State of Iowa v. Lamar Cheyeene Wilson ( 2020 )

IN THE SUPREME COURT OF IOWA
No. 18–0564
Filed April 10, 2020
STATE OF IOWA,
Appellee,
vs.
LAMAR CHEYEENE WILSON,
Appellant.
Appeal from the Iowa District Court for Johnson County, Paul D.
Miller, Judge.
A defendant appeals his convictions, arguing that the district court
should have conducted a pretrial hearing on immunity under Iowa Code
section 704.13 and also raising other issues. AFFIRMED.
Melinda J. Nye, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant
Attorney General, Janet M. Lyness, County Attorney, Rachel Zimmerman-
Smith, Assistant County Attorney, for appellee.
2
MANSFIELD, Justice.
I. Introduction.
This case is our attempt to resolve another open question under the
2017 “stand your ground” legislation. See 2017 Iowa Acts ch. 69, §§ 37–
44 (codified at Iowa Code §§ 704.1–.3, .7, .13 (2018); id. § 707.6). A bitter
dispute between two groups resulted in an individual from one group
pulling out his handgun and firing five shots on a busy pedestrian mall in
Iowa City. The shots killed one person from the other group and left two
others seriously injured. The individual was charged with one count of
murder and two counts of attempted murder. Following a jury trial, where
his principal defense was justification, the individual was acquitted of the
most serious charges and convicted of the lesser included offenses of
voluntary manslaughter (one count) and assault with intent to cause
serious injury (two counts).
On appeal, the defendant argues that Iowa Code section 704.13
entitled him to a pretrial evidentiary hearing where he could have
presented his justification defense and been vindicated without need for a
trial. See Iowa Code § 704.13. We conclude, however, that the 2017
legislation does not require pretrial hearings. Significantly, section 704.13
provides an immunity from “liability,” id., not an immunity from
“prosecution” as in some other states with stand-your-ground laws. We
also conclude that the defendant’s other challenges to his convictions and
sentence are without merit. Accordingly, we affirm the judgment below.
II. Background Facts and Proceedings.
At approximately 1:15 a.m. on Sunday, August 27, 2017, a feud
between two rival groups culminated in the fatal shooting of Kaleek Jones
on the pedestrian mall in downtown Iowa City. One group was from Iowa
City; the other was from Cedar Rapids.
3
Earlier that day, Daquan “Cutthroat” Jefferson, part of the Iowa City
group, had been killed in a car accident following a police chase. News of
his passing reached Donte Taylor, a member of the Cedar Rapids group
that held deep-seated animosity toward Jefferson. Taylor accordingly
posted his satisfaction with the news of Jefferson’s untimely death on
Facebook. This led to an online argument between Taylor and Jefferson’s
family.
That afternoon, friends and family of Jefferson paid tribute to him
at the Iowa City home of Lamar Wilson, the defendant. Meanwhile,
members of the Cedar Rapids group gathered in their hometown to watch
a pay-per-view boxing match. When the match was over, the group—
consisting of Taylor, Maxwell Woods, Xavier Hicks, D’Andre Hicks, Jones,
and two others—drove to Iowa City and decided to go to the pedestrian
mall. Taylor, Woods, and one other member of the group had firearms.
Jefferson’s friends and family—including the defendant—were now
gathered at the pedestrian mall as well. The defendant had a handgun in
his jacket, for which he had a permit. Several women from that Iowa City
group approached the Cedar Rapids group. They were upset and asked if
anyone in the Cedar Rapids group had said “f*** Cutthroat” on Facebook.
No one in the Cedar Rapids group admitted to doing so.
Jones, however, spoke with the women and seemed to calm them
down. After he gave them a hug, the women returned to the rest of the
Iowa City group on the other side of the pedestrian mall.
Shortly thereafter, the Cedar Rapids group walked back through the
breezeway of the pedestrian mall and crossed paths with the Iowa City
group. The defendant asked several members of the Cedar Rapids group
if they had said “f*** Cutthroat.” Suddenly, the defendant pulled his gun
4
and fired five times into the group from Cedar Rapids as the members of
that group started running.
Each of the defendant’s shots struck someone. D’Andre Hicks was
shot three times, twice in the leg and once in the abdomen. Xavier Hicks
was shot once in the chest. Both of them survived. Jones, however, was
not so fortunate. He was shot once in the back with the bullet lodging in
his spinal cord at the base of his skull. Several days later, he died in the
hospital. None of the three victims were armed.
The defendant was promptly apprehended by Iowa City police
officers, and his handgun was retrieved from the ground near him. Wilson
reported to the officers that he pulled out his gun and discharged it only
after observing one member of the Cedar Rapids group flash a gun. Yet
Wilson admitted that the members of the Cedar Rapids group did not
verbally threaten him, but rather “subliminally” threatened him. Wilson
also admitted to firing the first shots, claiming he did so because he felt
threatened.
Taylor, the person whom Wilson claimed to have seen flashing a gun,
later testified he drew his gun only after Wilson pulled out his own gun. It
is undisputed that Taylor never fired his gun.
Wilson also told police he had seen D’Andre Hicks with his hand in
his pocket on a gun, but no trial witness supported Wilson’s claim that
D’Andre Hicks actually had a gun. When D’Andre Hicks was found on the
ground near the scene of the shooting after having collapsed from his
wounds, he was unarmed.
One member of the Cedar Rapids group, Woods, fired his gun twice
while running away from the defendant. He fired “up high,” however, and
neither of his shots hit anyone.
