State of Iowa v. Rodolfo Gonzalez Pena ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 16-1067
Filed November 8, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
RODOLFO GONZALEZ PENA,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Kellyann M.
Lekar, Judge.
Rodolfo Gonzalez Pena appeals from his convictions for first-degree
murder and carrying weapons. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Bradley M. Bender,
Assistant Appellate Defender, for appellant.
Rodolfo Gonzalez Pena, Fort Madison, appellant pro se.
Thomas J. Miller, Attorney General, and Kevin Cmelik and Linda J. Hines,
Assistant Attorneys General, for appellee.
Heard by Danilson, C.J., and Doyle and Mullins, JJ.
2
DANILSON, Chief Judge.
Rodolfo Gonzalez Pena (Gonzalez) appeals from his convictions for first-
degree murder and carrying weapons. Gonzalez asserts the facts do not support
a felony-murder conviction, the court erred in summarily denying his motion for
new trial and instructing the jury on felony murder, and trial counsel was
ineffective in not requesting that the jury determine if Gonzalez committed one or
more criminal acts. Because we find the two shots fired were sufficiently
independent of each other to support a conviction of felony murder, trial counsel
was not required to seek an additional jury instruction, the court did not err in
denying Gonzalez’s motion for new trial, and there is substantial evidence to
support a finding of malice aforethought, we affirm the convictions.
I. Background Facts & Proceedings.
At approximately 11:00 p.m. on August 22, 2014, Meighan Middleton was
in a Waterloo bar with her fiancé, Celio Posada. Also in the bar were Jose
Ruben Villalpando, the owner who was bartending that night, and Ruben’s sons,
George and Ivan Villalpando. Middleton and Posada sat at the bar for
approximately twenty-five minutes before Gonzalez entered and took a seat near
them at the bar. Although Middleton and Posada did not know Gonzalez, the
three engaged in casual conversation. The men bought each other shots of
tequila, and Gonzalez purchased a bottle of Buchanan’s, which was placed in an
ice bucket on the bar near the three customers.
Around 12:00 a.m., Gonzalez exited the building leaving the bottle on the
bar. Posada followed him carrying the bottle of Buchanan’s. A brief time later,
Middleton picked up Posada’s wallet and cell phone from the bar and followed
3
the men out into the parking lot. She saw Gonzalez and Posada talking,
approached Posada, and asked him if he and she were leaving. Posada told her
no. Middleton then went back inside to use the restroom.
When Middleton left the restroom, George Villalpando was running
towards her yelling, “He’s been shot. He shot your husband.” Middleton ran
outside and saw Posada “on the ground, up against” her Jeep. There was blood
on the right side of Posada’s head. Middleton ran to Posada and held his arm
and neck as he took his last breaths.
At approximately 12:20 a.m. on August 23, Deputy Sheriff Matthew Harris,
was on his regular patrol and driving westbound when he observed a silver truck
driving with no headlights. Deputy Harris stopped the truck, and Gonzalez was
the truck’s driver. Deputy Harris discovered that Gonzalez’s license was
suspended and placed him under arrest. Deputy Harris performed an inventory
of Gonzalez’s truck—he found a pistol between the driver’s and passenger’s
seats. Deputy Harris also arrested Gonzalez for carrying weapons and
transported him to the county jail.
Sometime later, Ruben, George, and Ivan Villalpando and Middleton went
to the police station to give statements. Each was shown a photo array, and
each selected Gonzalez’s photo as the person who had been in the parking lot.
Two bullet cartridges were found in the bar parking lot. One cartridge was
located six feet from Posada. Another cartridge was located approximately thirty-
five feet from Posada’s body. An open knife was found near Posada’s body.
There was a trail of Posada’s blood between the location of the furthest cartridge
and Posada’s body. A bullet was found in Posada’s left arm. Testing revealed
4
that both this bullet and the cartridges found in the parking lot were fired from the
gun seized from Gonzalez’s vehicle.
