State v. Wagner

• Decision Date: 22 July 1987
• Docket Number: No. 85-271,85-271
• Citation: 410 N.W.2d 207
• Parties: STATE of Iowa, Appellee, v. Everett Ray WAGNER, Appellant.
• Court: Iowa Supreme Court

Page 207

410 N.W.2d 207

STATE of Iowa, Appellee, v. Everett Ray WAGNER, Appellant.

No. 85-271.

Supreme Court of Iowa.

July 22, 1987.

James P. Cleary, Phoenix, Ariz., for appellant.

Thomas J. Miller, Atty. Gen., Elizabeth E. Ciebell and Bruce Kempkes, Asst. Attys. Gen., for appellee.

Considered by REYNOLDSON, C.J., and McGIVERIN, CARTER, WOLLE, and NEUMAN, JJ.

REYNOLDSON, Chief Justice.

Following a jury trial defendant Everett Ray Wagner has appealed from a district court judgment convicting him of eight counts of second-degree kidnapping and one count of insurrection. Except with respect to a restitution question, the issues Wagner raises are meritless. We affirm in part, reverse in part, and remand for further proceedings.

Wagner's appeal arises out of a major uprising at the Iowa State Penitentiary on September 2, 1981. Inmates took a number of penitentiary employees hostage and caused substantial property damage to the penitentiary.

In the course of the disturbance, Wagner was the principal actor in the forced detention of eight guard trainees. All but one of these guards were held hostage from approximately 11 a.m. until about 9:20 p.m. During that period, the hostages were moved throughout the penitentiary by armed and antagonistic inmates, frisked and robbed, forced to wear prison garb, and used as bargaining chips by the rioting inmates Wagner led.

Approximately twenty months later the State, by trial information, charged Wagner with eight counts of second-degree kidnapping in violation of Iowa Code sections 710.1, 710.3, and 703.1 (1981), and one count of insurrection in violation of Iowa Code sections 718.1 and 703.1 (1981). For purposes of future sentencing, Wagner was further accused of being an habitual offender. See Iowa Code § 902.8 (1981). Following numerous delays, Wagner was tried and convicted on all nine counts. Trial court entered judgment, imposed sentence, and ordered restitution.

Appealing, Wagner contends a number of trial court errors mandate reversal of his conviction. ¹

I. Preaccusatorial delay and change of venue.

Wagner contends the State's twenty-month delay in instituting charges against him violates both his right to due process and his right to a speedy trial.

The sixth amendment right to speedy trial attaches only after the State brings actual charges. United States v. MacDonald, 456 U.S. 1, 6-7, 102 S.Ct. 1497, 1501, 71 L.Ed.2d 696, 702-03 (1982). Here, Wagner knowingly and willingly waived that right following the filing of the trial information. Thus his speedy trial contention is without merit.

Turning to Wagner's due process claim, ² he must prove (1) the delay was unreasonable and (2) because of the delay his ability to present his defense actually was prejudiced. State v. Hall, 395 N.W.2d 640, 642 (Iowa 1986); State v. Williams, 264 N.W.2d 779, 783 (Iowa 1978). Wagner cannot prevail on this issue unless he has proved his right to a fair trial was substantially prejudiced as a result of the State's intentional attempt to gain a tactical advantage by delaying the initiation of charges. State v. Cuevas, 282 N.W.2d 74, 77 (Iowa 1979); see also Hall, 395 N.W.2d at 643; State v. Sunclades, 305 N.W.2d 491, 494 (Iowa 1981).

Reviewing the record de novo, we conclude Wagner has established neither of these requirements. Nothing in the record suggests the twenty-month delay was intended to gain a tactical advantage against Wagner. Rather, the record reflects the State's resources were concentrated on a large number of murder prosecutions arising out of the prison uprising, and it simply was unable to devote attention to Wagner at an earlier date.

Moreover, Wagner has failed to prove his right to a fair trial was substantially prejudiced by the delay. While he claims this delay caused a number of persons to become unavailable as witnesses, he has made no showing these persons could have supplied material evidence not otherwise available to him. See State v. Herndon, 257 N.W.2d 19, 21 (Iowa 1977). Wagner's additional claims of prejudice, including a challenge to the State's action in repairing the extensive damage done to the penitentiary, are equally unsupported and we reject them.

We also find no merit in Wagner's assertion trial court committed reversible error when it refused his request for change of venue. This claim, which implicates Wagner's due process right to a fair trial, we review de novo. Reversal is required only when trial court has abused its discretion. State v. Spargo, 364 N.W.2d 203, 207 (Iowa 1985).

