*1 present claim affords no basis Arnold’s a reversal. Appellee, STATE of Parenthetically, ques where a
IV. 123.93 claim is raised as to whether a § tion HAHN, Appellant. Bernice been issue ordi notice has No. 59182. Sojka, narily engendered. See Shasteen (Iowa, N.W.2d 48 November Supreme Court of Iowa. Here, present case. But not so in the Nov. aforesaid,. affirmatively plaintiffs petition disclosing as a matter of law alleges facts substantially comply failure to
his total statutory require claim notice City, supra. Rush v. Sioux
ment. Cf. plaintiff’s
V. Next to be resolved is attack on 123.93.
constitutional § noted, heretofore Arnold raised this
As Lang’s in his resistance to dismissal
issue However, never
motion. the court below adjudication the matter in its
addressed enlargement never moved for
Arnold
findings and conclusions. 179(b) pro- regard
In that Iowa R.Civ.P.
vides: joined with
“On motion or filed within
the time allowed for a motion for
trial, findings may be and conclusions judgment
enlarged or amended and accordingly modified or a dif-
or decree judgment
ferent or decreе substituted.” 179(b) is now well settled a rule
And it preservation of error
motion is essential issue,
when a trial court fails to resolve
claim, legal theory properly sub- defense adjudication. Michael v. Mer-
mitted for Co., Bonding Mut.
chants Wemhoff, (Iowa 1977); Fjelland v. (Iowa 1977); Rector v.
Alcorn, (Iowa 1976). preserve Arnold failed to
Due to the fact presently involved issue it is
error as to
not entertained.
AFFIRMED.
755 *2 couple customarily
automobile the arranged weekly to do coin-operated wash at a laundry Friday morning. each leaving laundry Before for the at 8:00 a. drank beverage m. decedent an alcoholic *3 the apartment. leaving Also before de- prepared fendant decedent’s dinner so it ready would for him they when re- turned. drove Thereafter decedent defend- Ball, Robert E. and William C. Mahan laundry ant to the and left to her attend Waterloo, appellant. for cleaning the and the folding of clothes Turner, Gen., P. Atty. Jim Richard C. while he went to a bar. After completing Robbins, Atty. H. Asst. Gen. and her she David work waited until decedent re- Correll, Atty., appellee. for turned. County couple
The then together went to two they bars where each consumed several they drinks. Thereafter at a shopped local HARRIS, Justice. grocery store and later went to a liquor mur- second-degree This is from a purchased store where deсedent the two (defendant) conviction. Bernice Hahn der gallons whiskey half he expected to con- shooting the of her was convicted for death during sume the week. At decedent’s di- January couple’s home husband rection defendant mixed him a drink in the 1975. Because of communications they car drove apartment. back to the judge between the trial and a couple When the returned home defend- reverse and remand case for a new immediately ant preparation continued her husband, disputed It is not defendаnt’s of decedent’s dinner. She continued the Hahn, gun- as the result of a Donald died even preparation conversing while by phone is it daughter-in-law. shot blast fired defendant. Neither couple’s with a The son disputed severely planned visits, had had to visit. that defendant been Such for some reason, habitually just to the caused beaten her husband decedent to be- violently come irritable. The call clearly during seemed shooting. The record reveals to decedent began infuriate and he to com- year marriage the couple’s 30 defendant plain about meal. When the complaints prisoner her increasingly was husband’s defendant he continued told him should get rages frequently violent which she one of other his women to work for him. severely had been beaten. She had been flew into a rage Decedent and threw his once as the of a hospitalized at least result tray at defendant of food and started beat- beating and a number times for emotion- ing her. had a al and mental illnesses. Decedent The fre- drinking problem. severity and He her against beat head wall and beatings, emo- quency of the threw her to the floor. Repeatedly, when drinking and problems, tional decedent’s telephone, tried to use the dece- problem passage all worsened beating dent eventually continued and time. down in threw her on the couch the living room. times she to bolt Several tried shooting couple At the time of door front but he threw her down. in Falls. apartment resided an Cedar grown