State v. Rand, 60417

• Decision Date: 26 July 1978
• Docket Number: No. 60417,60417
• Citation: 268 N.W.2d 642
• Parties: STATE of Iowa, Appellee, v. LeRoy Allen RAND, Appellant.
• Court: Iowa Supreme Court

Page 642

268 N.W.2d 642

STATE of Iowa, Appellee, v. LeRoy Allen RAND, Appellant.

No. 60417.

Supreme Court of Iowa.

July 26, 1978.

Philip B. Mears, Iowa City, for appellant.

Richard C. Turner, Atty. Gen., and David H. Correll, County Atty., Waterloo, for appellee.

Considered by MOORE, C. J., and MASON, ^* REES, UHLENHOPP and REYNOLDSON, JJ.

REYNOLDSON, Justice.

Defendant's appeal attacks the validity of his guilty plea to a murder charge arising from the fatal shooting of a Quik Trip store attendant in Waterloo on June 8, 1976.

September 24, 1976, defendant was charged with murder "perpetrated in the course of a robbery" in violation of "Section 690.2 of the 1975 Code of Iowa."

November 12, 1976, defendant pled guilty in an extensive plea hearing which is before us in a 50-page transcript.

November 30, 1976, the degree-of-guilt hearing was held. It comprises 271 transcript pages. Defendant was convicted of first-degree murder and sentenced to life imprisonment.

Defendant's trial counsel served notice of appeal, followed by a well-organized motion to withdraw on the ground the appeal was frivolous. See rule 104, Rules of Appellate Procedure. Defendant, responding to the rule 104(b) notice, requested other counsel. Present counsel was then appointed. The appeal proceeded and we now affirm.

Defendant asserts his conviction should be set aside and his guilty plea vacated on grounds identified in the divisions which follow.

I. Was defendant's guilty plea knowingly and voluntarily entered ?

Defendant argues his plea was not voluntarily and intelligently entered, in violation of the due process clauses of the state and federal constitutions, because he did not understand the nature of the charge. See State v. Lemburg, 257 N.W.2d 39, 41 (Iowa 1977); State v. Wall, 239 N.W.2d 548, 549 (Iowa 1976).

Defendant initially asserts confusion as to whether he "was pleading to an open count of murder under Section 690.1 or instead was pleading to first degree murder under Section 690.2." Of course the information unnecessarily asserted application of § 690.2. See § 773.35, The Code, 1975 ("Permissible forms * * * Murder A. B. murdered C. D."). Reference to § 690.2 was surplusage. State v. Beyer, 258 N.W.2d 353, 357 (Iowa 1977); see § 773.31, The Code, 1975. "Any other construction would nullify the provisions of section 690.4 (degree-of-guilt hearing) whenever a plea of guilty to an indictment or information charging murder, with the surplus allegation 'in the first degree', is entered * * * ." State v. Martin, 243 Iowa 1323, 1327, 55 N.W.2d 258, 262 (1952).

In the 1975 Code § 690.1 defines murder. Section 690.2 lists the circumstances which enhance punishment for murder to the penalties provided for first-degree murder. Other murder is classified statutorily as second-degree murder. § 690.3.

The total transcript demonstrates defendant well knew he was pleading guilty to murder, with the degree of guilt to be determined on subsequent hearing. The court read the information and code sections 690.1 through 690.4 to defendant. In response to court's questions, defendant acknowledged he had read the minutes of testimony and that they were substantially true and correct. He had discussed the facts and law thoroughly with his counsel, and fully understood and had executed a detailed written plea of guilty, submitted with his oral plea. At close of hearing defendant asserted he had no difficulty understanding the proceedings, had no questions, and understood a hearing would be held to determine the degree of guilt.

Defendant complains trial court failed to inform him specific intent to commit robbery was an element of felony murder in this case. See State v. Buhr, 243 N.W.2d 546, 549 (Iowa 1976).

Relating to his intent to rob, defendant's plea hearing testimony included:

THE COURT: On the way home you passed this Quik store or Quik Trip Store?

THE DEFENDANT: Yeah.

THE COURT: What happened then?

THE DEFENDANT: We robbed it.

THE DEFENDANT: See, we were both out of money and he had a gun in his car. I think I was the one that mentioned it, about robbing it. So he said it would be all right. So he pulled off out in the grass. I got the gun out of the car, went around the back of the building and came in through the front.

THE COURT: What did you intend to do when you left the car with the shotgun in your hand?

THE DEFENDANT: I just meant to get some money.

THE COURT: You were going into the Quik Trip Store and you were going to get some money, right?

THE DEFENDANT: Yes.

We will not reverse a judgment based on a guilty plea where trial court did not specifically explain each element of a crime if under all the circumstances it is apparent the accused understood the charge. Hoskins v. State, 246 N.W.2d 266, 268 (Iowa 1976); State v. Townsend, 238 N.W.2d 351, 355 (Iowa 1976). Here defendant's factual statements and admissions necessarily implied he had the requisite knowlege. See Henderson v. Morgan, 426 U.S. 637, 646, 91 S.Ct. 2253, 2258, 49 L.Ed.2d 108, 115 (1976); State v. Ohnemus, 254 N.W.2d 524, 525 (Iowa 1977). We find no error in this particular.

