State v. Sharpe, 64109

• Decision Date: 15 April 1981
• Docket Number: No. 64109,64109
• Citation: 304 N.W.2d 220
• Parties: STATE of Iowa, Appellee, v. James Earl SHARPE, Appellant.
• Court: Iowa Supreme Court

Page 220

304 N.W.2d 220

STATE of Iowa, Appellee, v. James Earl SHARPE, Appellant.

No. 64109.

Supreme Court of Iowa.

April 15, 1981.

J. R. Sokol and Mark R. Lawson, of Sokol & Sokol, Maquoketa, and Harold De Lange II, of Wehr & De Lange, Davenport, for appellant.

Thomas J. Miller, Atty. Gen., and Julie F. Pottorf, Asst. Atty. Gen., for appellee.

Considered by REYNOLDSON, C. J., and UHLENHOPP, HARRIS, McGIVERIN and LARSON, JJ.

LARSON, Justice.

This is an appeal by the defendant, James Earl Sharpe, from his conviction for second-degree murder, § 707.3, Code Supp.1977. He requests this court to reverse his conviction and grant him a new trial on the basis that the trial court erred in permitting the State to amend its original trial information, in admitting evidence of his marital infidelity, and in denying his motion for new trial based on the alternate grounds of insufficiency of the evidence and juror misconduct. We affirm.

The facts of this case arise against a background of domestic strife. On the evening of December 19, 1978, the defendant and his wife Charlene violently quarreled at their home in rural Jackson County. It was the sequence of events leading up to this argument that was the primary dispute of the parties at trial.

According to the defendant's testimony, the fight was precipitated by Charlene's drunken behavior. He testified that he had left work at a plant in Sabula, where the couple was employed, some four hours after his wife had left for home. He stated that upon his arrival at the house, Charlene, who was "very drunk and abusive," assaulted him; that he was thus provoked to hit her once in the face with the back of his hand, which knocked her to the floor and ended the argument. He then attempted to "sober her up" but failed in his effort. Although he left her to sleep on a living room couch for the night, he walked with her to the bedroom before he left for work early the next morning.

The defendant further testified that when he arrived at work he explained that Charlene's absence was due to her being sick. However, after a brief discussion with his coemployees, one suggested that defendant should "have somebody look at her," he returned home, where he found her unconscious on the bedroom floor. He then phoned his secretary at home, who arrived at the Sharpe home shortly thereafter and assisted the defendant in transporting Charlene to a hospital. Brain surgery was subsequently performed on Charlene but she died four days later.

However, according to the State's evidence, the fight was not the result of a spontaneous family argument, but one which had its roots generally in a strained family atmosphere which was heightened by frequent and excessive consumption of alcohol; and specifically in the defendant's marital infidelity, in his antagonistic relations with his wife's family, and in his wife's desire to leave him. It produced evidence which indicated that Charlene had not been drinking on the evening of the argument; that she was upset with him that night because he had arrived home from work at a late hour and because she was aware of her husband's affair with another woman. From this evidence it was the State's conclusion that the defendant's hostility toward his wife culminated in his severe beating of her on that evening. This conclusion was supported with testimony by the defendant's secretary that when she arrived to take Charlene to the hospital, Charlene's eyes were swollen shut and "(h)er face everywhere that there was any skin ... was black and blue." Medical testimony established that Charlene's injuries, a blood clot and brain contusions and bruises, were caused by severe, sharp blows to the head.

After the presentation of this evidence, a jury returned the verdict finding the defendant guilty of second-degree murder. The defendant filed a motion for new trial, Iowa R.Crim.P. 23(2), alleging the errors claimed on appeal. The trial court denied the motion; judgment was entered; and the defendant now appeals.

I. Amendment of the trial information. Although the State had originally charged the defendant on January 2, 1979, with second-degree murder, § 707.3, it later amended the trial information and substituted the crime of first-degree murder, § 707.2, on May 29, 1979. ¹ The defendant contends that the State thus violated Iowa Rule of Criminal Procedure 4(8)(a), ² which provides:

The court may, on motion of the state, and before or during the trial, order the indictment amended so as to correct errors or omissions in matters of form or substance. Amendment may be allowed before or during trial when no substantial rights of the defendant are prejudiced by the amendment, and if a wholly new and different offense is not charged.