5
On September 7, Wilson was charged by trial information in the
Iowa District Court for Johnson County with one count of murder in the
first degree, two counts of attempted murder, and three counts of
intimidation with a dangerous weapon. See Iowa Code §§ 707.1, .2(1)(a)–
(b), .11(1)–(2); id. § 708.6. The State later amended the trial information,
withdrawing two of the intimidation counts and adding one count of gang
participation. See id. § 723A.2.1
On September 18, Wilson filed a notice of the affirmative defenses of
“Self-Defense, Defense of others, Defense against a forcible felony, Defense
of property, and the right to ‘stand your ground.’ ”
On October 20, Wilson filed a notice of statutory immunity and a
motion to dismiss the case based on Iowa Code section 704.13.2 The
motion stated, “[H]aving acted reasonably and with justification to repel
deadly force with like force, Defendant requests this Honorable Court
GRANT Lamar Wilson’s demand for immunity and dismiss this matter with
prejudice because there is no crime perpetrated by him at all.”
On November 2, the court held a hearing, in part, on whether to
permit a pretrial hearing on Wilson’s request for immunity and motion to
dismiss. Both parties agreed that if there was a pretrial hearing, it would
involve testimony from most of the trial witnesses. The State, however,
maintained that section 704.13 did not contemplate a separate pretrial
hearing.
1The gang participation charge was later severed and is not part of these
proceedings.
2Iowa Code section 704.13 provides,
A person who is justified in using reasonable force against an
aggressor in defense of oneself, another person, or property pursuant to
section 704.4 is immune from criminal or civil liability for all damages
incurred by the aggressor pursuant to the application of reasonable force.
6
On November 3, the district court denied Wilson’s motion to dismiss,
ruling that “the case shall proceed to a jury trial, and the Court will
postpone its ruling on Defendant’s Motion to Dismiss until the jury has
returned its verdict.” In other words, the issue of immunity would be
decided at the conclusion of the trial based on the “court’s interpretation
and consideration of the evidence,” allowing a jury verdict to be reached
while still allowing the court to “issue its own ruling” on Wilson’s
immunity.
Venue for trial purposes was changed to Polk County. On
January 19, 2018, Wilson filed a motion pursuant to State v. Plain, 898
N.W.2d 801 (Iowa 2017). Specifically, Wilson raised the
underrepresentation of African-Americans and Hispanics in recent Polk
County jury pools and asked the court to take “remedial actions . . . to
ensure that the jury pool in this case is adequately representative of racial
minorities.” In an addendum filed January 21, Wilson proposed that if the
panel of 100 jurors allocated to his case underrepresented racial
minorities, “the court should randomly select white jurors to be removed
from the panel of 100 and replaced with randomly selected black and
Hispanic jurors from [the rest of the jury pool].”
On January 22, the district court held a hearing on Wilson’s Plain
motion. The district court expressed concern that Wilson’s proposed
remedy might amount to “gerrymandering the pool.” The parties
acknowledged that the panel of 100 jurors assigned to this case included
three who self-identified as African-American and four as Hispanic. The
court denied Wilson’s motion, finding no evidence presented of systemic
exclusion.3
3The fifteen jurors who ultimately heard the case included one African-American.
Three of those jurors were excused before deliberations; it is not clear whether the
7
The presentation of evidence began on January 25. Wilson did not
testify or otherwise put on a defense. The district court’s marshaling
instructions for each offense required the State to prove beyond a
reasonable doubt that “[t]he defendant did not act with justification.” Four
other instructions—numbers 40 through 43—explained the meaning of
justification. During deliberations, the jury submitted one question:
“What is the rule for stand your ground? Does it apply to this case. If so,
what does it stand for?” The court responded in writing, “The applicable
law regarding justification (self-defense) is incorporated in Jury
Instruction Nos. 40, 41, 42, and 43. Please re-read these instructions
carefully.”
The jury found Wilson guilty of one count of voluntary
manslaughter, a lesser included offense of first-degree murder, see Iowa
Code § 707.4; two counts of assault with intent to cause serious injury, a
lesser included offense of attempted murder, see id. § 708.2(1); and one
count of intimidation with a dangerous weapon, see id. § 708.6.
Following trial, as ordered by the district court, the parties
submitted summaries of trial witness testimony so the court could rule on
the defendant’s Iowa Code section 704.13 immunity motion. In addition,
the court allowed the defendant to submit deposition testimony from
Wilson’s sister and his girlfriend, two eyewitnesses who had not testified
at trial.
After reviewing this record, the district court denied Wilson’s request
for statutory immunity. The court ruled,
African-American juror was among those excused. Additionally, the defendant exercised
a peremptory strike on an African-American juror.
8
Defendant has not proven, by a preponderance of the
evidence, that he is entitled to the protection of immunity, as
set forth in § 704.13.
The Court first finds that the evidence that has been
presented at trial and the offers of proof [i.e., the deposition
testimony] do not support a conclusion that Defendant was
justified in the force he used in this incident, or that the force
he used was reasonable force.
The undisputed evidence and testimony presented at
trial and through the offers of proof clearly establish[] that
Defendant indiscriminately discharged a dangerous weapon
. . . five times into a crowd or assembly of people on the busy
and crowded downtown Iowa City pedestrian mall (first
weekend that college students returned for U of I fall semester)
striking three unarmed individuals, including Kaleek Jones,
who was shot in the back and subsequently died from his
gunshot wounds.
