Defendant Dale Marti and his girl friend Gloria Hoover spent the late afternoon of February 16, 1978, together drinking beer and playing pool at a, bar in Cedar Rapids. They left the bar early in the evening to return to the home where they were living together. Later that evening in their home, Gloria sustained a fatal gunshot wound. Defendant was subsequently indicted for murder in the second degree, but convicted by a jury of the lesser included offense of involuntary manslaughter, in violation of section 707.5(2), Supplement to the Code 1977. The jury, in response to a special interrogatory, found that Gloria shot herself. It is from this conviction and the resulting sentence that defendant appeals.
From the evidence presented at trial, the jury could have found these additional facts. Gloria had been depressed prior to her death, principally because she had lost custody of her children from a prior marriage and was not permitted to see them very often. On various occasions she made comments to the effect that life was not worth living and that she might kill herself. She also spoke to defendant and others of joining her two brothers who had both committed suicide.
The events immediately preceding Gloria’s death began with her picking up a revolver sometime after defendant and she returned home. As she was unable to load it, she asked defendant to help her. Defendant changed the cylinder on the gun so as to be able to load it with ammunition available. Then, according to his testimony, he put three bullets in the gun, rotated the cylinder and fired twice on empty chambers. Next, he set the weapon down uncocked, within arm’s reach of Gloria. Gloria was very intoxicated at the time. She picked up the gun, turned it towards her abdomen and fired. She died shortly thereafter.
We now take up the numerous grounds of error assigned by defendant.
I. Did trial court err in overruling defendant’s motion for a supplemental, supplemental bill of particulars ?
The original indictment filed against defendant stated:
The Grand Jurors of the County of Linn accuse Dale Marti of the crime of murder in the second degree in violation of Section 707.1 & 707.3, Iowa Criminal Code, and charge that the said Dale Marti did on or about the 16th day of February, A.D., 1978, in the County of Linn and State of Iowa, did [sic] murder Gloria Hoover.
In response to defendant’s motion for a bill of particulars, the State voluntarily filed the following:
That on or about February 16, 1978, at approximately 7:15 P.M., the defendant, Dale Marti, used a deadly and dangerous weapon to wit: a Ruger Blackhawk .357 magnum caliber revolver in a dangerous manner and that said use resulted in the death of Gloria Jean Hoover by means of a gunshot wound caused by the firing of the above described weapon.
Subsequently, defendant filed a motion for a supplemental bill of particulars, to which the State filed a resistance. After hearing oral argument on the matter, trial court granted defendant’s motion. Its'ruling directed the State to set forth the specific acts, whether in the alternative or not, *576 upon which it relied. However, it also cautioned that it was not to be construed as forcing the State to elect or narrow its theory of the case. The supplemental bill of particulars which the State then filed stated:
1. That on the date charged in the indictment, the defendant prepared the weapon which caused the death of Gloria Jean Hoover.
2. That the defendant’s acts in the preparation of the gun for Gloria Jean Hoover and making it available to her while she was intoxicated and suicidal, constituted a use of deadly and dangerous weapon in a dangerous manner, which resulted in the death of Gloria Jean Hoover and was the direct cause of her death. ■
3. That the defendant prepared the gun which caused the death of Gloria Jean Hoover, pointed the gun in her direction and said gun was discharged causing the death of Gloria Jean Hoover.
In response, defendant filed a motion for a second supplemental bill of particulars, alleging that the third paragraph of the State’s supplemental bill was deficient for failing to specify by whom the gun was discharged. That motion was overruled, and defendant now challenges trial court’s ruling.
Whether or not to grant a motion for a bill of particulars rests in the discretion of the trial court, and its decision will not be disturbed absent an abuse of discretion.
State v. Gartin,
That is the appropriate standard for determining whether such motions may be granted.
See State v. Willis,
Contrary to his assertion, defendant was not deprived of information as to the specific acts of which he was accused, to which he was entitled under
State v. Conner,
Examination of the minutes attached to the indictment in this case reveals that the State had evidence to support either a theory that defendant shot Gloria or a theory that she shot herself. The bill of particulars could not be used to coerce the State to elect only one of its theories to pursue for conviction.
Conner,
Defendant argues that he was deprived of his constitutional right to be informed of the nature and cause of the accusation.
