State v. Taylor, 88-1444

• Decision Date: 21 March 1990
• Docket Number: No. 88-1444,88-1444
• Parties: STATE of Iowa, Appellee, v. Anthony Dawayne TAYLOR, Appellant.
• Court: Iowa Supreme Court

Page 605

452 N.W.2d 605

STATE of Iowa, Appellee, v. Anthony Dawayne TAYLOR, Appellant.

No. 88-1444.

Supreme Court of Iowa.

March 21, 1990.

As Corrected March 23, 1990.

Rehearing Denied April 18, 1990.

Raymond E. Rogers, Appellate Defender, and Barbara M. Anderson, Asst. Appellate Defender, for appellant.

Thomas J. Miller, Atty. Gen., Bruce Kempkes, Asst. Atty. Gen., James Smith, County Atty., Catherine Thune and Melodee Hanes, Asst. County Attys., for appellee.

Considered en banc.

LARSON, Justice.

Anthony Dawayne Taylor was convicted, in a jury-waived trial, of voluntary manslaughter in the death of the eight-month-old child of Taylor's fiancee. He has appealed, challenging the sufficiency of the evidence to sustain the conviction. We affirm.

The victim, who had been left in Taylor's care, died as a result of injuries which the court found had been caused by Taylor. The district court found that the State has established by evidence beyond a reasonable doubt that defendant had "grabbed" the child victim by the arms and shaken him back and forth violently, resulting in the destruction of blood vessels surrounding his brain. The court further found that the State had established by the requisite standard of proof that this violent assault caused the victim's death. The court then determined that the defendant was guilty of the crime of voluntary manslaughter, not murder, because the killing did not involve malice aforethought due to defendant's emotional state.

Iowa Code section 707.4 (1987) provides, in part:

A person commits voluntary manslaughter when that person causes the death of another person, under circumstances which would otherwise be murder, if the person causing the death acts solely as the result of sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a person and there is not an interval between the provocation and the killing in which a person of ordinary reason and temperament would regain control and suppress the impulse to kill.

(Emphasis added.) Voluntary manslaughter is a class "C" felony. Id.

Two categories of involuntary manslaughter, one a class "D" felony and the other an aggravated misdemeanor, are set out in Iowa Code section 707.5. Under Taylor's theory, involuntary manslaughter under one of these provisions is the highest offense established by the record.

Defendant's argument on appeal is based on two contentions: (1) that malice aforethought is an element of voluntary manslaughter under Iowa Code section 707.4 (1987), and that the State failed to prove it; and (2) that the provocation necessary to a finding of voluntary manslaughter could not, as a matter of law, be found because of the tender age of the victim.

I. Taylor's argument that malice aforethought is an element of voluntary manslaughter must be rejected on the basis of the clear wording of section 707.4, which provides that, when a crime would otherwise be murder, provocation will reduce it to voluntary manslaughter. Thus, malice is the only ingredient of murder not found in voluntary manslaughter. See 4 J. Yeager & R. Carlson, Iowa Practice, Criminal Law and Procedure § 144, at 41-42 (1990 Supp.) [hereinafter cited as Yeager & Carlson]. This view accords with the general rule at common law. See, e.g., State v. Shipley, 259 Iowa 952, 960, 146 N.W.2d 266, 271 (1966) ("[D]efendant could not possibly be prejudiced [by alleged error in malice instruction] as malice is not an element of manslaughter...."); State v. Brown, 152 Iowa 427, 437, 132 N.W. 862, 866 (1911) ("The distinction between murder and manslaughter is that in the latter there is an absence of malice...."). Malice is clearly not an element of voluntary manslaughter under Iowa Code section 707.4, and we therefore reject Taylor's first argument.

II. Taylor's second argument, that provocation is an "element" of voluntary manslaughter and that it was not established here, presents a more difficult question. He argues that, as a matter of law, an eight-month-old child is incapable of such provocation. Here, the district court found:

This evidence of the reprehensible conduct of the defendant is insufficient to prove "malice aforethought." Based upon the entire record the Court concludes that the defendant's action was the result of frustration, an immature reaction, not a fixed purpose or designed to do some physical harm to [the child].

While this finding did not precisely track the provocation language of section 707.4, it is clear that the court found provocation.