The court went on to conclude, however, that section 704.13 was
“void for vagueness.” The court noted that the statute “does not set forth
a legal procedure, one that is known to both prosecutors and defense
attorneys, by which the right to immunity is protected.”
On March 30, Wilson was sentenced consecutively to ten years in
prison for voluntary manslaughter, two two-year terms for the assaults,
and ten years in prison for intimidation with a dangerous weapon. Iowa
Code § 902.9(1)(d)–(e); id. § 903.1(2). Wilson was also ordered to pay fines,
surcharges, costs, and restitution. Id. § 902.9(1)(d); id. § 911.1(1). The
district court also imposed a mandatory minimum of five years on the
intimidation count pursuant to Iowa Code section 902.7 and the jury’s
finding that Wilson used a dangerous weapon to commit the offense.
Wilson appealed, raising six issues. First, Wilson contends he was
entitled to a pretrial immunity hearing under Iowa Code section 704.13.
Second, Wilson maintains the trial evidence was insufficient to support a
jury verdict that he acted without justification. Third, Wilson argues the
district court abused its discretion in denying a new trial because the
9
court’s ruling indicates the State failed to establish the intent elements of
voluntary manslaughter and assault with intent to cause serious injury.
Fourth, Wilson contends the district court erred in concluding posttrial
that he was not entitled to immunity. Fifth, Wilson insists the district
court erred in denying his Plain motion for remedial measures to ensure
the jury was comprised of a fair cross section of the community. Finally,
Wilson claims the district court erred in considering the sentencing
recommendation of the Iowa Department of Corrections as set forth in the
presentence investigation (PSI) report. We retained the appeal.
III. Standard of Review.
Questions of statutory interpretation are reviewed for correction of
errors at law. State v. Coleman, 907 N.W.2d 124, 134 (Iowa 2018).
“In evaluating sufficiency-of-evidence claims, we will uphold a
verdict if substantial evidence supports it.” State v. Trane, 934 N.W.2d
447, 455 (Iowa 2019). “Evidence is considered substantial if, when viewed
in the light most favorable to the State, it can convince a rational jury that
the defendant is guilty beyond a reasonable doubt.” Id. (quoting State v.
Ramirez, 895 N.W.2d 884, 890 (Iowa 2017)). “We review for abuse of
discretion a ruling denying a motion for a new trial on grounds the verdict
is against the weight of the evidence.” State v. Heard, 934 N.W.2d 433,
439 (Iowa 2019).
“We review constitutional issues de novo.” Plain, 898 N.W.2d at 810.
“We apply an abuse of discretion standard when the sentence challenged
was within the statutory limits.” State v. Headley, 926 N.W.2d 545, 549
(Iowa 2019).
10
IV. Discussion.
A. Does Iowa Code Section 704.13 Contemplate a Pretrial
Hearing? We first address Wilson’s contention that the district court
should have determined his immunity from prosecution before trial.
During the 2017 session, the general assembly enacted stand-your-
ground legislation—H.F. 517—that made a series of changes to the
existing law on justification. H.F. 517, 87th G.A., 1st Sess. (Iowa 2017).
See generally 2017 Iowa Acts ch. 69, §§ 37–44. Among other things, the
legislation narrowed the “duty to retreat,” by providing that “[a] person who
is not engaged in illegal activity has no duty to retreat from any place where
the person is lawfully present before using force as specified in this
chapter.” 2017 Iowa Acts ch. 69, § 37 (codified at Iowa Code § 704.1(3)).
Also, the law set forth two specific situations where “a person is presumed
to reasonably believe that deadly force is necessary.” Id. § 39 (codified at
Iowa Code § 704.2A(1)). In addition, the law placed certain affirmative
duties on a person who uses deadly force. Id. § 40 (codified at Iowa Code
§ 704.2B). Further, the law strengthened an existing statute that barred
persons who used reasonable force against an aggressor from being held
civilly liable. Id. § 44 (amending Iowa Code § 707.6).
Pertinent here is the following new “immunity” provision added by
H.F. 517:
704.13. Immunity.
A person who is justified in using reasonable force
against an aggressor in defense of oneself, another person, or
property pursuant to section 704.4 is immune from criminal
or civil liability for all damages incurred by the aggressor
pursuant to the application of reasonable force.
Id. § 43 (codified at Iowa Code § 704.13).
11
Wilson maintains that this new section requires a pretrial
determination of immunity. Without that, the section would be
superfluous because other law already relieves persons who are justified
in using reasonable force against an aggressor from civil and criminal
liability. See Iowa Code §§ 704.3–.5; id. § 707.6. The State responds that
section 704.13 does not say anything about a pretrial hearing. See id.
§ 704.13. Also, by its terms, it only provides for immunity from “liability,”
not immunity from prosecution.
1. Stand-your-ground immunity in other states. One reason to favor
the State’s interpretation is the example set by other states, which was in
the background when our general assembly passed H.F. 517 in 2017. See
Iowa Code § 4.6(2) (“If a statute is ambiguous, the court, in determining
the intention of the legislature, may consider . . . [t]he circumstances
under which the statute was enacted.”). A number of other states have
enacted stand-your-ground immunity laws. Some provide for immunity
from “prosecution.”4
4See Ala. Code § 13A-3-23(d)(1) (Westlaw through Act 2020-38) (“A person who
uses force, including deadly physical force, as justified and permitted in this section is
immune from criminal prosecution and civil action for the use of such force, unless the
force was determined to be unlawful.”); Fla. Stat. Ann. § 776.032(1) (West, Westlaw
through 2020 2d Reg. Sess. of 26th Leg.) (“A person who uses or threatens to use force
as permitted . . . is justified in such conduct and is immune from criminal prosecution
and civil action for the use or threatened use of such force by the person, personal
representative, or heirs of the person against whom the force was used or threatened . . . .