See
U.S.Const. amend. VI; Iowa Const, art. 1, § 10. The due process guarantee of the fourteenth amendment requires that the accused be advised of the specific charge against him.
Cole v. Arkansas,
Finally, defendant asserts that indefiniteness in a bill of particulars of the sort alleged here makes determinations on motions to dismiss, brought under Iowa R.Crim.P. 10(6)(a), difficult. We do not discern, however, that trial court was accordingly hampered in ruling upon the motion •raised by defendant. To that ruling we now turn for a closer examination.
II. Did trial court err in overruling defendant’s motion to dismiss ?
After defendant’s motion for a second supplemental bill of particulars was over *578 ruled, he filed a motion to dismiss the indictment pursuant to Iowa R.Crim.P. 10(6)(a), which was also overruled. That rule provides:
If it appears from the bill of particulars furnished pursuant to this rule that the particulars stated do not constitute the offense charged in the indictment . . . , or that the defendant did not commit that offense . . . , the court may and on motion of defendant shall dismiss the indictment . . . unless the prosecuting attorney shall furnish another bill of particulars which so states the particulars as to cure the defect.
Specifically, defendant urges that the indictment should have been dismissed because the State’s bill of particulars and supplemental bill failed to state that defendant actually killed Gloria Hoover although a requisite element of murder is killing another person. § 707.1, Supplement to the Code 1977.
The State’s counter-argument eludes the issue. It contends that because the indictment itself is sufficient at law to withstand a motion to dismiss under
State v. Beyer,
Although this court has not had occasion to extensively examine the effect of rule 10(6)(a) (formerly § 773.7, The Code 1977), the Louisiana Supreme Court has construed a similar statutory provision, La.Code Crim. Pro.Ann. art. 485 (West 1967).
2
According to
State v. Gerstenherger,
It will not do to base an indictment for a serious offense . upon an allegation of fact which cannot conceivably satisfy an essential element of the crime, and compel the accused to withstand the rigors of a jury trial with no expectation that a conviction can be supported by such an allegation.
In considering the bills of particulars in question on this appeal, we first note that they are no longer reviewable for their
*579
sufficiency to constitute second degree murder. Because defendant was convicted of the lesser included offense, involuntary manslaughter, any defect in the indictment related to its charging second degree murder is now immaterial.
State v. Harness,
Defendant has not explicitly challenged the sufficiency of the bills’ description of defendant’s acts which constituted involuntary manslaughter. Nonetheless, we will consider the issue because the “killing” required for murder is essentially equivalent to the “causing death” required for involuntary manslaughter.
See
§§ 707.-1, .5. It is an element of causation in both crimes. It requires that the defendant did some act which resulted in the victim’s death.
See, e. g., State v. Shimon,
III. Did trial court err in overruling defendant’s motion for an adjudication of law points ?
On the same date that defendant filed his pretrial motion to dismiss, he also filed a motion for an adjudication of law points in four divisions. The first three divisions sought an adjudication of whether the facts alleged in the three paragraphs of the State’s supplemental bill of particulars constituted second degree murder, as defined in sections 707.1, .3, Supplement to the Code 1977. The fourth division requested the court to determine that neither suicide nor aiding and abetting suicide constitutes a crime in this state. Trial court overruled the first three divisions of defendant’s motion because they sought resolution of factual disputes and because whether second degree murder or some included offense would be submitted to the jury was unknown at that stage of the proceedings. The court did, however, rule that suicide is not a crime in Iowa and that persons cannot be convicted of aiding and abetting an activity which is not criminal.
On appeal, defendant challenges the denial of an adjudication regarding the first three divisions of his motion. Motions for adjudications of law points are allowed in criminal cases by authority of Iowa R.Crim.P. 10(2).
State v. Iowa District Court,
Alternatively, defendant argues that the factual allegations in the supplemental bill were not controverted. We disagree. • By pleading not guilty to the charge, defendant controverted and placed in issue every material allegation of the indictment.
State v. Nelson,
IV. Did trial court err in refusing to instruct jury its order adjudicating the law point that aiding and abetting suicide is not a crime ?
