State v. Mulder

• Decision Date: 23 December 1981
• Docket Number: No. 63358,63358
• Citation: 313 N.W.2d 885
• Parties: STATE of Iowa, Appellee, v. John MULDER, Appellant.
• Court: Iowa Supreme Court

Page 885

313 N.W.2d 885

STATE of Iowa, Appellee, v. John MULDER, Appellant.

No. 63358.

Supreme Court of Iowa.

Dec. 23, 1981.

J.F.M. Samore, Sioux City, for appellant.

Thomas J. Miller, Atty. Gen., Julie F. Pottorff, Asst. Atty. Gen., and David J. Dutton, Sp. Prosecutor, for appellee.

Considered by LeGRAND, P. J., and HARRIS, McCORMICK, ALLBEE, and LARSON, JJ.

LeGRAND, Justice.

What makes this case difficult is that it imprisons for life a fifteen-year-old boy convicted of first-degree murder. Finding no reversible error, we affirm the judgment and sentence imposed pursuant to section 690.2, The Code 1975.

Error was not preserved on some of the matters raised on this appeal, and we decline to consider them except as they relate to the issue of ineffective counsel. We accordingly limit our review to the following issues: (1) insufficiency of the evidence; (2) the State's failure to disclose exculpatory evidence; (3) prosecutorial misconduct; and (4) ineffectiveness of counsel.

Some explanation of the delay in disposing of this case should be made. Jean Marie Homan was killed on April 23, 1976. Defendant was indicted for her murder on September 18, 1978. On defendant's motion for change of venue, the case was tried to a jury in Kossuth County. The trial resulted in a verdict of guilty on the charge of first degree murder. Defendant appealed.

On the day before the appeal was originally set for oral argument before this court, the Attorney General reported the possibility that exculpatory evidence had been withheld from defendant. We, therefore, remanded the case to district court under Iowa R.App.P. 12(f) for an evidentiary hearing on that issue and also on the question of ineffective counsel. The appeal is now here for determination on the original record supplemented by the record from the remand hearing.

On the night of April 23, 1976, Jean Homan was asleep in her bedroom. Her husband, Carl, was in an adjoining twin bed but not asleep. Carl caught a brief glimpse of a figure reflected in a mirror. Thinking it might be his son returning unexpectedly from college, Carl called out his name. There was no response, but immediately Carl saw the barrel of a rifle extend into the room, followed by a single shot. Jean, who had awakened, cried out that she had been hit. Carl jumped out of bed and pursued the intruder long enough to see him escape across a nearby golf course. He then returned to the bedroom to aid his wife. The deputy county examiner, who arrived on the scene a half hour later, pronounced Mrs. Homan dead and fixed the time of her death at shortly before midnight. Other facts will be recited as we discuss the issues to which they relate.

I. Insufficiency of the Evidence.

When sufficiency of the evidence is challenged, as it was here by a motion for directed verdict, we review the evidence in the light most favorable to the state. The evidence must be such that, when considered as a whole, a reasonable person could find guilt beyond a reasonable doubt. State v. Welton, 300 N.W.2d 157, 159-60 (Iowa 1981); State v. Robinson, 288 N.W.2d 337, 340 (Iowa 1980). All legitimate inferences arising reasonably and fairly from the evidence may be indulged in to support the verdict. State v. Schrier, 300 N.W.2d 305, 306 (Iowa 1981). A jury verdict is binding on us if there is substantial evidence to support it. By "substantial evidence" we mean evidence which could convince a rational trier of fact the defendant is guilty beyond a reasonable doubt. Id.

We mention one other principle governing our consideration of this appeal. The State's case was entirely circumstantial. Defendant argues this is significant in considering the sufficiency of the evidence, but we have held circumstantial evidence is as probative and convincing as direct evidence. State v. Gibb, 303 N.W.2d 673, 685 (Iowa 1981); State v. O'Connell, 275 N.W.2d 197, 204-05 (Iowa 1979).

With these general rules in mind, we set out the facts the jury could have found established beyond a reasonable doubt, although some of them were sharply contested.

Mrs. Homan was killed by a single shot from a .22-caliber rifle which had been stolen by the defendant from the Dennis Friedman farm about a week before the murder. When the rifle was found in an abandoned meter pit, it contained fingerprints identified as being "consistent" with defendant's. This did not necessarily connect defendant with the murder because he admitted stealing the weapon. He argues his prints would be there from his handling of the gun at the time of the theft. No other prints were found on the weapon.

