State v. Redmon

• Decision Date: 30 August 1976
• Docket Number: No. 58546,58546
• Parties: STATE of Iowa, Appellee, v. Kenneth Eugene REDMON, Appellant.
• Court: Iowa Supreme Court

Page 792

244 N.W.2d 792

STATE of Iowa, Appellee, v. Kenneth Eugene REDMON, Appellant.

No. 58546.

Supreme Court of Iowa.

Aug. 30, 1976.

Lynn H. Ball, Bloomfield, for appellant.

Richard C. Turner, Atty. Gen., Michael W. Coriden, Thomas Mann, Jr., Asst. Attys. Gen., John B. Martin, County Atty., for appellee.

Heard before MOORE, C.J., and MASON, RAWLINGS, REYNOLDSON and McCORMICK, JJ.

MASON, Justice.

The sole issue presented by defendant's appeal in this criminal case is whether the trial court's refusal to instruct as requested by the defense on the offenses of assault and battery and assault with intent to inflict great bodily injury as lesser included offenses of burglary with aggravation was prejudicial error in light of the manner in which the greater offense was charged in the accusatory pleading.

Kenneth Eugene Redmon was charged by county attorney's information filed January 7, 1975, with the crime of burglary with aggravation in violation of sections 708.1 and 708.2, The Code. The information did not use the words of the statute in charging defendant with burglary with aggravation. Instead, the means used to carry out the criminal activity were originally alleged in this fashion: 'did willfully, unlawfully and feloniously break and enter into the dwelling house owned by Aileen Girdner with intent to commit a public offense, to-wit, Assault with intent to inflict bodily injury, and thereafter armed himself with a glass soft drink bottle and did assault and inflict injury upon the person of Aileen Girdner, against the peace and dignity of the State of Iowa and contrary to the statutes made and provided for in Sections 708.1 and 708.2 of the 1973 Code of Iowa as amended.'

The morning of the trial the State moved to amend the information to read in part, 'assault with intent to inflict great bodily injury' rather than 'assault with intent to inflict bodily injury.' The defense stated it had no objection, the amendment was allowed and the matter proceeded to trial.

At the close of all the evidence counsel were furnished with copies of the court's instructions and time was given for both parties to make objections and take exceptions thereto. At this point defendant renewed his request, originally urged three days before trial, that the court instruct on the lesser offenses of assault and battery and assault with intent to do great bodily harm or great bodily injury. Defendant also objected to instructions 7 and 14. The requests were denied and the matter submitted to the jury. The jury returned a verdict finding the defendant guilty of the offense charged in the information. As indicated, defendant appeals from judgment imposing sentence on that conviction.

The events leading to this prosecution occurred the evening of December 11, 1974, when defendant gained access through a basement window into the Bloomfield home of Mrs. Aileen Girdner, a 60-year-old deaf woman. Redmon found a soft drink bottle in the basement, proceeded to Mrs. Girdner's bedroom on the main floor and struck her on the head with it. Although the bottle broke, Mrs. Girdner was not rendered unconscious. In the ensuing scuffle, defendant hit her and tried to strangle her. When she somehow turned on a light defendant's violence ceased.

Redmon then proceeded to the home of Mrs. Golda Fern Huggins, who was aroused by loud knocking at her door around 11:00 p.m. Defendant, covered with blood, told Mrs. Huggins he had made a mistake and to call the police. He then hurried across the street to a Mrs. White's porch.

The police received (presumably) Mrs. Huggins' call at 10:59 p.m., and Assistant Chief of Police James Oswalt and Officer William Brown proceeded to the scene. Oswalt recognized the sobbing, bloodied Mrs. Girdner on the porch as well as defendant holding his head in his arms and repeating, 'Why did I do it.'

Oswalt told Officer Brown to call an ambulance. Defendant was placed under arrest and taken by Brown to the Bloomfield police station. Meanwhile Mrs. Girdner had apparently walked to her house. She was found lying on the dining room floor vomiting and bleeding. The ambulance later took her to the hospital, where Dr. R. W. Conn's examination revealed deep lacerations, a cerebral concussion, multiple bruises and contusions.

Defendant, who officers testified was cooperative, cool, rational and not intoxicated was advised of his constitutional rights and privileges as mandated in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Thereafter, he voluntarily submitted a verbal confession and signed a written statement. From the police station defendant was taken to the hospital where Dr. Conn supervised the taking of blood and urine samples and fingernail scrapings. These were subsequently delivered to the Criminalistics Laboratory in Des Moines. Criminalist Michael J. Petersen found '150 milligrams per cent' blood alcohol but no trace of amphetamine in the urine sample.

