IN THE COURT OF APPEALS OF IOWA
No. 14-1780
Filed June 15, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MARQUICE VERRON MORRIS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Karen A. Romano,
Judge.
Defendant appeals his convictions for murder in the first degree and
robbery in the first degree. AFFIRMED.
Molly E. Alley of Oliver Gravett Law Firm, P.C., Windsor Heights, for
appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik and Benjamin M.
Parrott, Assistant Attorneys General, for appellee.
Heard by Tabor, P.J., and Bower and McDonald, JJ.
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MCDONALD, Judge.
Christopher Byers was shot and killed in his living room while selling drugs
to Marquice Morris and Joshua McCoy. Two other men were present at the time
of the homicide: Tanner Harvey and Bobby Page, Byers’ friends. Who killed
Byers and why? According to Page, Morris and McCoy pulled out handguns
during the transaction for the purpose of robbing Byers; either Morris or McCoy
fired a shot into the floor and the other shot Byers in the chest; and Morris and
McCoy fled the scene. Morris testified Byers, Harvey, and Page tried to rob
Morris and McCoy during the transaction; Byers pulled a knife from a bag and
Harvey pulled a gun; Morris pushed an advancing Harvey; and Harvey’s gun
discharged, killing Byers. It is not disputed all the men left the scene immediately
after the shooting: Morris and McCoy exited the front door followed by Page
several moments later; Harvey apparently jumped parkour-style out of a second-
story window in the back of the house. Following an investigation, Morris and
McCoy were arrested and charged with murder in the first degree, in violation of
Iowa Code sections 707.1 and 707.2 (2013), and robbery in the first degree, in
violation of Iowa Code sections 711.1 and 711.2. They were tried separately and
each convicted as charged. Morris challenges his convictions and sentences.
I.
Morris contends there was insufficient evidence supporting the robbery
conviction. Specifically, Morris contends there was insufficient evidence he, or
someone he aided and abetted, had the specific intent to commit a theft, an
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element of the offense. See State v. Copenhaver, 844 N.W.2d 442, 447–48
(Iowa 2014) (setting forth elements of the offense).
“In reviewing challenges to the sufficiency of evidence supporting a guilty
verdict, courts 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.” State v. Romer, 832 N.W.2d 169, 174 (Iowa 2013). A
jury verdict finding the defendant guilty will not be disturbed if there is substantial
evidence to support it. See State v. Robinson, 859 N.W.2d 464, 467 (Iowa
2015). “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.” State v. Sanford, 814 N.W.2d 611, 615 (Iowa
2012). “Evidence that raises only suspicion, speculation, or conjecture is not
substantial evidence.” State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997) (internal
quotation marks and citations omitted).
The State argues Morris failed to preserve error on the issue. “To
preserve error on a claim of insufficient evidence for appellate review in a
criminal case, the defendant must make a motion for judgment of acquittal at trial
that identifies the specific grounds raised on appeal.” State v. Truesdell, 679
N.W.2d 611, 615 (Iowa 2004). Here, Morris’s counsel made only a generalized
motion for directed verdict:
Your Honor, at this time we would make a motion for directed
verdict of not guilty. Your Honor, we believe the State has the
obligation to bring forth evidence on each and every element of the
crime charged—of the crimes charged to present a jury question.
And that as we are aware, the court looks at that in the light most
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favorable to the State. Nonetheless, we would move for a directed
verdict of not guilty at this time.
A generalized motion for directed verdict that does not specify the count or
counts and the specific element or elements challenged fails to preserve error for
appellate review. See State v. Ross, 845 N.W.2d 692, 700 (Iowa 2014) (“Trial
counsel is required to make a specific objection in his or her motion for judgment
of acquittal in order to preserve error.”); Truesdell, 679 N.W.2d at 615; State v.