up Their moved children had and period After a of a few minutes defend- out away. employment Defendant had held ant if she get asked could a washcloth and briefly during of the home the mar- only swelling wash lip. her Decedent allowed riage. employment outside quit washing lip She her to do so. After her defend- bedroom, satisfy shotgun the wishes decedent. Because ant went to the took case, it, then not know how to out of its loaded cocked it defendant did drive place. judge’s purpose took in initiat- what she knew enough so decedent loudly ing was to learn whether the conversation doing. was person to another was related Caslavka living room where to the returned She was then on trial for named Caslavka who reclining chair sitting in a decedent judge Iowa. The County, murder in Linn stated, gun at him pointed learning from Caslavka interested me, you.” now I will threatened to kill “You he could be a fair and whether or not sneered and of force decedent this show At case if he were in- impartial juror in this guts.” said, got haven’t “You so related. deed dispute is wheth- factual only serious he Apparently Caslavka told the get up point this started er decedent at in the Linn was a brother of the defendant defеnd- threatening manner. At trial in a impair fact County case this would but showing he did. The State’s ant testified *4 impartial ability his to be fair and seated was based remained that decedent instant case. juror in the effect defendant to that on statement the shoot- immediately after gave officers and for the defend- Counsel for the State to take the we are bound ing. Of course participate were not invited to in this ant with light the most consistent evidence in were not aware of private conversation and decedent remained thе verdict and conclude any during the trial. The conver- it at time seated. reported. not sation was shot dispute defendant then There is no conversation, more, perhaps two Another ran to the husband and thereafter judge the trial and Caslavka took and sum- police who called the neighbors Waterloo, in in the Elk’s Club where place to explained ambulance. moned an She Apparently took their meals. conver- both officers, so I investigating “He beat me only Elk’s Club consisted of sations at the indicated, As decedеnt died shot him.” But another exchange pleasantries. the of injuries by gun- internal caused the from jur- juror reported testified to the Caslavka wound. shot nice chat with the ors that he had had a the case. One of the judge but not about viola-
Defendant was tried for murder in judge the and foreman had 690.1, Code, jurors believed tion of The and was convicted § 690.3, together. (§ taken their meal second-degree murder The of Code). assign- In her she raises 12 day of deliberations During the second which will ments of error. For reasons went to lunch and resumed deliber- jury the unnecessary it is to consider all 12. appear p. During process m. of ations at 1:00 jurors, told the other deliberations Caslavka assign
I. Two of defendant’s Degnan hung and he hates Judge “I know private judge-juror ments of error relate to hang days you for if juries. you He will let conversations and the claimed effect don’t make a decision.” jury such conversations on deliberations. assignments require re together Taken assign- error on these The believes versal and a new trial. preserved because not raised ments was not overruling until the motion During a trial a conversation took after recess the trial court did not indicate place judge Craig between the trial for trial Rather, occur. Caslavka, as fore- such conversations did not juror who later served with counsel about Cas- by The was initiated noted discussions man. conversation brother and the latter’s trial judge at a time when Caslavka was seated lavka’s there had jurors in the box. The murder. The trial court noted jury with other for a record or for substitu- step request asked to aside for a been no judge Caslavka jurors jurors. tion of Other seated in moment. request. apparently saw and heard
box
786.4,
Code,
Pursuant to
§
stepped
unsigned
exceptions noting
out
filed an
bill of
judge and Caslavka then
private
conversation
the informal discussion referred to
into the hall where
prejudice and, hence,
exceptions fur-
But the
court.
bill
defendant’s ab-
trial
not been
had
advised
sence
noted defendant
ther
communications was
that
during the trial
the trial
urged
time
harmless
any
error.
