State v. Fowler

Decision Date15 December 1976
Docket NumberNo. 58472,58472
PartiesSTATE of Iowa, Appellee, v. Darrell Wayne FOWLER, Appellant.
CourtIowa Supreme Court

Raymond Rosenberg, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Steven K. Sandblom, Asst. Atty. Gen., Edward N. Wehr, County Atty., for appellee.


RAWLINGS, Justice.

By a two-count information the State charged Darrell Wayne Fowler feloniously killed his former wife Patricia (Section 690.2, The Code 1973) and assaulted Richard Kamps with intent to murder (Code § 690.6). These alleged offenses stemmed from a December 17, 1974, tragic encounter in Davenport. Trial jury found defendant guilty of murder in the second degree and assault with intent to murder. He appeals from judgments attendantly entered. We reverse.

Weighing the evidence in a light most favorable to these verdicts, the jury could have found Fowler spent the day preceding the involved event with his six children and took them to evening church service. Their custody had been divided equally between defendant and Patricia by a February 14, 1974 dissolution of marriage decree. After church defendant drove to Patricia's home in order to return the three youngest children to her. This was about 9:00 p.m. At approximately 10:30 Patricia and her friend Kamps emerged from the house. An argument ensued between Fowler and Kamps. This ripened into a physical encounter during which defendant 'swung out of the car with a gun' and shot Kamps. Patricia started running toward a wooded area near her home pursued by defendant. He stopped under a street light, raised his arm and shot the fleeing woman. Two police officers arrived at the scene. They there observed defendant holding Patricia in his arms. He was told to stand up and back away. During this episode defendant said 'I got mad and shot her.' Fowler was then arrested.

In support of a reversal defendant contends (1) he was denied his constitutional right to a fair trial by virtue of his incarceration without bail and absent a probable cause determination of sufficient grounds to detain him pending trial; (2) in course of trial the court erroneously (a) admitted hearsay testimony, (b) allowed the prosecution to improperly cross-examine him, (c) precluded defense impeachment of a State's witness and (d) refused submission of requested jury instructions.

Although our reversal is based upon assignment (2)(a) above, other questions posed which may recur on retrial will be considered.

I. Defendant first asserts the combined denial of bail and probable cause hearing violated the Fourth, Fifth and Fourteenth Amendments to the Constitution of the United States. He thereupon requests the imposition of some appropriate but unspecified sanctions.

No useful purpose will be served by alluding to every procedural event which preceded Fowler's release on bail.

He was arrested November 18, 1974. November 20, Associate District Judge Steffen appointed counsel for the accused and ordered preliminary hearing be held December 17. After a December 5 hearing, on defendant's motion, Judge Steffen held the offense charged was 'nonbailable.' Presumably the court here alluded to the first degree murder charge.

December 16, a county attorney's information was filed charging the same offenses as before. The preliminary information was then dismissed, absent any hearing thereon.

December 24, Fowler was arraigned before District Court Judge Phelps and a not guilty plea entered.

January 29, 1975, Judge Phelps fixed bail at $150,000. After conviction this court ordered defendant be released from custody on the filing of a $100,000 appeal bond. See Code § 763.9. Bail was thereupon posted.

A. Initially considered is Fowler's claim regarding a probable cause for detention hearing. More specifically, he maintains Code § 763.1, quoted Infra, is unconstitutional, at least insofar as it permits pretrial detention without a probable cause determination.

In support of this position defendant leans heavily on Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975).

Gerstein was a class action by persons awaiting trial challenging a Florida procedure which permitted authorities to hold and try an accused on a prosecutor's charge without any probable cause hearing. In relevant part the Fourth Amendment was held to require a determination of probable cause promptly before or after arrest as a prerequisite to extended pretrial detention. Id., 95 S.Ct. at 863, 868-869.

In like vein the majority stated, id., 95 S.Ct. at 868:

'Although we conclude that the Constitution does not require an adversary determination of probable cause, we recognize that state systems of criminal procedure vary widely. There is no single preferred pretrial procedure, and the nature of the probable cause determination usually will be shaped to accord with a State's pretrial procedure viewed as a whole. While we limit our holding to the precise requirement of the Fourth Amendment, we recognize the desirability of flexibility and experimentation by the States. It may be found desirable, for example, to make the probable cause determination at the suspect's first appearance before a judicial officer, see McNabb v. United States, 318 U.S. 332, 342-344, 63 S.Ct. 608, 613-614, 87 L.Ed. 819 (1943), or the determination may be incorporated into the procedure for setting bail or fixing other conditions of pretrial release.'

