State v. McCollom

• Decision Date: 06 June 1967
• Docket Number: No. 52388,52388
• Citation: 151 N.W.2d 519,260 Iowa 977
• Parties: STATE of Iowa, Appellee, v. Donald Wayne McCOLLOM, Appellant.
• Court: Iowa Supreme Court

Page 519

151 N.W.2d 519

260 Iowa 977

STATE of Iowa, Appellee, v. Donald Wayne McCOLLOM, Appellant.

No. 52388.

Supreme Court of Iowa.

June 6, 1967.

Clarence A. Glotfelty, Davenport, for appellant.

Richard C. Turner, Atty. Gen., David A. Elderkin, Asst. Atty. Gen., and David P. Miller, County Atty., for appellee.

GARFIELD, Chief Justice.

Donald Wayne McCollom was charged by county attorney's information with first degree murder in killing Richard Lee Jurgensen with a gun, in violation of section 690.2 Code 1962. An attorney with wide experience in criminal matters was appointed to defend him and did so. A plea of not guilty was first entered but was later changed to a plea of guilty.

Pursuant to Code section 690.4 and State v. Martin, 243 Iowa 1323, 1329, 55 N.W.2d 258, 261--262, 34 A.L.R.2d 904, the court determined by the examination of witnesses defendant was guilty of murder in the second degree and sentenced him to a term not to exceed 60 years in the men's penitentiary. Defendant attempted to appeal.

I. Defendant's notice of appeal is fatally defective in that it is not addressed to the adverse party (the state) or its attorney of record. State v. Fees, 250 Iowa 163, 165, 93 N.W.2d 103, 104, and citations. We have adhered to this decision in dismissing several attempted appeals in criminal cases for failure to so address the notice of appeal.

We have also held several times that parties cannot by appearance, consent or waiver confer jurisdiction on this court. Rosmann v. Lawler, 257 Iowa 1292, 1295, 136 N.W.2d 513, 515, and citations.

On these considerations we would be justified in dismissing this appeal. However, in view of the gravity of the offense and severity of the sentence we have, without setting a precedent and as a matter of grace, carefully considered the appeal on its merits and express the opinion that, except for the indefiniteness of the sentence, there is no prejudicial error.

II. We summarize defendant's version of what happened on the night of the killing. On the evening of March 3, 1966 defendant returned to his home in Scott County and saw Jurgensen, husband of his wife's sister, emerge from the bedroom normally occupied by defendant and his wife Pauline and cross the hall to another bedroom. Pauline was clothed only in an open bathrobe. Pressed for an explanation, she told defendant she was going to leave him and Dick (Jurgensen) had arranged to leave his wife. She also said 'I am getting a lot better man in bed than you are.'

Defendant said he followed his wife to the kitchen, another argument ensued, he lunged at her and must have stabbed her although he didn't remember too much of what went on. He remembered then going to the living room where Jurgensen was sitting in a chair but said he did not remember shooting him. There is ample evidence that defendant took a gun from his 14-year-old boy, shot and killed Jurgensen.

Defendant then returned to the kitchen to try to help his wife but it was too late. He carried her body to the living room and placed it on the davenport. Defendant then started to lift Jurgensen out of the chair he sat in but the body fell onto the floor. He recalled attempting to commit suicide with an old rifle--not the one used to kill Jurgensen--but it 'went off too fast and I missed.' Defendant then gave himself up to the sheriff of Muscatine County and was later returned to the Scott County jail.

Some time previous to the fatal night defendant had ordered Jurgensen not to come to his home because he had been unduly familiar with two teen-age McCollom girls. Defendant had also planned to divorce his wife although no action for divorce had been commenced.

Other facts will be referred to later.

III. Defendant first assigns error in the court's allegedly conducting the hearing to determine degree of guilt informally.

There is little basis in the record for this assigned error. At the outset of the hearing the state asked that witnesses be excluded from the court room except while testifying. The court ruled 'It's an informal hearing. The witnesses can be present. I'll overrule that.' A little later the court stated 'This is a hearing on the facts.' Also, 'This isn't a very formal hearing' and 'This isn't one of these formal hearings before a jury when we watch every bit of evidence that goes in.'

