IN THE COURT OF APPEALS OF IOWA
No. 16-0162
Filed May 3, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
NGOR MAKUEY,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell,
Judge.
Defendant appeals from his convictions for murder in the first degree,
robbery in the first degree, and assault with intent to commit serious injury.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Maria L. Ruhtenberg,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney
General, for appellee.
Considered by Potterfield, P.J., Tabor, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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GOODHUE, Senior Judge.
Ngor Makuey appeals from his conviction of murder in the first degree,
robbery in the first degree, and assault with intent to commit serious injury and
the sentences imposed following a bench trial. We affirm Makuey’s convictions
and sentence.
I. Facts and Proceedings
Ruppert and Harriet Anderson, residents of Des Moines, had an animal-
boarding business operated by their grandson that was adjacent to their home.
Ruppert was ninety-seven years old and Harriet was ninety-two on July 2, 2014,
when they received a knock at their door. Harriet assumed someone was
wanting to pick up an animal and opened the door. She observed a young man
and told him the kennel was closed, but the man, later identified as Ngor
Makuey, pushed her aside and entered the residence. He hit Ruppert twice on
the head with an instrument he held in his hand, later determined to be a metal
spatula. He then hit Harriet with the spatula and knocked her down. Harriet was
able to retrieve a telephone by pulling on the cord and called 911.
The police arrived, and a young man wearing a gray hooded sweatshirt
was observed outside the Anderson home but near its entry door. When
questioned by an officer, he advised he was picking up a dog. Two more officers
soon arrived, and a cameraman from the television show COPS was traveling
with them. The cameraman was operating his camera when he arrived at the
house. By coincidence, the video reflected the young man who had been near
the house. Both Harriet and Ruppert were taken to the hospital where Harriet
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was stitched up and eventually released, but Ruppert died. The medical
examiner determined Ruppert died from a blunt force trauma to the head.
By use of the video, Makuey was identified as the young man near the
Anderson home. A blood-stained spatula, sweatshirt, and shorts were retrieved
from Makuey’s residence, and the blood stains matched Harriet’s blood type.
Pieces of wood, which were identified as the handle to the spatula, were
recovered at the Anderson home. It was discovered that a jewelry box Harriet
kept on a dresser had been removed and opened, but nothing had been taken.
Makuey was arrested and charged with murder in the first degree,
attempted murder, robbery in the first degree, and burglary in the first degree.
Makuey waived his right to a jury trial and was tried to the court. Makuey put
forth a defense of insanity, and his expert witness, Dr. Lewis Rosell, diagnosed
Makuey as suffering schizophrenic spectrum and other psychotic disorders and
further testified that Makuey was not able to distinguish right from wrong or
control his behavior on the date of the incident. The State called Dr. Tim Kockler,
who reviewed Dr. Rosell’s report and criticized his conclusions in several
respects. The State also called Dr. Michael Taylor, who diagnosed Makuey as
having a psychotic disorder but nevertheless stated that, on the date in question,
Makuey was able to act with specific intent, was able to understand the nature
and quality of his act, and had the ability to distinguish between right and wrong.
After the bench trial, the court did not accept the insanity defense and
found Makuey guilty of murder in the first degree, assault with intent to commit
serious injury as a lesser included offense of attempted murder, robbery in the
first degree, and burglary in the first degree. The court did not find Makuey guilty
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of attempted murder but instead the lesser-included offense because it did not
find Makuey intended to kill anyone. The guilty verdict of murder in the first
degree was based on the felony-murder rule. Makuey was sentenced to life in
prison on the murder conviction, two years on the assault with intent to commit
serious injury, and twenty-five year terms each for robbery in the first degree and
burglary in the second degree. All of the sentences were to run concurrently
except the assault charge, which was made to run consecutive to the other
offenses. Makuey has appealed, claiming the sentences imposed constituted
cruel and unusual punishment prohibited by the Eighth Amendment of the United
States Constitution and article 1 section 17 of the Iowa Constitution.
II. Issue Preservation
An illegal sentence can be raised at any time, and unconstitutional
sentences are considered illegal sentences. State v. Bruegger, 773 N.W.2d 862,
872 (Iowa 2009). The State contends that the rule should be changed to require
the constitutionality of a sentence to be contested before the trial court before it
can be challenged on appeal. There is some merit to the State’s contention that
a reviewing court is deprived of the necessary record and fact finding required to
fully evaluate a claim of cruel and unusual punishment when the issue is not
raised and no record is made at the trial court level. However, if the reviewing
court determines the record is necessary, it can remand the matter for that
purpose. In Bruegger, further record was determined to be necessary and the
matter was remanded back to the trial court to provide the desired record. Id. at
885-86. The same could be done in this case if determined appropriate. The
State also ignores the rather logical conclusion that an unconstitutional sentence
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is inherently an illegal sentence. Furthermore, if the record is not adequate to
support Makuey’s claim, it is prejudicial to him and not to the State. In any event,
the Iowa Supreme Court has addressed the issue, and because unconstitutional
sentences are illegal sentences, the usual error preservation rules are not
applicable. See State v. Oliver, 812 N.W.2d 636, 639 (Iowa 2012).
III. Scope of Review
Sentences alleged to be unconstitutional are reviewed de novo. State v.
Lyle, 854 N.W.2d 378, 382 (Iowa 2014).
IV. Discussion
The concept of prohibited cruel and unusual punishment has been broken
down into two general categories: (1) as-applied to the individual defendant, and
(2) categorical challenges. See Graham v. Florida, 560 U.S. 48, 60 (2010).