Provocation under section 707.4 is that which is "sufficient to excite such passion in a person." While this test does not specifically refer to a "reasonable" person, it is clear that it establishes an objective standard for determining whether provocation exists. State v. Inger, 292 N.W.2d 119, 122 (Iowa 1980); Yeager & Carlson § 146, at 42. It is very doubtful, under an objective test, that the evidence in this case could support a finding of provocation. More significantly, the prevailing view is that a child as young as this victim cannot, as a matter of law, provoke a defendant in such a way as to reduce the crime to voluntary manslaughter. See People v. Crews, 38 Ill.2d 331, 334, 231 N.E.2d 451, 453 (1967); Robinson v. State, 453 N.E.2d 280, 283-84 (Ind.1983).

We agree with Taylor that the court erred in finding provocation. We do not agree, however, that the error was reversible. As we have already noted, voluntary manslaughter under section 707.4 amounts to murder without the ingredient of malice: "A person commits voluntary manslaughter when that person causes the death of another person, under circumstances which would otherwise be murder " if it were not for the existence of provocation.

The district court's erroneous finding of provocation merely gave Taylor a break to which he was not entitled. In a case directly on point, a North Carolina court held that it was error to submit provocation in the death of a young child but held that the error was not reversible. The court said:

Voluntary manslaughter is usually defined as an intentional killing, done without premeditation or deliberation, and without malice. The element of malice, which is a necessary component of second degree murder, is usually negatived in the voluntary manslaughter context by either heat of passion suddenly aroused upon adequate provocation or by the situation where the defendant has an imperfect right of self-defense. In this case, involving the death of a child from the so-called "battered child" syndrome, where there was a great disparity in age and size between the victim and her slayer, and particularly where the slayer stood in loco parentis with the child, we are of the opinion that as a matter of law adequate provocation could not be found to exist so as to justify submission of voluntary manslaughter where the evidence showed that the defendant beat and abused a child unto its death.

State v. Vega, 40 N.C.App. 326, 333, 253 S.E.2d 94, 98, cert. denied, 444 U.S. 968, 100 S.Ct. 459, 62 L.Ed.2d 382 (1979) (citations omitted).

Regarding the matter of prejudice, the court in Vega stated:

In the present case there is abundant evidence that the child had been beaten viciously, and had been severely burned, these punishments ostensibly being made to "discipline" the child. The evidence would have been ample to support a conviction of second degree murder. There was no evidence before the court adequate in law which would have justified submission of voluntary manslaughter as a lesser included offense. The trial court gave the jury an opportunity which legally they should not have had, to find defendant guilty of a lesser offense. Having been found guilty of a lesser included offense not raised by the evidence, defendant could not have been prejudiced by its submission. The error was manifestly favorable to the defendant and is not reversible.

Id. at 333-34, 253 S.E.2d at 98-99 (citation omitted).

The same result was reached in Jimmerson v. State, 169 Ark. 353, 275 S.W. 662 (1925), in which the defendant was charged with murder but found guilty of only voluntary manslaughter. The court held there was no evidence of provocation, and the defendant was therefore, in fact, guilty of murder. The court held that the defendant, under these circumstances, could not complain of the error since it worked to his advantage. In Murphy v. People, 9 Colo. 435, 13 P. 528 (1887), the court reached the same result. The evidence in Murphy did not justify an instruction on provocation, but the defendant was not in a position to complain because, without that error, the conviction would have been for murder. See also Commonwealth v. Steele, 362 Pa. 427, 66 A.2d 825 (1959); annotation, Propriety of Manslaughter Conviction in Prosecution for Murder, Absent Proof of Necessary Elements of Manslaughter, 19 A.L.R.4th 861 (1983); annotation, Modern Status of Law Regarding Cure of Error, in Instructions as to One Offense, by Conviction of Higher or Lesser Offense, 15 A.L.R.4th 118 (1982) ("legally erroneous charges [to the jury] with respect to the element of malice in first-degree murder have been held to be harmless or nonprejudicial, or not to require reversal, because of the defendant's conviction of manslaughter.").

In the present case, there was adequate evidence to find second-degree murder, and the court applied the provocation principles in a case in which it was not applicable. As in Vega, this defendant should not be allowed to complain of the court's error. Accordingly, we affirm.

AFFIRMED.

All Justices concur except ANDREASEN, J., and McGIVERIN, C.J., and HARRIS, J., who dissent.

ANDREASEN, Justice (dissenting).

Taylor was charged with second-degree murder. By statute this charge includes the offenses of voluntary and involuntary manslaughter. Taylor waived his right to a jury and the case was tried to the court on July 13, 1988. On August...