State v. Thrasher

• Decision Date: 10 March 1970
• Docket Number: No. 53164,53164
• Parties: STATE of Iowa, Appellee, v. Gary Wayne THRASHER, Appellant.
• Court: Iowa Supreme Court

Page 397

175 N.W.2d 397

STATE of Iowa, Appellee, v. Gary Wayne THRASHER, Appellant.

No. 53164.

Supreme Court of Iowa.

March 10, 1970.

Martin R. Dunn, Des Moines, for appellant.

Richard Turner, Atty. Gen., James W. Hughes, Asst. Atty. Gen., Ray A. Fenton, County Atty., Des Moines, and James D. McKeon, Asst. County Atty., for appellee.

MASON, Justice.

Gary Wayne Thrasher was charged by indictment with murder as defined in sections 690.1 and 690.2, Code, 1966, counsel was appointed for him at his request and defendant pleaded not guilty. Trial to a Polk County jury resulted in a verdict of guilty of second degree murder. Motions for new trial, in arrest of judgment and for judgment notwithstanding the verdict were overruled and defendant was sentenced to imprisonment in the state penitentiary for a term of 35 years.

Defendant appeals assigning as error the giving of two instructions relating to the weight to be given his testimony and evidence of flight.

Although the facts are not in dispute, some narration is necessary because of the nature of the issues presented.

Defendant and decedent were married. They, their baby and Mike Meyers, a long-time friend of theirs, lived in an apartment house on East Fourteenth Street in Des Moines. Donnie Childers and his wife lived in one of the other apartments at this address, Kenneth Kettlar and his wife in another.

About 6:30 a.m. March 8, 1968, defendant and Meyers left to work. When they returned home sometime in the afternoon, defendant and his wife got into an argument about keys to the automobile and the fact that he hadn't left her money for milk. The two men went to the store, got milk and beer and returned to the apartment. The argument between defendant and his wife continued with her threatening him with a knife and him slapping her and pointing a shotgun at her to scare her. Meyers asked defendant if the gun was loaded and when defendant opened it, there was a shell in it. Meyers took the gun, put it in the closet and hid the shell under a pile of blankets on the closet shelf. This type gun had to be cocked in order to fire. Meyers left with a lady friend before the fatal shooting.

Childers went to the Kettlar apartment around 4 p.m. Both had heard the Thrashers cussing and arguing for some time. About 4:15 they heard a shot. Defendant came to Kettlar's apartment saying he had shot his wife, asked them to call the police and an ambulance. While Childers went to make the telephone calls, Kettlar went to the Thrasher apartment and found Mrs. Thrasher lying on the floor. When he returned to his apartment Thrasher asked if his wife was dead. Kettlar told him it looked like she was, and defendant said, 'Well, my God, Kenny, I didn't mean to do it, it was an accident. She grabbed the gun barrel. It went off.' The two men described defendant as very nervous, delirious, crying and scared to death as he took off running toward East Fourteenth Street.

Gary Clark, a Des Moines police officer, testified he found defendant at East Fourteenth and Mattern, barefoot and wearing a T-shirt, walking south, approximately eight blocks north of the 1400 block, placed him under arrest, advised him of his constitutional rights and took him to the police station.

The Polk County medical examiner arrived at the apartment about 4:30 p.m., found Mrs. Thrasher lying on the kitchen floor, obviously dead and a four-ten shotgun lying inside the room. He diagnosed the cause of death to be massive brain hemorrhage caused by a shotgun blast.

Some additional facts gathered from defendant's testimony covering the period from when Meyers left the apartment until defendant was arrested are relevant to a consideration of his attack on the fairness of his trial.

