Lead Opinion
Fred Albers was indicted for the crime of murder in the first degree in violation of section 690.1, 1966 Code of Iowa. He pleaded not guilty claiming his wife was killed accidentally. A Chickasaw County jury found him guilty of the included offense of second degree murder. He appealed from the court’s judgment sentencing him to twenty years in the state penitentiary at Fort Madison and assigns ten grounds for reversal.
I. Defendant claims the trial court abused its discretion in failing to grant a change of venue. The shooting incident occurred February 4, 1967. On September IS the case was assigned for trial November 13, 1967. November 6, defendant filed a motion for change of venue alleging 28 out of 80 or about 35% of the jurors on the panel resided in close proximity to defendant’s residence and it would be difficult to obtain a fair and impartial jury as his wife had lived on this farm all her life, taught school in Nashua and was well known in that part of Chickasaw County which received mail through Nashua or Ionia post offices. He also claimed radio and press coverage of the incident created excitement and prejudice against him. Attached to the motion were the affidavit of his attorney and those of six other affiants swearing each “was of the opinion that due to the feeling and prejudice existing in Chickasaw County, Iowa against Fred Albers that he would not be able to obtain a fair and impartial trial on the charge of murder filed against him”.
The State’s resistance was accompanied by 25 affidavits identical in form, except as to the names of the affiants, their residence, occupation, and the length of time they had resided in the county. Each stated he had occasion to converse with and see many people in the course of his occupation and he was unaware of any general excitement or prejudice in the county regarding the case.
The movant has the burden of showing the trial court abused its sound discretion in overruling the motion for change of venue. State v. Loney (1968), Iowa,
The newspaper stories and the television and radio broadcasts were no more than short concise reports of the incident and the actions taken by the State. They appeared about 8 months before trial. They
The radio and newspaper publicized the fact that the county attorney would seek a first degree murder indictment. In one edition a story headed by the statement “Wegman to Crack Down on Crime” was directy above a story headed “Albers, Nashua Farmer, Posts $10,000 Bond”. The publicity here was nothing more than ordinary reporting which always accompanies an event such as this.
There was no doubt prejudice and excitement in the Nashua-Ionia area, but as we will discuss more in detail later there was little difficulty picking a jury from the other parts of the county which exhibited little knowledge of and no excitement or prejudice about the case. All jurors challenged for cause were excused.
Defendant claims the affidavits filed by the State were not sufficient as they do not state he could obtain a fair and impartial trial in Chickasaw County. We do not agree. They go to the basic question of excitement or prejudice. They may have been so drawn to avoid the criticism leveled, at counter affidavits filed in State ex rel. Fletcher v. District Court (1931),
Defendant also claims the fact the whole jury panel was exposed to the examination and excuse of 18 jurors for cause on voir dire must have affected them and made it impossible for defendant to obtain a fair and impartial trial from those who previously had no opinion. There is merit in the American Bar Standard, 54 A.B.A. Journal 349, that under some circumstances each juror should be examined out of the presence of the other jurors, this has never been the practice in Iowa but the defendant cannot claim prejudice as an afterthought when he made no effort at the time to segregate the jurors under examination.
The record here is not as strong as that made in State ex rel. Fletcher v. District Court (1931),
II. As a ground for new trial defendant argues the trial court abused its discretion by requiring the jury to continue its deliberations until 4:30 a. m. thus depriving defendant of a fair and impartial trial.
After a nine day trial, the jury was excused for Thanksgiving Day. They reported back at 10:00 a. m. Friday, November 24, to hear arguments and to receive the court’s instructions. They retired to the jury room to deliberate at 5:30 p. m. An ample meal was provided at about 6:00 p. m. Around midnight the jury was given their choice • of several varieties of sandwiches and drinks. Twice during the night the bailiff was instructed to clear the courtroom and permit the jury to walk around. About 2:00 a. m., while defendant’s attorney was in the judge’s chamber,
At this time the court and defendant’s counsel considered the advisability of giving a verdict urging instruction and agreed it should not be given. In his ruling the trial court stated: “Counsel for defendant at that time, appeared willing to let the jury continue its deliberations without further instructions. At no time during the night, was the court urged to provide lodging for the jurors and permit them to retire for the night. Accommodations for them would have been difficult if not impossible to find.”
Defense counsel states in his affidavit that the trial court informed the bailiff there was nothing the court could do and that the jury must continue their deliberations. The trial court states his answer to the bailiff was that there was no specific time limit.
