State v. Hansen, 56473

• Decision Date: 22 January 1975
• Docket Number: No. 56473,56473
• Citation: 225 N.W.2d 343
• Parties: STATE of Iowa, Appellee, v. Jerry Leroy HANSEN, Appellant.
• Court: Iowa Supreme Court

Page 343

225 N.W.2d 343

STATE of Iowa, Appellee, v. Jerry Leroy HANSEN, Appellant.

No. 56473.

Supreme Court of Iowa.

Jan. 22, 1975.

Raymond E. Pogge, Council Bluffs, for appellant.

Richard C. Turner, Atty. Gen., Thomas D. McGrane, Asst. Atty. Gen., and Lyle Rodenburg, County Atty., for appellee.

Heard before MOORE, C.J., and RAWLINGS, LeGRAND, REES and HARRIS, JJ.

LeGRAND, Justice.

Violet Welch, a 59-year-old woman, was found dead in her home in Council Bluffs on October 21, 1972. Defendant was charged with willfully, deliberately and premeditatively murdering her with malice aforethought in violation of § 690.2, The Code, 1971. After a change of venue had moved the trial to Cass County, a jury found defendant guilty of first degree murder, and he was subsequently sentenced to serve a term of life imprisonment in the penitentiary. He appeals from that judgment on numerous grounds. We hold defendant should have a new trial because of reversible error in the trial court's instruction on reasonable doubt.

However, we must also rule on most of defendant's other complaints since they are likely to recur when the case is tried again.

The appeal raises the following issues: (1) error in overruling motion for directed verdict; (2) error in denying motion for a mistrial because of misconduct on the part of the county attorney; (3) error in the admission of certain evidence, including inculpatory statements of the defendant and incriminating exhibits; (4) error in rejecting defendant's testimony concerning the identity of the person he claims committed a 1961 murder for which defendant was tried and acquitted on the ground of insanity; (5) error in the admission of Dr. Loeffelholz' testimony; (6) error in admitting rebuttal testimony; and (7) error in the instruction on reasonable doubt. We recite the important facts as they become material in our discussion of the issues.

We do not consider these matters in the order listed, and we deal first with (7) of the listed issues because it is the ground upon which we reverse and remand for a new trial.

I. The trial court's instruction on reasonable doubt was the one generally used prior to our decision in State v. McGranahan, 206 N.W.2d 88, 91 (Iowa 1973). It also had the approval of the Iowa State Bar Association's Committee on Uniform Instructions. We set out the pertinent portion of the instruction as given in the case now before us:

'The burden is on the State to prove the defendant guilty beyond a reasonable doubt.

'A 'reasonable doubt' is such a doubt as fairly and naturally arises in your mind and by reason of which you cannot say that you have a full and abiding conviction of the guilt of the defendant; and if, after considering all of the circumstances as disclosed by the evidence, you find your mind wavering or vascillating, then you have a reasonable doubt, and the defendant is entitled to the benefit of such doubt and you must acquit him. A reasonable doubt may arise from the evidence in the case or It may arise from a lack or failure of evidence, and it must be such a doubt as would cause a reasonable, prudent and considerate man to pause and hesitate before acting in the graver and more important affairs of life * * *' (Emphasis added.)

Defendant made good and timely objection to the instruction on the ground it placed a burden on defendant to produce evidence.

Although we had long been critical of the emphasized language (see State v. Stout, 247 Iowa 453, 74 N.W.2d 208 (1956)), it was not until the McGranahan case that we condemned the instruction in terms which clearly put the bench and bar on notice that it was doomed, even though there it was saved by other parts of the jury charge.

Shortly after McGranahan, we met the issue squarely in State v. Boyken, 217 N.W.2d 218, 219 (Iowa 1974), where we reversed because of an instruction virtually identical with the one now under review. The vice of the instruction, of course, is that it permits the jury to consider defendant's failure to produce evidence in deciding if there is reasonable doubt and places upon him the burden of producing evidence or risking the danger of having his failure to do so considered by the jury as overcoming any reasonable doubt which might otherwise exist.

In Boyken we held the reasonable doubt instruction must limit the jury's consideration of Lack of evidence to lack or failure On the part of the State. Otherwise it is fatally defective because it impermissibly allows the jury to consider defendant's failure to introduce evidence in deciding if reasonable doubt exists.

The State concedes the case must be reversed unless McGranahan and Boyken are reconsidered and overruled. We adhere to the conclusions reached there, and, consequently, the case is reversed and remanded for a new trial.

