State v. Wullner

• Decision Date: 23 December 1986
• Docket Number: No. 85-642,85-642
• Citation: 401 N.W.2d 214
• Parties: STATE of Iowa, Plaintiff-Appellee, v. Leeroy John WULLNER, Defendant-Appellant.
• Court: Iowa Court of Appeals

Page 214

401 N.W.2d 214

STATE of Iowa, Plaintiff-Appellee, v. Leeroy John WULLNER, Defendant-Appellant.

No. 85-642.

Court of Appeals of Iowa.

Dec. 23, 1986.

Charles L. Harrington, Appellate Defender, and Deborah A. Goins, Asst. Appellate Defender, for defendant-appellant.

Thomas J. Miller, Atty. Gen., Elizabeth E. Ciebell, Asst. Atty. Gen. and Denver D. Dillard, Co. Atty., for plaintiff-appellee.

Considered by OXBERGER, C.J., and SNELL and SCHLEGEL, JJ.

SNELL, Judge.

On July 30, 1984, the appellant, LeeRoy Wullner, was charged by trial information with involuntary manslaughter, leaving the scene of an accident resulting in death, and operating a motor vehicle while under the influence of alcohol. The latter charge was subsequently amended to allege a third incidence of that offense. These charges arose out of a car-bicycle accident that occurred on July 4, 1984, in Cedar Rapids, Iowa. Wullner's motions to dismiss the charge of operating a motor vehicle while under the influence of alcohol and to suppress certain evidence were denied by the district court.

Trial commenced on February 25, 1985. The jury returned a verdict finding Wullner guilty of the three offenses charged. Following the denial of his motion for a new trial, Wullner was sentenced to an indeterminate term not to exceed five years on the manslaughter conviction, to run concurrently with an indeterminate term not to exceed five years on the conviction of operating a motor vehicle while under the influence of alcohol, third offense. Wullner had stipulated to the two prior offenses. In addition, the district court imposed a consecutive indeterminate term not to exceed two years on the leaving the scene of an accident resulting in death conviction. This appeal followed.

Wullner first alleges that the district court failed to properly instruct the jury. This allegation by Wullner is bottomed on two theories, the first of which is that the district court erred in refusing to instruct the jury on a recklessness element in connection with the charge of involuntary manslaughter. In support of this argument, Wullner directs our attention to State v. Connor, 292 N.W.2d 682 (Iowa 1980). Connor held that the 1978 statutory codification of the crime of involuntary manslaughter should be construed as retaining the common-law element of recklessness. Id. at 686. In light of this case, Wullner contends the district court's refusal to instruct the jury on the element of recklessness was error. We do not agree.

Iowa Code section 707.5(1) (1985) provides that

[a] person commits a class "D" felony when the person unintentionally causes the death of another person by the commission of a public offense other than a forcible felony or escape.

The "public offense" underlying the charge in Connor was the defendant's disobedience of a traffic signal light while operating his motor vehicle. Against that factual background, the court held that only by construing subsection 707.5(1) to require some degree of fault at least equivalent to the recklessness required by subsection 707.5(2) could the legislative scheme of sanctions commensurate with culpability be furthered. Id. at 686. Connor was not a case that dealt with an involuntary manslaughter charge arising from allegations of drunken driving. That case did not deal, consequently, with the present issue of whether recklessness remains as an essential element in such cases.

Prestatutory case law consistently imposed the requirement that, in the context of violations of rules of the road, the basis of the involuntary manslaughter charge be either malum in se or performed recklessly. Connor, 292 N.W.2d at 685. Driving while under the influence of alcohol was considered to be malum in se, State v. Kellison, 233 Iowa 1274, 1278, 11 N.W.2d 371, 373 (1943). Accordingly it was one of the ways in which manslaughter could be committed by the operation of a motor vehicle independent of an express showing of recklessness. State v. Stewart, 223 N.W.2d 250, 252 (Iowa 1974), cert. denied, 423 U.S. 902, 96 S.Ct. 205, 46 L.Ed.2d 134 (1975). Therefore, long prior to the statutory codification of the crime of involuntary manslaughter, the law of our state provided that "[i]nvoluntary manslaughter may be committed where death results from drunken driving or from wanton and reckless operation of an automobile." Kellison, 233 Iowa at 1277, 11 N.W.2d at 373 (emphasis added).