It is
we should reach
Craig
with
had conversed
the same
conclusion
the instant cаse.
sign
The trial court refused to
Caslavka.
say
But here we
there
cannot
possi-
no
exceptions.
bill of
bility
prejudice.
ordinarily-render
a refusal would
Such
obliged
ignore
We are
statements
show what
tran-
insufficient
the bill
affidavits of
toas whether the com-
Horsey,
spired. State
munications
their
influenced
verdict. The
1970)
However
and authorities.
principle
is well settled a
the trial
to find from
court’s
we are unable
testimony
affidavit or
state what
influ-
holding
advised of the
that counsel were
enced the jury
reaching
its verdict.
conversation
tо the
judge’s
Berch,
747-748
are
trial. Because we
as concerned
end of
(Iowa 1974).
judge-juror
the fact
conversa-
any
Evidence
guilt
of defendant’s
was not
any such conver-
with the content of
tion as
overwhelming. There was a conflict be-
assignments
should
conclude
sation
tween
defendant’s trial
and the
Blackwell,
entertained. See State
taped
gave
statement she
to arresting offi-
(Iowa 1976);
134-136
cers. But the
only
two statements differed
Cowman,
425-426
important
in one
respect: whether decedent
*5
remained seated when shot.
If the
777.19,
Cоde, provides: “If a
Section
accepted defendant’s trial
testimony they
charged,
is
the defendant must be
felony
might
acquitted
well have
her. This is es-
* * *.’
trial
present at the
personally
pecially true in view of the
testimony
Blackwell,
134-136,
supra, 238 N.W.2d
In
neighbors
who heard
altercation. The
a
a constitutionally
we held
defendant has
jury might well have believed defendant
right
present
to be
whenever the
protected
secured
weapon
question
only in or-
a
communicates with
as to his
court
der
escape
beating
another
from dece-
Allen,
Illinois v.
397
impartiality. See also
dent.
337, 338,
1057, 1058,
90
25
S.Ct.
L.Ed.2d
U.S.
any
In
improper
event
judge-juror
353,
(1970);
States,
v. United
356
Shields
may
conversations
well have caused vacil-
478,
583, 587-588,
479,
47 S.Ct.
71
273 U.S.
lating
to accede to a
conviction
787,
(1927).
789
Maier v.
L.Ed.
Illinois
second-degree murder rather than to a con-
388,
Railroad
Company,
Central
viction of the lesser included offense of
1975)
(Iowa
395
we said:
manslaughter.
“
* *
*
Few occurrences
trial
Although
exchange
pleasantries
likely
so
quite
or deliberations are
to cause
necessarily
is not
as a
communication be-
reversаl
error,
commentary
see
ABA Standards Re-
anyone,
including
judge, and a
tween
lating to the Function of the
Judge,
Trial
495,
Register,
v.
253 Iowa
juror.
State
5.2(b),
conversations,
§
Elk’s Club
taken
504-505,
648,
(1962);
112
653
Dan-
together
conversation,
with the courthouse
301, 306-307,
Bloomquist,
v.
258 Iowa
iels
were error.
impossible
Because
us
868,
(1965);
Grady,
872
State
to find
possibility
there was no reasonable
1971);
Sny-
recorded at trial. be- pressed and not admitted She meaning right confused over the of her were taken in viola- lieves the statements against supported self-incrimination. She rights. tion of her “Miranda” Miranda v. her with that of Dr. Gerald Arizona, 384 U.S. 86 S.Ct. Strag, psychologist a сlinical from Water- (1966). freely Defendant con- L.Ed.2d 694 loo, who testified of long histo- warnings her Miranda cedes she was ry of mental illness. Defendant had been capacity argues she lacked mental but treated Dr. Strag continually from the meaning. understand their She believes day shooting. after the It Dr. Strag’s knowing to make a waiver she was unable opinion appreciate defendant was unable to her right of her to remain silent because or understand the Miranda warnings. capacity lack of mental rendered the state- involuntary and inadmissible. ments From our de novo review we conclude preponderance State showed upon prove by The burden is the State to of the preponderance of evidence defendant’s evidence voluntarily and intelli- knowingly, voluntarily, was made waiver gently right against waived her self-incrim- Conner, intelligently. ination. We believe it was shown defend- 1976); Lego ant’s mental deprive condition did not her 477, 489, Twomey, 404 U.S. S.Ct. of the capacity essential to understand the (1972). 30 L.Ed.2d We are meaning of the warnings. Miranda obliged independent to make an evaluаtion taped statement was voluntary and admissi- totality of circumstances and deter ble. knowingly mine whether defendant in relinquished right tentionally to remain assignment III. In another defend silent. In this evaluation we review the ant claims she was entitled to a directed Snethen, evidence de novo. State v. guilty by verdict of not reason of insanity. 308, 311 (Iowa 1976). Mental weak The trial court a jury question determined ness, alone, standing does not render de existed on this defense and instructed the fendant’s statement inadmissible but is a *6 jury of the State’s burden to show defend to faсt be considered all other circum sanity beyond ant’s a reasonable doubt. question stances shown on the of admissibil Thomas, 219 N.W.2d 5 Fetters, ity. State v. 89 (Iowa 1972). 1974). Jaeger, Loras a lieutenant with the Cedar witness, Defendant’s Strag, Dr. testified police department, Falls took defendant’s defendant did not know what she was do- Jaeger suppres- statement. testified in the ing. Dr. Strag believed defendant was not hearing sion that he advised defendant of with reality contact and suffering was rights apartment.