Officers Brown, Horn and Assistant Chief Oswalt returned to Mrs. Girdner's home, discovering a basement window screen removed and window pushed in. In the bedroom were broken glass and blood. The room was in a general mess.

Previous to trial, 'Affirmative Defense of Defendant' was filed wherein it was asserted the influence of alcohol and amphetamine induced psychosis prevented defendant from forming the requisite intent to commit the crime charged. Trial testimony indicated a history of defendant's drug problems, particularly with amphetamines. Defense witnesses testified the accused took large amounts of amphetamines.

More specifically, these witnesses imparted a rather thorough story of defendant's actions the afternoon and evening of December 11. It appears Redmon drank considerable amounts of beer and either smoked himself or helped smoke several marijuana cigarettes. Defendant testified he also consumed some amphetamine pills.

While it remained undisputed defendant was a nonviolent person, including times when he was intoxicated, at least two witnesses testified defendant was in a hostile mood that evening. Several defense witnesses stated defendant was intoxicated, whether it be on beer or amphetamines.

It appears defendant's history of drug consumption commenced in earnest while he was stationed in West Germany during his tour of duty in the Army. These problems led to his eventual discharge after attempted rehabilitation. A subsequent two-month course of treatment at the VA hospital in Iowa City was concluded in a diagnosis Redmon suffered from 'amphetamine psychosis.' Defendant testified he saw 'stange things' such as his boots walking by themselves, snakes, sabortoothed tigers, people in Roman hats throwing fireballs, and, most important, appearances and threats by the devil himself.

Dr. Harvey Arthur Mahannah, psychiatrist, testified for the defense. He has received training on the effects of alcohol and drugs such as amphetamine on the thinking process. The doctor also has treated some 250 people by hypnosis, including defendant. Through interviews and a hypnosis induced 'moderate to deep trance' Dr. Mahannah determined defendant was impatient and impulsive--'a ready candidate for having difficulties with especially amphetamine.'

The psychiatrist concluded defendant was an amphetamine psychotic the night of December 11, 1974. Such a state resembles paranoid schizophrenia and effects perception distortion, preoccupation and distorted thinking connected with an inability to connect thoughts, and a dreamlike world with visual hallucinations. This would render a person unable to associate his thoughs well enough 'to develop a well-programmed course or intent.'

It was stated defendant's cool, rational appearance following arrest and his sensation of watching himself in action in the victim's bedroom were consistent with amphetamine psychosis. Furthermore, since such psychosis may last several weeks after ingestion and consumption by the system of amphetamine, a negative finding of the drug in urine, the doctor said, would not be inconsistent.

Dr. Mahannah conceded on cross-examination defendant's jail status and the clinical setting may have influenced the 'content' of the material produced. It was also adduced authority exists for the opinion that hypnotic statements may be distorted, exaggerated and totally inaccurate. While defendant knew what he was doing, the doctor was not certain defendant knew the 'quality' of his acts. The doctor though it was doubtful defendant could have formulated a plan, although he could have carried a thought for two minutes--presumably time enough for defendant to gain entrance and assault his victim. Such would, however, have been 'very difficult' in this witness' opinion.

The State in rebuttal called Dr. Paul Loeffelholz, psychiatrist for the Iowa Security Medical Facility at Oakdale where defendant had been admitted for evaluation. He did not utilize hypnosis on defendant because of its unreliability. Contrary to defense expert's testimony, Dr. Loeffelholz stated a person can actually lie while in a phynotic state.

It was Loeffelholz' conclusion defendant was not an amphetamine psychotic; there was no inability to think, deal with his environment, emotions, or to relate well with others. Rather, defendant, above average in intelligence, was well aware of his predicament and seemed to be in search of an excuse for his behavior--thus, drugs and the devil.

Loeffelholz opined defendant became unhappy and frustrated following his resumption of drug use after the Iowa City treatments. This frustration led to the need to do 'nice things.' An example was defendant's request earlier in the evening of December 11 of Mrs. Girdner to make a dress for his younger sister. When Mrs. Girdner stated she did not sew any more, she interfered with defendant's efforts to feel good.

The doctor concluded defendant was not acting under any beliefs the devil was making him do things. The clinical...