Crone, 545 N.W.2d 267, 270 (Iowa 1996) (holding error not preserved where the
specific elements challenged were not identified in motion); State v. Pitts, No. 03-
1888, 2005 WL 67573, at *1 (Iowa Ct. App. Jan. 13, 2005) (holding motion for
judgment of acquittal challenging “each and every element” failed to specify
grounds for acquittal and failed to preserve error for appellate review); State v.
Domenig, No. 01-0899, 2003 WL 118218, at *7 (Iowa Ct. App. Jan. 15, 2003)
(“Error is not preserved when a motion for judgment of acquittal does not point
out the specific deficiencies in the evidence.”). “To the extent error is not
preserved on an issue, any objections must be raised within an ineffective-
assistance-of-counsel framework.” State v. Ambrose, 861 N.W.2d 550, 555
(Iowa 2015). Appellate counsel does not assert a claim of ineffective assistance
of counsel. We thus affirm on this issue.
Even if error had been preserved, we find sufficient evidence in support of
the conviction. On the morning of June 26, 2013, Dakata Diggins, who was
dating Morris at the time, picked Morris up from the Fort Des Moines correctional
facility purportedly to look for employment. One of Morris’s roommates at the
correctional facility testified at trial. The roommate testified Morris stated he “was
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going to hit a lick or make a come up,” which means to make money quickly,
usually through illegal activity. As Diggins was driving her van, Morris saw Byers
walking along the street and instructed Diggins to pull over. Morris and Byers
spoke, and Byers provided Morris with Byers’ telephone number. During that
conversation and subsequent telephone conversations, Morris arranged to buy
marijuana from Byers.
Later in the morning, Diggins and Morris went to Joshua McCoy’s house.
While at McCoy’s house, Morris used Diggins’ phone to call Byers. Morris,
McCoy, and Diggins then left McCoy’s house to go to Nikki Taylor’s residence.
From there, Diggins drove Morris and McCoy to an apartment complex. At the
apartment complex, Morris and McCoy spoke to Byers, who was in the parking
lot in a red Jeep with another man. After speaking with Byers, Morris and McCoy
returned to Diggins’ vehicle and instructed her to follow the red Jeep.
Diggins followed the red Jeep to Byers’ house and parked her vehicle in
front of Byers’ neighbor’s house. McCoy and Morris exited Diggins’ vehicle and
went into the house while Diggins stayed in her van. The timing is unclear, but
less than twenty minutes later, Diggins heard something that sounded like
fireworks. Immediately after, McCoy and Morris rushed back to Diggins’ van and
instructed Diggins “to go” and to drive fast. Morris told Diggins to drop them off
at McCoy’s house, which she did. Morris told Diggins to go to Taylor’s house
and wait.
Bobby Page testified at trial. His testimony filled in the blanks regarding
what occurred inside Byers’ home. Page testified he was good friends with
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Byers. On the day in question, Byers went to Page’s house and asked for a ride
somewhere. Page agreed. As they went outside to get into Page’s truck, Harvey
pulled up in his red Jeep. Page and Harvey had been planning to go fishing later
that day. Page told Harvey to follow them to Byers’ house. However, Byers went
with Harvey in the red Jeep and Page left to gather his fishing gear with the
understanding they would meet at Byers’ house.
When Page arrived at Byers’ house, Byers and Harvey were not yet there.
According to Page, when Harvey and Byers returned, they were being followed
by a van with a woman and two men, now known to be Morris and McCoy,
inside. Page went into the house, followed by Harvey and Byers with McCoy and
Morris behind them. Harvey went into the kitchen to light a cigarette, leaving
Page on the couch with Byers. Page testified he was looking down at his phone
and when he looked up he saw Byers had pulled a bag of marijuana out of a
backpack. He also saw Morris and McCoy had drawn guns. According to Page,
one said, “[W]hat now?” Then either McCoy or Morris shot at the ground, and
the other shot Byers in the chest. One held a semi-automatic firearm and the
other a revolver. Before leaving, either McCoy or Morris asked for Page’s and
Harvey’s car keys. Page never handed over his keys; instead, Page pointed to
some keys on the table. After McCoy and Morris left, according to Page, he and
Harvey also left the house to give chase. After an unsuccessful pursuit, Page
and Harvey went to Page’s house. They talked to some of Page’s family
members, decided to delete their phone calls, and then called 911. When they
returned to Byers’ home, Byers was dead.
