State v. Sims, 57952

• Citation: 239 N.W.2d 550
• Decision Date: 17 March 1976
• Docket Number: No. 57952,57952
• Parties: STATE of Iowa, Appellee, v. Elroy SIMS, Appellant.
• Court: United States State Supreme Court of Iowa

Page 550

239 N.W.2d 550

STATE of Iowa, Appellee, v. Elroy SIMS, Appellant.

No. 57952.

Supreme Court of Iowa.

March 17, 1976.

W. H. Gilliam, Waterloo, for appellant.

Richard C. Turner, Atty. Gen., Michael W. Coriden, Asst. Atty. Gen., and David Dutton, County Atty., for appellee.

Heard by MOORE, C.J., and UHLENHOPP, REYNOLDSON, HARRIS and McCORMICK, JJ.

McCORMICK, Justice.

Defendant appeals his conviction and sentence for murder in the first degree in violation of §§ 690.1--690.2, The Code. He also appeals from denial of postconviction relief. We affirm on both appeals.

As a result of his postconviction action, defendant was granted a delayed appeal. In that appeal, defendant contends the jury's verdict is not supported by sufficient evidence. In his separate appeal from denial of postconviction relief, defendant contends the postconviction court erred in denying him a new trial based on newly discovered evidence and suppression of exculpatory evidence by the State at his trial.

I. Sufficiency of evidence. In evaluating the sufficiency of evidence for jury consideration, we view it in its light most favorable to the verdict. When circumstantial evidence is involved, the issue is whether the evidence was sufficient for the jury to find those circumstances were entirely consistent with defendant's guilt and inconsistent with any rational hypothesis of innocence. State v. Schultz, 231 N.W.2d 585, 588 (Iowa 1975). We review the evidence in this case with those principles in mind.

November 29, 1970, was a Saturday. Defendant, who was employed in Waverly, was in his Waterloo home that afternoon. He resided there with Irene Smallwood. Defendant and Smallwood lived as man and wife although each had a subsisting prior marriage.

At about 2:00 p.m. defendant drove Smallwood to her job at a Waterloo motel. He returned home by 3:00 p.m. and began to watch TV and drink beer. He testified he consumed five 12 ounce cans of beer by 6:00 p.m., when he went out and bought six more cans of beer, which he finished by 8:00 p.m. Then he said he went out and purchased six sixteen ounce cans of beer, which he testified he consumed by 9:45 p.m., when he left home to pick Smallwood up at her job.

After he picked her up, they went to a tavern where defendant testified he had two more cans of beer. They left the tavern about 10:30 p.m. and started home in defendant's pickup truck. On the way, he stopped the truck and alighted from it. The truck rolled into a ditch alongside the road and became stuck. William Hutchison happened by on his way back to a party that he had left earlier. He used his car to attempt to get defendant's truck out of the ditch but became stuck himself. A third driver came along and pulled defendant's truck from the ditch. Then defendant used his truck to pull the Hutchison vehicle from the ditch. Hutchison's car wouldn't start, and he accompanied defendant and Smallwood to defendant's home. It was then after midnight.

When they arrived at defendant's home, defendant and Hutchison began to drink beer in the living room. Although Smallwood was present, she did not drink. Hutchison testified that he and defendant engaged in small talk, consumed about two cans of beer, and defendant 'mentioned that there was other girls available'. According to Hutchison, Smallwood then said, 'Well, I can go somewhere, too,' and went down a hallway from the living room to a bedroom. When she returned from the bedroom about five minutes later, she had changed from her waitress uniform to slacks and a blouse. She said she was leaving.

Hutchison testified defendant then drew a pistol from inside his coat, waved it toward Smallwood, 'and said she wouldn't leave'. Smallwood returned to the bedroom. After a few seconds, defendant arose from his chair and started down the hallway. About one minute later Hutchison heard the sound of a single gunshot. Then Hutchison heard defendant say, 'Did I shoot you?' After that defendant walked back through the living room, without saying anything, and left the home.

Hutchison went to the bedroom where he found Smallwood lying on her back near the bedroom door, unconscious and beleeding from a chest wound. She was fully clothed and had a coat on. He moved her to get a telephone which was beneath her. He called the police. He administered mouth-to-mouth resuscitation to Smallwood, but she did not regain consciousness and later died.

When the police arrived they took Hutchison into custody on a charge of intoxication.