As previously indicated, trial court ruled on the fourth division of defendant’s motion for an adjudication of law points that “suicide is not a crime in Iowa, and persons cannot be found guilty of committing an offense by aiding and abetting if the offense is not a crime.” The State did not appeal this ruling. Later, defendant requested that the same ruling be submitted as a jury instruction. Trial court denied that request and instead instructed, “It is the law of Iowa that the taking of one’s own life, that is, suicide, is not a criminal offense.[ 4 ] The Defendant contends Gloria Hoover took her own life and that consequently he is not guilty of any offense.” 5
Defendant argues that trial court’s ruling adjudicating the law point became the law of the case during further proceedings in trial court and that, consequently, its refusing to submit the proposed instruction was reversible error. This court has previously held that a trial court’s failure to submit instructions logically dictated by its prior adjudication of law points does constitute error which justifies granting a new trial.
Litchford v. Iowa-Illinois Gas & Electric Co.,
This court has not, however, previously addressed the question of what binding effect attaches to an order adjudicating law points which was issued without statutory authority. That situation exists here. Iowa R.Civ.P. 105 strictly limits the authority of trial courts for making pretrial determinations to rulings on points of law which are raised in the pleadings and which go to the whole or any material part of the case. These limitations are applicable to rule 10(2) motions raised in criminal cases as well.
See State v. Iowa District Court,
Defendant probably thought the point to be material because, in his opinion, it should have served as a defense. We disagree. Other courts have been faced with the argument that aiding and abetting suicide is a defense to a homicide charge because, as in Iowa, suicide itself is not a crime in the jurisdiction concerned. All but one indicated that the question of whether the defendant committed homicide was independent from any consideration of whether he might also be labeled an accessory or principal in the second degree to suicide. The asserted defense was rejected as immaterial.
See Burnett v. People,
Although the distinction between aiding and abetting suicide and homicide based on the same conduct is somewhat paradoxical, we believe it has merit. The criminal is held to answer for his conduct because it constitutes murder or manslaughter, not because it coincidentally helped someone to die who wanted to die anyway. Our law makes no distinctions as to the identity of the victim 6 in determining culpability for homicide. The only reason we view suicide noncriminal is that we consider inappropriate punishing the suicide victim or attempted suicide victim, not that we are concerned about that person’s life any less than others’ lives. To say that aiding and abetting suicide is a defense to homicide would denigrate these views.
We now turn to the consequences of our determination that the adjudication of law point made here was unauthorized. This court has held that imposition of a sentence that varies with the statutory requirements is a “void act.”
State v. Shilinsky,
V. Did trial court err in overruling defendant’s motion for a judgment of acquit-taH
Defendant contends that trial court erred in failing to carry out its order adjudicating the law point not only by failing to so instruct the jury but also by overruling his motion for judgment of acquittal after the jury returned its verdict. Defendant bases this contention upon Iowa R.Crim.P. 22(1), which provides in part, “Upon a verdict of not guilty for the defendant, or special verdict upon which a judgment of acquittal must be given, the court must render judgment of acquittal immediately.”
Defendant reasons that the jury’s verdict of guilty, combined with its answer to the interrogatory that Gloria shot herself, was tantamount to a finding that defendant’s only culpable conduct was aiding and abetting suicide. By his thinking, trial court’s prior ruling that aiding and abetting a noncriminal activity does not constitute a crime mandated its overturning the verdict supposedly based upon that theory:
As previously discussed, the order adjudicating the law point was void. Thus trial court’s failure to enforce it as the law of the case in any respect was not error.
Overruling defendant’s motion was also proper for a more fundamental alternative reason. Iowa R.Crim.P. 18(10)(b) does not authorize a trial court’s entry of judgment of acquittal in contravention of a jury’s verdict of guilty unless the court has reserved decision on a motion for judgment of acquittal made at the close of all evidence. Trial court immediately overruled all of defendant’s pre-verdict motions for judgment of acquittal, reserving judgment on none.. Otherwise, judgment of acquittal may be rendered only if the jury reached a verdict of not guilty or a special verdict, as distinguished from an interrogatory, compare Iowa R.Civ.P. 205
with
Iowa R.Civ.P. 206, which called for a judgment of acquittal. Iowa R.Crim.P. 22(1). Neither such type of verdict was returned here. As noted previously, we have in the past as well held that trial courts in this state are without authority to enter postconviction judgments of acquittal. After a guilty verdict is returned, relief is limited to arrest of judgment, Iowa R.Crim.P. 23(3), new trial, Iowa R.Crim.P. 23(2), or the postconviction procedure provided in chapter 663A of the Code.
