State v. Johnson

Decision Date21 April 1982
Docket NumberNo. 65968,65968
Citation318 N.W.2d 417
PartiesSTATE of Iowa, Appellee, v. Kevin Richard JOHNSON, Appellant.
CourtIowa Supreme Court

Francis C. Hoyt, Jr., Appellate Defender, and Scott D. Rosenberg, Asst. Appellate Defender, for appellant.

Thomas J. Miller, Atty. Gen., Shirley Ann Steffe, Asst. Atty. Gen., and David E. Richter, Pottawattamie County Atty., for appellee.

Considered en banc.


This appeal involves several legal problems which arose in the trial of defendant Kevin Richard Johnson on a first-degree murder charge. The fact finder could find as follows from the evidence.

Kevin Richard Johnson, Jr., whom we will refer to as Kevin, was born on April 20, 1980, to defendant and his wife, Kristi Renee Johnson. The child was healthy at birth and appeared to be in good health when examined by a physician at two weeks of age. He lived with his parents in a duplex at 1526 1/2 North Broadway in Council Bluffs, Iowa. At approximately one and one-half weeks of age, a pattern of abuse of the child emerged, with defendant responsible in most instances. On several occasions abuse was inflicted by Mrs. Johnson at defendant's direction.

On June 29, 1980, when Kevin was two months and nine days of age, defendant and Mrs. Johnson took him to the home of Tammy Logan, who baby-sat with the child that afternoon. Although the child did not appear well, Logan observed no severe head injuries. Defendant picked up Kevin at 5:00 p. m. and returned to the Johnson home. At approximately 6:00 p. m. defendant took the child to a bedroom in the home to place him in his crib. Meanwhile Mrs. Johnson was in the kitchen preparing the evening meal. While defendant was placing the child to bed, Mrs. Johnson heard two loud thumps from the bedroom followed by crying. After a short interval defendant joined his wife in the kitchen and they ate their meal.

At about 10:00 p. m. Mrs. Johnson went to the bedroom to check on Kevin after he failed to awaken for his routine feeding. She discovered that he was not breathing and that his skin was cold and discolored. He was lying face down in his crib with a pillow covering his head. She reported his death to defendant.

Defendant decided not to inform the authorities. He and Mrs. Johnson spent the night discussing methods of disposing of the body, and eventually decided upon burial in a wooded area behind their home.

At approximately 6:00 a. m. on June 30, 1980, Mrs. Johnson prepared Kevin for burial by wrapping his body in two plastic trash bags. Defendant and Mrs. Johnson then took the body and walked to the wooded area. Mrs. Johnson stood guard while defendant entered the woods and buried the child in a makeshift grave. After the burial defendant and Mrs. Johnson moved to another home.

On July 16, 1980, Mrs. Johnson, acting under pressure from her family, reported the child's disappearance to the Pottawattamie County Attorney. Defendant was arrested that afternoon on a charge of abandonment of a dependent person and for carrying a concealed weapon. Later that day Mrs. Johnson informed authorities that Kevin was in fact dead and was buried behind the duplex at 1526 1/2 North Broadway. A search for the grave that evening proved unsuccessful. On July 17, 1980, however, searchers located the gravesite and recovered the body. An autopsy disclosed that Kevin died from a blunt trauma to the head, causing increased intracranial pressure and ultimate cessation of involuntary body functions.

On July 29, 1980, the county attorney charged defendant with first-degree murder. § 707.2, The Code 1979. After various pretrial motions, defendant waived jury trial and was tried before the court commencing November 4, 1980. The court found him guilty of first-degree murder and sentenced him to life imprisonment.

On appeal defendant asserts that the trial court erred in (1) denying his motions to change the venue and to limit expanded media coverage of his trial, resulting in denial of the constitutional right to a fair trial, (2) overruling his motion to suppress statements made in an interview, (3) denying his motion in limine to exclude prior acts of child abuse, (4) permitting Mrs. Johnson to testify against him in violation of privilege, and (5) denying the ground of his motion for a new trial based on insufficient corroboration of an accomplice.

I. Fair trial. Defendant first asserts that he did not receive a fair trial as guaranteed by the due process clause of the fourteenth amendment to the United States Constitution because of prejudicial pretrial publicity and expanded media coverage of the proceedings. He bases his contention on several claims.