Admittedly, Pulaski, 'Preliminary Examinations in Iowa: The Constitutional Considerations', 60 Iowa L.Rev. 462 (1975), may be said to bolster defendant's contention regarding the constitutionality of Code § 763.1. But any attendant question need not be here resolved. December 5, 1974, the presiding Associate District Judge held, after a bail review hearing, 'defendant is charged with First Degree Murder which is nonbailable.' This perforce means the proof was found to be evident or the presumption great. See Code § 763.1. By the same token the Gerstein probable cause pronouncement, 95 S.Ct. at 868, heretofore quoted, was at least minimally satisfied.

Defendant's probable cause for detention assignment affords him no basis for appellate relief.

B. Next entertained is Fowler's denial of bail complaint. At this point abolition of the death penalty in this state comes into play.

Judge Steffen held the charged offense (murder) was 'nonbailable.' It is evident Art. I., § 12 of the Iowa Constitution and Code § 763.1 constituted the basis for this holding.

The cited constitutional provision says, in relevant part: 'All persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses where the proof is evident, or the presumption great.'

And, § 763.1 provides: 'All defendants are bailable both before and after conviction, by sufficient surety, except for murder in the first degree and kidnaping for ransom when the proof is evident or the presumption great.'

The viability of these enactments as they relate to capital offenses is at best doubtful since the death penalty could not have been imposed under existent laws in this jurisdiction.

Furthermore, the decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), has prompted some courts to hold that a person charged with a capital offense may not be denied admission to bail. Others have held to the contrary. See 8 Am.Jur.2d, Bail and Recognizance, § 31 (Supp.1976); 8 C.J.S. Bail, § 34(2) (Supp.1976); Kamisar, LaFave & Israel, Modern Criminal Procedure, ch. 13 at 778-782 (4th ed. 1974).

Be that as it may, we are here neither called upon to resolve the above conflict nor does this court elect to do so. Also by way of exclusion, it is not for us to now express any view regarding defendant's rights had he timely sought relief by certiorari or even mandamus.

In any event, this statement in Gerstein, 95 S.Ct. at 865 is deemed dispositive: 'Nor do we retreat from the established rule that illegal arrest or detention does not void a subsequent conviction. Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952); Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886).' See also State v. Montgomery, 232 N.W.2d 525 (Iowa 1975); State v. Grady, 231 N.W.2d 869 (Iowa 1975); State v. Lass, 228 N.W.2d 758 (Iowa 1975).

Parenthetically, Judge Steffen would have been well advised to consider ABA Standards Relating to Pretrial Release, §§ 5.1, 5.5 (Approved Draft 1968). See also People ex rel. Hemingway v. Elrod, 60 Ill.2d 74, 322 N.E.2d 837 (1975). See generally Grady v. Iowa State Penitentiary, 346 F.Supp. 681, 682 (N.D.Iowa 1972).

Fowler was eventually admitted to bail. Moreover, Gerstein, 95 S.Ct. at 865, quoted Supra, again becomes applicable.

The bail issue raised by defendant provides no basis for a reversal.

C. Finally in this vein, defendant contends the combined denial of probable cause hearing and delayed admission to bail served to deny him a fair trial. He fails, however, to show any premise upon which to hold a fair trial was thus denied and we find none. Then too, Fowler' combined contention is clearly the end product of claimed illegal detention which cannot be held to void the ultimate convictions here obtained. See Gerstein, quoted Supra, 95 S.Ct. at 865.

II. It is also urged trial court erred in admitting, over defendant's timely hearsay objection, attorney McCarthy's testimonial recitation of extrajudicial utterances made to him by Patricia about four months prior to the time of her death regarding an assault then made upon her by Fowler. This was patently hearsay. See State v. Leonard, 243 N.W.2d 887, 890 (Iowa 1976); State v. Rush, 242 N.W.2d 313, 319 (Iowa 1976); D. Seidelson, The State of Mind Exception to the Hearsay Rule, 13 Duquesne L.Rev. 251, 258, n. 12 (1974).

So the question posed is whether the controverted evidence was admissible under any recognized exception to the hearsay...

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