State v. Fuhrmann, 59256

• Decision Date: 21 September 1977
• Docket Number: No. 59256,59256
• Citation: 257 N.W.2d 619
• Parties: STATE of Iowa, Appellee, v. Joachim Siegfried FUHRMANN, Appellant.
• Court: Iowa Supreme Court

Page 619

257 N.W.2d 619

STATE of Iowa, Appellee, v. Joachim Siegfried FUHRMANN, Appellant.

No. 59256.

Supreme Court of Iowa.

Sept. 21, 1977.

John P. Churchman, Council Bluffs, for appellant.

Richard C. Turner, Atty. Gen., J. Susan Carney, Asst. Atty. Gen., and Lyle A. Rodenburg, Council Bluffs, County Atty., for appellee.

Heard by MOORE, C. J., and RAWLINGS, REYNOLDSON, HARRIS and McCORMICK, JJ.

REYNOLDSON, Justice.

Defendant Fuhrmann appeals his convictions for first-degree murder (§ 690.1, The Code), robbery with aggravation (§ 711.2, The Code), and assault with intent to commit murder (§ 690.6, The Code). These charges stem from a Council Bluffs jewelry store robbery on August 7, 1975. In the robbery, store owner John Lucey was killed and his wife, Charlotte Jean Lucey, was assaulted. We affirm.

Defendant presented no evidence. The State's evidence disclosed defendant and his wife Marsha had visited the jewelry store prior to the robbery, expressing an interest in large diamonds. A larger selection of gems had been obtained by Mr. Lucey for defendant's inspection. The latter made an appointment to see Mr. Lucey at 7 p. m. on August 7, the night of the robbery.

At 6:30 p. m. that evening defendant, Marsha, and Joe Nuzum, Jr., picked up Lisa Kahn, age 14, to baby-sit with defendant's four-year-old daughter. They dropped Lisa off at the Fuhrmann apartment and left about 7 p. m.

Mrs. Lucey was present when the robbery occurred and testified to those events. Although she was typing in another room, she observed defendant and his wife arrive at 7:10 or 7:15 p. m. They met with Mr. Lucey in the salesroom. While Mrs. Lucey did not notice Joe Nuzum (a former employee) arrive, he apparently had been let in by defendant and was also in the salesroom.

Shortly, Mr. Lucey came down the hall from the salesroom saying, "Jean, hit the floor. It's Joe Nuzum. It's a rip-off. We've been had." Mrs. Lucey slid to the floor, face down. She was unable to see the robbers' faces but she recognized defendant's voice order her husband to tie her hands behind her back. After Mr. Lucey did this he unsuccessfully struggled with the intruder.

During this struggle Mrs. Lucey saw the intruder's arm holding a gun similar to a snub-nose .38 caliber revolver. She later identified the coat covering the arm as being the same as a coat owned by defendant.

Mrs. Lucey was then struck on the head by one of the robbers, but not rendered unconscious. Her husband was taken to another room. Mrs. Lucey heard him pleading for his life, then heard a muffled shot.

In a brief time a heavy person (presumably Joe Nuzum) got on Mrs. Lucey's back and placed a gun directly to her head. She recognized defendant's voice from the doorway yelling, "Do it. Do it. Do it." A shot was fired but Mrs. Lucey escaped serious injury. The robbers left with jewelry valued at approximately $139,000.

Later it was discovered Mr. Lucey had been shot in the head and died almost instantaneously. Apparently the murder weapon was an automatic pistol and not a revolver because shell casings were found on the floor near the body.

John Carpenter Peters, who had known defendant since the prior February or March, testified he had observed defendant with a .380 caliber Beretta (automatic) before the robbery. At about 1:30 a. m. on August 9, Peters discovered a note stuck in the back door of his apartment. The note requested Peters to come to the Fuhrmanns and to bring his swimming trunks, stating it was urgent.

Peters complied with this request. Fuhrmanns requested him to follow their car in his car. Fuhrmanns stopped on a small country road. Defendant led Peters into the woods and retrieved the merchandise from the jewelry robbery and placed it in a steel box. The box and a suit belonging to defendant were placed in Peters' car. Defendant told Peters to have the suit cleaned to remove bloodstains. The latter took the jewelry to his apartment. That evening the Fuhrmanns came over. Peters testified defendant then told him Nuzum shot Mr. Lucey in the head but that "Nuzum up. Mrs. Lucey is still alive." They told Peters they threw the murder weapon into the Missouri River.

August 10, 1975, defendant and his wife were arrested. August 11 Peters notified the police he had information relating to the Lucey jewelry store robbery and killing. The stolen merchandise was recovered.

A county attorney's information filed October 17, 1975, charged defendant with the premeditated murder of John Lucey, robbery with aggravation, and assault on Charlotte Jean Lucey with intent to commit murder. The information was later amended to add felony-murder to the premeditated murder charge. The jury found defendant guilty on all three counts. His motion for new trial was overruled.