her constitutional
at the
from a blackout. On the other hand the
timе
Jaeger
At
that
defendant
told
she
testimony
State offered
Lloyd
of Dr.
Spenc-
rights.
those
The taped
understood
state-
er who also examined defendant. Dr.
police
ment was taken at the
At
station.
Spencer testified
recognized
defendant
beginning
of the 20 minute statement
right
difference between
wrong
and
at the
ability
defendant
an
to
demonstrated
listen
time of the shooting. Sanity
clearly
was
comprehend the questions.
She told
issue for the
to decide. State v. Sneth-
address,
number,
name and
phone
birth
en, supra,
based AND REVERSED REMANDED. frightened was whether or not defendant urges appeal On defendant the decedent. have been allowed as a question should MOORE, J., All except Justices concur C. right her constitutional to confront
part of
who dissents.
various authorities in
witnesses. She cites
MOORE,
(dissenting).
Chief Justice
Alaska,
308, 94
cluding Davis v.
415 U.S.
1105,
(1974).
760 prior jurors room to the ground taking claimed for reversal
I. This their seats. for new in defendant’s motion Counsel first raised could observe the incident the same in relation thereto was sub- jurors. trial. Evidence the verdict. many mitted weeks after purpose obvious of Judge Degnan’s jury of the The record reveals selection visit with Caslavka was to determine entire extended over the and two alternates whether trial of his brother for mur 5, At 5:20 P.M. the day May der would affect ability his to be fair and truly try well and fourteen were sworn “tо impartial aspect fundamental of a fair — a case, joined in this and a true the issues Cowman, Iowa, v. State 212 N.W.2d introduced upon the evidence verdict render 420, 425. accordance with the instructions and in This is not a case where there are indica They properly were released this Court.” tions the trial court conveyed its conduct morning at 9:00 A.M. appear the next a belief in guilt or innocence of the hearing on defendant’s motion for At the accused or to disparage her in the acted counsel, trial, one оf whom eyes jury. Iowa, v. King, State 256 appearance his after the ver- had entered 1; Larmond, Iowa, State v. dict, of several mem- offered 233; Kimball, Iowa, State Caslavka, jury. Craig Juror bers of Murchison, N.W.2d 864. Also see In re chemist, great was examined at rather 133, 136, 623, 625, U.S. S.Ct. L.Ed. length regarding the events of the next 946; States, Offutt United 348 U.S. morning, May 6. He testified that after 11, 15, 75 S.Ct. 99 L.Ed. 18. Nor is jurors in the were called and seated this a case where the improperly has everyone in the jury box and else was injected jury himself into the deliberation courtroom, Judge Degnan came over and process. Maier v. Illinois Central Railroad step asked him to down. He did so and Iowa, 388, 395; Company, 234 N.W.2d place took near the then conversation Iowa, 217; Snyder, Judge door. He related the in- courtroom 707; Grady, Daniels v. quired concerning relationship Greg his 868; Bloomquist, 258 Iowa Greg He stated was his brother Caslavka. 495, 112 Register, State v. 253 Iowa charge who had been tried on murder 648; Mims, 306 Minn. years three earlier in approximately Linn N.W.2d 381. County. He indicated this would not im- pair ability impartial his to be a fair and Judge Degnan’s ruling on defendant’s juror. Craig family and his had a strained motion for new trial included: relationship Greg. Craig had had no allegations going “The to the violation Greg contact with for more than three of 777.19 of the 1975 Code of Iowa is [sic] years previously. nothing He knew about misleading. During a recess in the trial jurors Greg’s they case. Other testified the two attorneys for the defendant dis- Judge Craig observed the in conversa- cussed with the Court informal informa- jury tion a short distance from the box. tion that one of the had a brother They being were unaware of what was said. who was or had been tried for murder. Craig Thеreafter resumed his seat in the Counsel for the defendant and counsel for and the actual trial commenced. box *8 being so State informed did not re- period days. It extended for a of 10 quest to juror make a record nor have the alleged
The motion for new trial
removed in favor of one of the two alter-
having
nates,
by
court erred
conversa-
nor
any objection
was there
by
juror
tion with
Caslavka and that counsel
party
either
appears
and there
no basis
had not been
notice
thereto.
