State v. Staker, 55229

• Decision Date: 31 July 1974
• Docket Number: No. 55229,55229
• Citation: 220 N.W.2d 613
• Parties: STATE of Iowa, Appellee, v. Harold Marlin STAKER, Appellant.
• Court: Iowa Supreme Court

Page 613

220 N.W.2d 613

STATE of Iowa, Appellee, v. Harold Marlin STAKER, Appellant.

No. 55229.

Supreme Court of Iowa.

July 31, 1974.

Mike Wilson, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Darby Maria Coriden, Asst. Atty. Gen., Donald L. Smith, Co. Atty., for appellee.

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

MASON, Justice.

Defendant, Harold Marlin Staker, appeals from judgment entered on a jury verdict convicting him of manslaughter in violation of section 690.10, The Code, as charged by county attorney's information. The charge arose from an auto accident May 14, 1971, involving Staker and the Charles Price family in which the Price's 17-month-old son, Kenneth, was killed.

Defendant, a truck driver for many years, finished loading his truck with grain in Mingo about 5 p.m. May 14. Noticing a truck belonging to a friend parked in front of Cooper's Lounge in Mingo he proceeded there and talked with his friend for about 40 minutes. During this time he drank one glass of half beer and half tomato juice.

After leaving this tavern and securing the tarp on his truck defendant went to Dick's Tavern in Mingo and had one 12-ounce bottle of beer and a couple of sandwiches. He left Dick's about 7:30 or 8 p.m. and appeared normal and not intoxicated at that time.

After leaving Dick's defendant headed west from Mingo intending to drive to Des Moines and pick up a truck part. About five miles west of Mingo, at an intersection with highway 330, defendant stopped and talked with a friend, Dick Maggard, who had arrived at the intersection from a different direction at the same time. It was now approximately 8:30 p.m. They talked for about five minutes and Maggard testified that in his opinion defendant was not intoxicated at the time.

Defendant then decided to return home to Ames rather than continuing to Des Moines. He proceeded on highway 330 for approximately one mile and then north through Farrar to Maxwell. There he stopped at the Maxwell Tavern to see the owner. Upon entering the tavern he met an old friend he had not seen for eight to ten years; they talked for the next hour and a half during which time defendant drank two bottles of beer.

Approximately 10:30 p.m. defendant left the tavern and proceeded north on County Road S--27 towards highway 30. The county road is a blacktop highway and has a stop sign at the intersection with highway 30; there is no stop sign on highway 30. Charles Price, his wife, 17-month-old son Kenneth, and Price's two younger sisters were proceeding east on highway 30 as they approached the intersection with S--27. As they entered the intersection, Price saw lights on the county road and knew a collision was unavoidable. Defendant's truck struck the Price car near the right door. Police officers and ambulances arrived shortly thereafter and took the seriously injured to the Story County hospital. Efforts to revive Kenneth, both at the scene and the hospital, were unsuccessful.

Story County Chief Deputy John Stark arrived at the scene within minutes of the accident. He went to defendant's truck and saw defendant lying on the ground bleeding from a head wound and stating he had pain in his shoulder. Stark smelled a strong odor of alcohol on defendant's breath and stated, 'You have been drinking, Pete.' Defendant gave no reply.

Shortly thereafter defendant was taken to the Story County hospital and treated by the attending physician, Dr. Eggers. At the hospital Stark asked defendant if he would submit to a blood test; defendant refused. Fifteen minutes later Stark and patrolman Starr advised defendant they believed he was intoxicated and they would invoke the implied consent law if he refused the blood test. Defendant had been first advised he was to be charged with operating a motor vehicle while under the influence of alcohol. Finally, defendant consented to the test and replied, 'Go ahead and take your damn blood test.'

