State of Iowa v. Mario Guerrero Cordero , 2015 Iowa Sup. LEXIS 30 ( 2015 )

IN THE SUPREME COURT OF IOWA
No. 12–2122
Filed March 20, 2015
STATE OF IOWA,
Appellee,
vs.
MARIO GUERRERO CORDERO,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Scott D.
Rosenberg, Judge.
A criminal defendant challenges his convictions and sentences for
first-degree murder and attempt to commit murder. DECISION OF
COURT OF APPEALS AFFIRMED IN PART AND VACATED IN PART;
DISTRICT COURT JUDGMENT AND SENTENCE AFFIRMED.
Mark C. Smith, State Appellate Defender, and Bradley M. Bender,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kyle P. Hanson, Assistant
Attorney General, John P. Sarcone, County Attorney, and Jaki L.
Livingston, Assistant County Attorney, for appellee.
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CADY, Chief Justice.
In this appeal involving convictions for first-degree murder and
attempt to commit murder, the defendant asserts numerous claims of
error arising out of his trial and sentencing. These claims included
insufficiency of evidence to support the convictions, trial court error in
refusing to give a jury instruction, ineffective assistance of trial counsel,
and insufficient reasons for the imposition of consecutive sentences. We
transferred the case to the court of appeals. The court of appeals
addressed all the issues on appeal and affirmed the judgment and
sentence of the district court. On further review, we only address the
issue concerning the jury instruction. The issue presented is whether
the district court abused its discretion by failing to give a jury instruction
at trial on the defense of intoxication under the record in this case. We
conclude the district court did not abuse its discretion. We affirm in part
and vacate in part the opinion of the court of appeals and affirm the
judgment and sentence of the district court.
I. Background Facts and Proceedings.
Mario Guerrero Cordero lived in Des Moines in 2008. He was
distantly related to Miguel and Manuel Cano Basurta, brothers who also
lived in Des Moines. Miguel and Manuel worked at an automobile repair
shop called El Tarasco’s. In May 2008, Guerrero Cordero damaged a
truck belonging to a customer of the shop when he struck it with his
vehicle after entering the parking lot. Miguel demanded that Guerrero
Cordero pay for the damage. Guerrero Cordero failed to pay, which upset
Miguel and caused tension between the two men. This tension reached a
tipping point on Independence Day of that year.
On the morning of July 4, Miguel and Manuel went to work at
El Tarasco’s. After friends arrived at the shop, the brothers stopped
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working and began to socialize with them. The fellowship included the
consumption of beer. Guerrero Cordero also arrived at the shop, and
Miguel and Manuel asked him to leave. Guerrero Cordero and Miguel
began to argue, and eventually, Miguel insulted Guerrero Cordero’s
family and challenged him to a fight. However, no physical confrontation
occurred, and Guerrero Cordero left the shop without incident.
After leaving El Tarasco’s, Guerrero Cordero went to an automotive
repair shop owned by Rogelio Carlos Basurto, another distant cousin.
While Guerrero Cordero was at Basurto’s shop, Guerrero Cordero
displayed a handgun and ammunition to those present before placing the
gun in his waistband. When he and Basurto left the shop together to
buy beer, Guerrero Cordero told Basurto that he had wanted to shoot
Miguel the other day, but did not do so because they were family.
Basurto told Guerrero Cordero he should not think about hurting family
and that the gun would only bring him trouble. Basurto left the shop
late in the afternoon. Guerrero Cordero was still present. He was
drinking beer, but Basurto did not believe he was drunk. At some point,
Guerrero Cordero returned to El Tarasco’s, where Miguel again asked
him to leave. He complied with the request. Manuel subsequently saw
Guerrero Cordero at an apartment complex in the early evening and told
him not to return to the shop until he could talk with Miguel.
Despite the admonition, Guerrero Cordero returned to El Tarasco’s
once again. 1 Upon entering the shop, he said, “What’s up?” He then
pulled the gun from his waistband and fired several shots at Miguel.
Miguel was hit by three shots and fell to the floor. Guerrero Cordero
1Conflicting testimony suggested Guerrero Cordero returned anywhere from ten
minutes to two hours after leaving El Tarasco’s.
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then began firing at the others gathered in the shop, who had begun to
flee. As Guerrero Cordero turned to leave the shop, he shot Hector
Casillas, hitting him in the foot and causing him to fall. Casillas
continued to flee, and Guerrero Cordero shot him again, this time in the
back as he ran away. Guerrero Cordero then fled the scene. Casillas
was taken to the hospital for surgery and survived. Miguel died of his
wounds shortly after he was transferred to the hospital trauma center.