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Other evidence supported the jury’s determination of guilt. After Diggins
had waited at Taylor’s residence for approximately thirty minutes, McCoy and
Morris arrived. Diggins overheard Morris and McCoy speak about cutting off
McCoy’s dreadlocked hair. Diggins overheard McCoy say he shot in the
direction of where the guy was standing. She also overheard Morris say he shot
at the floor at Byers’ house. Morris instructed Diggins to change her telephone
number. Around 5:00 p.m., Diggins left Taylor’s residence to return Morris to the
Fort Des Moines correctional facility. After dropping Morris off, Diggins returned
to Taylor’s residence. Morris returned to Taylor’s residence later in the evening
after borrowing a bicycle from someone at the correctional facility. Diggins
overheard Morris and McCoy discussing “the weed,” and she saw each with
marijuana in their possession. Morris returned to the correctional facility later
that night.
Following an investigation, in which Page identified Morris and McCoy in a
photo array, police arrested Morris at the correctional facility the night of the
shooting. Morris told the detectives he had been having sex with his girlfriend all
day and denied being with McCoy. “A false story told by a defendant to explain
or deny a material fact against him is by itself an indication of guilt and the false
story is relevant to show that the defendant fabricated evidence to aid his
defense.” State v. Cox, 500 N.W.2d 23, 25 (Iowa 1993). Although he was at the
correctional facility, Morris possessed $210 in cash at the time of his arrest.
McCoy was also arrested on the night of the shooting. The police found
him hiding in a closet at Taylor’s residence. He had just shaved his head.
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McCoy called Taylor from the jail after his arrest while the police were still
searching Taylor’s residence. McCoy told Taylor he had hidden a gun under her
couch cushions where he had been lying down. The police obtained a search
warrant and discovered a Taurus 9mm handgun underneath the couch cushions.
A criminalist testified the 9mm could have fired the fatal bullet. A bullet
was also found in the floor joist of the Byers’ living room, corroborating Page’s
testimony that either Morris or McCoy fired a shot into the ground and the other
shot Byers. The bullet in the floor joist was likely fired from a .357 caliber gun. It
could not have been fired from the 9mm Taurus discovered under the couch
cushions at Taylor’s residence. The police did not recover a second weapon.
The primary basis of Morris’s attack against the sufficiency of the evidence
is the jury should have believed his version of events. Morris’s testimony was
significantly different from Page’s testimony. Morris stated Byers pulled
marijuana out of a backpack and handed it to him. Morris said he smelled the
marijuana and then asked Byers where the rest was. Byers grabbed his
backpack like he was going to pull out more marijuana; instead he pulled a knife.
Morris said he dropped the marijuana and started to back up. Byers proceeded
to get up from the couch and said to Morris, “[G]ive me the F-ing money, give me
the F-ing money.” According to Morris, Harvey entered the living room from the
kitchen with a firearm and told Morris to get down. As Harvey approached
Morris, Morris reached out and grabbed the gun to push it away. The firearm
discharged, and it discharged through the ground. Morris testified he ran out of
the house, jumped into the car, and told Diggins to “go, go, go, go.” At trial, a
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jailhouse informant testified Morris told him that he planned to falsely plead self-
defense, claiming Byers had a knife, even though Morris was robbing Byers at
the time of the murder.
When all of the evidence is viewed in the light most favorable to the
verdict, there is substantial evidence Morris acted with the specific intent to
commit a theft. It was within the province of the jury to determine whether Morris
was credible. See State v. Mitchell, 568 N.W.2d 493, 503 (Iowa 1997). We see
no reason to disturb the jury’s verdict.