Dr. Eggers drew a blood sample in the presence of the officers at 12:28 a.m. and immediately handed it to patrolman Starr. The blood specimen was not taken for diagnostic or treatment purposes but only to test the alcoholic contents of defendant's blood. The test revealed blood alcohol content of .254. Before commencement of trial defendant moved to suppress the testimony of Dr. Eggers and Dr. Baughman, who made the analysis of the blood specimen. The motion was denied.

In this appeal defendant contends the trial court erred in: (1) overruling his motion for mistrial following a prospective juror's question during voir dire examination; (2) admitting into evidence the blood specimen and test results; and (3) overruling the motion for directed verdict.

I. During voir dire examination a prospective juror asked the county attorney if there was truth to the rumor defendant's license had been under suspension at the time of the accident. This question was apparently asked in the presence of the full panel of prospective jurors. With the panel excused defendant moved for a mistrial on the basis the question or statement prejudiced the entire panel and deprived defendant of a fair and impartial trial.

The trial court denied the motion and immediately admonished the jury panel defendant's license was not under suspension at the time of the accident, and secondly, that in any event the existence of a driver's license was not an essential element in the crime charged and they would be instructed on the charge.

Defendant contends here, as in trial court, the question alerted the jury or raised doubts and suspicions in their minds that defendant had been in trouble prior to this accident. He further contends the admonition given was insufficient to cure error.

Although never articulated in so many words, defendant's real argument must be all members of the panel were biased and prejudiced by remarks of a prospective juror thereby making a fair and impartial trial impossible. The question presented is whether the trial court erred in denying a motion for mistrial; that motion, however, in one respect was in effect a challenge to the entire panel of jurors. This assignment will first be considered as a challenge to the entire jury panel for reasons of bias and prejudice.

In criminal prosecutions a challenge to the entire panel is governed by the same law applicable in civil proceedings. Section 779.3, The Code; see State v. Jones, 193 N.W.2d 509, 512 (Iowa 1972).

This statement is found in 47 Am.Jur.2d, July, section 229:

'* * * One entitled to a jury trial has the legal right to demand that the jury to try his cause be drawn and selected in a lawful manner, and he may with perfect propriety, in the manner prescribed by the local practice for making objection or taking exception to the array, claim protection against prejudicial irregularities in the selection of the jury list.'

Rule 187(d), Rules of Civil Procedure, provides:

'Before any juror is sworn, either party may challenge the panel, in writing, distinctly specifying the grounds, which can be founded only on a material departure from the statutory requirements for drawing or returning the jury. On trial thereof, any officer, judicial or ministerial, whose irregularity is complained of, and any other persons, may be examined concerning the facts specified. If the court sustains the challenge it shall discharge the jury, no member of which can serve at that trial.'

Clearly, defendant did not challenge the panel in writing for 'material departure from the statutory requirements for drawing or returning the jury.'

Rule 187(d) having the force and effect of a statute enumerates the matters upon which a challenge to the panel can be founded; the matters thus enumerated are exclusive and the bias or prejudice of the jurors is not among them.

Even though bias or prejudice is established in regard to one or more particular jurors out of the panel such is not ground for challenge to the entire array. It appears to be well settled as a general proposition of law that a challenge to the array of jurors goes only to the form and manner of making up the jury panel without regard to the objections to the individual jurors who compose it and must, therefore, be based on some ground affecting the validity of the whole panel or array of jurors. Disqualification of an individual juror in a criminal case for any cause set forth in section 779.5, The Code, is not ground for challenge to the array but should be raised by challenging for cause the prejudiced jurors individually. In support see Government of Virgin Islands v. Williams, 476 F.2d 771, 772 (3 Cir. 1973), citing Frazier v. United States, 335 U.S. 497, 510, 511, 69 S.Ct. 201, 93 L.Ed. 187; United States v. Gordon, 253 F.2d 177 (7 Cir. 1958); State v. Lundgren, 124 Minn. 162, 144 N.W. 752; Smith v. State, 219 Miss. 741, 69 So.2d 837; State v. Taylor, (Mo...