Police executed a search warrant on Guerrero Cordero’s home on
July 5. They found ammunition and the pants he had worn the previous
day. Two days later, Guerrero Cordero’s roommate led police to a buried
handgun, which forensics testing was later able to match as having fired
five bullets recovered at the scene, including one removed from Miguel’s
body. The police also discovered Guerrero Cordero had purchased a
ticket to Mexico under an assumed name and left Des Moines. They
subsequently began a lengthy process of obtaining an international
warrant for the arrest of Guerrero Cordero. Three years later, in 2011,
Mexican authorities arrested Guerrero Cordero on the international
warrant. He was eventually extradited to the United States.
The State of Iowa charged Guerrero Cordero with first-degree
murder and attempt to commit murder. At trial, testimony was
presented about the consumption of alcoholic beverages on July 4 by the
persons present at El Tarasco’s and Basurto’s. Miguel and many of the
persons who spent the day at El Tarasco’s were intoxicated by the time
the shooting started. There were coolers of beer at the shop and
numerous beer cans. Multiple witnesses testified that Guerrero Cordero
had been drinking beer during the day, but nearly all of them said he
was not intoxicated or did not appear intoxicated. Not all witnesses were
asked at trial if they believed Guerrero Cordero was intoxicated. Only
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one witness, who had never met Guerrero Cordero before and was
himself intoxicated at the time of the shooting, testified Guerrero Cordero
was “probably” intoxicated. Photographs of the inside of Guerrero
Cordero’s truck revealed an unopened can of beer and unopened bottle of
beer, as well as a single open can of beer in the cup holder. The
investigating officer did not question the witnesses after the shooting
about the level of intoxication of those present at the time of the
shooting, but did note every witness he talked with was coherent and
able to form sentences to describe what had occurred.
At the close of the State’s evidence, Guerrero Cordero moved for a
judgment of acquittal on both charges. He claimed the evidence failed to
establish he had the specific intent to commit either crime based on
either intoxication or provocation. The trial court denied the motion.
At the close of all of the evidence at trial, Guerrero Cordero
requested a jury instruction on the defense of intoxication. This was the
first time the defense was formally raised. The court denied the request.
It found the evidence did not rise to the level to support an intoxication
instruction. Guerrero Cordero also renewed his motion for judgment of
acquittal, which the court denied.
The jury found Guerrero Cordero guilty of the first-degree murder
of Miguel Cano Basurto and the attempt to commit the murder of Hector
Casillas. For the conviction of murder in the first degree, the court
sentenced Guerrero Cordero to life imprisonment without the possibility
of parole. For the conviction of attempt to commit murder, the court
sentenced Guerrero Cordero to twenty-five years in prison with parole
eligibility after serving seven-tenths of the sentence. The court ordered
the sentences be served consecutively.
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Guerrero Cordero appealed and raised four claims. First, he
asserted the evidence was insufficient to allow a reasonable finder of fact
to conclude he committed the crimes of first-degree murder and attempt
to commit murder. Second, he argued the trial court erred in denying
his request to instruct the jury on the defense of intoxication. Third, he
contended the trial court erred by giving insufficient reasoning for its
decision to impose consecutive sentences. Finally, he claimed trial
counsel was ineffective in failing to notify the State of his intent to rely on
intoxication as a defense.
We transferred the case to the court of appeals. The court of
appeals affirmed the district court. It denied the claims of insufficiency
of the evidence, sentencing abuse of discretion, and ineffective assistance
of counsel. However, the court found the trial court erred in refusing to
give the requested intoxication instruction, but concluded Guerrero
Cordero was not prejudiced by the refusal because he still presented his
defense on intoxication to the jury. We granted Guerrero Cordero’s
request for further review.
II. Standard of Review.
“We review challenges to jury instructions for correction of errors
at law.” State v. Frei, 831 N.W.2d 70, 73 (Iowa 2013); see also Iowa R.
App. P. 6.907. Yet, “[w]e review the related claim that the trial court
should have given the defendant’s requested instructions for an abuse of
discretion.” Summy v. City of Des Moines, 708 N.W.2d 333, 340 (Iowa
2006). Discretion is afforded the trial court in this instance because the
decision involves an assessment of the evidence in the case. “When
weighing sufficiency of evidence to support a requested instruction, we
construe the evidence in a light most favorable to the party seeking
submission.” Sonnek v. Warren, 522 N.W.2d 45, 47 (Iowa 1994). “ ‘Error
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in giving or refusing to give a jury instruction does not warrant reversal
unless it results in prejudice to the complaining party.’ ” Hagenow v.
