Charles L. Harrington, Appellate Defender, and Linda Del Gallo, Asst. Appellate Defender, Des Moines, for appellant.
Thomas J. Miller, Atty. Gen., Steven M. Foritano, Asst. Atty. Gen., and David H. Correll, Black Hawk County Atty., for appellee.
Considered en banc.
Defendant appeals his convictions of first degree murder of two Waterloo policemen. He assigns two errors: (1) there was insufficient evidence to support submitting certain jury instructions; and (2) the trial court should have suppressed defendant's inculpatory testimony, given at the separate trial of an accomplice. We affirm the trial court.
Shortly before midnight on July 12, 1981, Waterloo police officers Michael Hoing and Wayne Rice, in response to a complaint about loud music, stopped at the home of defendant Joseph Phams. A number of people were on the front porch of the house listening to music and drinking beer. Defendant was apparently inside the house lying on a couch in the living room.
After the music was turned off, the officers left the front yard area and returned to their squad car. Angered by the police intrusion, James Taylor, Thomas Ketchens, and Phams' brothers, Howard and Johnny,
began yelling and cursing at the officers. Both officers returned to where Johnny Phams was seated on the front porch steps and placed him under arrest for disturbing the peace. Johnny Phams protested the arrest and began struggling with officer Hoing. Defendant then burst through the front door, knocked officer Rice to the ground, and began struggling with him. Sometime during the struggle defendant got up and began hitting Rice on the head with a chair.
James Taylor, who had been standing near a car by the porch, ran to where officer Rice and defendant were struggling on the ground. Taylor struck Rice several times with his fist and, after two or three attempts, removed Rice's gun from its holster. While Taylor was attempting to remove the gun, Rice was struggling and wiggling his hips, but apparently defendant had him pinned. When Taylor got possession of the gun he yelled "move." Defendant rolled off Rice and Taylor fired two fatal shots into Rice's chest. Taylor then ran to where officer Hoing was still struggling with Johnny Phams, and fatally shot that officer.
Defendant was arrested and given the Miranda warnings shortly after the shooting. He said he understood his rights and requested an attorney. As he was taken past the two slain officers defendant looked at them and smiled. The officer who transported Phams to the police station testified:
When I first entered my vehicle he [defendant] was sitting in the right rear of the patrol car. He then looked at me, spit at the plexiglass and stated "I am glad the motherfucking pigs are dead." He then said "I am glad the motherfucking honky pigs are dead" and spit one more time.
At the station defendant continued to smile and laugh about the events of that evening. He kept repeating statements to the effect that, because he did not pull the trigger, the police could not do anything to him, and "it ain't no big deal."
Prior to defendant's trial, Taylor was tried for the shooting of the officers.  Defendant, who was then charged with involuntary manslaughter, was subpoenaed to testify in Taylor's defense. Phams' appointed attorney filed a petition for a writ of habeas corpus which stated defendant would exercise his fifth amendment right against self-incrimination if questioned about the shooting. But defendant rejected the services of this attorney, persisted in testifying, and later rejected the services of other attorneys.
On the day defendant was taken to the Taylor trial one of these attorneys specifically told him that he "had the ability to stop his even being transported" and advised him not to go. Nevertheless defendant told the attorney he wanted to testify and rejected his services.
By his own choice, then, defendant was not represented by an attorney during the Taylor trial. Immediately prior to his testimony there, defendant was fully informed of his rights by the presiding judge. Defendant stated he understood his rights and wanted to testify. The judge again reminded defendant during the State's cross-examination that he was not required to answer any questions.
Defendant admitted at the Taylor trial that he had hit officer Rice on the head with a chair. He also testified of matters that are now said to have been delusions: that an actor disguised as Taylor shot the officers; that Taylor was not there; and that the officers were actors shot while playing a game with people who had surrounded his house in order to kill Phams.
Defendant was subsequently charged with two counts of first degree murder. Prior to and during his trial defendant sought to suppress his Taylor trial testimony on the ground those statements were involuntary. He claims he was not in such a state of mind that he could knowingly and intelligently waive his fifth amendment privilege.
He also objected at his trial that the record did not support submission of first and second degree murder, manslaughter and willful injury instructions to the jury. This contention was renewed in a motion for new trial in which defendant asserted the jury verdict was contrary to the evidence.
The scope of our review was explained in State v. Cullison, 227 N.W.2d 121, 126 (Iowa 1975). We review the challenge to the sufficiency of the evidence on assigned error. Our review of the trial court order overruling the motion to suppress is de novo.
I. The trial court instructed the jury it could find defendant guilty of first degree murder in the death of officer Rice on alternative grounds: felony murder or willful, premeditated, and deliberate murder. The felony implicated in the felony murder charge was willful injury. In the death of officer Hoing the jury was instructed only on willful, premeditated, and deliberate murder.
To demonstrate felony murder the State undertook to show that Phams participated in the felony offense of willful injury and that while doing so Taylor aided and abetted Phams and, with malice aforethought, shot Rice. The State's theory was that defendant committed the offense of willful injury by striking and injuring Rice with a metal chair, that Taylor aided and abetted Phams by joining the struggle with Rice, and that Taylor's murder of Rice was causally related to Phams' offense of willful injury. Defendant argues the evidence fell short in four respects.
A. Participation in an offense.
Defendant first contends there was conflicting and insufficient evidence to show he struck Rice with a chair or that the chair caused Rice's head injuries. Apparently there was no blood found on defendant and no identifiable fingerprints were found on the chair.
There was, however, ample evidence of participation. Defendant admitted at the Taylor trial that he struck Rice with a chair. There was expert testimony that Rice's head wounds would be the type of wounds caused by the metal chair found near Rice's body. There was other expert testimony that blood patterns on the chair were consistent with the blow that would have been sustained by Rice. A blood smear on the chair measured approximately the same length as the laceration on Rice's head. Finally, eye witness testimony from a person across the street indicated that the person who knocked Rice off the porch also hit him with the chair.
B. Willful injury.
Willful injury is committed when one does an act which is not justified and which is intended to cause and does cause serious injury to another. Iowa Code § 708.4 (1981). "Serious injury" is a disabling mental illness, or bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Iowa Code § 702.18.
The State need not prove that the offense of willful injury was successfully completed. Under felony murder it is only required that the State prove defendant was participating in the underlying felony. State v. Aswegan,331 N.W.2d 93, 98 (Iowa 1983). See Iowa Code § 702.13 (person "participates" in public ...