State v. Origer, 86-800

• Decision Date: 30 November 1987
• Docket Number: No. 86-800,86-800
• Citation: 418 N.W.2d 368
• Parties: STATE of Iowa, Plaintiff-Appellee, v. Samuel Jerome ORIGER, Defendant-Appellant.
• Court: Iowa Court of Appeals

Page 368

418 N.W.2d 368

STATE of Iowa, Plaintiff-Appellee, v. Samuel Jerome ORIGER, Defendant-Appellant.

No. 86-800.

Court of Appeals of Iowa.

Nov. 30, 1987.

Charles Harrington, Appellate Defender, and Michael J. Laughlin, Asst. Appellate Defender, for defendant-appellant.

Thomas J. Miller, Atty. Gen., David L. Dorff and James Ramey, Asst. Attys. Gen., and Ted Hovda, Co. Atty., for plaintiff-appellee.

Considered by OXBERGER, C.J., and DONIELSON, SCHLEGEL, HAYDEN, and SACKETT, JJ.

SACKETT, Judge.

The sole issue in this appeal is whether there is substantial evidence to support the jury's verdict defendant is guilty of the first-degree murders of Bradley Robb Johnson (Robb) and Jennifer Johnson. We determine there is insufficient evidence to support defendant's conviction of the murder of Robb Johnson and affirm that conviction. We determine there is sufficient evidence to support defendant's conviction of the murder of Jennifer Johnson and reverse that conviction.

Robb and Jennifer Johnson were husband and wife. They lived together in a farm home south of Forest City, Iowa. Robb dealt in cocaine. He supplied cocaine to defendant and other persons. The Johnsons had a series of friends and acquaintances who visited and often stayed in their home. Jennifer's body was found on the weekend of February 9, 1985. On that weekend, Robb was concerned about collecting money to pay his cocaine suppliers.

Jennifer and Robb Johnson were alive and together in their rural home about suppertime on Saturday, February 9. The pathologist who examined both bodies determined from an examination of their digestive systems, if Robb and Jennifer had eaten the same meal at about the same time, Robb died before Jennifer. He did not say how long before. The pathologist found noodles and vegetables in both stomachs to be similar. He estimated Jennifer had eaten one to one-and-one-half but not more than two hours prior to her death.

Jennifer Johnson's nude body was found on the bed in her home on Sunday morning, February 10, 1985. Jennifer had died quickly as the result of multiple stab wounds. The wounds apparently had been inflicted in her home. Over a month later on March 14, 1985, Robb Johnson's fully clothed and partly decomposed body was found in a county road ditch six-and-one-half miles from the Johnson residence. Robb died as a result of gunshot wounds. It appeared Robb had been shot at some other location and his body put in the ditch. No murder weapons were found.

On December 24, 1985, defendant was charged in Hancock County with both murders. Defendant was tried to a jury and convicted of first-degree murder in both instances. Defendant appeals from each conviction contending there was not substantial evidence to support the jury's determination he committed either crime.

In determining the sufficiency of evidence to support a guilty verdict we consider the evidence in the light most favorable to the State. State v. Klindt, 389 N.W.2d 670, 676 (Iowa 1986); State v. Blair, 347 N.W.2d 416, 418-19 (Iowa 1984). Substantial evidence means evidence that would convince a rational trier of fact that the defendant is guilty of the crime charged beyond a reasonable doubt. Blair, 347 N.W.2d at 419. Direct and circumstantial evidence are equally probative. Iowa R.App.P. 14(f)(16). Whether the evidence is direct or circumstantial, however, it must raise a fair inference of guilt; it must do more than create speculation, suspicion, or conjecture. Blair, 347 N.W.2d at 421.

The State is required to prove beyond a reasonable doubt the elements of first-degree murder. Id.; State v. Aldape, 307 N.W.2d 32, 39 (Iowa 1981). The State must show that the defendant killed the victim with malice aforethought and in a willful, deliberate, and premeditated manner. See Iowa Code §§ 707.1, .2(1). Deliberation and premeditation may be shown by circumstantial evidence in one or more of three ways: (1) evidence of planning activity of the defendant which was directed toward the killing; (2) evidence of motive which might be inferred from entire relationships between defendant and victim; and (3) evidence regarding the nature of the killing. Blair, 347 N.W.2d at 421. Persuasive evidence of premeditation and deliberation, however, is the violent nature of the victim's death. Id. The use of a deadly weapon accompanied by an opportunity to deliberate is evidence of malice, deliberation, premeditation and intent to kill. Id. (citations omitted).

