IN THE SUPREME COURT OF IOWA
No. 07–0309
Filed September 17, 2010
STATE OF IOWA,
Appellee,
vs.
RON JAREL MILLBROOK,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Scott County, Mary E. Howes,
Judge.
Defendant seeks further review of court of appeals’ decision affirming
his conviction of first-degree murder, claiming the district court erroneously
instructed the jury that it could convict the defendant under the felony-
murder rule. DECISION OF COURT OF APPEALS AND JUDGMENT OF
DISTRICT COURT AFFIRMED.
Lauren M. Phelps, Bettendorf, for appellant.
Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant
Attorney General, Michael J. Walton, County Attorney, and Jerald L.
Feuerbach, Assistant County Attorney, for appellee.
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TERNUS, Chief Justice.
The defendant, Ron Millbrook, appeals his conviction of first-degree
murder, contending the trial court erred when it submitted a felony-murder
instruction to the jury. Relying on the merger doctrine adopted in State v.
Heemstra, 721 N.W.2d 549 (Iowa 2006), Millbrook claims there was not
sufficient evidence of his commission of a felony independent of the act
resulting in the victim’s death. His appeal was transferred to the court of
appeals, where his conviction was affirmed. Upon our further review of his
claim of error, we affirm.
I. Background Facts and Proceedings.
On August 19, 2006, at approximately 10:30 p.m., a drive-by shooting
in Davenport, Iowa, claimed the life of an innocent bystander, nineteen-year-
old Vincelina Howard. Howard, along with twenty to thirty other persons,
was attending an outdoor party at her grandmother’s house when a minivan,
driving by slowly, opened fire on the partygoers. 1 Howard received a fatal
wound to her neck and died a short time later at a nearby hospital. The
defendant subsequently confessed that he was one of the occupants of the
van and had participated in the shooting.
Evidence presented at trial, including the defendant’s full account of
the shooting, provided the following details of these events. Millbrook and
three other individuals, Don White, Jr., Terrell Lobley, and Rasheem Bogan,
were all residents of Rock Island, Illinois, a community located across the
Mississippi River from Davenport. In the early evening of August 19, 2006,
Millbrook attended a memorial walk in honor of a friend who had been killed
in a drive-by shooting four months earlier. After Millbrook returned home
from the memorial walk, he, Bogan, Lobley, and White decided to ride
1We will refer to the victim’s grandmother’s house as the Howard residence.
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around before going to a party. They used a minivan that the defendant had
borrowed from another acquaintance. Bogan drove the vehicle; Lobley was
in the front passenger seat; White was seated behind the driver in the middle
bench seat; Millbrook sat next to White. All four individuals were armed.
At some point during the drive, a decision was made to go to the Iowa
side of the river and look for Stevie West and another man. It was believed
these two persons had been involved in a shooting at a Rock Island club the
evening before. As Millbrook and his friends crossed the bridge into
Davenport, they spotted West traveling in a vehicle ahead of them. They
followed West’s vehicle to the vicinity of a Super America gas station next
door to the Howard house. Driving by the residence, they noticed the party
going on in the yard.
Bogan circled around the block and drove slowly down the alley
adjacent to the Howard residence. As they proceeded down the alley, White
shouted, “There they go.” At White’s urging, Millbrook then opened the
minivan’s sliding door, and all four of the men in the van began firing their
guns out of the passenger side of the vehicle in the direction of the
partygoers. Millbrook’s gun was fully loaded with seven rounds of
ammunition. He fired the weapon until it was empty. When the minivan
reached the end of the alley, the men stopped shooting, and Bogan made a
left turn onto the street. As they turned, Bogan thought he saw West at the
gas station, and he fired shots out of the driver’s side of the vehicle. Two
shots hit a bystander’s car that was being fueled at the station.
As the shooters escaped from the scene, the minivan hit a bump in the
road and became disabled. The men then fled on foot, their exit from the
vehicle being captured on a security tape positioned in the area. Although
all four men took their guns with them, Millbrook left his cell phone in the
vehicle.
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At the scene of the shooting, partygoers had gotten down on the
ground when the shooting began. Witnesses testified there were a lot of
shots, a short break in the shooting, and then some more shots. When the
shooting stopped, partygoers realized Howard had been shot and was
unresponsive. Efforts to revive her were unsuccessful, and she died at the
hospital a short time later.
A forensic pathologist who examined the victim’s body testified that a
single bullet entered her right shoulder, exited at the top of her shoulder,
and re-entered the right side of her neck, hitting the victim’s carotid artery.
The bullet then entered the victim’s mouth cavity. Although there was not a
second exit wound, the bullet was not found in the victim’s mouth. The
forensic pathologist testified the victim probably coughed the bullet out. The
cause of death was hemorrhagic shock caused by the neck injuries.
Investigators later estimated, based on shell casings and bullets found
at the scene and in the minivan, that approximately twenty shots were fired
in the vicinity of the Howard residence. These shots came from four different
guns: a Rossi .38 caliber revolver, a Springfield .45 caliber pistol, a 9 mm.
revolver, and a Colt Combat Commander .45 caliber semiautomatic pistol.
