the offer of proof.

The whole examination in the jury's absence was more extensive than above set out. The only answer relied on now is the one just quoted. The court indicated the entire offer was 'a left-hand attempt to get into the record evidence which should have been put in under the statute (777.18) on the ground of insanity.' Also that the court did not understand what it was proposed to show--it was speculative and too indefinite. To this defendant's counsel responded: 'I don't understand the answers anyway, so I can appreciate the information the doctor was giving wouldn't have been much help in clarifying the jurors' minds on the issues presented.'

The court may well have understood this last statement as a virtual withdrawal of any offer of proof from this witness. In any event it indicates counsel's agreement with one ground on which the court thought the offer should be excluded.

Further, the only excluded answer defendant now thinks should have been received relates to the contents of a written instrument which was not produced or accounted for. The objection that the questions referring to the statement in the letter to the Iowa City doctor--and to counsel--did not call for the best evidence could rightly have been interposed. We have often held that if evidence is properly excluded on any ground the ruling will be upheld even though the proper ground for exclusion was not urged in the objection to its admission. Shover v. Iowa Lutheran Hospital, 252 Iowa 706, 721, 107 N.W.2d 85, 94, and citations; Kent State Savings Bank v. Campbell, 208 Iowa 341, 344, 223 N.W. 403, and citations.

The reason for the rule just mentioned is that it would be futile to grant a new trial upon such a ground. It should fairly be presumed that upon the new trial proper objections would be interposed to admission of the excluded evidence. Kent Bank case, supra.

We find no merit in the first assigned error.

II. The second assignment is that instructions to the jury 16, 24 and 25 erroneously limited its consideration of defendant's mental condition to the issue of intent to commit the crime charged and did not allow the jury to consider such condition with respect to the voluntary character of defendant's verbal admissions and the confession.

Instruction 16 states the circumstance defendant was an inmate at Woodward and mentally retarded is in and of itself no defense to the charges against him. 'It bears only upon the question of intent as defined in the instructions and will be considered for that purpose only, if it does so in fact bear thereon.'

Instruction 24 states that before verbal statements made by defendant outside of court could be considered it must be found they were voluntary, without inducement, promise, threat or coercion. Instruction 25 sets out the requirement of Code section 782.7, I.C.A. that the confession of defendant, unless made in open court, will not warrant a conviction unless accompanied with other proof the offense was committed. Instruction 26 is similar to 24 but deals with the requirement that the written confession must have been voluntary. No objection or exception was taken to 24, 25 or 26. All that is said in argument here about them is that they do not state defendant's mental condition could be considered in determining the weight of the oral admissions or written confession.

Defendant objected and excepted to instruction 16 in that it told the jury the fact defendant was an inmate at Woodward and mentally retarded could be considered only on the question of intent, whereas such fact should also have been considered with respect to the weight and voluntariness to be given the confession and other incriminating statements of defendant.

There is much evidence defendant was mentally retarded, at least in the broad sense. Although 17 he had attained the educational level of only fourth to fifth grade. One witness considered him borderline retarded and borderline normal. Another called him low borderline. Still another said defendant was definitely borderline and mentally retarded.

The state's answer to defendant's claim of error in giving instruction 16 is that in the absence of a request it was not necessary to instruct that evidence of defendant's mentally...