W. H. Gilliam, of Gottschalk, Patterson & Gilliam, Waterloo, and Richard A. Knock, Cedar Falls, for appellant.
Richard C. Turner, Atty. Gen., J. Susan Carney, Asst. Atty. Gen., David Correll, County Atty., for appellee.
Considered by MOORE, C. J., and MASON, RAWLINGS, UHLENHOPP and REYNOLDSON, JJ.
Russell James Fitz was charged by county attorney's information with the crime of murder in violation of section 690.2, The Code. Trial to Webster County Jury upon change of venue resulted in a verdict convicting him of the crime charged. He appeals from judgment imposed upon that conviction sentencing him to life imprisonment at the state penitentiary in Fort Madison.
The facts giving rise to the filing of the information occurred June 6, 1974, when the strangled and sexually assaulted body of two-year old Shelly Day was found in the attic of the building in which defendant rented an apartment. Entrance to this attic could only be had through a trap door located in the ceiling of defendant's bathroom.
Shelly had been last seen alive at 4:55 p. m. when she was sitting on defendant's knee on the front steps of the building. At 5 o'clock Mrs. Day, Shelly's mother, left the rear entrance of the building intending to go to work and leave Shelly and her older brother, Roger, with their babysitter, a Mrs. Hilmer. She then discovered Shelly was missing. She searched the immediate vicinity but could not find her daughter.
Mrs. Day and Mrs. Hilmer then went upstairs to defendant's apartment. Mrs. Hilmer pounded on the locked door and screamed defendant's name several times. Upon receiving no response from within, they went around to the back door and repeated the pounding and screaming but once again they received no response. They then continued the search elsewhere.
At approximately 5:30 Mrs. Day returned to the front of the building and confronted
defendant who was then sitting on the steps. In response to her questions as to the whereabouts of her daughter, defendant stated he had put Shelly down and had gone up to his apartment to take a nap.
The search for Shelly then continued. By this time the search party consisted of both Mr. and Mrs. Day, several relatives and friends, and police officers. When the search failed to turn up any clue, the investigation turned back to defendant.
At approximately 9:55 two Waterloo police detectives, Penrose and Damon, who had spoken to defendant earlier, asked him to get into their car. They stated they had reason to believe he was involved in the child's disappearance. They advised defendant of his rights which he said he understood. At 10:00 they asked him if they could search his apartment. He agreed.
While detective Damon was searching defendant's bedroom, detective Penrose who was elsewhere discovered there was supposed to be an attic to the building. They asked defendant if he knew of it. He stated he did not have an attic and knew nothing about one. The detectives discovered the trap door to the attic in defendant's bathroom.
The detectives discovered smudges on the moulding of the frame around the trap door. These smudges appeared to have been made by fingers. The detectives then attempted to find something on which to climb into the attic. During this search they discovered defendant going down the front stairs. They asked him to return to the apartment. He complied with their request.
The detectives once again attempted to discover a way to climb into the attic. This time defendant exited by the back stairs and left the vicinity.
Detective Damon finally stood on a vanity and managed to move the trap door over to the side. He then discovered the body of Shelly Day. He called the police station and an identification officer and Lt. Kehoe, the detective supervisor, arrived on the scene shortly thereafter.
A search warrant was obtained for the remaining portion of the apartment. The ensuing search turned up a blood stained diaper in a drawer of defendant's dresser. The blood stains on the diaper were of human blood but it was impossible to determine the type of the blood.
Shelly had died between 4:30 and 5:00 of suffocation caused by strangulation with an electrical cord around the neck. She had been sexually assaulted but there was no evidence of semen.
The fingerprints on the moulding around the trap door compared favorably with defendant's but they could have been there for as long as three months. In the attic were found record album covers, one of which had on it the thumb print of defendant. Defendant had thrown the covers up into the attic sometime prior to the murder.
Shelly's clothing was analyzed by the Bureau of Criminal Investigation Crime Laboratory. There were fibers on her clothes similar to those found in defendant's bedspread. Other fibers found on her clothes matched those of defendant's bedroom carpet.
Defendant did not return to his apartment but was apprehended between 10:30 and 11:00 o'clock. The officer who apprehended him did not know Shelly's body had been found and had arrested defendant for intoxication. He was then taken to the police station.
At 12:00 or 1:00 a. m. defendant was taken for an interview with a psychiatrist who found him aware of the situation in which he found himself and found him to be well-oriented. This interview lasted one and one half to two hours.
Defendant was then taken to St. Francis Hospital for various tests. Between 3:00 and 4:15 a. m. he was questioned by Lt. Kehoe. Also present were the county attorney and a police sergeant. A tape recording was made of this interview.
Other facts will be presented when deemed necessary to a consideration of the problems presented by this appeal.
Defendant presents the following questions for review in his written brief and argument:
1. Does the mandatory life sentence imposed under section 690.2, The Code, 1973, violate the cruel and unusual punishment proscription of Amendment 8?
2. Did the trial court err in denying defendant's motion for directed verdict where the motion was posited on the contention defendant was not taken before a magistrate for arraignment without undue delay and was not given a preliminary examination to determine if probable cause existed to continue his incarceration?
3. Must a prosecutor withdraw from a case where he may be called as a witness for the defense?
4. Did the trial court err in refusing to admit evidence of an interview conducted after defendant's arrest?
5. Must a court dismiss a case or suppress evidence gathered by the prosecution from the scene of the crime where the defendant charges the prosecution with wrongfully denying him an opportunity to inspect the scene of the crime?
6. Was defendant denied due process of law where preparation of an 1185 page transcript of the proceedings was not completed for ten and one-half months?
I. Defendant contends section 690.2, The Code, 1973, is unconstitutional because its mandatory life sentence is violative of the Amendment 8 proscription against cruel and unusual punishment.
After defendant filed his brief and argument in this matter this court filed its opinion in State v. Fuhrmann, 261 N.W.2d 475 (Iowa 1978). In the cited case, 261 N.W.2d at 479, defendant asserted the mandatory sentencing requirements of section 690.2, The Code, were unconstitutional as applied to her " ' * * * in that the Iowa legislature oversteps its functions and authority in grouping a broad range of acts under one classification and pre-sentencing all persons convicted under the first-degree murder classification to the state's most severe penalty without regard for the specific facts and mitigating circumstances. Such a blind imposition of imprisonment for life at hard labor in the penitentiary is cruel and unusual punishment to all except those whose actions completely entail the highest sanctioned crime.' "
In determining this issue adversely to defendant's claim in the present case this court said at 261 N.W.2d 479-480:
"A state has wide latitude in fixing punishment for crimes. * * * (citing authority). Our legislature has the power and the responsibility to define crimes and prescribe punishment. * * * (citing authority). Life imprisonment for first-degree murder is not so disproportionate to the seriousness of the ...