State v. Deets,
VI. Did trial court err in failing to instruct that suicide is a complete defense and in instructing on lesser included offenses ?
Two issues raised by defendant are considered here together because they are premised upon the same notion: that Iowa case law holds that suicide is a complete defense to any homicide charge.
By one issue, defendant contends that trial court erred in instructing the jury that voluntary and involuntary manslaughter could be considered as lesser included offenses. Referring to the tests for determining whether to submit a lesser offense described in
State
v.
Reese,
By the other issue, defendant contends that trial court erred in failing to submit his proposed instruction that “if you find from the evidence that the deceased took her own life, or if the evidence thereof made suicide so probable as to create in the minds of the jurors a reasonable doubt of the Defendant’s guilt, then the Defendant is entitled to be acquitted.” This language was taken from the previously cited excerpt in Beeson, which was part of a discussion of the defendant’s right to present evidence of the decedent’s predisposition towards suicide.
Neither Cater nor Beeson stand for the broad principle that defendant ascribes to it, that is, that suicide is always a defense to murder and any lesser included offenses. Neither case involved facts requiring a determination of whether assisting or in any other way stimulating suicide may provide the basis for a homicide conviction. Consequently, their announcement that suicide is a defense is limited to factual situations such as theirs, where the only evidence of defendant’s culpability is that he pulled the trigger or otherwise physically performed the final act of killing.
Beeson
and
Cater
have no application here because there was evidence in the record to support a finding not only that defendant discharged the fatal bullet but also that he performed acts to facilitate the suicide. We believe that preparing and providing a weapon for one who is unable to do so and is known to be intoxicated and probably suicidal are acts “likely to cause death or serious injury,” within the definition of involuntary manslaughter found in section 707.5(2), Supplement to the Code 1977.
Cf. Persampieri v. Commonwealth,
*584 VII. Did trial court err in overruling defendant’s motions for judgment of acquittal made at various times throughout the trial?
Defendant moved for judgment of acquittal upon the completion of the State’s opening statement, the conclusion of presentation of the State’s evidence and again upon the conclusion of presentation of all evidence. He argued that the State’s case for second degree murder was totally dependent on circumstantial evidence and that in order to sustain a conviction based on such evidence, it must be inconsistent with any rational hypothesis of innocence. As he asserts that suicide was a complete defense and the circumstantial evidence was not inconsistent with Gloria’s committing suicide, he contends that his motions should have been granted.
Defendant’s argument is invalid for at least two reasons. First, as previously noted, suicide was not a complete defense in this case. It certainly was not a defense to involuntary manslaughter, and we need not consider whether it could have nonetheless been a defense to second degree murder because a motion for judgment of acquittal should be denied if there is sufficient evidence to prove a lesser included offense.
See,
e.
g., United States v. Kelly,
Secondly, the rule defendant asserts as proper for evaluating circumstantial evidence was rejected in
State v. O’Connell,
VIII. Did trial court’s causation instruction constitute error?
Defendant challenges the causation instruction submitted to the jury on two basic grounds. First, he asserts that it inappropriately adopted the standards of proximate cause applied in civil cases. Secondly, he argues that the instruction was unwarranted by the facts of the case.
Turning to the first grounds, we observe that the instructions bear a close resemblance to I Iowa Uniform Jury Instructions Nos. 2.6, 2.7B, 2.8 (1970), explaining proximate cause and concurring proximate cause, and an excerpt from the recent products liability case of Haumersen v. Ford Motor Co., 251 N.W.2d 7, 15 (Iowa 1977), defining intervening, superseding cause.
We are unwilling to hold as a blanket rule of law that instructions used in civil trials regarding proximate cause are inappropriate for criminal trials. One reason for this is the similar functions that the requirement of proximate cause plays in both sorts of trials. The element of proximate cause in criminal prosecutions serves as a requirement that there be a sufficient causal relationship between the defendant’s conduct and a proscribed harm to hold him criminally responsible. See J. Hall, General Principles of Criminal Law 247 (2d ed. 1960); W. LaFave & A. Scott, Handbook on Criminal Law § 35, at 248 (1972). Similarly, in the law of torts it is the element that requires there to be a sufficient causal relationship between the defendant’s conduct and the plaintiff’s damage to hold the defendant civilly liable. See W. Prosser, Handbook of the Law of Torts § 41, at 236 (4th ed. 1971).
