Opinion
No. 3-409 / 02-1587
Filed October 15, 2003
Appeal from the Iowa District Court forDavis County, Daniel P. Wilson, Judge.
Defendant appeals second-degree murder conviction and sentence. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, and Rick Lynch, County Attorney, for appellee.
Heard by Vogel, P.J., and Mahan and Zimmer, JJ.
Ricardo McGlothlin appeals his conviction for second-degree murder. On appeal, he claims the district court should have granted his motion for judgment of acquittal for lack of evidence supporting his conviction as well as alleging an error in the jury instructions. We affirm.
Background Facts. McGlothlin's testimony, as well as the testimony and evidence presented by the deputy sheriff, forensic pathologist, and criminal investigator elicited the following facts for the jury to consider. McGlothlin and Robert Carter, both seasonal workers, met in April 2002 in Oklahoma. The two began hitchhiking north to find employment and were picked up by Kim Capplinger in Missouri. On Saturday May 11, Capplinger took the men to an acreage owned by her father, Don Hines, located in Iowa near the Missouri border. Hines was leaving the next day for one week and allowed the men to stay at his home with the understanding they would watch his animals and the property while he was gone.
According to McGlothlin's testimony, he and Carter argued while drinking whiskey, wine, and beer throughout Sunday and Monday. On Tuesday, McGlothlin took some of Hines' money and his vehicle to purchase more beer and whiskey. In the evening, McGlothlin began cooking over an open fire in the yard. Carter told McGlothlin that he was cooking too much food and another argument ensued. After Carter stoked the fire with a steel electric fence post, he swung it at McGlothlin. McGlothlin raised his arm in defense and the hot post hit him causing him considerable pain. At that point, McGlothlin ran to the house located approximately thirty-five feet from the fire pit, while Carter continued to yell at McGlothlin. McGlothin retrieved a gun from inside the home and returned to the fire pit. The hammer was pulled back when McGlothlin put the gun in Carter's back, shot and killed him. At trial, McGlothlin asserted the justification defense claiming he shot Carter in an attempt to defend himself. A jury rejected the justification defense, finding McGlothlin guilty of second-degree murder. He was subsequently sentenced to fifty years imprisonment. McGlothlin appeals.
Scope of Review. Denial of a motion for judgment of acquittal is reviewed for errors at law. Iowa R.App.P. 6.4. A guilty verdict will be binding on appeal so long as it is supported by substantial evidence. State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998). Substantial evidence is found when, viewing all the evidence in the light most favorable to the State, a rational trier of fact could be convinced of the defendant's guilt beyond a reasonable doubt. Id. Our scope of review on objections to jury instructions is on assigned error. Iowa R.App.P. 6.4; State v. Hepperle, 530 N.W.2d 735, 738 (Iowa 1995).
Judgment of Acquittal. McGlothlin claims the district court erred in failing to grant his motion for judgment of acquittal based on insufficiency of evidence to support his conviction. Specifically, McGlothlin argues the State failed to prove beyond a reasonable doubt that he did not act with justification. The State claims this argument is without merit.
Iowa Code section 704.3 (2001) provides, "a person is justified in the use of reasonable force when the person reasonably believes that such force is necessary to defend oneself or another from any imminent use of unlawful force." When the defense is asserted, the burden rests upon the State to prove beyond a reasonable doubt that the alleged justification did not exist. State v. Rubino, 602 N.W.2d 558, 565 (Iowa 1999); State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993); State v. Mayes, 286 N.W.2d 387, 392-93 (Iowa 1979). For the State to prove beyond a reasonable doubt that McGlothlin was not justified in shooting Carter, the State had to prove any one of the following:
1. McGlothlin started or continued the incident which resulted in death; or
2. An alternative course of action was available to McGlothlin; or
3. McGlothlin did not believe he was in immediate danger of death or injury and the use of force was not necessary to save himself; or
4. McGlothlin did not have reasonable grounds for the belief; or
5. The force used by McGlothlin was unreasonable.
Thornton, 498 N.W.2d at 673 (citing Mayes, 286 N.W.2d at 392-92).
While McGlothlin claimed he feared for his safety and was justified in shooting Carter, several facts undermine his argument. After Carter swung the poker at McGlothlin, McGlothlin was able to retreat to safety within the house, and Carter did not attempt to pursue him. He therefore had an alternate course of action — retreat — available to him. Further, by returning to the fire pit with a loaded gun, McGlothlin continued the heated argument. Then with Carter's back to McGlothlin as he stoked the fire, McGlothlin was able to get close enough to Carter to place the gun against his back and shoot.
Regardless of whether McGlothlin believed he was in immediate danger of death or injury, his actions were clearly not justified. The district court was correct in overruling McGlothlin's motion for judgment of acquittal, as the State carried its burden of proving the justification defense did not exist and there was substantial evidence to support the jury's verdict finding McGlothlin guilty of second-degree murder.
