State v. Marti

Citation290 N.W.2d 570
Decision Date19 March 1980
Docket NumberNo. 62510,62510
PartiesSTATE of Iowa, Appellee, v. Dale MARTI, Appellant.
CourtUnited States State Supreme Court of Iowa

Gerald J. Kucera and Francis J. Pruss, Cedar Rapids, for appellant.

Thomas J. Miller, Atty. Gen., Kathy Krewer, Asst. Atty. Gen., Eugene J. Kopecky, Linn County Atty., and Susan L. Weller, Asst. Linn County Atty., for appellee.

Considered by REYNOLDSON, C. J., and UHLENHOPP, HARRIS, ALLBEE, and LARSON, JJ.

ALLBEE, Justice.

Defendant Dale Marti and his girl friend Gloria Hoover spent the late afternoon of February 16, 1978, together drinking beer and playing pool at a bar in Cedar Rapids. They left the bar early in the evening to return to the home where they were living together. Later that evening in their home, Gloria sustained a fatal gunshot wound. Defendant was subsequently indicted for murder in the second degree, but convicted by a jury of the lesser included offense of involuntary manslaughter, in violation of section 707.5(2), Supplement to the Code 1977. The jury, in response to a special interrogatory, found that Gloria shot herself. It is from this conviction and the resulting sentence that defendant appeals.

From the evidence presented at trial, the jury could have found these additional facts. Gloria had been depressed prior to her death, principally because she had lost custody of her children from a prior marriage and was not permitted to see them very often. On various occasions she made comments to the effect that life was not worth living and that she might kill herself. She also spoke to defendant and others of joining her two brothers who had both committed suicide.

The events immediately preceding Gloria's death began with her picking up a revolver sometime after defendant and she returned home. As she was unable to load it, she asked defendant to help her. Defendant changed the cylinder on the gun so as to be able to load it with ammunition available. Then, according to his testimony, he put three bullets in the gun, rotated the cylinder and fired twice on empty chambers. Next, he set the weapon down uncocked, within arm's reach of Gloria. Gloria was very intoxicated at the time. She picked up the gun, turned it towards her abdomen and fired. She died shortly thereafter.

We now take up the numerous grounds of error assigned by defendant.

I. Did trial court err in overruling defendant's motion for a supplemental, supplemental bill of particulars ?

The original indictment filed against defendant stated:

The Grand Jurors of the County of Linn accuse Dale Marti of the crime of murder in the second degree in violation of Section 707.1 & 707.3, Iowa Criminal Code, and charge that the said Dale Marti did on or about the 16th day of February, A.D., 1978, in the County of Linn and State of Iowa, did (sic) murder Gloria Hoover.

In response to defendant's motion for a bill of particulars, the State voluntarily filed the following:

That on or about February 16, 1978, at approximately 7:15 P.M., the defendant, Dale Marti, used a deadly and dangerous weapon to wit: a Ruger Blackhawk .357 magnum caliber revolver in a dangerous manner and that said use resulted in the death of Gloria Jean Hoover by means of a gunshot wound caused by the firing of the above described weapon.

Subsequently, defendant filed a motion for a supplemental bill of particulars, to which the State filed a resistance. After hearing oral argument on the matter, trial court granted defendant's motion. Its ruling directed the State to set forth the specific acts, whether in the alternative or not upon which it relied. However, it also cautioned that it was not to be construed as forcing the State to elect or narrow its theory of the case. The supplemental bill of particulars which the State then filed stated:

1. That on the date charged in the indictment, the defendant prepared the weapon which caused the death of Gloria Jean Hoover.

2. That the defendant's acts in the preparation of the gun for Gloria Jean Hoover and making it available to her while she was intoxicated and suicidal, constituted a use of deadly and dangerous weapon in a dangerous manner, which resulted in the death of Gloria Jean Hoover and was the direct cause of her death.

3. That the defendant prepared the gun which caused the death of Gloria Jean Hoover, pointed the gun in her direction and said gun was discharged causing the death of Gloria Jean Hoover.

In response, defendant filed a motion for a second supplemental bill of particulars, alleging that the third paragraph of the State's supplemental bill was deficient for failing to specify by whom the gun was discharged. That motion was overruled, and defendant now challenges trial court's ruling.

Whether or not to grant a motion for a bill of particulars rests in the discretion of the trial court, and its decision will not be disturbed absent an abuse of discretion. State v. Gartin, 271 N.W.2d 902, 912 (Iowa 1978); State v. Bean, 239 N.W.2d 556, 562 (Iowa 1976). In overruling the motion, trial court reasoned that defendant was already apprised of the particulars of the offense sufficiently to fairly enable him to prepare his defense.