here for which а new trial should be
granted.
addition to Caslavka’s
that all
Defendant’s
case was not
courtroom,
present
were
in the
it is evident
weakened
nor were
interests
counsel and defendant were in the court-
harmed.”
apparently
for defendant were
ant county attorney objected
Counsel
to its admissi-
they
as
did not ask that an
not disturbed
bility and relied on our holding in State v.
juror
substituted for
Berch,
alternate
be
Caslavka.
Iowa,
741, 747,
222 N.W.2d
where we
moving for a mistrial
They refrained from
state:
Judge
in
because the
visited
“We have repeatedly held trial courts
their absence and that of defendant. Their
have broad discretion in determining
clearly
willingness
conduct
indicates a
whether evidence of claimed jury miscon-
take a chance on favorable verdict. Thus
justifies
duct
a new trial. State v. Hous-
they waived the errors now claimed. State
ton,
42,
1973);
State
Iowa,
16, 19;
Phillips,
Pose v.
Jackson,
“Instruction No. 22. she was Webb, entitled to. Iowa, State v. you gov- the issues in this case should be 332, 333; Conner, solely by erned the evidence and these Iowa, 465; Kelsey, your- instructions. You should not allow 927. swayed by sympathy, pаssion selves to be I find no abuse of the trial court’s discre- prejudice. or At the commencement of overruling tion in defendant’s motion for you this were admonished case new trial. that Court trial of this case I would affirm. you were not permit any communica- your tion to come to atténtion any from
source, public private, concerning or any
matter relative to the trial of this case might
for the that consciously, reason unconsciously, your influence verdict. your
You have taken oath to decide solely
issues this case on the evidence your
submitted for consideration in this room, court and the instruction of the FARMERS COOPERATIVE ELEVATOR Let your Court. verdict be the result of COMPANY, PANORA, Iowa, Appellee, fair, dispassionate consideratiоn of all the evidence and the given instructions
you by the Court. Walter Knapp, KNAPP and Barbara Upon “Instruction No. 23. retiring at Appellants (two cases). the close your duty of the case first is to Nos. 59690. elect a foreman. The foreman acts as duty chairman. The chairman’s is to see Supreme Court of Iowa. that discussion is carried on in an orderly fashion; proper that the issues are Nov. discussed; fully freely every and that Rehearing 11, 1978. Denied Jan. juror opportunity to express his views. taken, When ballots are to be done,
the chairman will see that it is sign
will the form of verdict which is in your
accord with decision.
“The attitude of at the outset of important.
their deliberations is It is sel- helpful juror, upon
dom for a entering room, emphatic announce an case,
opinion in a or a determination to
stand for a certain verdict. When a
does that at the pride outset individual involved,
may become and the
later hesitate to recede from an an- position
nounced even when shown it is partisans,
incorrect. You are not you are
judges judges of the facts. Your sole — interest is to ascertain the truth.” guilt
Evidence of defendant’s was sub- carefully
stantial. court submitted all evidence,
issues raised including in-
sanity and self-defense. While her trial perfect
was not it was fair and that is all