The defendant admitted he used the Springfield .45 caliber pistol. This gun
and the Rossi .38 caliber revolver were later found in the trunk of a car
parked in front of the defendant’s house. Fingerprints on the Springfield
pistol also linked the defendant to that weapon.
Only two bullets were found in the Howard yard itself; both had been
fired from Millbrook’s gun. One of these bullets was found in a pool of the
victim’s blood.
The State charged the defendant, White, Lobley, and Bogan with
various offenses arising from Howard’s murder. After several amendments
to the trial information, Millbrook was eventually charged with first-degree
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murder and intimidation with a dangerous weapon with intent. See Iowa
Code §§ 707.1, 707.2, 708.6 (2005).
At Millbrook’s subsequent trial, the district court submitted a felony-
murder instruction to the jury over defense counsel’s objection. Under this
instruction, the jury could find the defendant guilty of first-degree murder if,
among other elements, it found “[t]he defendant or a person he aided and
abetted . . . was participating in the offense of Intimidation with a Dangerous
Weapon With Intent” at the time of Howard’s murder. The defendant
objected to this instruction on the ground that it was improper in light of
this court’s decision in Heemstra. In Heemstra, we held conduct that
constitutes the felony for purposes of the felony-murder rule must be
separate and distinct from the act causing the victim’s death. 721 N.W.2d at
554, 558–59.
The jury convicted the defendant of first-degree murder and
intimidation with a dangerous weapon with intent. We transferred
Millbrook’s subsequent appeal to the court of appeals. That court affirmed
the defendant’s convictions. We granted further review to address the issue
of whether the lower courts erred in their application of the felony-murder
rule. The court of appeals’ opinion stands as the final decision with respect
to the other issues raised on appeal. Everly v. Knoxville Cmty. Sch. Dist., 774
N.W.2d 488, 492 (Iowa 2009).
II. Scope of Review.
We review challenges to jury instructions for the correction of errors of
law. State v. Spates, 779 N.W.2d 770, 775 (Iowa 2010). Here, the defendant
claims the evidence does not support a finding that there was a felonious act
independent of the conduct that resulted in Howard’s death. In determining
whether there is sufficient evidence to support submission of the felony-
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murder instruction to the jury, we view the evidence in a light most favorable
to the State. State v. Lawler, 571 N.W.2d 486, 490–91 (Iowa 1997).
III. Heemstra Holding.
We begin our consideration of the defendant’s challenge to the court’s
submission of the felony-murder alternative of first-degree murder with a
review of the Heemstra case. In Heemstra, the defendant and the victim
were engaged in an argument when the defendant retrieved a rifle from his
vehicle and shot the rifle once, striking and killing the victim. 721 N.W.2d at
551. In Heemstra’s later trial for murder, the trial court instructed the jury
on two alternatives for first-degree murder: (1) premeditated murder and (2)
felony murder. Id. at 552. To convict the defendant, the jury was required
to find either that “[t]he defendant acted willfully, deliberately,
premeditatedly, and with specific intent to kill” the victim or that the
defendant was participating in the felony of willful injury. Id. at 552–53.
The jury convicted the defendant under a general verdict, and Heemstra
appealed. Id. at 551.
On appeal, this court concluded the trial court had erred in submitting
the felony-murder alternative of first-degree murder. Id. at 558–59. We held
the predicate felony for felony murder must be independent of the assault
that causes the victim’s death. Id. at 558. We relied, in part, on the
following explanation for this rule given by the New York Court of Appeals:
“[I]t is not enough to show that the homicide was felonious, or
that there was a felonious assault which culminated in
homicide. Such a holding would mean that every homicide, not
justifiable or excusable, would occur in the commission of a
felony, with the result that intent to kill and deliberation and
premeditation would never be essential. 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.”
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Id. (quoting People v. Moran, 158 N.E. 35, 36 (N.Y. 1927) (citations omitted));
accord Commonwealth v. Quigley, 462 N.E.2d 92, 95 (Mass. 1984) (“[I]n
felony-murder the conduct which constitutes the felony must be ‘separate
from the acts of personal violence which constitute a necessary part of the
homicide itself.’ ” (quoting Wayne R. LaFave & Austin W. Scott, Jr., Criminal
Law § 71, at 559 (1972)), abrogation on other grounds recognized by
Commonwealth v. Azar, 742 N.E.2d 1083, 1086 (Mass. App. Ct. 2001); State
v. Branch, 415 P.2d 766, 767 (Or. 1966) (“[C]ourts . . . have held that where
the only felony committed (apart from the murder itself) was the assault
upon the victim which resulted in the death of the victim, the assault merged
with the killing and could not be relied upon by the state as an ingredient of
a ‘felony murder.’ ”). Because the defendant’s shooting of the victim in
Heemstra caused the victim’s death and was the act constituting the
predicate felony of willful injury, the predicate felony was not independent of
the assault resulting in death. Therefore, we held, the defendant’s
participation in the felony of willful injury could not serve as the basis for the
defendant’s conviction of felony murder. Heemstra, 721 N.W.2d at 554, 558–
59.