The basic perspectives of proximate cause that must be examined to determine whether it exists in a given case are also the same in both civil and criminal cases. The first
*585
perspective is cause in fact. Factual causation is often expressed in terms of the
sine qua non
test: but for the defendant’s conduct, the harm or damage would not have occurred. W. LaFave & A. Scott,
supra
§ 35, at 249; W. Prosser,
supra
§ 41, at 237-39;
see, e. g., Cronk v. Iowa Power & Light Co.,
That the
sine qua non
test, employed by trial court, is equally applicable to criminal and civil trials is beyond question. W. LaFave & A. Scott,
supra
§ 35, at 251 n.22;
see State v. Shimon,
The second perspective of causation that must be examined in both tort and criminal trials is legal causation. Dean Prosser remarked that “this becomes essentially a question of whether the policy of the law will extend the responsibility for the conduct to the consequences which have in fact occurred.” W. Prosser,
supra
§ 42, at 244. Because it is based upon such a nebulous, undefined consideration as policy, a universal formula for legal causation is untenable. Rather, it is most fruitfully approached by using criteria adapted to a particular problem area, such as intervening causes.
Id.
§ 42, at 249-50;
see
Restatement (Second) of Torts § 431 (1965) (establishing test for legal cause that refers to rules governing various situations) (applied by this court in
Frederick v. Goff,
We recognize that different policy considerations may come into play in criminal prosecutions than in civil trials.
See, e. g.,
W. LaFave & A. Scott,
supra
§ 35, at 251-52; Comment,
The Use of the Tort Liability Concept of Proximate Cause in Cases of Criminal Homicide,
56 Nw.U.L.Rev. 791, 791-92 (1962). An argument could be made that these differences should be reflected in the proximate cause instructions used in the different kinds of trials. Yet defendant has failed to indicate any differences in policy considerations relevant to his case, much less how such differences might have preju-dicially affected any particular instruction given here. For a party to preserve for appeal his objections to a trial court’s instructions on this amorphous and multifaceted matter of legal causation, he or she must specify the deficiency in narrower terms than a mere assertion that they copy civil instructions.
See, e. g., State v. Brandt,
Defendant’s second ground for his objection to the causation instruction, that it was unjustified by the evidence, was based on his misconception that, once defendant laid the gun down, his participation in causing Gloria’s death ended as a matter of law. Accordingly, he requested that trial court give no causation instruction, or, if such an instruction were given, that it include a statement. requiring the jury to acquit defendant if it felt the sole proximate cause of Gloria’s death was her own act.
We conclude the evidence presented at trial supported the instructions given. Defendant was shown to have provided Gloria with the means to shoot herself by loading the gun and setting it beside her. Thus, the instructions relating to cause in fact were appropriate. The evidence also showed that, after defendant performed these acts, Gloria picked up the gun and shot herself. Hence, the instructions relat
*586
ing to intervening, superseding causes were also appropriate. An intervening cause is an independent force “which actively operates in producing harm to another after the actor’s negligent act or omission has been committed.”
Sayre v. Andrews,
The instruction on intervening, superseding causes made unnecessary the statement that defendant requested to be instructed. If the jury had found Gloria’s act in shooting herself to have been an intervening, superseding cause, it would have, in effect, also found it to have been the “sole proximate cause” of her death. Defendant’s requested instruction would have added nothing and might have confused the jury. See W. Prosser, supra § 42, at 244 (word “proximate” is “an unfortunate word, which places an entirely wrong emphasis upon the factor of physical or mechanical closeness”).
Other objections to the instructions by defendant were waived for their untimely assertion. These objections were raised-after the jury returned its verdict, as part of his motion for judgment of acquittal. To be preserved, objections to instructions must be raised prior to jury arguments. Iowa R.Civ.P. 196 (made applicable to criminal trials by Iowa R.Crim.P. 18(7)(f)).
IX. Did trial court err in excluding evidence of polygraph examination?
Defendant filed a pretrial request to compel the introduction of results of a polygraph examination of the defendant, which, he alleges, would have shown that defendant was not lying when he said that he did not shoot Gloria. In response, the State filed a resistance to the motion and also a motion in limine, requesting the court to prohibit defendant from in any way disclosing information regarding the polygraph examination at trial. After hearing argument on these motions, trial court overruled defendant’s request and sustained the State’s motion in limine.