We must first determine whether a "wholly new and different" offense was charged by the State. The trial court, in considering the State's motion to amend, noted that a trial information must charge the degree of murder; the offense "is no longer an open charge of murder with the degree to be determined at trial." The court permitted the amendment, however, because first-degree murder "is a separate offense, but not wholly new and different" from second-degree murder, and because the defendant's rights were not prejudiced thereby. In supporting the ruling, the court observed that no new evidence or minutes of testimony were presented to support the charge as amended.

Section 773.46, The Code 1977, which was the predecessor to rule 4(8)(a), provided:

Such amendment shall not be ordered when it will have the effect of charging the accused with an offense which is different than the offense which was intended to be charged in the indictment as returned by the grand jury.

Cases decided under section 773.46 evidenced a relatively narrow view of amendments in analogous cases. Thus, in State v. Gowins, 211 N.W.2d 302, 306 (Iowa 1973), we held the State could not amend a trial information charging escape (§ 745.1, The Code 1973) to charge willful escape (§ 247A.6, The Code). Because the escape offense, in contrast to willful escape, did not require the element of intent, we concluded that the amendment charged a different offense within the meaning of § 773.46, The Code 1973. In State v. Hancock, 164 N.W.2d 330, 336-37 (Iowa 1969), we concluded that the State could not amend the charge in an information from forgery (§ 718.1, The Code 1966) to uttering a forged instrument (§ 718.2, The Code) for the same reason.

Other cases, allowing amendments, must be distinguished: State v. Fuhrmann, 257 N.W.2d 619, 624 (Iowa 1977), held that it was permissible under section 773.43, The Code 1975, to amend a trial information charging first-degree murder by adding a charge of felony-murder. We held the amendment did not charge a "different" offense: felony-murder was only an alternative means of committing the crime of first-degree murder. See also State v. Brown, 253 Iowa 658, 663-64, 113 N.W.2d 286, 289-90 (1962) ("Under our law there is but one crime called murder. So-called degrees of the offense do not constitute distinct crimes but graduations of the same crime for the purpose of permitting (a range of) punishment.") However, whether there remains only one crime of murder is left in doubt by our new rules. The statutory form of indictment in effect at the time of Fuhrmann and Brown was merely: "A. B. murdered C. D." § 773.35, The Code 1958 and 1975. Under the new rules, however, the form for indictment specifies the degree of the offense. Iowa R.Crim.P. 30 (Form 10) ("A. B. committed murder in the degree, resulting in the death of C. D.").

The "wholly new and different" offense language of the new rule was considered by the trial court as relaxing the "different" offense prohibition of its statutory forerunner. In its order allowing the amendment, it concluded first-degree murder was, in fact, a different offense, but not wholly different. This seems to be the nub of the issue here: did this language change the prior rule? One authority says the new rule is merely an adoption of the prior law. 1 J. Roehrick, The New Iowa Criminal Code: A Comparison 464 (1978). We agree.

The State argues for a test similar to the legal or "element" test for included offenses. Under that theory, an offense would not be "wholly new and different" if it satisfied the test of similarity in elements. Under that reasoning, offenses which lie within the chain of included offenses could be substituted, either raising or lowering the original charge, (subject, of course, to satisfying the second prong of the rule-4(8)(a) test, that it not prejudice the "substantial rights of the defendant"). We do not believe the legislature intended to invest such wide discretion under the rule; this would mean that not only second-degree murder but manslaughter and perhaps, certain assaults could be amended to charge first-degree murder.

We believe first-degree murder was a "wholly new and different offense" within the meaning of the rule. In addition to the fact it contains elements not found in second-degree murder (see § 707.1-.3, The Code), there is a great disparity in punishment life imprisonment for first-degree murder, as contrasted to a 25-year maximum for second-degree. Compare § 707.2, .3 with § 902.1, .9, The Code. And, interpreting the language of the rule according to its "approved usage," § 4.1(2), The Code, it is difficult to say that first-degree murder is not a "wholly new and different offense" from second-degree murder.

This view of the rule does not render the "wholly new" language meaningless. For example, it should eliminate doubt as to the propriety of amending a charge of first-degree murder by alleging a different means of committing the crime, specified in the new statute as separate divisions. See § 707.2, The Code. This would clearly not be a "wholly new and different offense," and would assure the rule of Brown and Fuhrmann would remain intact...