Meanwhile, defendant had driven east out of Waterloo on highway 20. His truck ran out of gas east of the town of Raymond near the Bagby residence shortly after 3:00 a.m. Mrs. Bagby gave him a can of what defendant thought was gas. When he put it in his truck it wouldn't start. It turned out that it was diesel fuel. The Bagbys, who had not previously known defendant, visited with him over beer and pizza. At about 5:00 a.m. police officers appeared at the Bagby home and arrested defendant.

Defendant was taken to the Waterloo police station. At about 7:15 a.m., Jerry Johnson, an identification officer with the police department, overheard defendant during a telephone call made by defendant to his brother in Rockford, Illinois. He testified he heard defendant say he walked into the hallway, shot into the bedroom and hit Smallwood, 'she kept saying, 'Elroy you shot me through the heart," 'I just meant to scare her, I didn't mean to hit her,' and 'I'm in trouble, I shot my Irene.'

Defendant later gave a statement to the police. In that statement he verified many of the details of Hutchison's testimony. He said he and Smallwood were 'mad at each other' at the time he walked to the bedroom with the pistol in hand and he 'had a few beers on (his) chest'. He said the bedroom door was open a couple of inches. He believed Smallwood was getting ready for bed. He said he stumbled as he walked down the hallway, his right arm struck his body, and the pistol went off. He then heard Smallwood say, 'Oh, Elroy, you done shot me through the heart.' He then 'broke the door open', entering the bedroom in time to see Smallwood slump to the floor. He described the shooting as accidental. He said he was overcome with emotion and left the home. At the time his pickup truck ran out of gas, he was on his way to his brother's home in Illinois.

Police reached the Sims home about 3:00 a.m. Their investigation revealed the bullet which struck Smallwood went through the bedroom door from a height of about four feet above the floor. Smallwood was about five feet four inches tall. The medical examiner said the bullet entered the left side of Smallwood's chest, passed through her heart and also struck the aorta, causing her death.

At trial, in addition to maintaining the shooting was accidental, defendant relied on evidence of intoxication. The results of blood tests administered to Hutchison and defendant were admitted by stipulation. A specimen taken from Hutchison at 4:30 a.m. showed 146 milligrams of alcohol per 100 milliters of blood. A specimen taken from defendant at 6:50 a.m. showed 246 milligrams of alcohol per 100 milliliters of blood. The medical examiner said a person with 100 milligrams of alcohol per 100 milliliters of blood would be intoxicated.

The trial court instructed the jury on the defense of voluntary intoxication in accordance with the principles discussed in State v. Hall, 214 N.W.2d 205 (Iowa 1974). The jury found defendant guilty of murder in the first degree.

Defendant's assignment of error is almost identical to that advanced in the Hall case. He contends the verdict of the jury was not supported by the evidence, 'was arrived at through inferences and presumptions and shows the bias, prejudice, and malice of the members of the jury toward the defendant and the jury's failure to give consideration to all the evidence presented.'

The answer to this contention is the same here as it was in Hall. See 214 N.W.2d at 210--211. To the extent defendant is asserting the evidence was insufficient to generate a jury issue his assertion cannot be sustained. Issues of credibility were for the jury. Substantial circumstantial evidence existed that defendant willfully, deliberately and premeditatedly fired his pistol through the bedroom door at Irene Smallwood. It was for the jury to say whether this evidence was sufficient to convict defendant of first-degree murder.

Moreover, to the extent defendant is asserting the jury was simply wrong in its findings on the evidence, his remedy was in his motion for new trial alleging the verdict was contrary to the evidence or he was denied a fair trial. The trial court overruled his motion for new trial. As in Hall, from our review of the evidence we cannot say the court abused its discretion in doing so.

We find no merit in defendant's challenge to the sufficiency of evidence.

II. Newly discovered evidence. In his postconviction action, defendant offered the testimony of Bruce Carpenter, a man who roomed with witness William Hutchsion at the time of the homicide and who later met and befriended defendant in jail. The case had then been tried, but it is unclear whether defendant had yet been sentenced.

Carpenter testified Hutchison told him he and defendant had both been drinking heavily at the time of the shooting. He also said Hutchison told him the gun accidently discharged when defendant stumbled in the hallway. At trial Hutchison testified defendant showed the effects of drinking, but he would not say defendant was intoxicated. He had testified he did not see defendant after he left the living room with the gun and did not know how the shooting occurred.

Defendant contends the evidence from Carpenter is newly discovered evidence entitling him to a new trial. The postconviction court, Judge Van Metre, rejected this contention, finding defendant failed to show the evidence would probably change the result if a new trial were granted.

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