[The] term ‘criminal prosecution’ includes arresting, detaining in custody, and charging
or prosecuting the defendant.”); Ga. Code Ann. § 16-3-24.2 (West, Westlaw through Laws
2020, Act 322) (“A person who uses threats or force in accordance with [the law] shall be
immune from criminal prosecution therefor unless in the use of deadly force, such person
utilizes a weapon the carrying or possession of which is unlawful by such person . . . .”);
Kan. Stat. Ann. § 21-5231 (West, Westlaw through 2020 Reg. Sess.) (“A person who uses
force which . . . is justified . . . is immune from criminal prosecution and civil action for
the use of such force . . . . ‘[C]riminal prosecution’ includes arrest, detention in custody
and charging or prosecution of the defendant. . . . A prosecutor may commence a criminal
prosecution upon a determination of probable cause.”); Ky. Rev. Stat. Ann. § 503.085
(West, Westlaw through 2019 Reg. Sess.) (“A person who uses force as permitted . . . is
justified in using such force and is immune from criminal prosecution and civil action for
the use of such force . . . . [T]he term ‘criminal prosecution’ includes arresting, detaining
12
These laws have generally been interpreted as giving the defendant
the right to a pretrial immunity hearing. “[W]e conclude that the plain
language of section 776.032 grants defendants a substantive right to
assert immunity from prosecution and to avoid being subjected to a trial.”
Dennis v. State, 51 So. 3d 456, 462 (Fla. 2010).
[B]y using the phrase “immune from criminal prosecution” in
§ 13A–3–23(d), the legislature intended to exempt from trial
an accused who uses force as justified in § 13A–3–23, unless
the accused’s conduct is “determined to be unlawful.” When
read together, those phrases lead to the conclusion that a
determination must be made, prior to the commencement of
trial, as to whether a defendant’s conduct was justified or
whether it was unlawful. The only available mechanism for
such a determination is a pretrial hearing.
Harrison v. State, 203 So. 3d 126, 130 (Ala. Crim. App. 2015).
[A]s the statute provides that such person “shall be immune
from criminal prosecution,” the decision as to whether a
person is immune under OCGA § 16–3–24.2 must be
determined by the trial court [as a matter of law] before the
trial of that person commences.
Fair v. State, 664 S.E.2d 227, 230 (Ga. 2008) (quoting Boggs v. State, 581
S.E.2d 722, 723 (Ga. Ct. App. 2003)).
A true immunity—and we are convinced by the language used
by the legislature . . . that the statute does confer a true
immunity—carries with it the necessity of a procedural
gatekeeping function, typically exercised by a detached
magistrate, who will prevent certain cases from ever getting to
a trial and a jury.
State v. Hardy, 390 P.3d 30, 38 (Kan. 2017).
in custody, and charging or prosecuting the defendant.”); Okla. Stat. Ann. tit. 21,
§ 1289.25(F) (West, Westlaw through ch. 4 of 2d Reg. Sess. of 57th Leg.) (“A person who
uses defensive force, as permitted . . . , is justified in using such defensive force and is
immune from criminal prosecution and civil action for the use of such defensive force. . . .
[T]he term ‘criminal prosecution’ includes charging or prosecuting the defendant.”); S.C.
Code Ann. § 16-11-450(A) (Westlaw through 2020 Act No. 115) (“A person who uses
deadly force as permitted . . . is justified in using deadly force and is immune from
criminal prosecution and civil action for the use of deadly force . . . .”).
13
When criminal charges are filed, the only way courts
can truly determine whether a defendant is immune from
prosecution under the Stand Your Ground law is for the State
to present evidence showing all of the facts and circumstances
regarding the commission of the alleged crime; and then for
the defendant to present evidence showing why, under all the
facts and circumstances of the case, the defendant’s use of
force was reasonable and justified under the Stand Your
Ground law. . . .
. . . Trial courts should continue to use motion hearings
and preliminary examination proceedings to address
arguments and precepts concerning Stand Your Ground
immunity from prosecution.
McNeely v. State, 422 P.3d 1272, 1275–76 (Okla. Crim. App. 2018).
[W]e find that, by using the words “immune from criminal
prosecution,” the legislature intended to create a true
immunity, and not simply an affirmative defense. . . .
Immunity under the Act is therefore a bar to prosecution and,
upon motion of either party, must be decided prior to trial.
State v. Duncan, 709 S.E.2d 662, 665 (S.C. 2011).
In at least one state where the law provides for immunity from
prosecution, the highest court has held that the defendant is not entitled
to a pretrial hearing as a matter of right. While trial courts in Kentucky
may hold pretrial evidentiary hearings on immunity claims, the Supreme
Court of Kentucky has stated “that a defendant claiming self-defense
immunity has no right to an evidentiary hearing with subpoenaed
witnesses, and that the determination of probable cause can, and should,
be made by the trial court on the evidence of record.” Commonwealth v.
Eckerle, 470 S.W.3d 712, 724 (Ky. 2015).
