State v. Hahn, 59182

• Court: United States State Supreme Court of Iowa
• Citation: 259 N.W.2d 753
• Docket Number: No. 59182,59182
• Parties: STATE of Iowa, Appellee, v. Bernice HAHN, Appellant.
• Decision Date: 23 November 1977

Page 753

259 N.W.2d 753 STATE of Iowa, Appellee,
v.
Bernice HAHN, Appellant. No. 59182. Supreme Court of Iowa. Nov. 23, 1977.

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Robert E. Mahan and William C. Ball, Waterloo, for appellant.

Richard C. Turner, Atty. Gen., Jim P. Robbins, Asst. Atty. Gen. and David H. Correll, County Atty., for appellee.

Considered en banc.

HARRIS, Justice.

This appeal is from a second-degree murder conviction. Bernice Hahn (defendant) was convicted for the shooting death of her husband at the couple's home January 10, 1975. Because of private communications between the trial judge and a juror we reverse and remand the case for a new trial.

It is not disputed defendant's husband, Donald Hahn, died as the result of a gunshot blast fired by defendant. Neither is it disputed that defendant had been severely beaten by her husband just prior to the shooting. The record clearly reveals during the couple's 30 year marriage defendant was increasingly a prisoner of her husband's violent rages during which she frequently had been severely beaten. She had been hospitalized at least once as the result of a beating and a number of times for emotional and mental illnesses. Decedent had a drinking problem. The severity and frequency of the beatings, defendant's emotional problems, and decedent's drinking problem all worsened with the passage of time.

At the time of the shooting the couple resided in an apartment in Cedar Falls. Their children had grown up and moved away. Defendant had held employment out of the home only briefly during the marriage. She quit outside employment to satisfy the wishes of decedent. Because defendant did not know how to drive an automobile the couple customarily arranged to do the weekly wash at a coin-operated laundry each Friday morning.

Before leaving for the laundry at 8:00 a. m. decedent drank an alcoholic beverage in the apartment. Also before leaving defendant prepared decedent's dinner so it would be ready for him when they returned. Thereafter decedent drove defendant to the laundry and left her to attend the cleaning and folding of the clothes while he went to a bar. After completing her work she waited until decedent returned.

The couple then together went to two bars where they each consumed several drinks. Thereafter they shopped at a local grocery store and later went to a liquor store where decedent purchased the two half gallons of whiskey he expected to consume during the week. At decedent's direction defendant mixed him a drink in the car as they drove back to the apartment.

When the couple returned home defendant immediately continued her preparation of decedent's dinner. She continued the preparation even while conversing by phone with a daughter-in-law. The couple's son had planned to visit. Such visits, for some reason, habitually caused decedent to become violently irritable. The call seemed to infuriate decedent and he began to complain about the meal. When the complaints continued defendant told him he should get one of his other women to work for him. Decedent flew into a rage and threw his tray of food at defendant and started beating her.

He beat her head against the wall and threw her to the floor. Repeatedly, when defendant tried to use the telephone, decedent continued the beating and eventually threw her down on the couch in the living room. Several times she tried to bolt for the front door but he threw her down.

After a period of a few minutes defendant asked if she could get a washcloth and wash her swelling lip. Decedent allowed her to do so. After washing her lip defendant went to the bedroom, took her shotgun out of its case, loaded it, and then cocked it

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loudly enough so decedent knew what she was doing.

She returned to the living room where decedent was sitting in a reclining chair and pointed the gun at him and stated, "You threatened to kill me, now I will you." At this show of force decedent sneered and said, "You haven't got the guts."

The only serious factual dispute is whether decedent at this point started to get up in a threatening manner. At trial defendant testified he did. The State's showing that decedent remained seated was based on a statement to that effect defendant gave officers immediately after the shooting. Of course we are bound to take the evidence in the light most consistent with the verdict and conclude decedent remained seated.

There is no dispute defendant then shot her husband and thereafter ran to the neighbors who called the police and summoned an ambulance. She explained to investigating officers, "He beat me so I shot him." As indicated, decedent died from internal injuries caused by the gunshot wound.

Defendant was tried for murder in violation of § 690.1, The Code, and was convicted of second-degree murder (§ 690.3, The Code). In her appeal she raises 12 assignments of error. For reasons which will appear it is unnecessary to consider all 12.