The record fairly indicates the court merely expressed the opinion the hearing was less formal than if defendant had pleaded not guilty and trial on the question of guilt and degree of the offense were before the jury. Defendant's counsel made no objection to any of these expressions and indicated agreement with some of them. At one point defendant's counsel told the prosecutor, 'Again I'm willing to let the testimony come in in narrative fashion.' The court, however, directed that pertinent questions be asked the witness. Most of the court's expressions now complained of were given as one reason for rulings favorable to defendant.

The record further indicates the court repeatedly advised defendant and his counsel of his right to plead not guilty and, indeed, urged them to do so, not only at the outset but during the course of the hearing. However defendant insisted on letting his plea of guilty stand.

In connection with what has been said, this from State v. Kramer, 252 Iowa 916, 919, 109 N.W.2d 18, 19--20, is applicable:

'So while the right of a defendant to the services of counsel is firmly fixed, it will not do to say that, being so represented, he is immune from compliance with the rules by which established procedure requires trials must be conducted. The trial court, and the state, are entitled to know what the defendant claims, to what he objects; * * * If, being represented by counsel, he fails to make his position clear, so that the trial court may know his complaints and take care to remedy those which may be well founded, he will ordinarily not be in a strong position to urge error in the appellate court.'

Code section 690.4 provides: 'Upon the trial of an indictment for murder, the jury, if it finds the defendant guilty, must inquire, and by its verdict ascertain and determine the degree; but if the defendant is convicted upon a plea of guilty, the court must, by the examination of witnesses, determine the degree, and in either case must * * * pass sentence accordingly.'

Thus the statute requires the court upon a plea of guilty to determine the degree by the examination of witnesses. Although our decisions, particularly State v. Martin, supra, and State v. Kelley, 253 Iowa 1314, 115 N.W.2d 184, are not clear on the point, we think the statute implies that such determination be based on competent evidence offered at the hearing. We think, too, the determination here is based on such evidence. The hearing was not informal in the sense that the court considered information not disclosed by competent evidence. It was formal too in the sense that the court ruled on objections and motions as usually done in jury trials.

IV. Error is asserted in the admission of hearsay testimony. Dr. Preacher, a pathologist, testified he performed an autopsy on a body identified to him as Richard Lee Jurgensen and, by stipulation, his report of the autopsy was received in evidence. Defendant's counsel stated he did not stipulate as to identity of the body. The witness was called out of order, with defendant's consent, because of his inability to be present at another time. The state asked that his testimony he received subject to a motion to strike if 'not hooked up' as to identity of the body and the court permitted this to be done.

Dr. Perkins, a medical examiner for Scott County, went to defendant's home the night of the tragedy and testified briefly, over defendant's objection as hearsay, to examining the male body identified to him as Richard Lee Jurgensen.

We find no prejudicial error in receiving the testimony of these doctors that the body referred to was identified to them as Jurgensen. Each witness had previously given the identical testimony without objection. The evidence objected to was merely cumulative to that of the same witnesses. It is elementary that admission of evidence is not prejudicial error where substantially the same evidence is in the record without objection. Linge v. Iowa State Highway Comm., Iowa, 150 N.W.2d 642 and citations pages 10--11 of opinion as filed May 2, 1967.

Further, there is a good deal of other evidence, including some from defendant himself and witnesses offered by him, which points to the fact the male body the two doctors examined was Jurgensen. Defendant admitted he shot and killed Jurgensen and testimony of the doctors added little, if anything, to what was amply shown by other evidence.

Under this record receipt of the doctors' testimony the body was identified to them as Jurgensen must be considered at best a mere technical error or defect which did not affect the substantial rights of defendant or the result. Code section 793.18; State v. Kelley, supra, 253 Iowa 1314, 1318, 115 N.W.2d 184, 186 and citations; State v. Ford, Iowa, 145 N.W.2d 638, 642.

V. Defendant asserts the court erred in restricting testimony of Dr. Hollander, a psychiatrist, as to defendant's sanity at the time of the killing and refusing to allow him to testify defendant was then insane. It is also said the court restricted the psychiatrist's testimony as to defendant's diminished responsibility. We find no sufficient basis in the record for these assigned errors.

Dr Hollander interviewed defendant in the jail nine days after the tragedy occurred and testified he went into the facts of the case as they bore on defendant's mental ability; he felt defendant's judgment was impaired so he was unable to use good and proper judgment on the evening in question. In response to a belated objection of the state the court said defendant 'can use that. It all goes to the degree of the crime. Go ahead.'

The doctor was then asked...