A. Defendant filed a motion for a change of venue to a city similar in size to Council Bluffs, stating such prejudice had arisen in Pottawattamie County that a substantial likelihood existed a fair trial could not be obtained there. See Iowa R.Crim.P. 10(9)(b ). in support of the motiOn defendant submitted affidavits of three criminal defense attorneys from the Council Bluffs area, the script of several television news reports broadcast from an Omaha television station, newspaper articles from both Omaha and Council Bluffs daily papers, and statistics on the telecast range of the television station and the circulation of the two papers. The trial court overruled the motion, stating that defendant was not a person of prominence or notoriety in the community and that selection of a jury would be difficult anywhere due to the nature of the charges. On appeal defendant contends that the district court abused its discretion in overruling the motion. Our task is complicated by defendant's subsequent waiver of jury trial; we have no voir dire record of the actual level of prejudice, if any, on the jury panel.

The State argues initially that since defendant waived jury trial, he gave up his right to challenge the trial court's denial of his motion to change the venue, citing Butzman v. United States, 205 F.2d 343 (6th Cir.), cert. denied, 346 U.S. 828, 74 S.Ct. 50, 98 L.Ed. 353 (1953). In that case a federal appeals court held that when the defendant elected to be tried by the district judge he waived his claim that the court abused its discretion in denying his motion for a change of venue. Id. at 349-50.

Our research indicates, however, that the Butzman holding has not been enthusiastically accepted everywhere and, in fact, has been criticized. The American Bar Association Standards state:

It shall not be a ground for denial of a change of venue that one such change has already been granted. The claim that the venue should have been changed or a continuance granted shall not be considered to have been waived by the waiver of the right to trial by jury or by the failure to exercise all available peremptory challenges.

A.B.A. Standards Relating to Fair Trial and Free Press § 3.2(e), at 119-20 (App. Draft 1968) (emphasis added). The rationale supporting the standard is stated in the accompanying comment:

[T]he subsection provides that the right to a continuance or transfer shall not be deemed to have been waived by waiver of a jury or by failure to exhaust all peremptory challenges. The suggestion of some courts that such conduct amounts to a waiver seems to require the defendant to take unnecessary risks. If the defendant has satisfied the criterion for the granting of relief, it should not matter that he has subsequently waived a jury, perhaps out of fear that even a jury meeting accepted standards will not be truly free from bias, or has failed to use his peremptory challenges, perhaps because he prefers the ills he has to others he has not yet seen.

Id. at 128. See State v. Williams, 285 N.W.2d 248, 266 (Iowa 1979), cert. denied, 446 U.S. 921, 100 S.Ct. 1859, 64 L.Ed.2d 277 (1980) (adopting first sentence of § 3.2(e)); Commonwealth v. Dobrolenski, 460 Pa. 630, 635-38, 334 A.2d 268, 270-72 (1975) (adopting second sentence).

We find the position of the standards to be persuasive and reject the State's claim of waiver. We thus review the record de novo to determine whether the district court abused its discretion in denying the motion. State v. Love, 302 N.W.2d 115, 122 (Iowa 1981); State v. Cornelius, 293 N.W.2d 267, 269 (Iowa 1980); State v. Paulsen, 265 N.W.2d 581, 588 (Iowa 1978).

Under rule 10(9)(b ) of the Iowa Rules of Criminal Procedure, a change of venue must be granted when the court is "satisfied such prejudice exists in the county of a scheduled trial that there is a 'substantial likelihood a fair and impartial trial cannot be had there'." Love, 302 N.W.2d at 122. See Cornelius, 293 N.W.2d at 268-69. Defendant contends that he is entitled to a change of venue on the ground that newspaper articles made reference to past episodes of abuse against Kevin and to a prior conviction of defendant for assault with intent to inflict serious injury arising from the stabbing of his former wife. He also relies on the inherently inflammatory nature of the alleged crime.

The record concerning the motion included eleven newspaper stories from the Omaha World Herald and thirteen from the Council Bluffs Nonpareil. Stories from the Herald began on July 17, 1980, the date the child's body was recovered, and, with one exception, ended on August 23. That exception involved a story published on September 21 detailing the experience of Iowa's one-year "cameras in the courtroom" experiment and stating that defendant's arraignment had been televised and his trial was scheduled for expanded coverage. Of the ten stories concerning the incident itself, four made reference to the child abandonment charge on which defendant was originally arrested or to the prior assault conviction. Apart from those alleged prejudicial statements, the stories contained nonprejudicial narratives of the incident. These appeared between July 18 and July 22, immediately after discovery of the body. The remaining six stories were published intermittently between...

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