Opinion
No. 4-289 / 03-0091
July 14, 2004
Appeal from the Iowa District Court for Black Hawk County, Jon C. Fister, Judge.
David Penwell appeals from his convictions for first-degree kidnapping, in violation of Iowa Code section 710.1 (2003), and assault with intent to cause serious injury, in violation of section 708.2. AFFIRMED.
Eric Parrish of Parrish, Kruidenier, Moss, Dunn, Boles, Gribble Cook, L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, and Thomas Ferguson, County Attorney, for appellee.
Heard by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
The defendant, David Penwell, appeals from his convictions for first-degree kidnapping, in violation of Iowa Code section 710.1 (2003), and assault with intent to cause serious injury, in violation of section 708.2. We affirm.
I. Background Facts and Proceedings.
A reasonable juror could have found the following facts from the record in this case. On the evening of March 13, 2001, Michelle Lynch was working at a convenience store in New Hampton when David Penwell entered with a stocking mask pulled over his face. Penwell brandished a gun and requested cash from the register. He then disabled Lynch's coworker by taping his wrists, ankles, and mouth while Lynch complied with the demand for money.
After receiving the cash, Penwell ordered Lynch to his van where he asked her if she knew where he could get a gun and a car. Because she knew her friends Rod and Deanna Ackerson owned a gun, Lynch suggested Penwell go to their home. As the van later pulled into the Ackersons' driveway, Penwell ordered Lynch to stay in the car. Penwell knocked on the front door, forced his way into the house, and engaged in a struggle with Mrs. Ackerson. When Mr. Ackerson entered the room, Penwell fled from the house and returned to the van. Penwell drove off with Lynch still in the backseat. At some point, he stopped the vehicle, forcibly took off Lynch's clothes, and attempted to force her to perform oral sex on him. However, she bit his penis. Sensing the opportunity, Lynch opened the car door and began running down the road. She eventually encountered a police officer who came to her aid.
Officer Jeremy Pohl of the Waterloo Police Department assisted in the subsequent search for Penwell. Shortly after 10:00 p.m., he found Penwell hiding in the cab of a semi at a truck stop and ordered him to exit the vehicle. Penwell responded by firing two shots at Pohl, who returned fire. After summoning assistance, Pohl noticed Penwell laying on the ground near the semi. Pohl approached Penwell who lunged up and attempted to grab Pohl's gun. Pohl eventually fired one shot into Penwell's abdomen and again called for assistance. Meanwhile Penwell entered Pohl's patrol car and attempted unsuccessfully to drive off before he was subdued by backup officers.
Based on this series of events, the State charged Penwell with first-degree kidnapping, second-degree sexual abuse, and attempted murder. Following a jury trial, Penwell was convicted of kidnapping, sexual abuse, and assault with intent to commit serious injury. The sentencing court merged the sexual abuse conviction with the kidnapping conviction and sentenced Penwell to life in prison on the kidnapping conviction and two years on the assault conviction. Penwell appeals, contending the district court (1) abused its discretion in denying his request to strike a prospective juror, (2) erred in refusing his request to give jury instructions on insanity and diminished responsibility, and (3) erred in failing in the jury instructions to identify second-degree sexual abuse as a lesser included offense of first-degree kidnapping.
II. Failure to Strike Juror for Cause.
During jury selection, one potential juror informed the court that when she was seventeen years old she had been stalked and molested. She admitted "I'm not sure if that would cloud my judgment, but that's my baggage." However, when asked by the prosecutor whether she had formed an opinion about Penwell's guilt or innocence, she responded:
Well obviously not. But I don't know — I mean I've never done a criminal trial so I've never had to — of course I don't like to talk about this episode in my life and, you know.
. . .
I mean I don't know — how I'll respond. I mean I'd like to hope that I'm as fair as I can possibly be.