State v. Conner,
In addition to the arguments rejected in
Conner,
defendant asserts two new grounds for error. First, he contends that the State implicitly stipulated to the use of polygraph evidence at trial by permitting a Cedar Rapids police officer to testify before the grand jury which indicted defendant that a polygraph examination given of defendant was inconclusive. In jurisdictions such as Iowa where polygraph evidence is admissible upon stipulation of the parties, there has been recognized an estoppel, or similar theory, requiring that a party be bound by
*587
his stipulation that the results will be admissible evidence.
See, e. g., State v. Galloway,
There are requisites of a binding stipulation which were not met here. First, the stipulation must be agreed to by both parties. Here, defendant’s willingness to admit the polygraph testimony was not alone sufficient. As we stated in
State v. Freeland,
Secondly, the stipulation should be a matter of record — either by a filed written document executed by both parties,
see, e. g., McNamara,
Even if these shortcomings were ignored and the State’s conduct before the grand jury were construed as a stipulation as to the admissibility of polygraph evidence in that proceeding, such stipulation would not necessarily extend also to the admissibility of polygraph evidence at trial. In fact, the general rule is that “a stipulation is to be construed as covering the situation then existing, and not as controlling future conditions not in contemplation.” 83 C.J.S.
Stipulations
§ 11(a), at 29 (1953);
accord, State v. Galloway,
Defendant’s second original basis for asserting that trial court erred in excluding evidence of his polygraph examination relies upon section 810.2, Supplement to the Code 1977. That new section provides:
A person arrested for or charged with an offense may request a district court judge to order a nontestimonial identification procedure. If it appears that the results of specific nontestimonial identification procedures will be of material aid in determining whether the defendant committed the offense, the judge shall order such identification procedures involving the defendant under such terms and conditions as the judge shall prescribe.
Section 810.1 of the Code lists examples of “nontestimonial identification” devices included within the definition of that term. Polygraph examinations are omitted from that list. We need not now determine the significance of that omission because defendant’s reliance upon section 810.2 was misplaced for a more obvious reason.
*588 Defendant’s motion was not directed toward securing the administration upon him of an identification procedure, the matter to which section 810.2 is addressed. At the time of his motion, the polygraph test had already been given. The purpose of his motion was rather to secure admission into evidence of the test results. Section 810.2 had no bearing upon that request.
X. Did trial court err in denying continuance when grand jury transcripts were not available for cross-examination purposes?
On May 23, 1978, defendant filed a request for discovery of any and all transcripts of testimony given to the grand jury. Trial court denied that motion on June 20. However, its ruling provided that “defendant’s counsel will certainly be entitled to the transcripts mentioned therein at the time that the direct examination of any witness who appeared before the Grand Jury is concluded at the time of trial, as defendant will have the right to access thereof for the purposes of cross-examination . . ..” Defendant does not dispute the validity of this ruling.
At trial, after the State examined its first witness, defendant moved for a continuance because he had not been provided with the transcript of that witness’s grand jury testimony. The State responded that the transcripts were not then available; although it had ordered the transcripts, they had not been delivered by the court reporter. The State also said it would provide defendant with the police report for each police officer who testified at the conclusion of his direct examination. Trial court overruled defendant’s motion “at this time,” ordering the witness to stay available for the next seven days.
We are unwilling to hold that the ruling constituted error. If trial court had definitively ruled that defendant had no right to the transcripts for purposes of cross-examination throughout the remainder of trial, our position would be different. This court has previously held that, upon proper request, a criminal defendant is entitled to a transcript of the grand jury testimony of the State’s witnesses before cross-examining them.
State v. Cuevas,
However, trial court did not so rule in this case. Rather, it merely refused to delay the trial by granting a continuance at that time. By ordering the witness to remain available, it created the distinct impression that defendant would be allowed to recall the witness for additional cross-examination in case he subsequently found matters in the transcript that he wished to use for purposes of cross-examination.
See Hall,
There is a second basis for our decision on this point. While ordinarily á defendant should not be put in a position of having to repeat his objection and ask to delay the trial in order to obtain transcripts for cross-examination,
see Hall,
XI. Did trial court give an improper sentence?
Trial court sentenced defendant to confinement for a period of two years, the maximum period permissible for a violation of section 707.5(2). § 903.1(1), Supplement to the Code 1977. Defendant challenges this sentence on two grounds: its failure to include reasons on the record for the sentence, as required by Iowa R.Crim.P. 22(3)(d), and its inconsistency with the guidelines for selecting sentencing options, given in section 901.5.