Other state laws, similar to Iowa’s, do not afford immunity from
criminal prosecution. In North Carolina, the statute uses the phrase
“immune from civil or criminal liability.” N.C. Gen. Stat. Ann. § 14-51.3(b)
(West, Westlaw through 2019 Reg. Sess.). To date, the North Carolina
appellate courts have not approved of pretrial hearings and have indicated
14
that “[i]t is the jury, not the trial court, which must determine the
reasonableness of the defendant’s belief under the circumstances.” State
v. Corbett, ___ S.E.2d ___, ___, 2020 WL 542918, at *34 (N.C. Ct. App.
Feb. 4, 2020). It should be noted that many of these other states only
afford immunity from civil liability.5 In any event, Iowa did not opt for the
5See Idaho Code Ann. § 6-808(1) (West, Westlaw through ch. 222 of 2020 2d Reg.
Sess. of 65th Leg.) (“A person who uses force as justified . . . , or as otherwise permitted
. . . , is immune from any civil liability for the use of such force . . . .”); La. Stat. Ann.
§ 9:2800.19(A) (Westlaw through 2019 Reg. Sess.) (“A person who uses reasonable and
apparently necessary or deadly force or violence for the purpose of preventing a forcible
offense against the person or his property . . . is immune from civil action for the use of
reasonable and apparently necessary or deadly force or violence.”); Mich. Comp. Laws
Ann. § 600.2922b (West, Westlaw through P.A.2020, No. 67, of 2020 Reg. Sess.) (“An
individual who uses deadly force or force other than deadly force in self-defense or in
defense of another individual in compliance with section 2 of the self-defense act is
immune from civil liability for damages caused . . . .” (Footnote omitted.)); N.H. Rev. Stat.
Ann. § 627:1–a (Westlaw through ch. 7 of 2020 Reg. Sess.) (“A person who uses force in
self-protection or in the protection of other persons . . . , in the protection of premises
and property . . . , in law enforcement . . . , or in the care or welfare of a minor . . . is
justified in using such force and shall be immune from civil liability for personal injuries
sustained by a perpetrator which were caused by the acts or omissions of the person as
a result of the use of force.”); Ohio Rev. Code Ann. § 2307.60(B)(2)(c) (West, Westlaw
through File 29 of 133d G.A.) (“Recovery on a claim for relief in a tort action is barred to
any person . . . if . . . [t]he person suffered the injury . . . as a proximate result of the
victim of conduct that, if prosecuted, would constitute a felony, a misdemeanor that is
an offense of violence, an attempt to commit a felony, or an attempt to commit a
misdemeanor that is an offense of violence acting against the person in self-defense,
defense of another, or defense of the victim’s residence . . . .”); 42 Pa. Stat. and Cons.
Stat. Ann. § 8340.2(a) (West, Westlaw through 2020 Reg. Sess. Act 13) (“An actor who
uses force . . . in self-protection . . . ; in the protection of other persons . . . ; for the
protection of property . . . ; in law enforcement . . . ; or . . . consistent with the actor’s
special responsibility for care, discipline or safety of others . . . is justified in using such
force and shall be immune from civil liability for personal injuries sustained by a
perpetrator which were caused by the acts or omissions of the actor as a result of the use
of force.”); Tenn. Code Ann. § 39-11-622(a)(1) (West, Westlaw through 2020 1st Reg.
Sess.) (“A person who uses force as permitted . . . is justified in using such force and is
immune from civil liability for the use of such force . . . .”); Tex. Civ. Prac. & Rem. Code
Ann. § 83.001 (West, Westlaw through 2019 Reg. Sess.) (“A defendant who uses force or
deadly force that is justified . . . is immune from civil liability for personal injury or death
that results from the defendant’s use of force or deadly force, as applicable.”); W. Va. Code
Ann. § 55-7-22(d) (West, Westlaw through 2020 Reg. Sess.) (“The justified use of
reasonable and proportionate force under this section shall constitute a full and complete
defense to any civil action brought by an intruder or attacker against a person using such
force.”); Wis. Stat. Ann. § 895.62(2) (West, Westlaw through 2019 Act 102) (“[A]n actor is
immune from civil liability arising out of his or her use of force that is intended or likely
to cause death or great bodily harm if the actor reasonably believed that the force was
15
“prosecution” language that has generally been interpreted as affording a
right to a pretrial hearing.
2. Legislative history. Also, legislative history favors the State’s
interpretation. See Iowa Code § 4.6(3) (stating that the court may also
consider “[t]he legislative history”). During the floor debates over H.F. 517,
Representative Windschitl was the House floor manager. H. Journal, 87th
G.A., 1st Sess., at 534 (Iowa 2017). Representative Wolfe offered an
amendment that included other provisions plus what became Iowa Code
section 704.13. Id. Her amendment was voted down. Id. at 534–35.
Representative Windschitl offered a different amendment that included
only Representative Wolfe’s section 704.13 language. Id. at 535. The two
representatives then had the following colloquy:
WOLFE: When I wrote this code section and put it into
my amendment, what it was intended to do is make it clear
that a person who uses justified reasonable force cannot be
convicted of a crime and cannot be assessed damages, money.
If it goes to a civil trial, he cannot be held civilly liable, and
that’s what I think that language would do, and one could
argue that’s already in current code in various other parts.
But what I don’t understand is how anything in your
amendment would prevent a person who is arrested and
charged with a crime from sitting in jail—for example,
someone like Mr. Lewis—what in this amendment would
somehow have resulted in him being released prior to trial?
