State v. Rhomberg, 92-1987

Decision Date25 May 1994
Docket NumberNo. 92-1987,92-1987
Citation516 N.W.2d 803
PartiesSTATE of Iowa, Appellee, v. Sean Michael RHOMBERG, Appellant.
CourtIowa Supreme Court

Linda Del Gallo, State Appellate Defender, and B. John Burns, Asst. State Appellate Defender, for appellant.

Bonnie J. Campbell, Atty. Gen., Thomas S. Tauber, Asst. Atty. Gen., Fred H. McCaw, County Atty., and Ralph Potter and Lyle R. Galliart, Asst. County Attys., for appellee.

Considered by HARRIS, P.J., and LARSON, CARTER, SNELL, and TERNUS, JJ.

SNELL, Justice.

Defendant, Sean Michael Rhomberg, appeals from his conviction by jury of first-degree murder in violation of Iowa Code section 707.2(2) (1991). Having reviewed the issues raised on appeal, we now affirm the conviction.

Our review of the district court rulings is at law. Iowa R.Crim. P. 102; Iowa R.App. P. 4.

Marian Carpentier was found dead on the living room floor of her home by her neighbors. She died of a stab wound to her neck that caused extensive blood loss and spinal cord damage. The police followed a trail of her blood from her home to the home where Sean Rhomberg resided. He was found there with a bandage on his left hand.

In the custody of police, Rhomberg first indicated he had injured his hand in a fall. When the police officer expressed disbelief of this statement, Rhomberg admitted it was a lie and that he had actually injured his hand "when the lady on Garfield poked him with a knife cutting the back of his hand." He then told the police officer that as he struggled for the knife, she fell backwards and stabbed herself. Rhomberg admitted that he went to the victim's home to rob her, knew she was elderly and that he could handle her without a weapon. He stated he was not drunk and had not used drugs or alcohol for quite some time.

Rhomberg relied at trial upon defenses of diminished capacity and insanity. The defense was based on expert testimony that he suffered from frontal lobe brain damage, one symptom of which is a disinhibition of aggression or rage, along with organic mood disorder.

I. The first issue raised on appeal involves our felony murder rule. The rule is attacked as illogical and defendant asks for the adoption of an "independent felony rule." Iowa Code sections 707.2(1) and (2) provide in relevant part:

A person commits murder in the first degree when the person commits murder under any of the following circumstances:

(1) The person willfully, deliberately, and with premeditation kills another person.

(2) The person kills another person while participating in a forcible felony.

A forcible felony is defined in section 702.11 as follows: "A 'forcible felony' is any felonious child endangerment, assault, murder, sexual abuse ..., kidnapping, robbery, arson in the first degree, or burglary in the first degree." The argument Rhomberg makes is that the combining of sections 707.2(2) and 702.11 into what is called the "felony murder rule" creates an anomaly whereby the distinguishing elements of first-degree murder stated in section 707.2(1) are eliminated. Specifically, Rhomberg argues the elements of premeditation, deliberation and malice aforethought, distinguishing first-degree murder from second-degree murder, are ignored or short circuited. The error in this law is claimed to be displayed by its inconsistent structure and by the result of its application, which, Rhomberg asserts, allows for easy convictions of first-degree murder committed with a forcible felony.

The focus of Rhomberg's attack on the statute is that it allows the first-degree murder convictions to be based on a jury finding that defendant participated in either the offense of robbery or willful injury at the time of the killing. He urges the acceptance of the "merger doctrine" whereby a felonious assault such as a willful injury would not be the basis for a first-degree murder conviction.

We have examined the felony murder rule as structured in Iowa on several occasions. See State v. Beeman, 315 N.W.2d 770, 776-77 (Iowa 1982); State v. Mayberry, 411 N.W.2d 677, 682-83 (Iowa 1987); State v. Ragland, 420 N.W.2d 791, 793 (Iowa 1988). In Beeman, we examined the arguments criticizing the felony murder rule and rejected them. Beeman, 315 N.W.2d at 776-77. We concluded that the inclusion of felonious assault in sections 707.2(2) and 702.11 indicated a legislative intent that a willful injury may serve as a basis for a felony murder and that the merger doctrine does not apply to such an assault. Id. In Mayberry, we again rejected the legal premise questioning the felony murder rule. Mayberry, 411 N.W.2d at 682-83. In Ragland, we reviewed the felony of willful injury as the underlying felony for the felony murder rule and found no reason to retreat from our previous decisions. Ragland, 420 N.W.2d at 793. We have now reexamined the argument made in the case at bar by Rhomberg and confirm our prior analyses. A proposed change in the law, if desired, is in the province of the legislature.