That is the appropriate standard for determining whether such motions may be granted. See State v. Willis, 250 N.W.2d 428, 431 (Iowa 1977); Iowa R.Crim.P. 10(5). And defendant has not shown that this standard was violated here. Defendant has not indicated that he was hampered in his defense, nor surprised by any evidence presented at trial nor in any other actual way prejudiced by denial of the motion. Consequently, we decline to reverse trial court's exercise of discretion. See United States v. Mackey, 551 F.2d 967, 970 (5th Cir. 1977) (dictum); United States v. Dulin, 410 F.2d 363, 364 (4th Cir. 1969) (per curiam); United States v. White, 370 F.2d 559 (7th Cir. 1966); United States v. Kushner, 135 F.2d 668, 673 (2nd Cir.), cert. denied, 320 U.S. 212, 63 S.Ct. 1449, 87 L.Ed. 1850 (1943); Truck Drivers' Local No. 421 v. United States, 128 F.2d 227, 233-34 (8th Cir. 1942); Ward v. Commonwealth, 205 Va. 564, 569, 138 S.E.2d 293, 297 (1964) (requiring prejudice for reversal); 1 C. Wright, Federal Practice & Procedure: Criminal § 130, at 295 (1969).

Contrary to his assertion, defendant was not deprived of information as to the specific acts of which he was accused, to which he was entitled under State v. Conner, 241 N.W.2d 447, 452 (Iowa 1976), and State v. Lass, 228 N.W.2d 758, 765 (Iowa 1975). The weight of authority holds that if an accused has been fully advised of the particulars of the offense by the State, although not necessarily by solely the indictment, the refusal of a bill of particulars does not constitute error. The employment of means other than a bill of particulars for informing the defendant may make a bill of particulars unnecessary. See, e. g., Demetree v. United States, 207 F.2d 892, 894-95 (5th Cir. 1953) (prosecutor's oral statement of government's case); United States v. Corbin Farm Service, 444 F.Supp. 510, 537 (E.D.Calif.), aff'd per curiam, 578 F.2d 259 (9th Cir. 1978) (government information provided during oral argument); United States v. White, 386 F.Supp. 882, 885 (E.D.Wis.1974) (government's investigative file and other materials); United States v. Mazzella, 295 F.Supp. 1033, 1037 (S.D.N.Y.1969) (mem.) (suppression hearing); State v. Ware, 345 So.2d 33, 35 (La.1977) (preliminary examination). See generally II C. Torcia, Wharton's Criminal Procedure § 355, at 288-89 (12th ed. 1975); Annot., 5 A.L.R.2d 444, 454-56 (1949); 41 Am.Jur.2d Indictments & Informations § 166 (1968); 42 C.J.S. Indictments & Informations § 156(b), at 1099 (1944). This court has previously approved consideration of the minutes of evidence attached to the indictment or information in passing on the adequacy of the notification to defendant of the particulars of the charge. Lass, 228 N.W.2d at 765. We do not construe our new code provision for bills of particulars, which omits reference to consideration of the minutes of evidence when determining whether a bill should be granted, compare § 773.6(1), (2), The Code 1975 (repealed by 1976 Session, 66th G.A., ch. 1245(4), § 526) with Iowa R.Crim.P. 10(5), to alter the propriety of considering minutes for that purpose. Cf. People v. Fochs, 40 Ill.App.3d 966, 968-69, 353 N.E.2d 326, 329 (1976) (no prejudicial error from State's failure to file bill of particulars, pursuant to essentially same statutory provision, Ill.Ann.Stat. ch. 38 § 111-6 (Smith Hurd 1970), because requested information was supplied by amended complaint) (alternative holding); State v. Hill, 211 Kan. 287, 296, 507 P.2d 342, 350 (1973) (substantially identical statutory provision for bill of particulars, Kan.Stat. § 22-3201(5) (Supp.1979), no impediment to ruling that bill of particulars obviated by facts brought out at preliminary hearing).

Examination of the minutes attached to the indictment in this case reveals that the State had evidence to support either a theory that defendant shot Gloria or a theory that she shot herself. The bill of particulars could not be used to coerce the State to elect only one of its theories to pursue for conviction. Conner, 241 N.W.2d at 452. See Iowa R.Crim.P. 10(5) (confining State's evidence at trial to particulars of bill). While the State could have both safeguarded its alternative theories and advised defendant more clearly of the acts of which he was accused by stating in the supplemental bill that either defendant or Gloria fired the fatal shot, it was not prejudicial error for it to fail to do so. Any ambiguity or indefiniteness about who fired the shot was cured by the specificity of the minutes.

Defendant argues that he was deprived of his constitutional right to be informed of the nature and cause of the accusation. See U.S.Const. amend. VI; Iowa Const. art. 1, § 10. The due process guarantee of the fourteenth amendment requires that the accused be advised of the specific...

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