In Kracht v. Hoeppner,
“We find no valid reason to require a jury to deliberate all night. If the attorneys are unwilling to agree the jurors be released under proper admonition until the next morning the jury should be furnished proper sleeping quarters as authorized by rule 202, Rules of Civil Procedure which provides: ‘Food and Lodging. The court may order the sheriff to provide suitable food and lodging at the expense of the county for a jury being kept together to try or deliberate on a cause.’ ” This case was cited with approval in both State v. Kittelson (Iowa),
The local practice of failure to provide for jury lodging does not vitiate the error. In State v. Green,
This was a murder case; it had been tried for nine days; it involved a very difficult decision for the 12 jurors. One could reasonably anticipate these people would not, and perhaps could not, reach a verdict at a reasonable hour after the 4:30 p. m. submission time. Therefore the court had a duty to anticipate the possible need and provide for lodging as it did for meals. Lodging may well have been unattainable at 2:00 a. m. when the jury made inquiry. It is not shown accommodations could not be provided with forethought before the preceding trial day started. In this era of rapid transportation and availability of motels as well as hotels it is inconceivable that the State could not arrange á night or two lodging for 12 people.
In State v. Siegel,
The distinction made in State v. Green, supra, is that the total length of jury deliberation is one judgment to be made by the trial judge and the length of deliberation without normal time to sleep and rest is quite another matter. Both judgments have been held to be within the sound discretion of the trial court.
Coulthard v. Keenan,
We referred to those cases in Gibbs v. Wilmeth (Iowa),
The foregoing policy pronouncements of this court (two of which resulted in new trials) limit the judicial discretion to be exercised by the trial court. The legislature has impliedly concurred in that policy by approving the change in our rule 199(b), Rules of Civil Procedure, to allow the court to allow the jury to separate overnight, on weekends, or holidays, or in emergencies. Acts of the 62nd General Assembly, chapter 475, rule 199(b), R.C.P., and the following session granted the same right to the trial court in criminal cases, Acts of the 63rd General Assembly, chapter 308, section l
The cost of lodging 12 jurors cannot be allowed to interfere with the due deliberation of the jury. This is especially true where the state had already spent many hundreds of dollars in the judge’s and court officers’ salaries, jury fees and the like. Iowa does not have a statute fixing the time of night beyond which juries are not to deliberate. See Gorman v. New England Telephone & Telegraph Co.,
The fact the trial court granted a new trial in the Kracht and Coulthard cases and refused a new trial in this case is not a valid basis for distinction. While the trial court has broad discretion in granting a new trial, the discretion is not unlimited. Here, as we have pointed out, the discretion to be exercised within the framework of repeated pronouncements by this court that unreasonably late deliberations by a jury are not conducive to a fair trial.
We are aware of the many cases where juries have been kept at their deliberations without rest for a much longer time than was involved here and the jury verdicts were upheld. In at least two annotations,
■ The change in attitude toward jury deliberations and accommodations is outlined in an English case from British Guiana, decided on appeal by the Privy Council. Lord Denning authored the opinion in Shoukatallie v. R. [1961] 3 All England Reports, 996, 1000, A.C. 81 (1961): “In England, in olden times, there would have been nothing wrong in a judge telling the jury that they must agree and that he could not discharge them until they did agree; for that was, indeed, the law of the land. LORD COKE said that ‘a jury sworn and charged in case of life or member cannot be discharged by the court or any other, but they ought to give a verdict’; see Co.Litt. 227b; Co.3rd Inst. 110; and SIR WILLIAM BLACKSTONE said that: ‘when the evidence on both sides is closed, the jury cannot be discharged till they have given their verdict’ see 4 BLACKSTONE’S COMMENTARIES 360. Strong measures of coercion were adopted to secure a verdict. The jury were not allowed to separate. They were kept in the jury room without meat, drink or fire (candlelight excepted) until they did agree. You have only to read the report of Penn and Mead’s Case (1) to see what compulsion was brought to bear on jurors. COCKBURN, C. J., said:
“ ‘Our ancestors insisted on unanimity as the very essence of the verdict, but they were unscrupulous as to the means by which they obtained it’; see Winsor v. R. (2). All that is, of course, ancient history now. We have outlived those inhumanities. No longer is any measure of coercion acceptable. Once the judge has finished his summing-up the jury given in charge of the bailiff, they are still not allowed to separate, but they are provided with refreshment and, if need be, accommodation for the night in a hotel; see R. v. Neal (3).”
