State v. Veverka, 61131

• Citation: 271 N.W.2d 744
• Decision Date: 22 November 1978
• Docket Number: No. 61131,61131
• Parties: STATE of Iowa, Appellee, v. Ronald Eric VEVERKA, Appellant.
• Court: United States State Supreme Court of Iowa

Page 744

271 N.W.2d 744

STATE of Iowa, Appellee, v. Ronald Eric VEVERKA, Appellant.

No. 61131.

Supreme Court of Iowa.

Nov. 22, 1978.

John C. Wellman, Offender Advocate, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., J. Susan Carney, Asst. Atty. Gen., Dan L. Johnston, County Atty., and Terry Wright, Asst. County Atty., for appellee.

Considered by REES, P. J., and McCORMICK, ALLBEE, McGIVERIN and LARSON, JJ.

McGIVERIN, Justice.

Defendant Ronald Eric Veverka appeals his conviction on five counts of first degree murder in violation of Section 690.2, The Code, 1975. In seeking a reversal and new trial, defendant raises three issues involving trial court rulings and claims ineffective assistance by trial counsel. We affirm the trial court.

Defendant's jury trial convictions were under the felony-murder provision of Section 690.2 and arose from a fire of February 9, 1977, at the Coronado Apartments in Des Moines in which five persons died. The indictment charged defendant with five counts of murder, which allegedly occurred during the perpetration of the felony of arson in the Coronado Apartment building.

Defendant appeals on four grounds: (1) that trial court erred in overruling a motion for directed verdict challenging the sufficiency of the evidence to establish the essential elements of the crime beyond a reasonable doubt; (2) that trial court abused its discretion in overruling defendant's motion for new trial based on newly discovered evidence; (3) that trial court erred in failing sua sponte to instruct on lesser included offenses of second degree murder and manslaughter; and (4) that defendant was denied effective assistance of counsel at trial because his counsel failed to request instructions on lesser included offenses and failed to discover evidence prior to trial relating to the effect of defendant's drug treatment on the voluntariness of defendant's actions.

I. In defendant's first assignment of error, he contends the trial court erred in overruling his motion for directed verdict made at the close of the State's case and of all evidence.

In considering defendant's motion we are governed by the following principles:

In making a determination as to the propriety of the court's ruling on a motion for directed verdict in a criminal case this court views the evidence in the light most favorable to the state regardless of whether it is contradicted and every legitimate inference that may be fairly and reasonably deducted therefrom must be carried to the aid of the evidence.

In light of this principle the cause in a criminal action should be submitted to the jury and the court should not direct a verdict of acquittal if there is any substantial evidence reasonably tending to support the charge. Either direct or circumstantial evidence may be sufficient to warrant a verdict of guilty. State v. Overstreet, 243 N.W.2d 880, 883 (Iowa 1976).

Arson is a criminal charge which often must be proved by circumstantial evidence, since there are seldom witnesses to the crime. State v. Overstreet states:

(W)here circumstantial evidence alone is relied on as to an essential element the circumstances must be entirely consistent with defendant's guilt, wholly inconsistent with any rational hypothesis of innocence, and so convincing as to exclude a reasonable doubt that the defendant was guilty of the offense charged. Id. at 884.

Under a prosecution theory of felony-murder, the State assumed the burden of proving a murder was committed during the perpetration or attempt to perpetrate arson. ¹ Section 707.1 provides that "any person who willfully and maliciously sets fire to or burns or causes to be burned any dwelling house" shall be guilty of the felony of arson. Section 690.2, provides that "all murder . . . which is committed in the perpetration or attempt to perpetrate any arson . . . is murder in the first degree." Murder, in turn, is defined by Section 690.1 as the killing of any human being "with malice aforethought, either express or implied."

Malice aforethought does not necessarily require a specific intent to murder but may be implied from circumstances such as an intent to commit a felony from which death results. State v. Gibbons, 142 Iowa 96, 98, 120 N.W. 474, 475 (1909). In the present case, "malice aforethought" may be implied from a finding defendant intentionally or deliberately set the fire that caused the deaths. The deaths resulted as an incident to and hazard of the felony of arson. Cf. State v. Conner, 241 N.W.2d 447, 461 (Iowa 1976) (murder committed incident to felony of robbery).