Schmidt, 842 N.W.2d 661, 670 (Iowa 2014) (quoting Koenig v. Koenig,
766 N.W.2d 635, 637 (Iowa 2009)). “ ‘When the error is not of
constitutional magnitude, the test of prejudice is whether it sufficiently
appears that the rights of the complaining party have been injuriously
affected or that the party has suffered a miscarriage of justice.’ ” State v.
Marin, 788 N.W.2d 833, 836 (Iowa 2010) (quoting State v. Gansz, 376
N.W.2d 887, 891 (Iowa 1985)). “ ‘Errors in jury instructions are
presumed prejudicial unless “the record affirmatively establishes there
was no prejudice.” ’ ” Asher v. Ob-Gyn Specialists, P.C., 846 N.W.2d 492,
496 (Iowa 2014) (quoting State v. Murray, 796 N.W.2d 907, 908 (Iowa
2011)).
“On further review, we have the discretion to review any issue
raised on appeal.” Marin, 788 N.W.2d at 836. We will only address the
issue regarding the proposed jury instruction on intoxication. We let the
court of appeals opinion stand as the final decision on the other three
issues. See State v. Walker, 856 N.W.2d 179, 184 (Iowa 2014) (“[W]e
have discretion to let the court of appeals decision stand as the final
decision on one or more issues.”).
III. Analysis.
Guerrero Cordero argues the district court erred by refusing to give
an instruction describing the affirmative defense of intoxication. 2 We
ultimately conclude this decision did not constitute error.
2We have often noted that this is not a true defense, but our rules of criminal
procedure describe it as such. Iowa R. Crim. P. 2.11(11)(c) (“If defendant intends to rely
upon the defense of intoxication . . . .”). But see State v. Broughton, 425 N.W.2d 48, 49
(Iowa 1988) (“Intoxication, of course, is not a complete defense to a crime . . . .”).
Intoxication does not provide an affirmative exculpatory defense, but is instead a partial
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A. The Defense of Intoxication. Historically, the intoxicated
state of an offender during the commission of a crime was not considered
a defense or mitigating circumstance but, instead, was often an
aggravating circumstance of the offense. See Montana v. Egelhoff, 518
U.S. 37, 44–45, 116 S. Ct. 2013, 2018, 135 L. Ed. 2d 361, 368–69 (1996)
(plurality opinion) (describing the history of intoxication in English and
early American cases). During the nineteenth century, this early
common law rule gradually shifted to a rule that permitted intoxication
to be used by a fact finder to consider the ability of a defendant to form
the specific intent necessary to commit a crime. Id. at 46–47, 116 S. Ct.
at 2019, 135 L. Ed. 2d at 370. We adopted this rule in 1870. State v.
Bell, 29 Iowa 316, 317–18 (1870). In Bell, our early court, while
conceding that voluntary intoxication is not an excuse for the crime
committed, stated:
The drunkenness, however, is a proper circumstance, and
should be weighed by the jury in determining whether there
existed the specific intent to commit the felony charged.
Whether he had the intent charged, whether he was capable
of conceiving it, or whether he was so completely overcome
by his debauch as to be incapable of forming any purpose,
were questions for the jury.
Id. at 319. Thus, before intoxication could prevent a finding of specific
intent, the offender not only had to be intoxicated, but so intoxicated
that he or she could no longer reason and was incapable of forming a
felonious intent. See id. at 318–19. The resolution of the question was
entrusted to the jury based on the facts of each case.
From the beginning, the defense has been applied in Iowa only to
specific-intent crimes, not those of general intent. “If [the accused] were
_________________________
defense only relating to one of the several elements that need to be proven in a criminal
prosecution. Broughton, 425 N.W.2d at 49.
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in such stupor that he was incapable of deliberation, premeditation, or of
forming a specific design, it is manifest that he could not have been
guilty of the offense of higher degree.” State v. Wilson, 166 Iowa 309,
321, 144 N.W. 47, 52 (1913), amended by 166 Iowa 326, 147 N.W. 739
(1914). Yet, when the act is criminal in itself, the capacity of the offender
to form specific intent has no bearing on guilt. See State v. Hall, 214
N.W.2d 205, 208–09 (Iowa 1974) (explaining that intoxication does not
negate malice for second-degree murder); see also State v. Caldwell, 385
N.W.2d 553, 557 (Iowa 1986) (“Voluntary intoxication may not, however,
reduce a charge when the crime does not require a specific intent.”).