However, the categorical challenge prong has been broken down into several
subsets. See Lyle, 859 N.W.2d at 385-86. Makuey has raised both the
prohibition of cruel and inhuman punishment as contained in the United States
Constitution and the Constitution of the State of Iowa. Makuey has not advanced
a separate or different interpretation for the Iowa Constitution from the United
States Constitution but emphasized that, while we accept the federal standards
in Iowa, we apply a more stringent review than would be available under the
federal constitution. See Bruegger, 773 N.W.2d at 883.
Makuey specifically contends the felony-murder rule justifying the first-
degree murder conviction is cruel and unusual as applied to him. The trial court
specifically found that Makuey did not intend to murder anyone, thus negating the
charge of attempted murder as to Harriet. In essence, this also made his murder
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conviction based on Ruppert’s death dependent on the felony-murder rule. No
birth certificate was produced but the evidence at trial supported that he was at
least eighteen on July 2, 2014. He had been born in an Ethiopian refugee camp
where the occupants were subjected to repeated violence. He immigrated to the
United States in 2000. His mother has separated from her husband, and Makuey
lived with her in Des Moines at the time of the criminal act. He previously has
lived in Utah, North Dakota, Nebraska, and Arizona, where he lived in a group
home for a period of one year. He has attended school only briefly. His mental
condition, the court’s finding of a lack of intent to commit murder, and the other
facts and circumstances attending the crime have already been noted.
Both the state and federal constitutions allow a defendant to challenge his
or her sentence under the cruel and unusual punishment prohibition. Oliver, 812
N.W.2d at 648-49. A defendant may challenge a sentence under the cruel and
unusual prohibition emphasizing the specific facts of the case under the as-
applied prong under both the Iowa and federal constitution. Id. at 649. In
considering the as-applied prong, the first step is the threshold inquiry to
determine whether a sentence leads to an inference of gross disproportionality to
the crime committed. Id. at 650. If gross disproportionality does not exist, no
further inquiry is required. Id. In determining whether gross disproportionality
exists, substantial deference is granted to the legislature. Id. Secondly, it is rare
that a sentence will be so grossly disproportionate to the offense to satisfy the
threshold requirement. Id. The third principle, not relevant to the present case,
is the court’s right and responsibility to consider an offenders criminal history. Id.
Finally, unique factors may converge to generate a high risk of potential gross
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disproportionality. Id. at 651. Among the unique factors that can be considered
is a broadly-framed crime. Bruegger, 773 N.W.2d at 885.
Makuey emphasizes his young age, and our supreme court has held that
all mandatory minimum sentences of imprisonment for youthful offenders are
unconstitutional under the cruel and unusual punishment prohibition. See Lyle,
854 N.W.2d at 402. However, in doing so, the court accepted the legislature’s
bright line rule of under eighteen as the definition of a youthful offender and
specifically noted its holding had no application to adult offenders. Id. at 403.
Our legislature has prescribed murder in the first degree has been
committed when a person kills another while participating in a forcible felony.
Iowa Code § 707.2(b) (2014). The cited section does create a broadly-framed
crime, and the sentence imposed on Makuey is the most severe sentence
permitted under Iowa law. The felony-murder rule obviates the need to provide
willfulness, deliberateness, and premeditation under the rationale that certain
crimes are so inherently dangerous that when a death results from participation
in the defined criminal act that first-degree murder is the appropriate charge.
State v. Heemstra, 721 N.W.2d 549, 554 (Iowa 2006). The State has wide
latitude and power in defining crimes. State v. Fuhrmann, 261 N.W.2d 475, 479
(Iowa 1978).
Given the right and power the legislature has to enact a felony-murder
rule, life imprisonment is not so disproportionate to the seriousness of the offense
so as to shock one’s sense of justice. State v. Rhode, 503 N.W.2d 27, 41 (Iowa
Ct. App. 1993). Few, if any, criminal acts are more deserving of the maximum
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penalty that can be imposed than causing the death of another fellow human
being.
A defendant who commits an act of lesser culpability that falls under a
broad criminal statute and for whom a stiff penalty has been imposed has a right
to make a cruel and unusual punishment challenge based on the excessive
penalty. Bruegger, 773 N.W.2d at 884. We have discussed the facts raised by
Makuey challenging the appropriateness of the sentence imposed. The felony-
murder rule is clearly a broad classification, and life imprisonment is a severe
penalty. Makuey was found to have lacked the intent to commit murder,
lessening his culpability, but because of the felony-murder rule and the
dangerous activity he was involved in, the intent was in effect implied. The
commission of the forcible felony he was participating in and the danger it posed
constitute a presumed intent to support the murder charge. We conclude
Makuey has not met the required threshold to infer the gross disproportionality
required to consider an as-applied attack on the constitutionality of his sentence.
In Bruegger, an as-applied attack on the constitutionality of a statute was
remanded for hearing before the trial court to determine the facts and
circumstances of the situation in order to reach a conclusion as to whether the
imposed sentence was cruel and unusual treatment as-applied to him. 773
N.W.2d at 884. We do not interpret Bruegger as requiring an evidentiary hearing
in all cases where the use of cruel and unusual treatment as-applied is raised on
an appeal or otherwise. We believe that, under Oliver, such a supplemental
hearing is not required when, as in this case, we have enough of the relevant
factors to conclude that Makuey cannot meet the threshold test of an imposition
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of a punishment that is grossly disproportionate to the crime committed. See 812
N.W.2d at 850.
We affirm Markuey’s convictions and sentence.
AFFIRMED.