During an interview with Detective Brice Lippert, Gonzalez did not initially
admit any involvement in the shooting at the bar. Gonzalez explained he was at
the bar with a friend, Roberto. Gonzalez denied being in the parking lot at the
same time as Posada. He then stated that Posada grabbed him by the shirt
when they were in the parking lot. When asked whether Posada had any
weapons on him, Gonzalez was uncertain. He later mentioned being poked by a
knife; however, when questioned about whether he saw a knife, Gonzalez stated
he did not see one. Eventually, Gonzalez asserted that it was Roberto, his twin
brother, who had shot Posada.1 Gonzalez was charged with first-degree murder
and carrying weapons.
An autopsy revealed that Posada had been shot in the chest and in the
head; both shots would have been fatal. The medical examiner, Dr. Dennis
Klein, concluded the first shot was to Posada’s chest and came from a distance.
Dr. Klein testified that Posada could have been mobile after being shot in the
chest but not after being shot in the head. Further, Dr. Klein stated Posada was
in a seated position when he was shot in the head and this shot was from close
range.
Michael Halverson, a blood-stain-pattern analyst with the Iowa
Department of Criminal Investigations, also concluded Posada was in a seated
position by Middleton’s Jeep when he was shot in the head. Victor Murillo, the
1
There was no evidence a “Roberto” was present or that Gonzalez has a twin.
5
State’s firearm’s expert concurred with Dr. Klein’s conclusion Posada was shot in
the chest from a distance and in the head from a close range.
At trial, Gonzalez testified that when he exited the bar, Posada walked
outside with him. Gonzalez stated that as he walked toward his parked truck, he
waved his hand and told Posada, “See you later.” Posada then grabbed
Gonzalez by the shirt in the corner of the parking lot and tried to stab him with a
knife. Gonzalez testified Posada said, “MS-13 and I kill people.”2 Gonzalez
stated he hit Posada’s hand and Posada dropped the knife. Gonzalez then ran
away and heard Posada say to him, “I’m going to kill you.” Gonzalez testified he
was carrying a gun, and as he tried to get to a lighted area of the parking lot he
fired the first shot; he did not know whether it struck Posada. He testified Posada
came in front of him and he fired the second shot. Gonzalez then got in his truck
and drove away.
During the discussion regarding the jury instructions, Gonzalez objected to
the inclusion of the felony-murder alternative of the first-degree murder
instruction. Specifically, Gonzalez argued:
We’re objecting to the inclusion of the felony murder
instruction which essentially is 4B and anything that’s applicable to
it following that marshalling instruction. I understand the State’s
argument will be that they have two separate acts because there is
the first gunshot and the second gunshot. Presumably, the
argument is that the first gunshot was an attempted murder or
willful injury being the predicate felony for—forcible felony, excuse
me, for the second gunshot which led to the death of Mr. Posada.
The first argument is that these are not different acts or
sufficiently different acts to warrant parsing them out. . . .
And that—where that ties into, Your Honor, is it goes back to
the—the Velez case, as well as the Ross case where we’re kind of
looking at—in those cases, they’re looking at units of prosecutions,
2
Testimony at trial indicated MS-13 is the name of a gang.
6
but you start with the idea that you can say these are separate acts
and then ultimately convict somebody of separate acts.
The court denied Gonzalez’s request and included the felony-murder alternative
in the instruction.
Thus, with respect to the charge of first-degree murder, the jury was
instructed that to prove Gonzalez guilty the State was required to prove all of the
following elements beyond a reasonable doubt:
1. On or about the 23rd day of August, 2014, the defendant
shot Celio Posada.
2. Celio Posada died as a result of being shot by the
Defendant.
3. The defendant acted with malice aforethought.
4(a). The defendant acted willfully, deliberately,
premeditatedly and specific intent to kill Celio Posada, or
4(b). The defendant was participating in the offense of
attempted murder or willful injury causing serious injury, as defined
in [other instructions].
Concerning element 3, the jury was instructed malice aforethought “may,
but is not required to, be inferred from the defendant’s use of a dangerous
weapon.” A firearm is a dangerous weapon.
The jury was also instructed on Gonzalez’s claim of justification. The
justification instruction stated:
A person is justified in using reasonable force if he
reasonably believes the force is necessary to defend himself from
any imminent use of unlawful force.
If the State has proved any one of the following elements,
the defendant was not justified:
1. The defendant started or continued the incident which
resulted in injury and death.
2. An alternative course of action was available to the
defendant.
3. The defendant did not believe he was in imminent danger
of death or injury and the use of force was not necessary to save
him.