Mrs. Thrasher left shortly after Meyers, came back a little later, got a knife and told defendant she was going to kill herself. Thrasher took the knife away from her as they continued arguing. She told him she was going to 'do it again' and this time she would shoot herself. Defendant got the gun from the closet but says he never put a shell in it. The gun was on the kitchen table and as his wife walked over to the sink, Thrasher raised the gun and cocked it, thinking she was going to get another knife. The gun was pointed at an angle toward the ceiling over the sink, with the butt of the gun in his stomach. When decedent reminded defendant he had said he would put the gun away, he said he would if she would leave the knives alone. With that defendant felt her grab the gun, there was a jerk and he heard the explosion. When Thrasher did not see his wife, he thought she had ducked under the table, he yelled at her, asked if she was alright. When she didn't answer he jumped up, came around the table and saw what had happened. Defendant immediately ran out the door to the front apartment, told the people there to call an ambulance and see if they could help his wife. Thrasher said he was in the state of shock at the time and ran down the street to his boss' house to tell what had happened. When the boss' wife didn't believe him, he ran out of the house, started back to the apartment going south on Fourteenth Street when the police stopped him, took him back to the scene and then to the police station.

On both direct and cross-examination defendant maintained he did not know the gun was loaded or how it got loaded.

I. Defendant's first assignment of error challenges the validity of instruction 16 which we set out:

'The law gives the defendant the right to testify in his own behalf, and it is for the jury to determine the weight to be given to his testimony, as in the case of any other witness.

'In considering and weighing his testimony you are not required to receive the testimony of the defendant as true, but to give it full and careful consideration, and determine whether it or any part of it is true or false, and whether such testimony is given by the defendant in good faith or for the purpose of avoiding conviction. You may take into consideration his interest in the outcome of this case as a person charged with a crime, and you should give his testimony such weight as you deem it entitled to in view of all of the facts and circumstances in evidence before you.'

In instruction 20 the court also submitted to the jury the law governing the weight to be given all evidence which told them in part:

'* * * In passing on the credibility of the witnesses and weighing their testimony, you may and should consider * * * their interest or lack of interest in the result of the trial, the motives, if any, actuating them as witnesses, their candor, fairness, bias or prejudice, the reasonableness and probability of their statements or the want thereof, * * *.'

In motion for new trial defendant objected to instruction 16 as an improper statement of law, asserting it deprived him of his constitutional rights of a fair and impartial trial by giving undue attention and significance to the fact he had taken the stand and implies that because he is the accused he would be more likely to perjure himself than any other witness appearing at the trial, and thus he did not receive a fair and impartial trial. His objection to the instruction was timely (section 787.3 and State v. Brown, Iowa, 172 N.W.2d 152, 156--160) and served to alert both the trial court and the State in what respect defendant claimed he was not receiving a fair trial.

The identical instructions were given by the court in State v. Bester, Iowa, 167 N.W.2d 705, 706--707, where, after tracing the history of attacks made in this court on an instruction substantially identical to instruction 16, we held the giving of this instruction constituted reversible error. The case was decided May 6, 1969.

The present case went to trial May 9, 1968, the jury verdict was returned May 14. Defendant's notice of appeal was perfected May 24. See Code section 793.4.

Defendant contends the Bester decision, in holding an instruction which specially comments on the credibility of defendant as a witness is reversible error, applies to his case because a change in law must be given effect while a case is on direct review. In Bester defendant argued the problem as violating his rights under Amendment 5 to the federal constitution. There we did not reach the constitutional issue but approached the problem from the standpoint of defendant's right to a fair trial. Thrasher in written argument does not raise the constitutional issue but, as previously noted, contends he did not receive a fair trial. This is the same challenge made in the trial court to instruction 16.

The State, on the other hand, argues the court did not err in giving instruction 16, since this case was tried approximately one year before Bester was announced and, with the exception of that case, its holding should be applied prospectively.

These contentions present the question whether the Bester decision is to be applied to cases tried before date of that decision which were still pending on direct review on the date it was announced. It involves the troublesome problem of the effective date of criminal decisions relating to rights of the accused. To say a rule announced is to be applied retroactively or prospectively is not the complete answer. Retroactive or prospective application has generally been fixed with reference to some other factor.

'For instance, the Miranda requirements (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974) for determining the voluntariness of statements are applied only to trials subsequent to the date of that opinion. See Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, 892, 893. That case gives the same restricted application to Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977.

'Stovall v. Denno * * * (388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199) limits the effect of newly adopted pre-trial identification procedures to those...