Defendant contends trial court was aware he entered his plea believing he could be found guilty of manslaughter or second-degree murder, yet failed to correct that belief. He asserts under Iowa law "the judge could not have found manslaughter in this case."

Manslaughter was first mentioned at the plea hearing after the court read § 690.4 to defendant, relating to the degree-of-guilt hearing, then asked him if he understood the penalties which could be imposed:

THE DEFENDANT: Life in prison, not less than ten years to life and eight years.

THE COURT: Eight years for manslaughter?

THE DEFENDANT: Yes.

THE COURT: If manslaughter comes into play. I take it you have gone over all this quite thoroughly with your attorneys?

THE DEFENDANT: Yeah.

THE COURT: They have instructed you and advised you of all these different ramifications?

THE DEFENDANT: Yeah.

It is true that defense of limited capacity due to voluntary intoxication (which defendant raised at the subsequent hearing) has been held not to reduce murder to manslaughter. State v. Hall, 214 N.W.2d 205, 207 (Iowa 1974); State v. Wilson, 166 Iowa 309, 322-323, 144 N.W. 47, 52-53, on reh. 147 N.W. 739, 740 (1914). We have approved a jury instruction that intoxication is not to be considered in connection with an included offense of manslaughter. State v. Youngbear, 229 N.W.2d 728, 737-738 (Iowa 1975), cert. den., 423 U.S. 1018, 96 S.Ct. 455, 46 L.Ed.2d 390 (1975).

But defendant loses sight of the fact trial court was engaged in a plea hearing, not a degree-of-guilt hearing. In making the required record, trial court necessarily traced the contours of the highest crime of which defendant could be convicted under the information filed and the guilty plea, if entered. Concomitantly, trial court was required to determine if there was a factual basis for the highest crime lodged against defendant. See State v. Sisco, 169 N.W.2d 542, 548 (Iowa 1969). But this should not place trial court in a Catch-22 situation, in which defendant is permitted to claim the record thus made precluded him from later being convicted of an included offense and therefore reference to lesser penalties misled him.

Our decisions have now established the rule a lesser included offense may be submitted to the fact finder when (1) the elements of the lesser offense are an elementary part of the greater offense (the legal test), and (2) there is a factual basis in the record for submitting the included offense (the factual test). State v. Millspaugh, 257 N.W.2d 513, 516 (Iowa 1977); State v. Rosewall, 239 N.W.2d 171, 174 (Iowa 1976). It is also clear that as to the legal test, both second-degree murder and manslaughter are included in a first-degree murder charge. State v. Reese, 259 N.W.2d 771, 778 (Iowa 1977); Millspaugh, supra, 257 N.W.2d at 516. Further, the essential elements of the offenses, and consequently, the included offense (insofar as the legal test is concerned), are established by the statutes and not the accusatory charge. State v. Redmon, 244 N.W.2d 792, 801 (Iowa 1976).

As above noted, our case law at the time of this offense indicated voluntary drug intoxication alone would not permit a finding of manslaughter. State v. Hall, supra, 214 N.W.2d at 208-210. But this would not prevent defendant from challenging that law, or from attempting to develop novel theories in a degree-of-guilt hearing. See State v. Templeton, 258 N.W.2d 380, 382 (Iowa 1977) ("When specific intent is an element of the crime charged, evidence of voluntary intoxication is material and if sufficient to prevent the defendant from forming the requisite intent may entitle him to an acquittal.") State v. Conner, 241 N.W.2d 447, 463 (Iowa 1976) ("Unlike the common-law felony-murder rule, and statutes in most other jurisdictions, § 690.2 does not make all Killings in perpetration of the designated felonies murder. It makes Murder in perpetration of such felonies first-degree murder."); State v. Kernes, 262 N.W.2d 602, 606 (Iowa 1978); § 701.5 and § 813.2, Rule 21(1), Supplement to the Code 1977 ("Form of verdicts * * * 'not guilty by reason of diminished responsibility' * * *.").

Hall, supra, 214 N.W.2d at 209, indicates evidence of intoxication may be a consideration in determining whether a killing was second-degree murder or manslaughter where provocation was involved. See State v. Wilson, supra, 166 Iowa at 327-328, 144 N.W. 47, on reh. 147 N.W. at 740. Other Iowa authority indicates in certain situations a defense of accidental shooting might permit a finding of manslaughter on indictment for murder. See State v. Melia, 231 Iowa 332, 342, 1 N.W.2d 230, 235 (1941); see generally State v. Fowler, 268 N.W.2d 220 (1978); 248 N.W.2d 511, 518-20 (Iowa 1976) (affirmed on second appeal after retrial). Appeal counsel in this case faults trial counsel for not advancing an...