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4. The defendant did not have reasonable grounds for the
belief.
5. The force used by the defendant was unreasonable.
Additional instructions provided guidance on items three through five of the
justification instruction.
The jury found Gonzalez guilty of first-degree murder. Special
interrogatories were submitted along with the verdict form asking if the jury
unanimously found the defendant guilty of premeditated murder or felony murder.
In answering the special interrogatories, the jury unanimously found Gonzalez
not guilty of premeditated murder but unanimously found him guilty of felony
murder.
Gonzalez filed a motion for new trial, urging the gunshots were not
different acts and the verdict was contrary to the weight of the evidence.3 The
district court denied the new trial motion. The court’s written order states:
The motion for new trial filed by the defendant raises two
issues in support of the motion. The first issue is that the court
erred in submitting the felony murder alternative to the jury as the
two gunshots involved in this matter were not qualitatively different
acts. The second issue is that the verdict is contrary to the weight
of the evidence.
The court will first address the second issue raised by the
defendant. The court addressed motions made at the appropriate
times of the trial by the defendant seeking a directed verdict or
judgment of acquittal and the record will stand for itself with regard
to the rulings on those motions for directed verdict and the
evidence which supported the submission of this matter to the jury
for determination. The court denies the motion for new trial on the
basis that the verdict is contrary to the weight of the evidence. The
3
In a second motion for new trial, Gonzalez argued there was newly-discovered
evidence. However, this motion was withdrawn.
After the appointment of a new attorney, a third motion for new trial was filed.
Gonzalez argued he was denied a fair trial because he was not provided an interpreter
and trial counsel was ineffective for failing to request an interpreter and for waiving an
opening statement. After a hearing, the district court denied this motion.
8
court finds . . . , upon the entire record, the verdict rendered by the
jury is not contrary to the weight of the evidence, and that, indeed,
the weight of the evidence can be found to support the verdict
rendered by the jury.
As previously noted, the defendant also alleges that the
court erred in submitting the felony murder alternative instruction to
the jury based on the argument that the two gunshots were not
qualitatively different acts. As indicated, the record will speak for
itself, but the court notes that the evidence in this matter
established that there were two separate gunshots fired in this
matter, that the defendant admitted that he shot the gun twice, that
there is a distance of approximately [thirty] to [forty-five] feet which
is evidenced by a blood trail and other evidence between the
location where the first shot was fired to the location where the
second, fatal shot was fired and the result of the distance between
the shots means that the defendant would have had to follow or
travel with the victim from the place of the first shot to the place of
the second shot. The evidence offered in the case also established
that the first shot either would have been or would likely have been
fatal if the second shot had not occurred prior to the first shot
causing death. The second shot resulted in nearly instantaneous
death to the victim. Both parties relied on State of Iowa v.
Heemstra, 721 N.W.2d 549 (Iowa 2006), and State of Iowa v.
Tribble, 790 N.W.2d 121 (Iowa 2010), in support of their positions in
this matter. The defendant further cites State of Iowa v. Pullman,
[No. 09-1897, 2011 WL 441396 (Iowa Ct. App. Feb. 9, 2011)], and
State of Iowa v. Millbrook, 788 N.W.2d 648 (Iowa 2010).
A significant record was made at the time of trial and,
specifically, at the time of the record on jury instructions,
concerning the submission of the felony murder alternative to the
jury and the different or separate acts argument concerning the two
gunshots in this case. The court stands on that record and the
rulings made at the time of trial. In addition, the court has reviewed
the cases cited by the parties at the time of the hearing on post-trial
motions.
Following a review, this court finds that the instruction at
issue accurately states the law and is supported by substantial
evidence. The case law establishes that the rationale of the felony
murder rule is that certain crimes are so inherently dangerous that
proof of participating in these crimes may obviate the need for
showing all of the elements normally required for first degree
murder. In the present case, the predicate crime or underlying
felony that supports the submission of the felony murder instruction
is that of attempted murder. The defendant fired two shots at the
victim. There was substantial evidence submitted to the jury that
the first shot fired by the Defendant at the torso of the victim was an
attempt to murder or bring about the death of the victim. The court
9
finds that the act of the first shot was not the same act that caused
the death of the victim in the present case, and therefore, the first
shot need not be merged into the second shot as directed in
Heemstra . . . . Heemstra establishes that if a defendant assaults a
victim twice, first without killing him, and second with fatal results,
the former could be considered as a predicate felony, but the
second could not because it would be merged with the charge of
murder.