II. A second issue challenges the validity of the jury selection process from which Rhomberg's jury was chosen. Because this argument raises a constitutional challenge, we review this issue de novo. State v. Hilleshiem, 291 N.W.2d 314, 316 (Iowa 1980). Three Black Hawk County jury commissioners compiled a master jury list of 7500 names. The names were selected using source lists as prescribed by Iowa Code section 607A.22 consisting of registered voters, licensed drivers, Waterloo and Cedar Falls city directories, the U.S. West telephone book, and the student directory of the University of Northern Iowa. Because these source lists rarely indicated the race of a person, one of the commissioners became concerned that a fair proportion of minorities was not being included. To remedy this, one commissioner abandoned the random selection required by Iowa Code sections 607A.1, and 607A.3(8), and hand picked names of black people known by her, her family, or who were members of predominantly black churches. The commissioner included these names in the master jury pool attempting to select a percentage of minority jurors that would be consistent with the percentage of minorities in the general population as shown by the 1990 census. Rhomberg asserts that this process affected the validity of the jury that convicted him and constitutes reversible error.

Specifically, Rhomberg claims his right to equal protection under the Fourteenth Amendment to the United States Constitution was violated. The United States Supreme Court has stated: "[jurors] should be selected as individuals, on the basis of individual qualifications, and not as members of a race." Cassell v. Texas, 339 U.S. 282, 286, 70 S.Ct. 629, 631, 94 L.Ed. 839, 847 (1950). "An accused is entitled to have charges against him considered by a jury in the selection of which there has been neither inclusion nor exclusion because of race." Id. 339 U.S. at 287, 70 S.Ct. at 632, 94 L.Ed. at 847. In State v. Jones, 490 N.W.2d 787, 793-94 (Iowa 1992), we held that to show an equal protection violation, the defendant must show that the procedure in selecting the venire resulted in substantial under representation of the defendant's race or group. Rhomberg does not allege, and the record is devoid of proof, that white citizens like himself were substantially under represented in the master list. His equal protection issue is meritless.

Rhomberg also claims that the polluted procedure by which the master list was compiled violated Iowa Code section 607A.1 which provides:

It is the policy of this state that all persons be selected at random from a fair cross section of the population of the area served by the court, and that a person shall have both the opportunity in accordance with the provisions of law to be considered for jury service in this state and the obligation to serve as a juror when selected.

The record shows uncontroverted testimony that the 500 name jury pools were selected randomly from the master list of 7500 names. From the 500 name jury pool, the jury panel for Rhomberg's case was randomly selected. Rhomberg does not make any allegations to the contrary. His argument is directed solely to the selection process for the master list, whose alleged tainting poisoned the entire jury selection process.

While we do not approve of the commissioner's act, unilaterally taken without statutory approval, albeit to achieve the worthy purpose of fairly representing minorities, we do not believe Rhomberg's rights were thereby adversely affected. In State v. Dohrn, 259 N.W.2d 801, 804 (Iowa 1977), we held that a variance from the statutory procedure in the selection of a grand jury did not prejudice a defendant unless it infringed his substantive rights. We held that the burden of showing prejudice rests with the defendant. Id. We required a showing of prejudice in affirming the conviction in State v. Lohr, 266 N.W.2d 1, 6 (Iowa 1978), where the process for selecting the jury panel was challenged. Again, in Cooper v. State, 379 N.W.2d 917, 918 (Iowa 1986), the failure to show prejudice in a challenge to the trial jury selection process defeated the claim.

In the case at bar, no prejudice has been shown to affect Rhomberg's jury as a result of the deviation from the statutory process used in assembling the master jury list. We reject Rhomberg's implicit argument that any pollution of the process, however slight, is fatal. The State has shown that these constitutional and statutory claims regarding the jury selection process are without merit.

III. A third issue is that the admission of inculpatory statements by Rhomberg violated his constitutional rights under the Fifth Amendment. In State v. Reid, 394 N.W.2d 399, 402 (Iowa 1986) we said:

The State is charged with the burden of proving the voluntariness of a defendant's confession by a preponderance of the evidence, as a prerequisite to its admission in evidence. And, where the State is unable to sustain its burden, the defendant's...

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