Connor states that the only change from this common-law definition affected by the statutory codification was the discarding of the malum in se/malum prohibition distinction in favor of designating all public offenses, except forcible felonies or escapes, as possible unlawful acts which may form the basis for the unlawful act type of involuntary manslaughter. Connor, 292 N.W.2d at 686. The statutory codification did not eliminate drunken driving as a basis for an involuntary manslaughter charge. See, e.g., State v. Brown, 337 N.W.2d 507 (Iowa 1983). Nor do we think it placed the burden upon the State to make the patently absurd and generally redundant showing that a defendant's drunk driving was reckless. We hold that when using drunk driving as the "public offense" underlying a charge of involuntary manslaughter pursuant to Iowa Code section 707.5(1), the State need not show recklessness independent of the drunk driving. The district courts, accordingly, need not submit an instruction on recklessness in such cases. Cf. State v. Kernes, 262 N.W.2d 602, 606 (Iowa 1978) ("As in vehicular homicide cases, a person who causes the death of another by attempting to handle a deadly weapon while intoxicated is surely so reckless as to be guilty of homicide.")

Wullner next challenges the submission of a flight instruction to the jury. At the conclusion of the evidence, the jury was given the following instruction:

If you find the offenses charged in the Trial Information were committed, and that the defendant fled from the scene of the crime, for the purpose of avoiding or retarding prosecution, then such flight is a circumstance you may consider in determining the guilt or innocence of the defendant.

The credit and weight, if any, to be given such circumstance is for the jury to determine from a consideration of all the evidence in the case.

Wullner argues that this instruction unduly focuses the jury's attention on "flight to avoid prosecution," thus excluding excusable reasons for leaving the scene, and improperly allows the jury to infer his guilt on all charges.

Our supreme court recently dealt with the permissibility of an identical flight instruction in State v. Marsh, 392 N.W.2d 132 (Iowa 1986). The court in Marsh stated that flight instructions are rarely advisable and should be cautiously given due, in part, to their propensity to unduly emphasize certain evidence. Id. at 134. As in Marsh, however, we do not think the defendant here has shown he was prejudiced by the instruction. The instruction, contained in II Iowa Uniform Jury Instruction (Criminal) No. 214, is a correct statement of the law. Any inferences to be drawn from Wullner's flight were left to the jury in its consideration of all the evidence. Nor do we think the instruction excluded any possible justifiable reasons for leaving the scene. The instruction expressly leaves to the jury the determination of why the flight occurred. We find no reversible error in the giving of this instruction.

Wullner next argues that he was the victim of an unconstitutional stop by the police and that, accordingly, certain evidence should have been suppressed. On the night of the accident in issue here, Linn County Deputy Sheriff Lester Boots was patrolling on a road in the vicinity of the accident scene prior to the discovery of the accident. Deputy Boots observed Wullner walking along the side of the road. According to Deputy Boots' testimony, he suspected Wullner had car trouble and decided to offer assistance. Accordingly, Deputy Boots turned his patrol car around and began to approach Wullner. Deputy Boots testified that as he turned his patrol car around, however, he saw Wullner run into a roadside ditch. After locating Wullner in the weeds, Deputy Boots cajoled him back to the road, concluded that Wullner was intoxicated, and arrested him for public intoxication. Personal items belonging to Wullner which were seized and inventoried following his arrest included a set of car keys used to connect him with the car that hit the decedent in this case. As a constitutional challenge is being urged by Wullner, we review the evidence de novo. State v. Hilleshiem, 291 N.W.2d 314, 316 (Iowa 1980).

The fourth amendment requires that an officer have "reasonable cause" to stop an individual for investigatory purposes. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968). An officer must have specific and articulable cause to support a reasonable belief that criminal activity may have occurred. State v. Conger, 375 N.W.2d 278, 279 (Iowa Ct. App. 1985). The record must disclose objective facts available to the officer to justify the stop under the circumstances. State v. Losee, 353 N.W.2d 876, 878 (Iowa Ct.App.1984). The test is not the officer's subjective theory. State v. Peck, 329 N.W.2d 680, 686 (Iowa Ct.App.1982). Mere suspicion or curiosity is not sufficient to justify the stop for investigatory purposes. State v. Donnell, 239 N.W.2d 575, 577 (Iowa 1976). Circumstances for an investigatory stop exist where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experiences that...