Jury Instruction. While McGlothlin was charged with first-degree murder, the district court also instructed the jury on the elements of the lesser-included offenses of second-degree murder, voluntary manslaughter and involuntary manslaughter. In addition, the court gave this challenged instruction: "No amount of intoxicants or drugs taken voluntarily can reduce second degree murder to manslaughter." Jury Instruction 25.5. McGlothlin claims that the court, by giving instruction 25.5, was signaling the jury as to the appropriate verdict, that is, second-degree murder rather than manslaughter. He also contends the instruction was given in error as his defense was justification not intoxication. See Steinkuehler v. State, 507 N.W.2d 716, 722 (Iowa Ct.App. 1993) ("It is the rule in Iowa that while voluntary intoxication cannot constitute a defense to a crime, it may negate criminal intent if intent is an element of the crime charged.") (citing State v. Caldwell, 385 N.W.2d 553, 557 (Iowa 1986); State v. Watts, 244 N.W.2d 586, 590 (Iowa 1976); State v. Linzmeyer, 248 Iowa 31, 35, 79 N.W.2d 206, 208 (1956)). The State argues that because the men were drinking so heavily, the State needed the intoxication instruction to inform the jury how to consider the intent requirements of the State's prosecution.
Both parties have the right to request jury instructions whether upon general issues or particular phases of the case. 75A Am. Jur.2d Trial § 1080, at 610 (1991). In Iowa, we apply the same rules relative to jury instructions in criminal cases as we do in civil cases. Iowa R. Crim. P 2.19( f); see also Iowa R. Civ. P 1.924. In doing so, "the Iowa courts have disapproved of instructions that emphasize or comment on evidence presented by either party in a case." State v. Hershberger, 534 N.W.2d 464, 466 (Iowa Ct.App. 1995) (citing State v. Bone, 429 N.W.2d 123, 127 (Iowa 1988); State v. Caldwell, 423 N.W.2d 564, 566 (Iowa Ct.App. 1988); State v. Milliken, 204 N.W.2d 594, 596 (Iowa 1973)). However,
[a]s long as a requested instruction correctly states the law, has application to the case, and is not stated elsewhere in the instructions, the court must give the requested instruction. Adam v. T.I.P. Rural Elec. Coop., 271 N.W.2d 896, 901 (Iowa 1978). Error in giving or refusing jury instructions does not merit reversal unless it results in prejudice to the defendant. Rudolph v. Iowa Methodist Med. Ctr., 293 N.W.2d 550, 555 (Iowa 1980).
State v. Kellogg, 542 N.W.2d 514, 516 (Iowa 1996). There is no challenge as to whether the instruction properly states the law, and factually there was extensive testimony regarding the amount of alcohol consumed by both McGlothlin and Carter during the days leading up to the shooting. We therefore do not find the disputed instruction distorts either the law or the facts.
However, McGlothlin's main contention is the instruction prejudiced him by improperly telegraphing the desired verdict, second-degree murder to the jury, precluding a finding of guilt of manslaughter. However, as the State points out, if the jury believed McGlothlin's fear justified his actions, he would have had an absolute defense and would have been acquitted rather than found guilty of the charged offense — first-degree murder — or any of the lesser-included offenses. This did not happen, and in fact, the jury found McGlothlin acted with malice aforethought, an element of second-degree murder, absent from either voluntary or involuntary manslaughter. Further, if McGlothlin asserts the instruction prevented the jury from returning a verdict finding him guilty of voluntary manslaughter, the State's burden would have been to prove, "The shooting was done solely by reason of sudden, violent and irresistible passion resulting from serious provocation." Instruction No. 26. That instruction simply does not reflect the evidence presented nor McGlothlin's defense, as detailed in his own testimony. McGlothlin sought an acquittal from the charged first-degree murder, not a voluntary manslaughter verdict resulting from "serious provocation." Based on the foregoing, we cannot conclude that Jury Instruction 25.5 improperly telegraphed the desired verdict to the jury.
Assuming for discussion's sake, we agreed with McGlothlin that giving the instruction was improper, the error does not necessitate reversal unless it is prejudicial. State v. Caldwell, 423 N.W.2d 564, 566 (Iowa Ct.App. 1988) (citing State v. Gansz, 376 N.W.2d 887, 891 (Iowa 1985); State v. Seiler, 342 N.W.2d 264, 268 (Iowa 1983)). "Such error is presumed prejudicial, though, unless the contrary appears beyond a reasonable doubt from a review of the whole case." Id. (citing State v. Davis, 228 N.W.2d 67, 73 (Iowa 1975)). "The inquiry is whether the evidence was so dispositive of the issue that a reviewing court can say beyond a reasonable doubt that the jury would have found it unnecessary to rely on the instruction." Id. (citations omitted).
Again, because manslaughter was not supported by the facts or theories presented in the case, we cannot find any prejudice in the giving of the challenged instruction.