In fairness to the trial court, we point out the trial of this case started March 27, 1973, the day before our decision in McGranahan and sometime prior to our decision in Boyken. The trial court did not have the benefit of either opinion when the challenged instruction was given and the form in which it was submitted had then been in approved use for some time.

II. The issue raised concerning Dr. Loeffelholz's testimony presents troublesome questions, principally because of the state of the record and the inescapable fact there is to be a new trial. On the basis of the objections made at trial, much of Dr. Loeffelholz's testimony was clearly admissible, although other parts should have been excluded. However, on retrial, his testimony should not be allowed at all.

The matter arises in this way. Defendant made application for a mental examination to determine his competency to stand trial. His application was granted, and he was sent to the Iowa Medical Facility at Oakdale for that express purpose. There he was under the constant supervision of Dr. Loeffelholz for a period of three weeks.

From the nature of the application and the order entered thereon, it is clear defendant submitted to the examination to determine if there were grounds for a Chapter 783 competency proceeding.

This chapter provides, in substance, that if reasonable doubt as to the defendant's competency to stand trial appears, further proceedings shall be suspended until a separate determination on that matter is made. §§ 783.1, 783.2, The Code.

This course was not followed, perhaps because the report from Dr. Loeffelholz satisfied defendant and his counsel it would have been futile. In any event, no such issue was considered or decided before or during defendant's trial. The defense asserted at trial related only to defendant's sanity at the time of the offense, not his competency to stand trial.

Under this state of the record, we hold Dr. Loeffelholz's opinion that defendant was competent to stand trial, if relevant, was admissible against the privilege objection because the privilege had been waived. See State v. Mayhew, 170 N.W.2d 608, 615 (Iowa 1969); 3 Jones on Evidence, (4th Ed., Gard, 1972), § 20:26, page 814.

However, defendant's waiver of the privilege extended only that far. It was just as limited as the purpose for which he submitted to the examination in the first place. It did not operate as a general waiver of all privilege nor did it open up the subject of defendant's past medical history without restriction. Cf. Barnard v. Cedar Rapids City Cab Co., 257 Iowa, 734, 750, 133 N.W.2d 884, 895 (1965). Since the issue of defendant's competency to stand trial did not arise, Dr. Loeffelholz's testimony on that point became irrelevant. We have not overlooked the fact defendant's past medical records were in evidence without objection; but this does not render Dr. Loeffelholz's opinion of the matters shown by those reports relevant.

We recognize the objections at trial did not rest on this ground, and we would not, of course, reverse on a point not urged below. However, we state our views now in order to avoid possible error on retrial.

Because of what we have already said, we need not reach the additional question as to whether part of the doctor's testimony was inadmissible because it was based on the opinions of others. However, see Hedges v. Conder, 166 N.W.2d 844, 856, 857 (Iowa 1969); Dougherty v. Boyken, 261 Iowa 602, 611, 155 N.W.2d 488, 495 (1968); Ipsen v. Reuss, 239 Iowa 1376, 1388, 35 N.W.2d 82, 91 (1948).

III. As already mentioned, several other matters which form the basis of appeal are likely to come up again, and we should review them for the benefit of the court and counsel on retrial.

IV. Defendant says he was entitled to a directed verdict because there was insufficient evidence of his guilt to submit the case to the jury. His motion made at the end of the State's case was not renewed at the end of all the testimony.

It is true, as the State argues, error may not be predicated on denial of a motion for directed verdict made at the close of the State's case when there is additional evidence offered thereafter. State v. Allison, 206 N.W.2d 893, 894 (Iowa 1973); State v. Niccum, 190 N.W.2d 815, 823 (Iowa 1971). However, we settle the question because of the necessity for retrial. In appraising the evidence for this purpose, we view it in its light most favorable to the State. State v. Pardock, 215 N.W.2d 344, 346 (Iowa 1974); State v. Schurman, 205 N.W.2d 732, 733 (Iowa 1973).

The transcript discloses the jury could have found defendant was in the decedent's home near the time of her death; that he engaged in an altercation with her; that he struck her several times about the head and face with a hammer; that the stab wound from which she died was inflicted by a knife to which defendant had access and which was later found in his possession under incriminating and suspicious circumstances; that his blood-stained clothing, which he says became soiled in a fight that night, actually resulted from his assault on decedent; and that his hasty action in washing his shoes and clothing...