I. Two of defendant's assignments of error relate to private judge-juror conversations and the claimed effect of such conversations on jury deliberations. Taken together the assignments require reversal and a new trial.

During a trial recess a conversation took place between the trial judge and Craig Caslavka, a juror who later served as foreman. The conversation was initiated by the judge at a time when Caslavka was seated with other jurors in the jury box. The judge asked Caslavka to step aside for a moment. Other jurors seated in the jury box apparently saw and heard the request.

The judge and Caslavka then stepped out into the hall where the private conversation took place. The judge's purpose in initiating the conversation was to learn whether Caslavka was related to another person named Caslavka who was then on trial for murder in Linn County, Iowa. The judge was interested in learning from Caslavka whether or not he could be a fair and impartial juror in this case if he were indeed so related.

Apparently Caslavka told the judge he was a brother of the defendant in the Linn County case but this fact would not impair his ability to be fair and impartial as a juror in the instant case.

Counsel for the State and for the defendant were not invited to participate in this private conversation and were not aware of it at any time during the trial. The conversation was not reported.

Another conversation, perhaps two more, between the trial judge and Caslavka took place in the Elk's Club in Waterloo, where both took their meals. Apparently conversations at the Elk's Club consisted only of the exchange of pleasantries. But another juror testified Caslavka reported to the jurors that he had had a nice chat with the judge but not about the case. One of the jurors believed the judge and foreman had taken their meal together.

During the second day of deliberations the jury went to lunch and resumed deliberations at 1:00 p. m. During the process of deliberations Caslavka told the other jurors, "I know Judge Degnan and he hates hung juries. He will let you hang for days if you don't make a decision."

The State believes error on these assignments was not preserved because not raised until after trial. In overruling the motion for new trial the trial court did not indicate such conversations did not occur. Rather, it noted discussions with counsel about Caslavka's brother and the latter's trial for murder. The trial court noted there had been no request for a record or for substitution of jurors.

Pursuant to § 786.4, The Code, defendant filed an unsigned bill of exceptions noting the informal discussion referred to by the

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trial court. But the bill of exceptions further noted defendant had not been advised at any time during the trial that the trial judge had conversed with the juror Craig Caslavka. The trial court refused to sign defendant's bill of exceptions.

Such a refusal would ordinarily render the bill insufficient to show what transpired. State v. Horsey, 180 N.W.2d 459, 461 (Iowa 1970) and authorities. However we are unable to find from the trial court's holding that counsel were advised of the judge's private conversation prior to the end of trial. Because we are as concerned with the fact of any judge-juror conversation as with the content of any such conversation we conclude the assignments should be entertained. See State v. Blackwell, 238 N.W.2d 131, 134-136 (Iowa 1976); State v. Cowman, 212 N.W.2d 420, 425-426 (Iowa 1973).

Section 777.19, The Code, provides: "If a felony is charged, the defendant must be personally present at the trial * * *." In Blackwell, supra, 238 N.W.2d at 134-136, we held a defendant has a constitutionally protected right to be present whenever the court communicates with a juror as to his impartiality. See also Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353, 356 (1970); Shields v. United States, 273 U.S. 583, 587-588, 47 S.Ct. 478, 479, 71 L.Ed. 787, 789 (1927). In Maier v. Illinois Central Railroad Company, 234 N.W.2d 388, 395 (Iowa 1975) we said:

" * * * Few occurrences during trial or deliberations are quite so likely to cause reversal as a private communication between anyone, including a judge, and a juror. State v. Register, 253 Iowa 495, 504-505, 112 N.W.2d 648, 653 (1962); Daniels v. Bloomquist, 258 Iowa 301, 306-307, 138 N.W.2d 868, 872 (1965); State v. Grady, 183 N.W.2d 707 (Iowa 1971); State v. Snyder, 223 N.W.2d 217, 221-222 (Iowa 1974); 75 Am.Jur.2d, Trial, § 1001, pages 842-844; 89 C.J.S. Trial § 473, pages 115-117." (Emphasis added.)

In Blackwell we held the complete record made of the judge-juror communications revealed there was no reasonable possibility of prejudice and, hence, defendant's absence during the communications was harmless error. It is urged we should reach the same conclusion in the instant case. But here we cannot say there was no possibility of prejudice.

We are obliged to ignore statements or affidavits of jurors as to whether the communications...