The evidence concerning the theft of the rifle and subsequent control over it was vital to the state's case. Defendant gave at least four versions of what disposition he made of the weapon after taking it from the Friedman farm, ranging from hiding it in a cemetery to giving it to a "friend" on the night of the murder. Obviously these unlikely stories were disbelieved by the jury. Defendant argues his numerous fabrications resulted from fright and immaturity; but the jury could have found that defendant lied in an effort to show he had disposed of the murder weapon before the night Mrs. Homan was killed.

The murder occurred sometime between 11:30 p.m. and midnight. Defendant was in the immediate vicinity of the Homan residence at that time, returning to his home-just one hundred yards from where the Homans lived-from an evening of incidental drinking and restlessness around town. He could easily have committed the crime within the time frame permitted by the testimony concerning the time of death.

The State was required to prove the elements of first-degree murder beyond a reasonable doubt. At the time of the crime, first-degree murder was defined in section 690.2, The Code 1975, as follows:

All murder which is perpetrated by means of poison, or lying in wait, or any other kind of willful, deliberate, and premeditated killing, ... is murder in the first degree, and shall be punished by imprisonment for life at hard labor in the penitentiary and the court shall enter judgment and pass sentence accordingly.

The use of a deadly weapon accompanied by an opportunity to deliberate is evidence of malice, deliberation, premeditation, and intent to kill. State v. Smith, 240 N.W.2d 693, 695 (Iowa 1976); State v. Lass, 228 N.W.2d 758, 766 (Iowa 1975).

We believe the jury could reasonably find that defendant armed himself with a rifle; entered the Homan residence for some undisclosed purpose; deliberately pointed the gun at either Mr. Homan or his wife; and shot her dead. Thus all the elements of first-degree murder were present.

Defendant argues the expert testimony concerning fingerprints was tenuous and inconclusive. He makes the same attack on the ballistics testimony. In both instances, however, the evidence presented a jury question.

Defendant points to other inconsistencies in the testimony. These do no more than present disputed fact questions for jury determination. They were all resolved against defendant, and we are bound by the jury's verdict. The trial court was right in denying defendant's motion for directed verdict.

II. Exculpatory Evidence.

As already mentioned, we remanded this case for a hearing to determine if the State had failed to disclose exculpatory evidence. The remand order limited the inquiry to the circumstances surrounding the discovery of the murder weapon in an abandoned meter pit.

The weapon was found by a deputy sheriff more than two weeks after the murder. It was found in a meter pit on the property of a nearby lumber yard. The pit was approximately eight feet deep and capped with a heavy removable cover. On at least two occasions prior to May 10, the pit had been observed by officers investigating the crime, but it had never been examined with the cover off.

We do not believe the circumstances surrounding the discovery of the gun were exculpatory. Defendant makes capital of the fact the gun was not found until more than two weeks after the crime. Apparently he concludes from this that the weapon was not there until then. Even if this were true-and it is not established by the evidence-it would neither hurt nor help defendant's case. Someone put the gun there, either shortly after the crime or later. Defendant had the same opportunity to do this as anyone else. For the same reason, discrepancies in the testimony concerning the position of the lid at different times are of no significance. The description of the meter pit as being empty shortly before the gun was found was explained by the officer who had so described it. He testified "empty" in the context used meant it was no longer used as a meter pit.

We had occasion to discuss a similar question in State v. Sheets, 291 N.W.2d 35, 37-38 (Iowa 1980), where we quoted extensively from United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Much of what we said there is applicable here. The finding of the gun at a later date neither suggests defendant put it there nor that he didn't. He always had the opportunity to do so. It would be different if defendant could have put the gun in the pit only at the time of the crime; but that is not the case. Under the facts of this case, there is no connection between the time the gun was found and the guilt or innocence of the defendant. We agree with the trial court's conclusion that this evidence could not have engendered a reasonable doubt of defendant's guilt.

One other matter involving exculpatory evidence was explored at the remand hearing, although it was beyond the scope of our order and was not a proper subject of inquiry. See State v. Johnson, 298 N.W.2d 293, 294 (Iowa 1980). We consider that question anyway in an effort to avoid further hearings and resulting appeals.

A deputy sheriff's deposition stated that Mr. Homan at one time said the murderer "couldn't have been John Mulder." The circumstances under which this...