Jennifer was stabbed more than five times in the back and neck. Robb was shot four times in the head and back at close range. The physical facts of the murder would provide substantial evidence to support a finding of first-degree murder. See id. The much more difficult question is whether there is substantial evidence to support the jury's finding defendant was the perpetrator of the crimes.

I.

We first look to the direct evidence tying defendant to Robb Johnson's death.

Defendant made admissions to two persons about shooting Robb. Dean Youngwirth testified about statements made by defendant before Robb's body was found.

Q. And what did [defendant] tell you the secret was? A. The secret was the killings in Forest City. Robb Johnson and Jennifer came up right off the bat and he looked me straight in the eye and said that he shot Robb.

Q. Just tell the jury the conversation; tell the jury what Sam told you that night. A. My next question to Sam was after he says, yeah, I shot Robb. He said, Robb came in gun crazy and I had no choice, Dean, but to shoot him. What did you do with his body? He says, well, it won't be found for a long time. That's all I can tell you, and I says, well, then, who killed Jennifer, and he says, I don't know.

Michael Hudson also testified about statements made by defendant.

Q. Well, what started the conversation about Jennifer and Robb Johnson's death? A. I believe he brought it up.

Q. And then what did he tell you? A. He said that he went to their house, found the guy outside and it was a mess.

Q. Now, what did Mr. Origer tell you he did while there at the Johnson house that night? A. He said he found the man outside, put him out of his misery.

Q. Did he tell you how he put him out of his misery? A. Yes, he said he shot him.

Q. Did he say where he shot him, what part of the body? A. In the head.

The defendant's alleged admissions, which we may assume amounted to a confession, see State v. Hobson, 284 N.W.2d 239, 243 (Iowa 1979), were the only direct evidence of defendant's involvement with Robb's death.

Iowa Rule of Criminal Procedure 20(4) provides:

The confession of the defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that the defendant committed the offense.

This is a change from prior law which only required there be additional evidence the offense was committed by someone. See Iowa Code § 782.7 (1977); Hobson, 284 N.W.2d at 243. The rules requiring corroboration of confessions is similar to the rule requiring corroboration of accomplice testimony. Hobson, 284 N.W.2d at 243. Corroboration need not be strong nor need it go to the whole of the case so long as it confirms some material fact connecting the defendant with the crime. State v. White, 319 N.W.2d 213, 214 (Iowa 1982). The existence of corroborative evidence is an issue for the court, and its sufficiency is ordinarily for the jury. Id.

Defendant was allegedly under the influence of drugs or alcohol when he made the admissions to Youngwirth and Hudson. This fact goes to the weight of the evidence rather than to its admissibility. See State v. Wilson, 264 N.W.2d 614, 614-15 (Iowa 1978); State v. Jackson, 387 N.W.2d 623, 628 (Iowa App.1986).

We look at the balance of the evidence to determine if it corroborates some material part of defendant's admissions. We determine it does. The statement defendant made to Youngwirth indicates Robb was killed with a gun and the body would not be found for some time. The statement was made before the police found Robb's body. The facts Robb had been shot and the body was not found until a month later, because it was in an out-of-the-way ditch, support a material part of defendant's admissions. We therefore consider the defendant's admissions coupled with the supporting evidence to be substantial evidence to support the verdict.

In making this determination we have considered the following circumstantial evidence connecting defendant to the crime.

1. Defendant knew Robb Johnson.

2. Robb had been in defendant's home on February 9, 1985.

3. There was a one-minute phone call at 10:22 a.m. February 8 from the Johnson residence to defendant's residence.

4. Defendant was selling cocaine for Robb.

5. Crystal Diehl testified she saw a car with four round headlights pull in her driveway between 6:00 and 9 p.m. on Saturday, February 9, 1985. It headed south. The car slowed or stopped for a short time on the east side of the road south of her house. Her husband identified the taillights as rectangular. Robb's body was eventually found south of the Diehl house. Defendant had a car with four round headlights and rectangular taillights.

6. Defendant knew the Diehls and was familiar with the area where Robb's body was found.

7. Gunpowder residue was found on the passenger's side of defendant's car.

8. There was cash in the Johnson house Saturday afternoon. Defendant had cash to pay bills after the weekend Jennifer's body was found.

There remain many mysteries. Defendant argues and we note there is no evidence placing defendant at the Johnson residence, no evidence tying defendant to the home, no fingerprints, etc., and no evidence of the percentage of cars having round headlights and rectangular taillights. Neither murder weapon was found nor identified. There is no evidence of the type of knife or kind of gun used. The State's contention is Robb was shot in defendant's car. Other than gunpowder residue, there is no evidence a...