In the present case, the testimony received by the court was
that the first shot to the victim would have been or most likely would
have been fatal. However, the events of that gunshot resulting in
the victim’s death were never allowed to play out due to the actions
of the defendant in subsequently, and in a separate act, delivering
a second shot execution style to the victim’s head which resulted in
the almost immediate death of the victim. This court does not put
any weight on the fact that the first shot might have been fatal to
the victim as somehow making the charge of attempted murder
inaccurate in association with the first shot, nor does it merge the
first shot into the second shot so long as the two shots were
qualitatively different acts.
Gonzalez appeals, contending the district court should not have instructed
the jury on felony murder, the court erred in summarily rejecting his motion for
new trial based on the claim that the verdict was against the weight of the
evidence, and there is insufficient evidence to sustain the felony-murder
conviction.
II. Scope and Standards of Review.
“Iowa law requires a court to give a requested jury instruction if it correctly
states the applicable law and is not embodied in other instructions.” State v.
Plain, 898 N.W.2d 801, 816 (Iowa 2017) (quoting Sonnek v. Warren, 522 N.W.2d
45, 47 (Iowa 1994)). “The verb ‘require’ is mandatory and leaves no room for
trial court discretion.” Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 707 (Iowa
2016). “[W]e generally review a district court’s refusal to give a requested jury
10
instruction for errors at law; however, if the jury instruction is not required but
discretionary, we review for an abuse of discretion.” Plain, 898 N.W.2d at 811.
“We review a challenge to the sufficiency of evidence for correction of
errors at law.” State v. Howse, 875 N.W.2d 684, 688 (Iowa 2016).
We “consider all of the record evidence viewed in the light most
favorable to the State, including all reasonable inferences that may
be fairly drawn from the evidence. We will uphold a verdict if
substantial record evidence supports it.” [State v. Showens, 845
N.W.2d 436,] 439-40 [(Iowa 2014)] (quoting [State v.] Romer, 832
N.W.2d [169], 174 [(Iowa 2013)]). Evidence is substantial when “a
rational trier of fact could conceivably find the defendant guilty
beyond a reasonable doubt.” State v. Thomas, 561 N.W.2d 37, 39
(Iowa 1997). If evidence only raises “suspicion, speculation, or
conjecture,” it is not substantial evidence. Id. (quoting State v.
Randle, 555 N.W.2d 666, 671 (Iowa 1996)).
Id.
With regard to the standard applied when evaluating motions for new trial,
the district court must determine whether a greater amount of credible evidence
supports one side of an issue more than the other. State v. Ellis, 578 N.W.2d
655, 658 (Iowa 1998). Included in this determination is an assessment of the
credibility of witnesses. Id. However, the motion should only be granted for
cases in which the evidence weighs heavily against the verdict, so as not to
diminish the jury’s role as the principal fact-finder. Id. at 659.
III. Analysis.
A. Felony-murder instruction. Gonzalez asserts the first-degree murder
marshaling instruction was legally flawed in two respects. First, under principles
stated in Heemstra, 721 N.W.2d at 558, the willful injury or the attempted murder
against Posada should not have been submitted as a predicate felony for felony
murder because the facts do not support a finding Gonzalez committed separate
11
acts for purposes of felony murder. And second, the jury should have been
required to make the determination whether Gonzalez committed one act of
shooting or multiple acts of shooting, and trial counsel was ineffective in failing to
request an instruction requiring the jury make those findings. Neither argument
is convincing here.
1. Independent acts support the felony-murder instruction. In Heemstra,
our supreme court held willful injury cannot serve as a predicate felony under the
felony-murder statute when “the act causing willful injury is the same act that
causes the victim’s death.” 721 N.W.2d at 558. Instead, the act intended to
cause serious injury used to support the predicate willful-injury offense must be
separate from the act that kills the other person while the person participates in
the predicate willful-injury crime. Id. If the act or acts intended to cause serious
injury were the same act or acts that caused death, the act or acts merge into the
murder and cannot serve as a predicate felony. Id.
