State v. Fowler, 60879

• Decision Date: 26 July 1978
• Docket Number: No. 60879,60879
• Citation: 268 N.W.2d 220
• Parties: STATE of Iowa, Appellee, v. Darrell Wayne FOWLER, Appellant.
• Court: Iowa Supreme Court

Page 220

268 N.W.2d 220

STATE of Iowa, Appellee, v. Darrell Wayne FOWLER, Appellant.

No. 60879.

Supreme Court of Iowa.

July 26, 1978.

James M. Hood, Davenport, for appellant.

Richard C. Turner, Atty. Gen., J. Susan Carney, Asst. Atty. Gen., and Gary M. Lane, Asst. County Atty., for appellee.

Considered by MOORE, C. J., and RAWLINGS, LeGRAND, HARRIS, and McCORMICK, JJ.

HARRIS, Justice.

Following our reversal upon defendant's prior appeal he was retried and again convicted of second-degree murder and assault with intent to commit murder. From these convictions defendant once more appeals, challenging the jury instructions given by the trial court. We affirm.

The facts are not in serious dispute. They were recited in our opinion upon defendant's prior appeal. State v. Fowler, 248 N.W.2d 511, 513 (Iowa 1976). Darrell Wayne Fowler (defendant) was to return his three youngest children to their mother, defendant's former wife, Patricia, on November 17, 1974. After driving to her residence defendant sat with the children in the car for about five to ten minutes.

Patricia, accompanied by her boyfriend, Richard Kamps, came to the car from the house. Patricia went to the passenger side and Kamps the driver's side. Patricia opened the door and tried to pull one of the children from the car. Kamps and defendant began arguing. There is dispute as to whether or not Kamps came into physical contact with defendant. According to defendant Kamps attempted to pull defendant from the car by grabbing his legs.

At this point Kamps observed that defendant was armed. He shouted, "My God, he's got a gun," and began running. Defendant fired three shots all of which struck Kamps. Defendant then started after Patricia. A neighbor testified defendant stopped under a street light, raised his arm, and fired a shot at Patricia. At trial defendant testified his intention was only to scare Kamps and not to hit him. He testified he chased Patricia in order to discuss his visitation rights. According to defendant when he caught her he put his hand on her shoulder and she fell to the ground. He straddled the lower portion of her body and the gun discharged when he was trying to hold down her arms.

When the police arrived and approached Fowler he said, "I got mad and shot her." Patricia died as a result of the shooting. Kamps survived. Defendant was tried and convicted of second-degree murder for Patricia's death. On a separate count he was tried and convicted of assault with intent to commit murder for the shooting of Kamps.

Defendant's two assignments relate to his requested instructions on involuntary accidental homicide and the trial court's instruction on the provocation necessary to reduce second-degree murder to manslaughter.

I. Defendant's first complaint is directed to instructions given and the refusal of the court to give requested instructions on the subject of involuntary manslaughter. Defendant argues he made out a jury question on his claim the killing of Patricia was an accident. He believes he was improperly deprived by the instructions of an opportunity to have the jury fairly consider whether to acquit him of second-degree murder in favor of the included offense of involuntary manslaughter. The jury instructions given were in fact more complete for considering voluntary manslaughter than for involuntary manslaughter.

The distinction between the two types of manslaughter was explained in State v. Boston, 233 Iowa 1249, 1255, 11 N.W.2d 407, 410 (1943):

"Our statute, Code section 12919 (§ 690.10, The Code, 1973), does not define manslaughter. The common law definition, the unlawful killing of another without malice express or implied, prevails in Iowa. It is commonly divided into voluntary and involuntary manslaughter. The former is committed in a sudden heat of passion due to adequate provocation. Involuntary manslaughter is an unintentional killing without malice in the doing of an unlawful act not amounting to a felony or of some lawful act in an unlawful manner. (Authorities)."

Our observation in Boston can be put in somewhat clearer perspective by contrasting it with the following:

"The trend of the case-law, where not hampered by statute, has been to include within 'voluntary manslaughter' certain unintentional killings, that is, it includes all homicides whether intentional or unintentional which are committed with a man-endangering-state-of-mind and are not justified or excused but are perpetrated under circumstances of recognized mitigation. And since manslaughter itself is a 'catch-all' concept, including as a matter of common law all homicide not amounting to murder on the one hand and not legally justifiable or excusable on the other, the general outline of involuntary manslaughter is very simple. Every unintentional killing of a human being is involuntary manslaughter if it is neither murder nor voluntary manslaughter nor within the scope of some recognized justification or excuse.

"Part of the boundary line of this 'catch-all' concept having been dealt with in the consideration of malice aforethought and of voluntary manslaughter, it is necessary at this point to take up the factors which determine whether homicide is or is not excusable. Where loss of life has been neither intended nor the result of any other sort of man-endangering-state-of-mind, the killing will be excused if he who caused it was not engaged in any unlawful activity at the time and was free from negligence. Homicide is excusable, so far as the common law of crimes is concerned, in some cases in which the slayer was not as fully free from fault as indicated by such a statement. This requires separate attention to killings resulting from (a) negligence, and (b) an unlawful act." Perkins, On Criminal Law, pp. 71-72 (Second Ed. 1969).

We recently reviewed and explained the single standard of conduct to be applied in involuntary manslaughter cases. State v. Kernes, 262 N.W.2d 602, 604-606 (Iowa 1978).

In defendant's earlier appeal 248 N.W.2d at 518-520 we considered defendant's claim the trial court upon his first trial should have instructed that defendant was entitled to an acquittal if the jury found the shooting of Patricia was an accident. For the reasons there explained we rejected defendant's contention.

Defendant believes our decision in his earlier appeal does not control the instant assignment. In the earlier case we considered whether the fact of an accident should entitle him to an outright acquittal. By contrast the question defendant now seeks to raise is whether the fact (if it be a fact) the shooting of Patricia was an accident should reduce his guilt from second-degree murder to involuntary manslaughter. We agree our opinion in defendant's earlier appeal is not dispositive of the instant assignment.

The State contends defendant did not preserve error on this assignment because his requested instructions were themselves erroneous. Defendant counters this contention on the basis of our oft cited rule in State v. Wilson, 234 Iowa 60, 85, 11 N.W.2d 737, 749-750 (1943):

" * * * (E)ven though any of the instructions requested may have contained erroneous statements of law, if they were matters upon which the court should have instructed, but did not, the court committed error in not properly instructing upon them when thus called to its attention. This is the rule in civil cases, and, by stronger reason, it is, and should be, the rule in criminal cases. * * *."

This well settled rule has no application here. The purpose of the Wilson rule is to prevent an obvious injustice. The drafting of jury instructions is an exacting craft. A litigant should be allowed, whenever possible, to assert on appeal those errors he made known to the trial court. Under Wilson the error pointed out to the trial court by way of a requested instruction is preserved notwithstanding the existence of error in the requested instruction.

Many reasons support the rule. For example in drafting requested instructions trial counsel do not enjoy the advantage of improving them by way of entertaining exceptions. The central basis for the rule rests in addressing the needless injustice that would otherwise result. A...