As early as 1801, Justice Kent, in considering the propriety of the court’s action in declaring a mistrial because of jury disagreement, said in People v.
Portions of Justice Kent’s statement are quoted in Commonwealth v. Moore,
Suffice to say that after careful examination of the problems involved and the authorities on the subject, this court has concluded a verdict returned after a 2:00 a. m. report by the jury that it was deadlocked, an inquiry as to how long they would have to deliberate, a reply that there was no specific time and a final verdict at 4:30 a. m., cannot be allowed to stand as the impartial, uncoerced unanimous verdict of the jury. Under such circumstances the premium is on stamina and physical strength rather than judgment.
III. Affidavits of three jurors accompanied the motion for new trial. The forewoman stated that from the bailiff’s report “we understood the judge had stated we must continue our deliberations and must reach a verdict”. She did not give the substance of the bailiff’s words to the jury. The two other affidavits do not mention this understanding. Only one affidavit mentioned fatigue as a factor.
In reaching this conclusion we do not rely on whether one, as here, or five, as in State v. Green,
“But the rule is also clear that a juror may make an affidavit or testify as to matters occurring in the jury room, and if what occurred amounted to misconduct, and if it was of such a character that it is reasonable to believe that it did influence the result of the deliberation and the final verdict, that verdict should not be allowed
A statement by a juror that the lateness of the hour or exhaustion affected his or her verdict is unnecessary and is not considered. The lateness of the hour has heretofore been condemned on the basis of principles set forth. We need not decide what portions of the affidavits may be considered and what portions rejected.
IV. Defendant claims six photographs of the deceased were erroneously admitted into evidence as the passion and prejudice resulting from their introduction exceeded their probative value. Exhibits E, El and E2 were color photographs taken by the medical examiner depicting the scene of the crime when he arrived. Two show the position of the body and the pool of blood on the kitchen floor. The third shows the upper half of deceased’s body alongside the pool of blood and shows where deceased was struck by the shotgun blast.
Exhibits G9 and G12 are black and white photographs taken at the scene of the crime by an agent from the Iowa Bureau of Criminal Investigation. One shows the body and room from a different angle than the color photographs and one shows the head and shoulders of the body from a direction which also shows the stairway from which defendant says the shot was fired.
Exhibit G1 is a photograph taken at the hospital of the upper half of deceased’s nude body showing extent of the wound made by the shot.
“The admissibility of photographs is within the discretion of the trial court, and its ruling will not be interfered with on appeal except upon a clear showing of an abuse thereof. The trend of authority is to vest more discretion in the trial court in a matter of this kind. (Citations)” State v. Dillon (1968) Iowa,
“If there was a just reason for permitting these exhibits to be introduced in evidence, the incidental fact that they were gruesome, that they tended to injure the defendant’s case would not make their admission erroneous. Legitimate evidence may not be excluded because it may tend to arouse the feelings of the jurors.” State v. Triplett (1956),
We have allowed the trial court broad discretion in admitting pictures of murder victims into evidence. State v. Miller (1966),
The State has the burden of proving its case before defendant puts in his evidence. It was within the trial court’s discretion to admit the photographs depicting the scene. There were no duplications. Although the materiality of the nude photograph of the wound is not obvious, it does graphically explain the pathologist’s testimony as to the size and location of the wound and offers proof of the distance from which the shot was fired. Defendant has cited no Iowa authorities in which we have held the trial court abused its discretion in admitting such photographs. We have found none.
Some of defendant’s foreign authorities tend to support his position on the nude photograph, Archina v. People, 135 Colo.8,
V. Defendant claims the remarks and demeanor of the trial court in the presence of the jury indicated a biased attitude were prejudicial to defendant’s rights and deprived him of a fair trial. We have carefully reviewed the record on all incidents called to our attention including those made during argument. We do not believe they indicate anything more than a sincere effort on the part of the trial court to keep a hotly contested trial under control. Counsel for both the State and defendant were responsible for numerous verbal exchanges before the jury. The court expressed no opinion on the evidence. “The trial court is not a mere umpire of the contest before him, confined to rulings required by objections or requests of counsel. It is his duty to take part in the trial so that its orderly progress may be facilitated.” State v. Jensen (1954),
Remarks by a trial judge while ruling on objections as to admissibility of evidence, are not erroneous unless they are unfair and prejudicial. State v. Fiedler (1967),
VI. Defendant called State agent Strasburg who had testified previously for the State to impeach ánother State’s witness, Mr. Mack. On the stand Mr. Mack had denied hearing defendant tell Reverend Hulsether on the night of the shooting that it was an accident and he didn’t know the gun was loaded. Strasburg testified Mack had told him. he overheard such conversation. between defendant and Reverend Hulsether.