WINDSCHITL: You’re absolutely correct, Representative
Wolfe, and I misspoke there, and I apologize. This doesn’t
affect someone like Jay Rodney Lewis. The rest of the bill
does. This amendment would make sure that anybody, that
if criminal action had been taken against him or someone had
tried to sue him and hold him civilly liable or take him into a
civil court, that he would not have to pay those civil action
fees and that he would be protected that way. So you’re
correct. This doesn’t prevent Jay Rodney Lewis from sitting
in jail. The rest of the bill does. This is a mere addition into
necessary to prevent imminent death or bodily harm to himself or herself or to another
person . . . .”); Wyo. Stat. Ann. § 6-1-204(a) (West, Westlaw through 2020 Budget Sess.)
(“[A] person who uses reasonable defensive force . . . is immune from civil action for the
use of the force.”).
16
that to make sure that they’re not being held in financial limbo
based upon someone else’s bad actions.
House Video HF 517 - Weapons Provisions, Iowa Legislature (Mar. 7, 2017,
1:53:52 PM), https://www.legis.iowa.gov/dashboard?view=video&
chamber=H&clip=H20170307124009459&dt=2017-03-07&offset=1793&
bill=HF 517&status=i. This amendment was approved. H. Journal, 87th
G.A., 1st Sess., at 535–36.
The foregoing dialogue between the two representatives suggests
that Iowa Code section 704.13 was not intended to “prevent [a defendant]
from sitting in jail [pending trial].” See House Video HF 517 - Weapons
Provisions, Iowa Legislature (Mar. 7, 2017, 1:53:52 PM),
https://www.legis.iowa.gov/dashboard?view=video&chamber=H&clip=H
20170307124009459&dt=2017-03-07&offset=1793&bill=HF 517&status
=i.
3. Practical considerations. Additionally, practical considerations
support the State’s reading of Iowa Code section 704.13. See Iowa Code
§ 4.4 (“In enacting a statute, it is presumed that . . . [a] just and reasonable
result is intended.”). Frequently, when a defendant raises justification, it
becomes the focus of the entire case. Thus, having a pretrial immunity
hearing would often result in two proceedings covering the same ground.
For example, in this case, before denying Wilson’s request for a
pretrial hearing, the district court questioned both the defense and the
State as to how many witnesses each would call at a pretrial immunity
hearing. Wilson’s counsel indicated he would call twenty-six, and the
State responded, “Your Honor, we would, obviously, call the minuted
witnesses that are listed in the Trial Information. . . . [W]e would call all
our witnesses.” At that time, the State had listed forty-one witnesses in
its minutes of testimony.
17
4. Immunity elsewhere in Iowa law. Another factor on the State’s
side of the scale is how the concept of immunity from liability has
functioned elsewhere. In other contexts, immunity from liability does not
relieve the defendant from having to defend the case. For example, Iowa
Code section 670.4 states that “the municipality shall be immune from
liability” as to certain types of claims. Iowa Code § 670.4(1). But this does
not mean the municipality has a right to a special pretrial mechanism to
determine immunity. Rather, the municipality can use otherwise available
procedures to assert its immunity, such as a summary judgment motion.
See Iowa R. Civ. P. 1.981. If there are genuine issues of material fact,
immunity can only be determined after trial. See Keystone Elec. Mfg., Co.
v. City of Des Moines, 586 N.W.2d 340, 350 (Iowa 1998) (finding a material
issue of fact whether the emergency response immunity applied). A
municipality does not have a right to a pretrial evidentiary hearing on
immunity.6
6Wilson quotes from Nelson v. Lindaman, 867 N.W.2d 1, 7 (Iowa 2015). There we
said,
Section 232.73 provides a form of qualified immunity. “Qualified
immunity is a question of law for the court and the issue may be decided
by summary judgment.” Summary judgment is an important procedure
in statutory immunity cases because a key purpose of the immunity is to
avoid costly litigation, and that legislative goal is thwarted when claims
subject to immunity proceed to trial.
Id. (citations omitted) (quoting Dickerson v. Mertz, 547 N.W.2d 208, 215 (Iowa 1996)).
Nelson involved Iowa Code section 232.73, which provides,
A person participating in good faith in the making of a report . . . pursuant
to this chapter, or aiding and assisting in an assessment of a child abuse
report pursuant to section 232.71B, shall have immunity from any
liability, civil or criminal, which might otherwise be incurred or imposed.
Iowa Code § 232.73 (2009).
It is important to note what Nelson did not say or hold. Nelson did not approve of
a special hearing to determine immunity; it indicated immunity could often be resolved
in the existing summary-judgment framework. Nelson, 547 N.W.2d at 7. And the
decision ultimately turned on the fact that the plaintiff lacked sufficient evidence to avoid
summary judgment. See id. at 8 (“To avoid summary judgment, the plaintiff must have
18
5. The rule disfavoring interpretations that render all or part of a
statute superfluous. Wilson’s rebuttal to all of the above is that the State’s
interpretation of Iowa Code 704.13 renders it superfluous. The State
disagrees, arguing that section 704.13 is needed to protect defendants who
are justified in using deadly force from having to pay criminal restitution
related to a nonhomicide conviction. With a good deal of creativity, the
State posits a hypothetical scenario under which a defendant is acquitted
of murder based on a justification defense but convicted of being a felon
in possession of a firearm. According to the State, section 704.13 would
protect the defendant from having to pay restitution to the aggressor’s
estate due to the felon-in-possession conviction.7 This hypothesis
attributes a Delphic level of foresight to those who voted for section 704.13.