Gonzalez attempts to characterize the facts here as “shots fired in
succession” and thus not independently actionable. In State v. Ross, 845
N.W.2d 692, 702 (Iowa 2014), our supreme court addressed the question of
whether substantial evidence supported the jury’s verdict that Ross’s actions
constituted five counts of intimidation with a dangerous weapon with intent where
Ross fired a weapon into a group of five people. The court explained the factors
available to “aid the fact finder in determining if the defendant’s assaultive
conduct is one continuous act or a series of separate and distinct acts. Ross,
845 N.W.2d at 705.
12
These factors are (1) the time interval occurring between the
successive actions of the defendant, (2) the place of the actions, (3)
the identity of the victims, (4) the existence of an intervening act, (5)
the similarity of defendant’s actions, and (6) defendant’s intent at
the time of his actions.
Id. In applying the factors, the court concluded there was sufficient evidence for
finding “only two separate and distinct acts.” Id. The court noted the record
indicated a shot or shots fired, a pause, and then another round of shots fired.
Id. The court also observed one victim crossed the street after the first serious of
shots, which “was an intervening act causing Ross to start firing his gun again.”
Id. at 706.
In the case before us, the evidence presented was that Posada was shot
in the chest from a range of four to eight feet. This wound might have proved to
be fatal. Yet, Posada traveled some thirty to forty-five feet, leaving a blood trail
as he went. Posada was then shot from close range in the head. Posada was
near the ground at the time, and the bullet entered his right temple, traveled
down through his brain, neck, and left arm, lodging in his left triceps. This injury
was almost immediately fatal. We can infer from the evidence that Gonzalez
also traveled between shots. Although Posada was the victim of both shots and
the time interval was minimal, there was some intervening time, as well as a
change in locations by both Posada and Gonzalez to the other side of the parked
vehicle. As in Ross, we find the record supports two separate and distinct acts.4
4
Gonzalez relies in part on Williams v. State, 90 So. 3d 931, 935 (Fla. Dist. Ct. App.
2012), a case cited in Ross, 845 N.W.2d at 704. The Ross court noted the Florida court
in Williams determined shots fired in succession constituted a single crime, and
observed:
there was no intervening act between gunshots, the location of the
shooting was the same, and the evidence did not show the defendant
formed a new intent with each shot.
13
In Heemstra, the supreme court stated a felonious assault of willful injury
could serve as the predicate offense for felony murder if, for instance, “the
defendant assaulted the victim twice, first without killing him and second with
fatal results.” 721 N.W.2d at 557. The facts before us fit within that description—
Gonzalez shot Posada twice, first without killing him and second with fatal
results.
The supreme court restated its Heemstra holding,
[W]here the act causing willful injury is the same act that caused
the victim’s death, the former merges with the murder and cannot
serve as a predicate felony for felony-murder purposes. This is not
to say, however, that willful injury could never serve as the
predicate felony for felony-murder purposes. We narrowed
Heemstra’s scope by noting, for example, that where “a defendant
assaulted the victim twice, first without killing him and second with
fatal results,” only the second act would be merged with the murder
and that the first act could be considered as a predicate felony.
Thus, the merger rule announced in Heemstra applied only in
cases involving a single felonious assault on the victim which
results in the victim’s death.
Goosman v. State, 764 N.W.2d 539, 542 (Iowa 2009) (internal citations omitted).
In Tribble, the court again considered a felony-murder conviction based on
the felonious assault of willful injury. 790 N.W.2d at 123-24. The court upheld
the conviction there because substantial evidence supported a jury finding that
head trauma and asphyxia were caused by separate acts, either of which could
have been the factual cause of the victim’s death. Id. at 129. The Tribble court
explained:
Our law recognizes two separate acts can join to cause death, but
the result does not alter criminal responsibility for an act.
Causation only implicates the merger doctrine when the act
supporting the commission of the predicate felony is a factual
Ross, 845 N.W.2d at 704. However, our facts are distinguishable.
14
cause of death and the second act is not. If the act giving rise to
the underlying forcible felony is the sole factual cause of death,
then any subsequent separate act of violence not also a factual
cause of death plays no role in the felony-murder analysis.
