State v. Speck, 58620

• Decision Date: 19 May 1976
• Docket Number: No. 58620,58620
• Parties: STATE of Iowa, Appellee, v. John Lee SPECK, Appellant.
• Court: Iowa Supreme Court

Page 287

242 N.W.2d 287

STATE of Iowa, Appellee, v. John Lee SPECK, Appellant.

No. 58620.

Supreme Court of Iowa.

May 19, 1976.

James M. Sullivan, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Michael W. Coriden, Asst. Atty. Gen., Ray A. Fenton, County Atty., for appellee.

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

MASON, Justice.

This case is here on appeal by John Lee Speck from judgment imposing sentence on his conviction by a jury of robbery with aggravation contrary to sections 711.1 and 711.2, The Code, 1973. At the time of the offense giving rise to his arrest Speck was 17 years of age, having been born January 20, 1958.

Speck and a companion robbed the Douglas Avenue Fina Station in Des Moines the evening of January 6, 1975. Donald Lundeen, the man on duty at the station, testified defendant and another entered the station wearing ski masks. Defendant went to the beer cooler and selected a six pack while the companion remained near the door. As defendant approached the counter with the beer he displayed a loaded .38 caliber revolver, pointed it at Lundeen's head and said, 'This is it, hand it all over.' Lundeen drew the money out of the register and attempted to put it in a sack. Having trouble with the sack he had, Lundeen reached under the counter to find one of the right size. At this point, Lundeen testified defendant 'told me to get away from the counter or he would blow my head off.'

Des Moines police officer Mark Boyd, who arrested defendant, testified Lundeen did not mention this threat in his statement to the officer. Furthermore, defendant himself testified he participated in the robbery and used an unloaded revolver, but denied threatening Lundeen in this manner.

Following defendant's arrest, proceedings against him were commenced in juvenile court when a Polk county probation officer filed a petition alleging Speck was a delinquent child. Upon motion by the county attorney, juvenile court judge Don L. Tidrick transferred the case to the county attorney for disposition in the adult criminal courts for the following reasons: (1) there was a prima facie case defendant committed, by force, violence, and putting into fear, a robbery with a gun with intent to kill or maim if resisted; (2) Speck, a school dropout, had previously appeared in juvenile court, had been committed to the Boys Training School and upon violation of a probationary release, had been returned to Eldora; and (3) since the crime was a premeditated and violent one not normally committed by youths and one which would endanger the mental health and life of other persons, it was in the best interest of the child and state to transfer the matter.

February 3 a county attorney's information was filed charging defendant with the crime of robbery with aggravation. February 28 defendant filed a motion to dismiss which alleged in pertinent part section 323.72, providing for the relinquishment of juvenile court jurisdiction, violates due process of law and equal protection of the law in that the standard prescribed is unconstitutionally vague. March 3 Judge Thomas S. Bown overruled the motion, whereupon the case proceeded to trial by jury before Judge John N. Hughes. Defendant was found guilty and on June 6 he was sentenced to a term not to exceed 25 years at the Men's Reformatory in Anamosa.

Defendant maintains the standard 'best interest of the minor or the public' employed in section 232.72, The Code, is unconstitutionally void for vagueness. He also contends the trial court erred in refusing to give his requested instruction on reasonable doubt and instead gave a prolix and confusing instruction which misdirected the jury and as a result lessened the State's burden of proof. In addition defendant challenges the court's refusal to give his requested instruction on intent and misdirected the jury by failing to tell them that where circumstantial evidence alone is relied on the evidence must be entirely consistent with defendant's guilt and wholly inconsistent with any rational hypothesis of defendant's innocence. The foregoing contentions present the issues for review.

I. Defendant initially contends section 232.72, The Code, is unconstitutionally vague. Neither the procedures invoked below nor the reasons upon which transfer was based are attacked on appeal. Simply the question of the facial vagueness of the standard 'best interest of the minor or the public' is presented here for review.

It should at the outset be noted section 232.1 provides chapter 232 is to '* * * be liberally construed to the end that each child coming within the jurisdiction of the juvenile court shall receive, preferably in his home, the care, guidance, and control that will conduce to his welfare and the best interests of the state, and that when he is removed from the control of his parents, the court shall secure for him care as nearly as possible equivalent to that which he should have been given.'