On cross-examination, over defendant’s •objection that it was not proper cross-examination, State’s attorney brought out that this was part of a longer conversation with Mack who also told Strasburg he overheard defendant tell the reverend “I shot her. There is no use denying it. I shot her”.
Defendant opened this field of inquiry and the trial court did not abuse its discretion in permitting the State to inquire into other portions of the conversation. State v. Johnson (1968), Iowa,
Defendant assigns several other errors as grounds for reversal. We have considered and passed on all matters likely to arise on retrial. The remaining assignments are not considered.
Reversed and remanded.
Notes
. On rehearing the ease was reversed on a different point.
. The latter action was effective July 1, 1969, after date of trial.
. “Good people, you cannot agree? Go [to John Allen, Marshall] and put them in a house until Monday, and let them not eat or drink. On that commandment John put them in a house without [food or drink].. At length on the same day about vespertime they agreed.” Stanton, J., Annon.Y.B. 4 Edw. II (Seld.Soc. IV) 188 (1310). 2000 Famous Legal Quotations, p. 321.
Dissenting Opinion
(dissenting).
I respectfully dissent from division II of the majority opinion and the result.
I join the majority in denouncing the practice of requiring the jury to deliberate without sleep all night or into the early morning hours. In most instances, it would seem to be the better procedure to provide sleeping quarters or permit the jury to separate overnight at a reasonable hour as authorized by R.C.P. 199(b) as amended by chapter 475, Laws of the Sixty-second General Assembly and made applicable to criminal cases by chapter 308, Laws of the Sixty-third General Assembly, First Ses-' sion, page 482, even though the latter course may create other problems which could contaminate a jury verdict.
However, I do not agree that the evils of overnight deliberation are so absolute that we should go contrary to all the authority
It is true we have in recent cases stated our objection to requiring the jury to deliberate into the early hours of the morning. State v. Kittelson (1969), Iowa,
The majority opinion recognizes in division III that these matters should not have been considered. See also State v. Banks (1940),
Research indicates we went further in State v. Green, supra, in limiting the trial court’s discretion than any other jurisdiction reviewed. The circumstances here are not nearly so aggravated as in Green.
In the following cases under similar circumstances it was held the trial court did not abuse its discretion in requiring the jury to continue deliberations without rest. DeGrandis v. Fay (1964) (CA 2 NY),
The closest case to the facts here in which it was held the trial court abused its discretion is Commonwealth v. Clark (1961),
The majority quotes from Jahnke v. State (1903),
I am not willing to state on this record that the trial court who was present, saw the jury and was cognizant of the circumstances then existing had no authority to permit the jury to deliberate until 5:30 a. m. I do not believe this act, ipso facto, makes the verdict of this jury one of coercion, which must be the reason for setting it aside.
II. There is a second feature. of this particular case which is of even more concern. Defendant’s attorney was with the judge when the jury was reported deadlocked at 2:00 a. m. He and the judge agreed the verdict urging instruction should not be given. No objection was made when the judge told the jury to continue deliberations. He did not re.quest that the jury be put to bed.
In my mind it is unconscionable to permit a criminal defendant to remain silent and gamble on a favorable verdict secure in the knowledge that it will be set aside if it is unfavorable. The state has no comparable advantage in the event of an acquittal. “A defendant may not gamble on the verdict and then secure a new trial if he • loses.. When a jury should be discharged for failure to agree is usually a matter within the sound discretion of the trial court.” Jenkins v. United States (1945), 5 Cir.,
“ * * * if a party obtains knowledge during the progress of the trial of acts of or affecting jurors, which he shall wish to urge as objections to the verdict, he must object at once, or as soon as the opportunity is presented, or be considered as having waived his right to object.”- 89 C.J.S. Trial § 483, p. 134.
• If defendant had objected to keeping the jury deliberating or if the jury itself had protested, an entirely different situation would have been presented and I would, under such circumstances join in holding the trial court did abuse its discretion.
I would hold the trial court did not abuse its broad discretion under these circumstances and that defendant, in any event, waived his right to object by failing to do so when he had the opportunity.
I would affirm the trial court.
SNELL, J., joins in this dissent.