Before we can address defendant’s second ground, which is essentially an abuse of discretion argument, we must first know trial court’s reasons for imposing the two-year sentence. This was recognized in
State v. Luedtke,
Contrary to the State’s assertion, we do not believe trial court’s error in failing to state reasons for the sentence was waived by defendant’s not alerting trial court to the matter. Defendant had no way of knowing before the court entered the judgment whether or not reasons would be stated in the record.
See
Iowa R.Crim.P. 22(3)(d). At that point, the litigation had terminated. As defendant had no opportunity to preserve error, we could not, in fairness, hold that he waived it.
Cf. State v. Fortier,
Consequently, we hold that the remedy announced in Luedtke for trial court’s error in failing to state its reasons for the sentence applies here. Defendant, of course, has the right to appeal from his new sentence, if he so desires. § 814.6(l)(a), Supplement to the Code 1977.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.
Notes
. “[T]his rule” apparently refers to Iowa R.Crim.P. 4, of which rule 10(5) was originally drafted as a subdivision. See R. Carlson, Rule 4 (Indictment), A Symposium on the New Iowa Criminal Code 171 (Nov. 3-4, 1977) (presented by The Association of Trial Lawyers of Iowa).
. That section provides:
If it appears from the bill of particulars furnished under Article 484, together with any particulars appearing in the indictment, that the offense charged in the indictment was not committed, or that the defendant did not commit it, or that there is a ground for quashing the indictment, the court may on its own motion, and on motion of the defendant shall, order that the indictment be quashed unless the defect is cured. The defect will be cured if the district attorney furnishes, within a period fixed by the court and not to exceed three days from the Order, another bill of particulars which either by itself or together with any particulars appearing in the indictment so states the particulars as to make it appear that the offense charged was committed by the defendant, or that there is no ground for quashing the indictment, as the case may be.
. Rule 10(8) provides: “A pretrial motion shall be determined without unreasonable delay. Where factual issues are involved in determining a motion, the court shall state its essential findings on the record.”
. This court so held in
State v. Campbell,
. As defendant correctly points out, the instruction trial court submitted on suicide was improper for merely stating the issue of whether suicide constituted a defense. It is the court’s duty to instruct on the legal principles applicable to the issues as well.
See, e. g., State v. Jacoby,
. We do not here consider victims who may be deemed legally dead under § 702.8, Supplement to the Code 1977, or whose medical treatment is terminated pursuant to a right to privacy which outweighs the State’s interest in the preservation and sanctity of human life,
see In re Quinlan,
. A number of states have made intentionally aiding suicide a crime. E. g., Ark.Stat.Ann. § 41-1504(l)(b) (1977); Colo.Rev.Stat. § 13-3-104(l)(b) (1973); Conn.Gen.Stat. § 53a-56(a)(2) (1979); Fla.Stat. § 782.08 (1979); Kan. Stat. § 21-3406 (1974); Me.Rev.Stat. tit. 17-A, § 204(1) (Supp.1979); Minn.Stat.Ann. § 609.215 (West 1964); Mo.Rev.Stat. § 565.021 (1978); N.J.Stat.Ann. § 2c: 11-6 (West Supp. 1979). See also Model Penal Code § 210.5(2) (Proposed Official Draft 1962).
. There was some evidence in the record tending to prove the provocation necessary for voluntary manslaughter, see § 707.4, Supplement ■ to the Code 1977,
i.
e., that defendant was in love with Gloria and that she told him in the bar on the day of her death that she intended to break up with him. While the evidence as a whole was probably insufficient to support a guilty verdict of voluntary manslaughter, the instruction did not constitute prejudicial .error because defendant was ultimately convicted of the lesser offense of involuntary manslaughter.
State v. Sayles,
. As we conclude that the motions were correctly overruled, we need not address the issue of whether a motion for judgment of acquittal, or as defendant alternatively labeled it, a motion to dismiss, may ever be properly entertained at the conclusion of the State’s opening statement. We note that our rules do not specifically provide for such a motion at that time. See Iowa R.Crim.P. 10(4), 18(10).