Accordingly, the law governing multiple factual causation is
consistent with the purposes of the felony-murder doctrine and the
merger doctrine. Merger seeks to prevent a felonious act alone
from becoming first-degree murder and leaves the felony-murder
doctrine available to elevate an independent homicidal act into first-
degree murder without proof of the usual required mens rea for the
purpose of deterring certain felonious conduct. As long as an
independent act is a factual cause of death, the doctrines work to
achieve their desired purposes.
In this case, substantial evidence supported a finding that an
act of strangulation, choking, or drowning was a factual cause of
Tracy’s death by asphyxia. Substantial evidence also supported a
finding of the commission of the forcible felony of willful injury
causing serious injury based on a separate earlier act of blunt-force
trauma to Tracy’s head. The facts further supported a finding that
the head trauma and asphyxia were inflicted by separate acts, with
the head trauma occurring first followed by a separate act resulting
in the asphyxia. Thus, separate, independent acts were identified
by the evidence. Moreover, the evidence showed the act causing
asphyxia was a factual cause of death. In fact, Tribble does not
contest this evidence. Consequently, it is not important under the
felony-murder analysis whether or not the separate earlier acts of
blunt-force trauma were also a factual cause of death. If the acts of
blunt-force trauma were also a factual cause of death, felony
murder applies in this case because a separate act of asphyxia was
also a factual cause. If the acts of blunt-force trauma were not a
factual cause of death, felony murder likewise applies because the
blunt-force trauma would satisfy the willful-injury elements of acts
intended to cause serious injury and causing serious injury,
followed by a separate act causing death by asphyxia.
Id.
Gonzalez contends the facts of this case are more akin to State v.
Pullman,5 where this court concluded “the three separate shots were not
5
We explained the
district court, relying on the evidence Eddings had been shot three times,
determined each shot was a separate assault. Therefore, one or two
shots could form the basis for a willful injury conviction or assault resulting
in serious injury conviction and the other shot the basis for a felony-
15
‘sufficiently independent’ of each other to support a conviction of felony murder,
. . . and do not ‘separately support’ both an underlying forcible felony and acts
resulting in the killing.” 2011 WL 441396, at *6 (citation omitted). In the present
case, however, the two shots were sufficiently independent of each other. As
noted by the trial court,
[Gonzalez] first shot the victim in the torso. The evidence from
testimony and at the scene establishes that the victim traveled
approximately [thirty] to [forty-five] feet from the place of the first
shot to the place of the second shot and that the victim was either
slumped to the ground or in the process of slumping to the ground
at or about the time of the second shot. Time would have elapsed
during which the victim, having already been shot in the torso with a
potentially-fatal shot, traveled the distance between the two shots
and to slump into the position where the second shot was delivered
at relatively close range to his head. [Gonzalez] had the time to
take the first shot, follow or track the victim to the site of the second
shot, and to take the second shot. There was a break in the
shooting. There was a break in the position of the parties. There
was a break in the dynamics between the parties because the
victim had already been shot and injured.
2. Counsel was not ineffective in failing to request that the jury make a
finding on the issue of whether there were independent acts. Gonzalez next
contends his trial counsel was constitutionally deficient in failing to request that
the jury make a finding on “whether Gonzalez committed on[e] act of shooting or
multiple acts of shooting.” See State v. Love, 858 N.W.2d 721, 727 (Iowa 2015)
(Mansfield, J., specially concurring) (“And if the court was uncertain whether
more than one potential criminal act was involved, it could ask the jury to make a
murder conviction. [Pullman] argues there was only one assault—that the
shots all were fired in a single burst with no pause. He further argues the
medical examiner testified Eddings died of multiple gunshot wounds and
could not identify any single shot as the cause of death.
2011 WL 441396, at *3.
16
finding on this issue, based upon the legislature’s definition of the offense and
using the standards we have discussed in [State v. Velez, 829 N.W.2d 572, 579-
84 (Iowa 2013)], and Ross, 845 N.W.2d at 698-700.”).
In order to succeed on a claim of ineffective assistance of counsel,
Gonzalez must establish by a preponderance of the evidence both that his trial
counsel failed to perform an essential duty and prejudice resulted. State v.
Morgan, 877 N.W.2d 133, 136 (Iowa Ct. App. 2016). The claim fails if either
prong is not proved. Id.