To carry its burden of proof the State introduced evidence which showed that on February 9, 1977, two fires occurred in the Coronado Apartments at about the same time. One fire originated in the northwest part of the building where defendant lived alone; another fire originated in the southeast stairwell at the opposite end of the building. Examination of defendant's room and the other area revealed extensive fire damage and an unusual burn pattern on the floors consistent with the use of an accelerant. Opinion testimony from three experts showed that heavy charring on the surface and in cracks of the wood was caused "from something being placed on it to hold the heat there." The experts further testified the two fires had been deliberately set.

Other circumstantial evidence pointed to arson. A resident smelled gasoline near the southeast stairwell. No evidence indicated gasoline was normally kept on the premises. The building burned extremely rapidly, blocking the normal avenues of escape. The Des Moines fire marshal found no evidence of either an electrical or natural gas fire.

Defendant admitted starting a fire in his apartment, but contended the fire was accidental. Defendant testified that, while trying to light a cigarette, he flipped part of the match head into a bag of yarn which ignited. Defendant claimed to have attempted to extinguish the blaze with his hands. He did not, however, attempt to use water from sources in the kitchen or bathroom, a nearby blanket from his bed, or a fire extinguisher in the hall outside his room.

After his unsuccessful attempt to extinguish the fire, defendant notified the building manager. A witness saw defendant walking up and down the hall. Upon returning to his apartment, defendant claims to have heard an explosion and to have seen a flash from his kitchen area. Defendant testified he left the building without warning other residents, believing the manager would take care of the fire.

Evidence at trial indicated defendant had a history of alcoholism. He previously had been treated in institutions 37 times for alcoholism and depression in the past 14 years. Defendant, 42, held a college degree, claimed unusual intelligence, and spent four years in the Navy with training as a demolition expert. He blamed his alcoholism on the military service. He had been discharged against his will from Iowa Lutheran Hospital in Des Moines on February 4 after extensive drug treatment for alcoholism. Defendant believed he needed to be hospitalized one or two more years. He unsuccessfully made efforts on February 9 to be re-admitted to Lutheran Hospital, although he had several complaints about his treatment there. Defendant said he had been thinking of ways to get back into the hospital any way he could. Witnesses testified defendant was, or appeared to be, intoxicated on the day of the fire. Although he took no drugs after his discharge from Iowa Lutheran, he did drink large amounts of beer and vodka in the several days before the fire.

We have upheld arson convictions on the basis of circumstantial evidence. See State v. Millmeier, 102 Iowa 692, 72 N.W. 275 (1897).

The jury was at liberty to reject defendant's version that he started the fire accidently and to infer from the other circumstantial evidence that he "willfully and maliciously" caused the building to be burned to give attention to himself and gain re-entry to a hospital. We hold there was substantial evidence in the record that defendant committed an arson.

The evidence sustained the convictions under Section 690.2 of first degree felony-murder.

We hold there is no merit to defendant's first assignment of error.

II. In his second claimed error, defendant contends trial court abused its discretion in overruling his motion for new trial based on allegedly newly discovered evidence.

At the hearing on the motion for new trial, defendant presented expert opinion testimony that his alcohol consumption on the day of the fire was an involuntary act due to the withdrawal effect of past prescription drug treatments. He claimed to have taken no drugs in the five days between release from the hospital and the fire.

The trial court found the evidence could have been discovered prior to trial in the exercise of due diligence. Further, the court found that although it has some materiality, the evidence would not have changed the result of the jury verdict. See Division IV, infra.

The standards for reviewing a ruling on a motion for new trial are summarized generally in State v. Overstreet, 243 N.W.2d at 886. The criteria relative to newly discovered evidence are discussed in State v. Farley, 226 N.W.2d 1, 3 (Iowa 1975), and State v. Jackson, 223 N.W.2d 229, 233 (Iowa 1974).

We do not believe the court abused its discretion in holding that this evidence offered at the hearing on motion for new trial would be cumulative at best and not change the result. There was evidence before the jury of Veverka's intoxication on February 9 as well as his history of intoxication, illness and numerous hospital confinements. Testimony detailed some of the drugs he said he had taken in recent years in treatment of his problems. The jury was instructed on intoxication as a defense.

Another portion of the medical evidence adduced at the hearing on the motion for new trial suggested defendant could, in his mental condition,...