It may be that Iowa Code section 704.13 is a belt-and-suspenders
clause. In other words, it restates protections already in existing law.
Representative Wolfe suggested this possibility during the House floor
debates. House Video HF 517 - Weapons Provisions, Iowa Legislature
(Mar. 7, 2017, 1:53:52 PM), https://www.legis.iowa.gov/dashboard
?view=video& chamber=H&clip=H20170307124009459&dt=2017-03-
07&offset=1793& bill=HF 517&status=i (“[O]ne could argue that’s already
in current code in various other parts.”). We acknowledge that the rule
evidence the defendant acted dishonestly, not merely carelessly, in assisting the DHS.”);
id. at 10 (“[W]e turn to the evidentiary record to determine if the defendants were entitled
to summary judgment . . . .”); id. at 11 (“To avoid summary judgment, the Nelsons needed
evidence generating a genuine issue of material fact that Dr. Lindaman acted dishonestly
in communicating with Brown.”); id. at 14 (“[C]ourts have denied summary judgment
when there was evidence the defendant acted dishonestly reporting child abuse.”); see
also id. at 24–25 (Appel, J., dissenting) (concluding that a reasonable jury could find
either good faith or a lack of good faith and therefore summary judgment should be denied
and the question should be submitted to the jury).
7But see State v. Lorenzo Baltazar, 935 N.W.2d 862, 871 (Iowa 2019) (holding that
a defendant who was not in lawful possession of a firearm may not assert the justification
defense found in Iowa Code § 704.1(3) (2018)).
19
against treating legislative language as superfluous is a well-established
rule of construction. See Iowa Code § 4.4 (2018) (setting forth the
presumption that “[t]he entire statute is intended to be effective”). Still,
we have never said this rule cannot be overcome by other considerations.
In this case, we find other interpretive tools more compelling. These
include (1) the legislative language, which speaks in terms of “immun[ity]
from criminal . . . liability” rather than prosecution; (2) the absence of any
pretrial hearing mechanism in the statute; (3) the legislative history that
includes the colloquy between Representative Windschitl and
Representative Wolfe; and (4) the impracticality of holding pretrial
evidentiary hearings in criminal cases on justification. We therefore hold
that Wilson had no right to a pretrial hearing on justification.
6. Fundamental fairness. Wilson also argues that the lack of a
pretrial hearing meant his proceedings were fundamentally unfair.
According to Wilson, his need to defend himself at trial against the criminal
charges impeded the full presentation of his immunity defense. Later, at
the posttrial hearing, Wilson notes he was only allowed to offer summaries
of the trial testimony and deposition testimony from witnesses who had
not testified at trial. He was not permitted additional live testimony.
We disagree with Wilson that this procedure was fundamentally
unfair. Wilson received a more robust process than anyone asserting a
justification defense had received before 2017, and potentially, he received
more than the 2017 legislation required. Any trial requires defense
counsel to make difficult choices. But we think Wilson overstates the
dilemma he faced. Here is what he says in his appellate briefing:
Wilson, like any criminal defendant, is constitutionally
entitled to a trial in which he has no burden of proof, in which
he can sit back and put on no evidence and entirely rely on
the State’s obligation to prove his guilt beyond a reasonable
20
doubt. However in this trial, Wilson had to prove he was
justified by a preponderance of the evidence, so he had an
affirmative obligation to provide a certain amount of
evidence—he had to put in evidence of his own and cross-
examine the State’s witnesses in an attempt to undercut their
testimony for the State or to elicit testimony to build his case
for the judge. Each time he was forced to do that, he faced
risk—risk that the witnesses will answer differently than
expected or will further reinforce the State’s case.
These statements are well-put, but they disregard the fact that
Wilson’s primary trial defense and his basis for statutory immunity were
one and the same—i.e., justification. Wilson had every incentive to put on
a strong justification defense at trial. Presumably, Wilson did not call his
sister and his girlfriend during the trial because he did not believe they
would be credible trial witnesses. When they were deposed for purposes
of the posttrial immunity hearing, they were both impeached to a
considerable degree by the State.
For all these reasons, we find the district court did not err in refusing
to conduct a pretrial hearing on Wilson’s justification defense. We do not
reach the question whether section 704.13 could even come into play in
this case given the lack of evidence that any of the specific individuals who
was shot was an “aggressor.”
B. Was the Trial Evidence Sufficient to Prove Lack of
Justification? Wilson contends the State failed to prove lack of
justification at trial. In Wilson’s view, he used reasonable force to defend
himself and others from the imminent use of force presented when he
observed a gun pointed in his direction—and no reasonable juror could
conclude otherwise.
We disagree. There was ample evidence of lack of justification. The
evidence was essentially undisputed that Wilson started the verbal
confrontation when the two groups passed each other on the pedestrian
mall. Later, Wilson fired first. He did so indiscriminately, striking and
21
killing an individual (Jones) who had been a peacemaker and two other
unarmed individuals. All three of them were running away when they were
shot. A bystander who was not affiliated with either group and who was a
very reluctant witness saw the defendant alone pull out a gun, before
seeing him fire shots. We therefore reject Wilson’s claim that his motion
for a judgment of acquittal should have been granted.