II.
Morris contends the district court erred in excluding as hearsay certain
deposition testimony of Tanner Harvey. Morris argues the deposition testimony
corroborates Morris’s account that Byers, Page, and Harvey intended to rob
Morris and McCoy. Morris contends the statements should have been admitted
pursuant to Iowa Rule of Evidence 5.804(b)(3) as a statement against interest or
pursuant to Rule 5.807 under the residual exception.
To provide context, Morris and McCoy were charged as co-defendants
and scheduled to go to trial together. The State identified Harvey as a witness.
Morris and McCoy noticed the deposition of Harvey to occur in February 2014,
but Harvey refused to participate in the deposition. At the time he was scheduled
to be deposed, Harvey was incarcerated on unrelated charges. McCoy and
Morris moved to exclude Harvey as a witness due to his refusal to participate in
the deposition. The district court scheduled a hearing on the motion to exclude.
Harvey testified at the hearing, and he informed the court that he would refuse to
10
be deposed and he would refuse to testify at trial. The district court then granted
the joint motion to exclude Harvey as a witness.
Subsequent to the court’s ruling, the co-defendants’ trials were severed.
McCoy was tried in April 2014 and convicted of murder in the first degree and
robbery in the first degree. Harvey did not testify at McCoy’s trial.
In May 2014, Morris filed a motion in limine wherein he withdrew his
motion to exclude Harvey. At the hearing on the motion, Morris also argued he
should be allowed to introduce into evidence Harvey’s taped interview with the
police following Byers’ death and Harvey’s testimony from the April hearing on
the motion to exclude. The district court concluded the statements were hearsay
and denied the request.
Later in May, the State filed a motion for rule to show cause why Harvey
should not be held in contempt for refusing to be deposed and testify. The
district court held a hearing on the State’s motion. The State had already
granted Harvey immunity, but Harvey nonetheless repeated his prior refusal to
be deposed or testify. The district court found Harvey in contempt of court and
sentenced him to six months’ incarceration to be served consecutive to any other
sentence Harvey was serving.
Morris’s trial commenced on June 2, 2014. Harvey changed his position
and informed the parties that he was willing to testify in Morris’s trial. After the
jury was impaneled and sworn, the district court recessed to allow the parties the
opportunity to depose Harvey. The deposition was very brief. As relevant here,
Harvey testified during his deposition that he, Byers, and Page intended to rob
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Morris and McCoy, “Right off the bat that just sounded like, you know, an easy
score for us. These two dudes [Morris and McCoy] that we don’t know want to
buy some weed from us. Instantly we just, you know, had the idea that we were
just going to rob them.” Harvey’s counsel intervened on the ground that Harvey’s
testimony raised potential federal criminal liability and advised Harvey to re-
invoke his Fifth Amendment right against self-incrimination. Harvey did re-invoke
his right, and the deposition ceased. The parties informed the district court of
what occurred. The district court granted the Morris’s motion for mistrial.
In August of 2014, Morris filed a motion in limine. As relevant here, Morris
requested the court allow into evidence Harvey’s June deposition testimony as a
statement against interest pursuant to Rule 5.804(b)(3) or pursuant to the
residual exception set forth in Rule 5.807. The district court denied the request.
“A district court’s decision to admit or exclude evidence is generally reviewed for
an abuse of discretion.” State v. Paredes, 775 N.W.2d 554, 560 (Iowa 2009).
However, we review the admissibility of hearsay evidence for correction of errors
at law. See id. “This standard of review extends to determining whether
statements come within an exception to the general prohibition on hearsay
evidence, including the exception for statements against interest.” Id.