January 26, 1976, trial court sentenced defendant to life imprisonment at hard labor for murder, 25 years imprisonment for robbery, and 30 years imprisonment for assault.

Appealing, defendant contends trial court committed reversible error in six rulings described in the divisions which follow.

I. Allowing the jury to see and permitting testimony concerning exhibits excluded from evidence.

Defendant asserts he was prejudiced by the exhibition of and testimony relating to exhibit 33 (permit to buy), exhibit 41 (permit to possess), and exhibit 42 (.38 caliber revolver).

All concede the snub-nose .38 revolver was not the murder weapon. It was found in defendant's closet following his arrest. The baby-sitter, Kahn, testified a weapon which looked like this exhibit, and also an automatic, had been kept in a cabinet over the refrigerator in the Fuhrmann home. But on the night of the robbery, while looking for baby food, she observed the guns were not there. Mrs. Lucey testified this .38 revolver was "very similar" to one held by the intruder who scuffled with her husband. When the gun was re-offered at close of State's testimony, trial court sustained defendant's objections and admonished the jury to disregard all references to it.

Defendant moved in limine to prevent testimony relating to the two permits, which were issued to Marsha Fuhrmann for the purchase and possession of the .38 revolver. This motion was overruled. The exhibits were identified, offered, and objected to. The court reserved ruling. At close of State's evidence trial court sustained the objections and again admonished the jury to disregard any evidence concerning these permits.

Trial court has considerable discretion in determining the admissibility of demonstrative evidence. State v. Badgett, 167 N.W.2d 680, 688 (Iowa 1969). On the record in this case we do not believe trial court would have abused its discretion in overruling the objections to these exhibits.

Ordinarily weapons not used in the commission of a crime are inadmissible. State v. Wallace, 259 Iowa 765, 769-772, 145 N.W.2d 615, 618-620 (1966); 22A C.J.S. Criminal Law § 712(c), at 965 (1961). But where there is sufficient proof to justify a reasonable inference a weapon was or may have been used in the perpetration of the offense, it is generally admissible in evidence. State v. Nowlin, 244 N.W.2d 596, 602 (Iowa 1976); see State v. Shultz, 231 N.W.2d 585, 588 (Iowa 1975); State v. Kittelson, 164 N.W.2d 157, 167 (Iowa 1969); State v. Wallace, supra, 259 Iowa at 769, 145 N.W.2d at 618; Moore v. Illinois, 408 U.S. 786, 799-800, 92 S.Ct. 2562, 2570, 33 L.Ed.2d 706, 716 (1972).

That the .38 revolver was not the murder weapon is not controlling. State v. Nowlin, supra, 244 N.W.2d at 602. The evidence generated an inference defendant carried this weapon in the jewelry store robbery. As it would not have been error to admit the gun and the associated permits, defendant cannot claim he was prejudiced by references to these exhibits in the course of testimony.

In any event, the striking of improper testimony ordinarily cures any error. Only in extreme instances where it is manifest that the prejudicial effect of the evidence on the jury remained, despite its exclusion, is defendant denied a fair trial and entitled to a reversal. State v. Johnson, 243 N.W.2d 598, 605 (Iowa 1976); State v. Mattingly, 220 N.W.2d 865, 870-871 (Iowa 1974). In our view this was not one of those extreme situations in which the jury would ignore trial court's admonition.

We find no reversible error in this respect.

II. Not requiring the State to elect between the alternative theories of murder incorporated in the amended information.

Count I of the county attorney's information originally charged defendant with:

"murder, for that the said defendant did on the 7th day of August, 1975, wilfully, deliberately, and with premeditation and malice aforethought kill John Lucey in violation of Section 690.1, and as punishable by Section 690.2, 1975 Code of Iowa."

The amendment added to Count I the following "or did in the perpetration or attempt to perpetrate a robbery, kill John Lucey. All in violation of Section 690.2, 1975 Code of Iowa."

Trial court, ruling to permit the amendment, found the amendment "does not change the nature of the charge or constitute undue surprise as to the Defendant, and is in proper form."

Before jury selection and again at close of evidence, defendant made a motion to require the State to elect between its alternative theories of murder alleged by the amended information. Defendant asserts trial court's adverse ruling on this motion was error. We disagree.

Section 773.25, The Code, provides:

"No indictment for an offense which may be committed by the doing of one or more of several acts, or by one or more of several means, or with one or more of several intents, or with one or more of several results, shall be invalid or insufficient for the reason that two or more of such acts, means, intents, or results are charged in the disjunctive or alternative."

See State v. Aldrich, 231 N.W.2d 890, 896 (Iowa 1975); State v. Crutcher, 174 N.W.2d 449, 451 (Iowa 1970).

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