Gonzalez cannot prove prejudice here because the district court could,
and did, conclude as a matter of law that there was more than one potential
criminal act involved. See Love, 858 N.W.2d at 727 n.1 (Mansfield, J., specially
concurring) (“I believe in most cases the determination whether more than one
potential criminal act was involved could be made as a matter of law. But in a
case where it is possible to divide up the conduct into discrete segments in the
jury instructions, yet it is debatable whether each segment can be treated as a
separate criminal act, and the jury was not instructed to make appropriate
findings despite the defendant’s request, then a retrial would be necessary.”). As
observed by the district court, there was sufficient time, distance, and space
between the gunshots for a determination as a matter of law that each gunshot
was a separate criminal act.
3. Additional pro se ineffectiveness claim. One of the ineffective-
assistance-of-counsel claims raised in Gonzalez’s pro se brief states in part that
even if there were two acts, both wounds were fatal and, therefore, the first shot
cannot serve as the basis for attempted murder or willful injury because of the
17
merger doctrine established in Heemstra. Gonzalez contends this is supported
by the fact that “it was never determined at trial which wound caused the death of
Posada.” We disagree. We acknowledge the medical examiner first testified that
the cause of death was multiple gunshot wounds. But later the medical examiner
testified,
Q. Now, Doctor, let’s switch to the gunshot wound to the
head. Was that fatal? A. Yes.
Q. How quickly would that have been fatal? A. That would
be certainly more quickly than the gunshot wound to the chest, and
could be on the order of minutes.
Clearly, this testimony reflects that the second shot, the shot to the head,
is what caused or at least accelerated Posada’s death. There was other
evidence Posada was still alive after the first gunshot. Under these facts we find
no expansion of the felony-murder rule or violation of the merger doctrine
announced in Heemstra and as further elaborated upon in Tribble.
With regard to Gonzalez’s contention that he was able to be convicted of
felony murder by simply pointing a firearm or displaying a dangerous weapon, we
disagree. Our review of the instructions required the State to prove either
attempted murder or willful injury. And concerning Gonzalez’s other contentions
that the jury instructions either were misstatements of the law or not supported by
the law or facts, we find them without merit.
B. Denial of motion for new trial. Gonzalez contends the court erred in
summarily rejecting his motion for new trial based on his claim that the verdict
was against the weight of the evidence. Gonzalez notes that in its order denying
his motion, the district court did not specifically state that it had weighed the
evidence and made its own credibility determinations. Citing State v. Maxwell,
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743 N.W.2d 185 (Iowa 2008), Gonzalez acknowledges that the failure of the
court to state its reasons for finding the verdict was not contrary to the evidence
does not require reversal of an order denying a motion for new trial. However, he
requests a change in case law so that the failure to state reasons for a denial of a
motion for new trial based upon the weight of the evidence is reversible error and
requires remand for reconsideration of a motion for new trial.
First, this court is not at liberty to overrule supreme court precedent. See
State v. Beck, 854 N.W.2d 56, 64 (Iowa 2014). Moreover, nothing in Iowa Rule
of Criminal Procedure 2.24(2)(b) requires the district court to provide its reasons
for denying a motion for new trial. In any event, we conclude the trial court did
not err in concluding the verdict was not contrary to the weight of the evidence.
C. Sufficiency of the evidence. Finally, Gonzalez asserts there is
insufficient evidence that he acted with malice aforethought because he was
justified in his actions. The jury was instructed that the State must prove
Gonzalez was not justified in using force. There was substantial evidence from
which the jury could find several of the factors that would negate the use of
force—any one of which was sufficient to reject the justification claim. For
instance, the jury could have found Gonzalez “continued the incident which
resulted in injury and death” when he followed the shot and bleeding Posada and
shot him again in the head at close range, or that “[a]n alternative course of
action was available to” Gonzalez. He testified he had knocked the knife from
Posada’s hand and was running away before he fired the first shot.
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IV. Conclusion.
We find the two shots fired were sufficiently independent of each other to
support a conviction of felony murder and trial counsel was not required to seek
an additional jury instruction. The court did not err in denying Gonzalez’s motion
for new trial, and there is substantial evidence to support a finding of malice
aforethought. We, therefore, affirm the convictions.
AFFIRMED.