Rule 5.804(b)(3) defines a statement against interest as follows:
A statement which was at the time of its making so far contrary to
the declarant’s pecuniary or proprietary interest, or so far tended to
subject the declarant to civil or criminal liability, or to render invalid
a claim by the declarant against another, that a reasonable person
in the declarant’s position would not have made the statement
unless believing it to be true. A statement tending to expose the
declarant to criminal liability and offered to exculpate the accused is
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not admissible unless corroborating circumstances clearly indicate
the trustworthiness of the statement.
The contours of the rule were set forth in Paredes. First, “only inculpatory
statements and the collateral material necessary to provide context to the
statements are admissible under our rule of evidence. When presented with a
writing or narrative testimony, the district court must sift through it and admit the
wheat and discard the chaff.” 775 N.W.2d at 565. Once the scope of the
relevant statement is determined, the district court must make a threshold
determination:
The second question presented under the rule is whether the
statement is sufficiently inculpatory as to amount to a statement
against penal interest. Under our rule, a statement against penal
interest must have “so far tended” to inculpate the accused “that a
reasonable person in the declarant’s position would not have made
the statement unless believing it to be true.” Iowa R. Evid.
5.804(b)(3). This requirement is designed to establish a threshold
level of trustworthiness of the underlying statement.
Paredes, 775 N.W.2d at 565. “The third question presented under this rule is the
scope of the corroboration requirement when the statement against interest is
being offered to exculpate the accused.” Id. at 566. “[T]he best approach to
determining whether a statement is adequately corroborated appears to be a
multifactored test in which all evidence bearing on the trustworthiness of the
underlying statement may be considered.” Id. at 567. “The factors considered
often include: (1) whether there is any apparent motive for the out-of-court
declarant to misrepresent the matter, . . . (2) the general character of the
speaker, . . . (3) whether other people heard the out-of-court statement, . . .
(4) whether the statement was made spontaneously, . . . (5) the timing of the
13
declaration[, and (6)] the relationship between the speaker and the witness.” Id.
at 567–68 (internal quotation marks and citations omitted). “[T]he defendant’s
own claim of innocence cannot be sufficient collaboration.” Id. at 568.
We conclude the district court did not err in concluding the statement was
not admissible as a statement against interest. The district court specifically
found Harvey did not think the statement was inculpatory at the time it was made
because Harvey had been granted immunity for his testimony. See, e.g., United
States v. Gonzalez, 559 F.2d 1271, 1273 (5th Cir. 1977) (holding statement was
not admissible where witness had been given immunity and statement could not
subject him to liability); Shakespeare v. State, 827 P.2d 454, 457 (Alaska Ct.
App. 1992) (“Thus we have held that where the declarant is aware that he is not
subject to prosecution for crimes revealed in a statement, the statement lacks
trustworthiness and should not be construed as one against penal interest.”);
State v. Hoak, 692 P.2d 1174, 1180 (Idaho 1984) (holding statement made under
promise of immunity was not sufficiently reliable to come within the statement-
against-interest exception); State v. Anthony, 448 A2d 744, 754–55 (R.I. 1982)
(holding statement was not admissible as statement against penal interest where
the statement was made under the shroud of immunity). Counsel’s after-the-fact
recognition of the potentially inculpatory nature of the statement is insufficient to
bring the statement within the exception to the hearsay rule. See Paredes, 775
N.W.2d at 565 (“Although not expressly required, this adversity requirement
implicitly demands that the person knew or at least believed that the statement
was against penal interest at the time it was made. Otherwise, the rationale of
14
the exception, namely, that a reasonable declarant would not make a statement
against interest unless true, would be undermined.”). The district court’s finding
is supported by substantial evidence and is binding on appeal. See State v.
Long, 628 N.W.2d 440, 445 (Iowa 2001) (“If a court's factual findings with respect
to application of the hearsay rule are not ‘clearly erroneous’ or without substantial
evidence to support them, they are binding on appeal.”).