Section 232.72 is, then, to be interpreted in this light when a juvenile court considers transferring a delinquent to criminal court. The discretion granted the judge is wide in view of statutory wording. In pertinent part, section 232.72 reads:

'When a petition alleging delinquency is based on an alleged act committed after a minor's fourteenth birthday, and the court, after a hearing, deems it contrary to the best interest of the minor or the public to retain jurisdiction, the court may enter an order making such findings and referring the alleged violation to the appropriate prosecuting authority for proper action under the criminal law. * * *.'

The question of this statute's unconstitutionality is one of first impression in this jurisdiction. The court is guided, however, by several principles well established in this state.

'It is well settled regularly enacted statutes are accorded a strong presumption of constitutionality. * * * (citing authorities).

'Then too, where the constitutionality of a statute is merely doubtful, this court will not interfere. * * * (citing authorities).

'And legislative enactments will not be held unconstitutional unless they are shown to clearly, palpably and without doubt infringe upon constitutional rights. * * * (citing authorities).

'Finally, a party attacking any statutory enactment must negate every reasonable basis of support for such statute. * * * (citing authorities).' State v. Kueny, 215 N.W.2d 215, 216--217 (Iowa 1974). See also State v. Aldrich, 231 N.W.2d 890, 894 (Iowa 1975).

In State v. Willis, 218 N.W.2d 921, 923 (Iowa 1974), the vagueness concept was described as follows:

'* * * A statute is void under the Due Process Clause if it 'either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application * * *.' Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328 (1926). A penal statute must give a person of ordinary intelligence fair warning of what is prohibited, and, in order to avoid arbitrary and discriminatory enforcement, it must provide an explicit standard for those who apply it. Grayned v. City of Rockford, 408 U.S. 104, 108--109, 92 S.Ct. 2294, 2298--2299, 33 L.Ed.2d 222, 227 (1972); State v. Robinson, 183 N.W.2d 190, 193 (Iowa 1971).'

This statement from In Re Juvenile, 364 Mass. 531, 306 N.E.2d 822, 827 (1974), is pertinent at this point:

'The 'void for vagueness' argument usually rests on one or both of two theories, either that there has been a delegation of legislative authority with standards for its exercise which are not sufficient to bar arbitrary or discriminatory administrative action or that the statute is so unclear in what it permits or forbids that a person cannot reasonably know what the law expects of him.'

Section 232.72, The Code, is not a penal statute 'Which either forbids or requires the doing of an act' to constitute a criminal offense. It is a procedural statute and does not place anyone in the position of being unable to determine whether his conduct is against the law. It is a statute which is concerned with a judicial function relating to the procedure to be selected under which an alleged violation of law will be processed. See In Re Juvenile, 306 N.E.2d at 827 and In Re Bullard, 22 N.C.App. 245, 206 S.E.2d 305, 307.

Two courts at least have not applied the vagueness concept to juvenile transfer statutes. Thus, in the case of In Re Bullard, 22 N.C.App. at 247, 206 S.E.2d at 307, the court held North Carolina's statute, which employs the standard 'needs of the child or the best interest of the State,' is not a penal statute '* * * "which either forbids or requires the doing of an act" to constitute a criminal offense. It is a procedural statute * * * (which) does not place anyone in the position of being unable to determine whether his conduct is against the law. It is a statute which sets out a method of procedure and is sufficiently explicit to meet constitutional requirements.'

A similar distinction based upon 'procedure' was employed by the Massachusetts court in the case of In Re Juvenile, 306 N.E.2d at 827. (The reasoning was reaffirmed in Stokes v. Commonwealth, 336 N.E.2d 735, 746 (Mass.1975)). The court there thought the 'public interest' standard expressed in the statute was '* * * an adequate guide to the carrying out of the judicial function of declining juvenile juridiction. Similar general standards contained in comparable statutes in other States have been upheld. * * * (citing authorities).'

However, this court has said that, "* * * (a) vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an Ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." State v. Kuney, 215 N.W.2d at 217. And in the same vein, Justice Douglas has stated that '* * * vague laws In...