When confronted with a change of venue motion, trial court must determine whether "such degree of prejudice exists in the county in which the trial is to be had that there is a substantial likelihood a fair and impartial trial cannot be preserved with a jury selected from that county." Iowa R.Crim.P. 10(10)(b). We have held that to secure a reversal on this ground a defendant " 'must show either actual prejudice on the part of the jury or must show that the publicity attending the case was so pervasive and inflammatory that prejudice must be presumed.' " State v. Wilson, 406 N.W.2d 442, 445 (Iowa 1987) (quoting State v. Robinson, 389 N.W.2d 401, 403 (Iowa 1986)); State v. Gavin, 360 N.W.2d 817, 819 (Iowa 1985). Wagner made no attempt to show the jury in his trial actually was prejudiced against him. We therefore examine the publicity surrounding Wagner's trial to determine whether it was so pervasive and inflammatory as to create a presumption of prejudice.

Seeking to meet this requirement, Wagner offered a large number of newspaper articles dealing with the September 2 uprising, and the results of a telephone survey intended to demonstrate the community was biased against penitentiary inmates in general. After reviewing the newspaper articles, we conclude they were on the whole objective, factual reports that expressed no view on Wagner's guilt or innocence. Further, Wagner points to nothing in the articles that is inaccurate, misleading, or obviously intended to inflame the public against him.

Exposure to newsworthy events will not alone give rise to a presumption of prejudice. Additionally, to the extent particular jurors may be substantially prejudiced against a defendant, rigorous voir dire can be trusted to expose these prejudices. State v. Ware, 338 N.W.2d 707, 713 (Iowa 1983); State v. Chadwick, 328 N.W.2d 913, 916 (Iowa 1983).

Wagner also has made no showing the two-year period between the publicity relating to the uprising and trial was insufficient to dissipate any prejudice that might have been created by adverse publicity. See Wilson, 406 N.W.2d at 446; State v. Johnson, 318 N.W.2d 417, 423 (Iowa), cert. denied, 459 U.S. 848, 103 S.Ct. 106, 74 L.Ed.2d 95 (1982); State v. Cornelius, 293 N.W.2d 267, 269 (Iowa 1980).

Focusing on the results of Wagner's telephone survey, we conclude they fall short of demonstrating a substantial likelihood a fair and impartial jury could not be impaneled in Lee County. To the contrary the survey, taken as a whole, shows that despite a heavy saturation of penitentiary-related news reports inmates at the Iowa State Penitentiary, including Wagner, reasonably could expect a fair trial in Lee County.

Trial court committed no abuse of discretion in rejecting Wagner's motion for change of venue.

II. The State's failure to call all the hostages as witnesses.

Wagner next asserts several issues grounded on the State's decision to call as witnesses only three of the eight guards taken hostage during the uprising. The reason behind the State's decision to limit the record is evident. All eight hostages, with the exception of one who was released separately because of heart problems, were treated similarly by the inmates. To utilize the testimony of all eight would have been cumulative in nature.

Wagner first contends that because five guards did not testify there was no substantial evidence in the record from which the jury could find these guards did not consent to being taken hostage. See Iowa Code § 710.1 (1981). We reject this argument.

In Iowa, circumstantial evidence is as probative as direct evidence. State v. Doss, 355 N.W.2d 874, 878 (Iowa 1984). If under all the evidence, both circumstantial and direct, the jury reasonably could conclude the State established the element of nonconsent beyond a reasonable doubt, substantial evidence of guilt exists and we are bound by the jury's verdict. See State v. Blair, 347 N.W.2d 416, 419 (Iowa 1984).

Here, although five hostages did not give direct testimony of nonconsent, the undisputed evidence shows these non-testifying hostages were treated like the hostages who did present evidence. According to Wagner's own testimony, the eight hostages were never free to leave during the uprising. We conclude this evidence was sufficient to permit the jury reasonably to find all the guards had not consented to being held hostage by the inmates.

Wagner next asserts the State's failure to call five of the hostages justified an instruction that the jury might draw an inference the non-testifying hostages would have presented testimony adverse to the State's case. Trial court rejected Wagner's requested instruction.

To be entitled to an instruction allowing a negative inference to be drawn from the State's failure to call a witness, there must be some factual basis in the record independent of the failure itself that would tend to support such an inference. State v. Langlet, 283 N.W.2d 330, 335 (Iowa 1979). This rule simply mirrors the well-established principle trial court should submit to the jury only those issues supported by substantial evidence, and it is error to submit an issue having no support in the record. Hoekstra v. Farm Bureau Mut. Ins. Co., 382 N.W.2d 100, 107 (Iowa 1986). No inferences will be supported when the witness is equally available to both sides or when the testimony that could be elicited would be cumulative in nature. Prestype, Inc. v....