We also conclude the district court did not err in ruling the statement was
not admissible pursuant to the residual exception. Iowa Rule of Evidence 5.807
provides:
A statement not specifically covered by any of the exceptions in
rules 5.803 or 5.804 but having equivalent circumstantial
guarantees of trustworthiness, is not excluded by the hearsay rule,
if the court determines that (A) the statement is offered as evidence
of a material fact; (B) the statement is more probative on the point
for which it is offered than any other evidence which the proponent
can procure through reasonable efforts; and (C) the general
purposes of these rules and the interests of justice will best be
served by admission of the statement into evidence. However, a
statement may not be admitted under this exception unless the
proponent of it makes known to the adverse party sufficiently in
advance of the trial or hearing to provide the adverse party with a
fair opportunity to prepare to meet it, the proponent's intention to
offer the statement and the particulars of it, including the name and
address of the declarant.”
There are five requirements for evidence to be admissible under the
residual exception. See State v. Rojas, 524 N.W.2d 659, 662–63 (Iowa 1994).
The five requirements are: “trustworthiness, materiality, necessity, service of the
interests of justice, and notice.” Id. The district court should make an explicit
finding on the record for each requirement. See State v. Brown, 341 N.W.2d 10,
15
14 (Iowa 1983). The residual exception is to be used “very rarely[] and only in
exceptional circumstances.” Id.
Here, the district court found that the deposition testimony lacked
trustworthiness. The district court was familiar with Harvey due to his conduct
related to this case. Specifically, Harvey refused to participate in depositions in
February 2014. He testified during the hearing on the motion to exclude in April.
Harvey was before the court on the contempt charges immediately prior to the
June trial date. It was clear to the district court, and we defer to the district
court’s credibility determination, Harvey went out of his way to interfere with the
prosecution without regard to the outcome. He felt the police and the State were
“disrespecting” him and “wasting his time.” He testified he had issues with the
police, including an allegation they destroyed his vehicle and erased information
from his cell phone. Harvey was also an admitted liar with little credibility.
Harvey admitted he lied to the police on the day of the shooting and told the
police what he thought they wanted to hear. The State contends that Harvey
was also motivated to fabricate information to exculpate Morris because Harvey
might have been incarcerated with Morris if Morris were convicted. We need not
address this latter speculative point. The district court’s credibility finding, without
consideration of the last point, is supported by substantial evidence, and it is
binding on appeal. See Long, 628 N.W.2d at 445.
III.
Morris argues his sentences are illegal because the jury was not required
to find there was an act constituting the assault element of the robbery charge
16
distinct from the shooting. The State contends this is a backdoor challenge to
the jury instruction and not an illegal sentencing issue. The State argues Morris
failed to preserve error by challenging the jury instructions. We agree this is a
challenge to the jury instruction, and we agree the defendant failed to preserve
error. See State v. Hepperle, 530 N.W.2d 735, 740 (Iowa 1995) (“Failure to
properly object to an instruction not only waives the right to assert error on
appeal, but also allows the instruction, right or wrong, to become the law of the
case.”).
Even if the issue were before us, the argument is without merit. The State
charged Morris with murder in the first degree under two alternatives:
(1) premeditated murder; and (2) felony murder. The marshaling instruction on
murder provided:
The State must prove all of the following elements of Murder
in the First Degree as charged in Count I:
1. On or about the 26th day of June, 2013, the defendant, or
someone he aided and abetted, shot Christopher Byers.
2. Christopher Byers died as a result of being shot.
3. The defendant, or someone he aided and abetted, acted
with malice aforethought.
4. (a) The defendant, or someone he aided or abetted,
acted willfully, deliberately, premeditatedly and with a
specific intent to kill Christopher Byers and/or
(b) The defendant, or someone he aided and abetted,
was participating in the offense of Robbery in the First
Degree.
The marshaling instruction provided to the jury for the robbery charge was
as follows:
The State must prove all of the following elements of
Robbery in the First Degree as charged in Count II:
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1. On or about the 26th day of June, 2013, the defendant, or
someone he aided and abetted, had the specific intent to
commit a theft.