Upon questioning from the court, the juror agreed she understood it was the State's job to prove Penwell guilty and that it was not her job to make up for any deficiency in the State's evidence. Upon further questioning by Penwell's counsel, the juror stated she could not "predict whether emotions would override [her] intellect," and admitted it was hard to "compartmentalize" the issue of her previous abuse.
Penwell's counsel moved to strike the juror for cause. The court concluded the juror had not "demonstrated any bias toward this particular defendant," and denied the request. The court, however, noted the lawyers might choose to strike her later "just out of caution."
On appeal, Penwell maintains the court abused its discretion in denying his request to remove the juror from the panel for cause. In particular, he claims the juror should have been discharged pursuant to Iowa Rule of Criminal Procedure 2.18(5)( m) (stating that a challenge for cause may be made "[b]ecause the juror is a defendant in a similar indictment, or complainant against the defendant or any other person indicted for a similar offense"). The State asserts Penwell failed to preserve error on the issue by stating a specific ground for the juror's disqualification for cause. See State v. LeCompte, 327 N.W.2d 221, 223 (Iowa 1982) (stating an objection must be sufficiently specific to alert the trial court to the basis for the complaint so that if error does exist the court may correct it). Contrary to the State's position, we conclude Penwell preserved this issue for appellate review. The relevant portion of the transcript reveals the unmistakable basis of defense counsel's motion to strike the juror for cause. Although he did not cite the number of the rule, the ground for the challenge of the juror was clearly the alleged similarity of a traumatic life experience and the prospect that it might affect the juror's ability to be fair and impartial in this case.
In ruling on a challenge for cause, the district court is vested with broad discretion. State v. Hardin, 498 N.W.2d 677, 681 (Iowa 1993). To prevail on this claim, Penwell must show (1) an error in the court's ruling on the challenge for cause; and (2) either (a) the challenged juror served on the jury, or (b) the remaining jury was biased as a result of the defendant's use of all of the peremptory challenges. State v. Neuendorf, 509 N.W.2d 743, 747 (Iowa 1993). We are unable to discern whether the juror's history of being "stalked and molested" conclusively rendered her unsuitable for service in this case. We find insufficient detail in this record to conclude as a matter of law that the incident reported by the juror was a "similar offense" to the one charged against Penwell. Moreover, without more information detailing the incident reported by the juror and its impact upon her, we are unable to conclude she was disqualified as a matter of law from serving in this case. Although Penwell's challenge to the juror was not based upon rule 2.18(5)( k) we note the juror denied that she had formed an opinion about Penwell's guilt or innocence. She also affirmed she would endeavor to be fair and acknowledged it was the State's burden to prove guilt. We conclude the trial court did not abuse its discretion in refusing to strike the juror under rule 2.18(5)( m).
This rule allows a challenge for cause against those jurors who have "formed or expressed an opinion as to the guilt or innocence of the defendant as would prevent the juror from rendering a true verdict upon the evidence submitted on the trial."
III. Insanity and Diminished Responsibility.
Penwell next alleges "the court erred and denied defendant his federally and state protected right to a fair trial when it refused to submit jury instructions on the issues of insanity and diminished responsibility." A trial court is obligated to instruct fully on the law applicable to jury issues. See State v. Templeton, 258 N.W.2d 380, 382 (Iowa 1977). Our review of claims of error with respect to jury instructions is for the correction of errors at law. Herbst v. State, 616 N.W.2d 582, 585 (Iowa 2000).
The defense of insanity is detailed in Iowa Code section 701.4:
A person shall not be convicted of a crime if at the time the crime is committed the person suffers from such a disease or deranged condition of the mind as to render the person incapable of knowing the nature and quality of the act the person is committing or incapable of distinguishing between right and wrong in relation to that act. Insanity need not exist for any specific length of time before or after the commission of the alleged criminal act.