C. Should the District Court Have Granted a New Trial? In
denying the defendant’s motion for new trial, the district court said,
[T]he evidence clearly established that the Defendant
indiscriminately discharged a dangerous weapon five times
into a crowd or assembly of people in a busy and crowded
downtown Iowa City pedestrian mall striking three unarmed
individuals, including Kaleek Jones who was shot in the back
and subsequently died from his wounds.
Wilson argues this ruling is tantamount to an abuse of discretion.
In his view, the word “indiscriminately” cannot be squared with an intent
to kill or injure that had to be present in this case. To find Wilson guilty
of voluntary manslaughter, for example, the jury had to find Wilson
“intentionally shot Kaleek Jones.” See Iowa Code § 707.4(1) (“A person
commits voluntary manslaughter when that person causes the death of
another person, under circumstances which would otherwise be murder,
if the person causing the death acts solely as the result of sudden, violent,
and irresistible passion . . . .”). So Wilson argues he should have been
given a new trial.
We disagree. The evidence readily supports a jury finding that
Wilson intentionally shot at people in the Cedar Rapids group. He fired
five shots, and every shot struck someone in that group.
“Indiscriminately,” as used by the district court (and ourselves), means
simply that he did not care which particular person he killed or injured.
22
D. Should the District Court Have Granted Immunity
Posttrial? Wilson also argues that the district court should have
exonerated him in its posttrial immunity determination. The State took
the position that once the jury rejected Wilson’s justification defense by
finding him guilty beyond a reasonable doubt, issue preclusion eliminated
the need for any further proceedings on justification. The district court
nonetheless made a separate posttrial Iowa Code section 704.13 immunity
determination. In doing so, it considered both the trial evidence and two
depositions that were not part of the trial evidence. It then rejected
Wilson’s claim of immunity.
We too will reach the merits and leave the question of issue
preclusion for another day when it is more thoroughly briefed. We
conclude substantial evidence exists to support the district court’s
posttrial finding that Wilson was not entitled to immunity. As we have
noted, the evidence at trial offered little support to Wilson’s justification
defense.
Posttrial, Wilson supplemented the record with two depositions. In
one, Wilson’s girlfriend testified she saw an unidentified individual point a
gun at Wilson. Wilson himself did not make this claim in his recorded
interview with police. In the other deposition, Wilson’s sister testified she
saw Donte Taylor point a gun at Wilson. Again, this was not something
that Wilson alleged in his police interview. It was also something that no
trial witness saw, and something that Wilson’s sister had not discussed in
an earlier deposition or in a police interview when she supposedly told
them “[e]verything [she] remembered.”
After reviewing these depositions, the district court placed greater
weight on the trial evidence. As the court observed, “Notably, Lamar
Wilson never [said] that any individual pointed a firearm at him before he
23
fired (as opposed to his sister’s and girlfriend’s testimony).” On this record,
the district court could find that Wilson was not justified in using force
within the meaning of Iowa Code section 704.13.
E. Did the District Court Properly Overrule the Defendant’s
Plain/Duren Motion? Wilson next contends that the district court
improperly overruled his motion based on Plain, 898 N.W.2d at 821, and
Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 668 (1979). Before
the commencement of trial, Wilson filed a motion noting that two recent
Polk County jury pools of 255 and 234 potential jurors had contained only
eleven African-American potential jurors each. Also, those pools contained
only four and seven Hispanic potential jurors respectively. Wilson thus
proposed the following:
1. It is counsel’s understanding that 250 jurors will be
called on the day in question, with 100 to be allocated to the
defendant’s case. Any jurors not required for other cases
should not be released, but should be held until an adequate
pool is established in the defendant’s case.
2. Upon a determination that the pool allocated to the
defendant’s case underrepresents racial minorities, the court
should randomly select white jurors to be removed from the
panel of 100 and replaced with randomly selected black and
Hispanic jurors from the remaining 150 jurors.
From the jury pool, 100 people had been assigned as potential jurors
for Wilson’s trial. They included only three who self-identified as African-
American and four who self-identified as Hispanic.8 Compared to the
overall populations in Polk County, Wilson noted that both minority
groups were underrepresented and this drove his Plain/Duren motion.
However, Wilson did not make a record as to the racial makeup of jurors
in the entire jury pool that day—only the subset who had been assigned to
his trial. The Plain/Duren right applies to the jury pool. See Plain, 898
8Two jurors answered “other,” and four did not respond as to their ethnicity.
24
N.W.2d at 822 (“[A] defendant must establish the proportion of group
members in the jury pool is underrepresentative . . . .”); see also State v.
Lilly, 930 N.W.2d 293, 305 (Iowa 2019) (“A defendant whose jury pool has
a percentage of the distinctive group at least as large as the percentage of
that group in the jury-eligible population has not had his or her right to a
fair cross section infringed, and there would be no reason to aggregate
data in that event.”). For this reason, we conclude that his Plain/Duren
motion was properly denied.
F. Was the District Court’s Consideration of the Sentencing
Recommendation in the PSI Report Improper? Wilson’s final argument
challenges the district court’s reliance on the sentencing recommendation
in the PSI report. Wilson contends there is no statutory authority for a
court to rely on a sentencing recommendation in a PSI report. However,
we recently addressed and rejected this same argument in another case.
See Headley, 926 N.W.2d at 552 (“[T]he court did not abuse its discretion
when it considered the department of correctional services’ sentencing
recommendation.”). Accordingly, we also reject it here.
V. Conclusion.
For the foregoing reasons, we affirm Wilson’s convictions and
sentence.
AFFIRMED.