2. To carry out his intention or to assist him in escaping from
the scene, with or without the stolen property, the defendant,
or someone he aided and abetted:
a. Committed an assault on Christopher Byers; and/or
b. Threatened Christopher Byers with, or purposely
put Christopher Byers in fear of immediate serious
injury.
3. The defendant, or someone he aided and abetted:
a. Purposely inflicted or attempted to inflict a serious
injury on Christopher Byers; And/or
b. Was armed with a dangerous weapon.
Relying on State v. Heemstra, 721 N.W.2d 549, 557–58 (Iowa 2006);
State v. Millbrook, 788 N.W.2d 647, 650 (Iowa 2010); and State v. Tribble, 790
N.W.2d 121, 128–29 (Iowa 2010), Morris argues the convictions should merge
because the jury did not make a finding that the assault element of the robbery
was independent of the shooting. Our court recently decided the same issue,
and we quote at length from our prior opinion:
In Heemstra, our supreme court held the felonious assault of willful
injury could serve as the predicate offense for felony murder only in
certain circumstances, for instance, “if the defendant assaulted the
victim twice, first without killing him and second with fatal results.”
Heemstra, 721 N.W.2d at 556. In Millbrook, the court considered a
felony murder conviction predicated on the defendant’s participation
in the felonious assault of intimidation with a dangerous weapon,
concluding “the fact that intimidation with a dangerous weapon is
not a lesser-included offense of first-degree murder does not
preclude application of the merger doctrine enunciated in
Heemstra.” Millbrook, 788 N.W.2d at 652. The Millbrook court
ultimately upheld the murder conviction, finding the defendant
committed an assaultive act sufficiently independent of the firing of
the gun that resulted in the victim’s death. Id. at 653–54. In
Tribble, the court again considered a felony murder conviction
based on the felonious assault of willful injury, and upheld the
conviction 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
18
death. Tribble, 790 N.W.2d at 129. Notably, Heemstra, Millbrook,
and Tribble all address murder cases predicated on the forcible
felony of felonious assault.
None of the cases relied upon by Pollard discusses the possibility
of merger when robbery serves as the predicate felony for felony
murder. In fact, the Heemstra court twice quoted authorities which
identified robbery as an independent felony, not subject to merger.
See Heemstra, 721 N.W.2d at 556, 558 (citing Commw. v. Quigley,
462 N.E.2d 92, 95 (Mass. 1984) (quoting Wayne R. LaFave &
Austin W. Scott, Jr., Criminal Law § 71, at 559 (1972) (“although
rape, arson, robbery and burglary are sufficiently independent of
the homicide, . . . aggravated battery toward the deceased will not
do for felony murder”) and citing People v. Moran, 158 N.E. 35, 36
(N.Y. 1927) (“The felony that eliminates the quality of the intent
must be one that is independent of the homicide and of the assault
merged therein, as, e.g., robbery or larceny or burglary or rape.”)).
Millbrook likewise quoted the Moran case from the New York Court
of Appeals. Millbrook, 788 N.W.2d at 651.
State v. Pollard, No. 13-1255, 2015 WL 405835, at *3–4 (Iowa Ct. App. Jan. 28,
2015). We see no reason to deviate from our prior conclusion in Pollard.
In addition, there is substantial evidence in this case that the act
supporting the predicate felony is independent of the act resulting in death. See
Tribble at 128 (“The first act must relate to an element of the predicate felony,
while the second independent act must kill another person.”). Here, Morris drew
a firearm during the robbery. That act was sufficient to establish robbery in the
first degree independent of any act resulting in death. See Iowa Code § 711.2.
Morris and McCoy also demanded the car keys from Page and Harvey while
brandishing guns. That act was also sufficient to establish the predicate felony
independent of the act resulting in Byers’ death. We reject Morris’s claim for this
additional reason.
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IV.
For the foregoing reasons, we affirm the defendant’s convictions and
sentences.
AFFIRMED.