A diminished capacity defense requires evidence that the defendant was incapable of forming the intent which must be established to support a conviction of the crime charged. State v. Hickman, 337 N.W.2d 512, 517 (Iowa 1983). A jury must be instructed on diminished responsibility when substantial evidence supporting the claim is present. State v. Griffin, 389 N.W.2d 858, 861 (Iowa Ct.App. 1986). Likewise, a jury must be instructed on insanity when it is drawn in issue and substantial evidence supports it. Hickman, 337 N.W.2d at 517.
Penwell asserts the district court erred when it applied a "beyond a reasonable doubt" standard in determining the quantum of proof necessary to support the requested instructions. As the State correctly notes, the district court found Penwell had presented no evidence of his insanity or diminished responsibility at the time of the events which formed the bases of the charges. See Iowa Code § 701.4 (noting insanity must be established as of the time the crime was committed). Moreover, the cases cited by the district court in its ruling indicate it was aware of the proper standard and current state of the law.
Penwell's expert witness, Dr. Jaswand Khokhar, testified that at the time of his first consultation eleven days after the incident, Penwell suffered from a "bipolar illness with psychotic features." However, the expert did not opine that as of the date of the events in question, March 13, Penwell was exhibiting symptons of that mental illness, was incapable of forming specific intent, or "suffer[ed] from such a disease or deranged condition of the mind as to render [him] incapable of knowing the nature and quality of the act the [he was] committing or incapable of distinguishing between right and wrong in relation to that act." Iowa Code § 701.4. Nor did the testimony of Dr. Michael Taylor, the State's expert witness, provide any support for the requested instructions. In fact, Dr. Taylor testified that on March 13, Penwell was able to understand the nature and quality of his acts and that he was capable of forming specific intent. He gave a thorough explanation of the bases for that conclusion. For example, he found significant that Penwell instructed the victims not to look at him and wore a black stocking cap over his face to inhibit identification. During the incident, Penwell expressed to Lynch his dissatisfaction with the amount of money stolen from the convenience store and stated his desire to locate a vehicle and a gun. Penwell also commented to Lynch that he was "going away" as a consequence of his behavior, indicating awareness that he was engaged in criminal conduct. According to Dr. Taylor, this and other evidence illustrated Penwell's purposeful behavior and planning.
Having found no support for Penwell's position in the expert testimony, we must determine whether other parts of the record engendered jury questions on the claimed defenses. After a careful review of the record, we conclude the record does not contain substantial evidence from which a jury could determine Penwell was insane or exhibited a diminished responsibility under Iowa law. The trial court was therefore correct in refusing to instruct the jury on these issues. Moreover, we find no support in the record for Penwell's assertion that the district court failed to apply the proper "substantial evidence" standard.
IV. Jury Instructions.
Finally, Penwell urges that the district court erred in failing to instruct the jury that second-degree sexual abuse is a lesser included offense of first-degree kidnapping. Specifically, he contends this "confused the jury as to the current state of the law" and "denied his federally and state protected right to a fair trial."
Because this issue was not raised as a constitutional matter below, we do not review it as such on appeal. See State v. Washington, 257 N.W.2d 890, 895 (Iowa 1977) (noting matters not raised in trial court, including constitutional questions, may not be asserted for the first time on appeal). Rather, we review the claim for correction of errors at law. See Herbst, 616 N.W.2d at 585.
As the State properly concedes, second-degree sexual abuse is a lesser included offense of first-degree kidnapping. See State v. Mitchell, 450 N.W.2d 828, 831 (Iowa 1990). However, we conclude the jury instructions created no reversible error because Penwell was not prejudiced by the court's separate instructions on the two offenses. After the jury returned guilty verdicts on both counts, the sentencing court merged the offenses and sentenced Penwell only on the kidnapping conviction. See State v. Hilleshiem, 305 N.W.2d 710, 717-718 (Iowa 1981) (stating that when a defendant is convicted of a greater offense, he usually cannot complain of the fact the jury was also permitted to consider his guilt of a lesser offense).