Therefore, if intoxication negates the specific-intent element of a crime,
the offender can only be found guilty of a lesser included offense
consisting of the act without the intent. See, e.g., Wilson, 166 Iowa at
321, 144 N.W. at 52 (explaining that an unexplained killing is presumed
to be second-degree murder and that intoxication can only have a
bearing on the specific intention that would elevate the killing to a first-
degree murder). Specific intent not only requires the defendant to be
aware of doing an act, but doing it with a specific purpose in mind. State
v. Rinehart, 283 N.W.2d 319, 320–21 (Iowa 1979).
We have traditionally required a high level of intoxication to
support a finding of no specific intent.
Mental disability, arising from the use of intoxicants, is a
matter of degree. Partial drunkenness does not make
impossible the formation of said criminal object. Therefore,
the ‘intoxication’ or ‘drunkenness’ must be to the extent that
the designing or framing of such purpose is impossible.
State v. Patton, 206 Iowa 1347, 1348, 221 N.W. 952, 952 (1928). We
similarly required a high degree of intoxication in State v. Wilson, 234
Iowa 60, 76, 11 N.W.2d 737, 745–46 (1943):
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Intoxication is a matter of degree. . . . The law does not
specify the degree or the percentage of intoxication essential
to sustain this defense, but it does require that it be such as
to render the accused incapable of the requisite specific
intent. He may be under the influence of intoxicating liquor,
but he will not be absolved of criminal responsibility if he
still possesses mental capacity to entertain the intent. Mere
intoxication is not sufficient. Neither is it enough that he
had been drinking liquor.
In 1979, the legislature codified the intoxication defense. This
statute stated:
The fact that a person is under the influence of intoxicants
or drugs neither excuses the person’s act nor aggravates his
or her guilt, but may be shown where it is relevant in proving
the person’s specific intent or recklessness at the time of the
person’s alleged criminal act or in proving any element of the
public offense with which the person is charged.
Iowa Code § 701.5 (1979). We subsequently concluded this statutory
rule was “substantially a codification of prior law” and have applied it
using the same analysis under the common law rule. State v. Collins,
305 N.W.2d 434, 437 (Iowa 1981). 3 The legislature has not changed its
statutory rule since it was enacted. 4
B. Sufficiency of Evidence to Merit the Instruction.
Guerrero Cordero requested the district court to instruct the jury on
intoxication consistent with Iowa State Bar Association criminal jury
instruction 200.14. His requested instruction provided:
Defendant claims he was under the influence of intoxicants
or drugs at the time of the alleged crime. The fact that a
person is under the influence of intoxicants or drugs does
3Scott A. Anderegg discussed the codification of the intoxication rule in his note,
The Voluntary Intoxication Defense in Iowa, 73 Iowa L. Rev. 935, 947–52 & nn. 103–136
(1988), including the proposition that the legislature may have intended to modify it by
enacting the statute. We do not consider this proposition because Guerrero Cordero did
not challenge the substantive law governing the intoxication defense.
4The Code editor has modified the grammar of the statute to replace “his or her”
with “the person’s” guilt, but this was not a statutory amendment from the legislature.
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not excuse nor aggravate his guilt. Even if a person is under
the influence of an intoxicant or drug, he is responsible for
his acts if he had sufficient mental capacity to form the
specific intent necessary to the crime charged or had the
specific intent before he fell under the influence of the
intoxicant or drug and then committed the act. Intoxication
is a defense only when it causes a mental disability which
makes the person incapable of forming the specific intent.
See Iowa State Bar Ass’n, Iowa Criminal Jury Instruction 200.14 (2012).
Courts are required to instruct the jury on the law for all material
issues raised by the evidence in a case. Iowa R. Civ. P. 1.924; Marin, 788
N.W.2d at 837. It ordinarily “must instruct on a defendant’s theory of
defense provided the defendant makes a timely request, the requested
theory of defense instruction is supported by the evidence, and the
requested instruction is a correct statement of the law.” State v. Ross,
573 N.W.2d 906, 913 (Iowa 1998). An instruction is supported by the
evidence when it “could convince a rational finder of fact that the
defendant has established his affirmative defense.” State v. Broughton,
425 N.W.2d 48, 52 (Iowa 1988). 5 The defendant must produce
substantial evidence to support the instruction. Id.
In this case, the only requirement at issue is whether the proposed
instruction was supported by substantial evidence. There is no
challenge to the timeliness of the request or the accuracy of the law.
“[W]hen a defendant urges a defense of voluntary intoxication which is
supported by substantial evidence, such evidence is to be considered by
the jury on the material issue in the State’s case upon which it bears
5The burden of proof is still on the State to prove the requisite intent. State v.
Templeton, 258 N.W.2d 380, 383 (Iowa 1977) (“[T]he burden of proving specific intent
does not leave the State even when the defendant relies on an intoxication defense.”).
However, a question of fact concerning the defendant’s intoxication needs to arise from
the evidence presented. Id. (“The defendant retains the obligation to raise a fact
question for the jury on the intoxication issue regardless of the source of the evidence
. . . .”).
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. . . .” State v. Templeton, 258 N.W.2d 380, 383 (Iowa 1977). Essentially,
the issue requires us to determine if the district court abused its
discretion in refusing to give the intoxication instruction because the
level of intoxication shown by the evidence was sufficient to make the
intoxication instruction necessary for the jury to properly assess the
specific-intent elements of the crimes.
Our prior cases have found fact questions to support the
intoxication defense based on expert testimony; lay witness testimony;
circumstances before, during, and after the crime; and the defendant’s
own testimony. Broughton, 425 N.W.2d at 52 (using testimony from
defendant and two other witnesses of intoxication to raise a question
against police testimony of sobriety); State v. Klinger, 185 N.W.2d 759,
760–61 (Iowa 1971) (finding exclusion of doctor testimony on
hypothetical effects of amount of liquor on a specific size of person
constituted reversible error). These circumstances are not exhaustive,
but capture the general sources of supporting evidence. See State v.
Babers, 514 N.W.2d 79, 83 (Iowa 1994) (indicating supporting evidence
can come from any source).
Intoxication has many degrees, and the law does not strive to
capture the precise degree of intoxication to sustain the defense of
intoxication other than enough evidence to support a finding that the
defendant was so intoxicated as to be incapable of formulating or
possessing the specific intent to commit the crime. See Wilson, 234 Iowa
at 75–76, 11 N.W.2d at 745–46. Yet, the defense is not sustained by
mere evidence of intoxication. State v. Linzmeyer, 248 Iowa 31, 34, 79
N.W.2d 206, 207–08 (1956) (“[S]imply being intoxicated is not
sufficient.”).
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In State v. Watts, 244 N.W.2d 586, 589–90 (Iowa 1976), we
confronted the quantum of evidence necessary to establish a fact
question to support an instruction on the defense of intoxication. We
found the district court committed reversible error in the case by failing
to instruct on the role of intoxication in determining specific intent when
the record at trial included evidence that the defendant, who had a
history of chronic alcoholism and blackouts, drank eighteen half-quart
cans of beer on the day of the crime and experienced memory lapses. Id.
Even though the arresting police officers opined he was not intoxicated, a
fact question was presented. Id. at 589.
A jury question would normally be presented on whether the
intoxication of a person was of such a degree so as to negate the
formation of specific intent. 21 Am. Jur. 2d Criminal Law § 149, at 258
(2008) (noting the determination whether extent of intoxication negated
intent is for the fact finder). However, a threshold standard to submit
the instruction does exist and must be met, which at least requires more
than mere evidence of intoxication in the record. See 40A Am. Jur. 2d
Homicide § 515, at 363 (2008) (indicating the intoxication instruction is
required to be given only with substantial evidence to support a
conclusion defendant was incapable of forming intent). In this case,
there was evidence that Guerrero Cordero consumed beer on the day of
the crime, but nearly all the witnesses testified he was not intoxicated.
Only one witness testified he was probably intoxicated, but this tenuous
and conclusory observation was not accompanied by additional evidence
or descriptions of conduct to indicate the degree of intoxication. There is
also no evidence in the record from any witness of any conduct or
behavior engaged in by Guerrero Cordero on the day of the crime to
support a finding of a high degree of intoxication. The instruction is not
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required until the evidence would permit the fact finder to conclude the
intoxication caused the defendant to lack the mental ability to act with
the required specific purpose. Unlike the evidence in Watts, the evidence
in this case only supported, at best, a finding of mere intoxication. Cf.
Watts, 244 N.W.2d at 589–90. Under our standard, more evidence of
intoxication is required.
In light of the evidence presented at trial, the jury could have only
speculated that any intoxication by Guerrero Cordero caused a mental
disability that made him incapable of forming specific intent.
Consequently, the district court did not abuse its discretion in failing to
instruct the jury on how to apply the evidence of intoxication in deciding
if the State established the specific-intent elements of the crimes.
IV. Conclusion.
We conclude the district court did not err in refusing to give the
intoxication instruction. We affirm the opinion of the court of appeals in
part and vacate it in part. We vacate that portion of the opinion that
concludes the district court erred in failing to submit the intoxication
instruction to the jury. We affirm the convictions and sentences of the
district court.
DECISION OF COURT OF APPEALS AFFIRMED IN PART AND
VACATED IN PART; DISTRICT COURT JUDGMENT AND SENTENCE
AFFIRMED.