IV. Discussion.
A. Instructions. Millbrook claims application of the principles
announced in Heemstra warrants a reversal of his conviction of first-degree
murder. In this case, the instruction used by the court to submit first-
degree murder gave the jury two alternatives for the intent element:
premeditated murder and felony murder. To convict, the jury was required
to find that:
The defendant or a person he aided and abetted either:
(a) acted willfully, deliberately, premeditatedly and with a
specific intent to kill Vincelina Howard; or
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(b) was participating in the offense of Intimidation with a
Dangerous Weapon With Intent.
The jury was also instructed on the charge of intimidation with a dangerous
weapon with intent:
Under Count Two, in order for the Defendant, Ron Millbrook, to
be found guilty of the offense of Intimidation with A Dangerous
Weapon with Intent the State must prove all of the following
elements:
1. On or about August 19, 2006, the defendant or a
person he aided and abetted, shot a pistol, revolver or other
firearm within an assembly of people.
2. A pistol, revolver or other firearm is a dangerous
weapon, as explained in Instruction No. 12.
3. A person or persons actually experienced fear of
serious injury and their fear was reasonable under the existing
circumstances.
4. The defendant or a person he aided and abetted shot
the pistol, revolver or other firearm with the specific intent to
injure or cause fear or anger in a person or persons.
B. Parties’ Arguments. The defendant contends his act of
intimidation with a dangerous weapon with intent is a felonious assault that
merges with murder and, therefore, cannot be the basis for a felony-murder
charge. The State asserts that intimidation with a dangerous weapon with
intent is not a lesser-included offense of first-degree murder, and therefore,
no merger for purposes of the felony-murder rule occurs. Alternatively, the
State argues that, even if the intimidation offense merges with the murder,
here, unlike in Heemstra, there were separate acts supporting the charges of
felony murder and intimidation with a dangerous weapon.
C. Merger of Intimidation with a Dangerous Weapon and Murder.
This court’s holding in Heemstra was clearly stated: “We now hold that, if
the act causing willful injury is the same act that causes the victim’s death,
the former is merged into the murder and therefore cannot serve as the
predicate felony for felony-murder purposes.” Heemstra, 721 N.W.2d at 558.
Our application of the principle of merger turned on whether the act
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constituting the predicate felony was independent of the act causing death.
Merger did not depend on whether willful injury was a lesser-included
offense of murder. Therefore, 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.
D. Existence of Independent Act. Our next step in considering the
defendant’s claim of error is to examine the record to determine whether the
act of intimidation is distinct from the murderous assault, as he contends.
The jury was instructed that, to find the defendant guilty of intimidation
with a dangerous weapon with intent, it must find the defendant or a person
he aided and abetted “shot a pistol, revolver or other firearm within an
assembly of people.” If the shot constituting this offense was also the shot
that struck the victim, the felonious acts would merge and the act of
intimidation with a dangerous weapon could not serve as the predicate
felony for felony murder. Therefore, we must decide whether there were
separate, independent acts supporting the charges of felony murder and
intimidation with a dangerous weapon.
The defendant claims the seven shots fired by him constitute one act
of intimidation, as they were fired one after the other with no break in the
shooting. Cf. State v. Newman, 326 N.W.2d 788, 793 (Iowa 1982) (holding
conviction of sexual abuse merged with kidnapping conviction even though
defendant committed two acts of sexual abuse because “the matter was tried
and submitted to the jury as one continuing event”). He further reasons that
because the evidence showed that one of these shots caused Howard’s fatal
injury, the acts of intimidation merge with the murderous assault and
cannot provide a basis to support a finding of felony murder. The State
contends any of the nonfatal shots could serve as the basis for charging the
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defendant with intimidation with a dangerous weapon; only the fatal shot
would merge into the murder.
After reviewing the record in this case in a light most favorable to the
jury’s verdict, we conclude the defendant’s own testimony supports a finding
there was a separate, independent act constituting intimidation with a
dangerous weapon that occurred prior to the assault that resulted in the
victim’s death. Millbrook testified at trial that, upon instructions from
White, he––Millbrook––opened the sliding door. White then reached across
Millbrook and began shooting. The defendant further testified that after
White and the others started shooting, he began to fire his weapon because
he “didn’t want to feel like a punk.”
Although Millbrook also testified that he did not know the others were
going to start shooting when he opened the sliding door and that he shot his
gun in the air, there was abundant evidence that contradicted his testimony.
All four men were armed with fully loaded weapons. There had been an
incident the night before involving West that had upset Bogan, the driver of
the minivan. It appeared Bogan had followed West to the vicinity of the
party. White shouted “There they go” just before the shooting started. Two
bullets fired from the defendant’s gun were found in the Howard yard,
including one in a pool of the victim’s blood. The jury was free to disbelieve
the defendant’s self-serving statements that he was surprised by the
shooting and fired his weapon toward the sky.
Evidence that Millbrook enabled White’s initial shot toward the crowd
by opening the sliding door supports a finding that the defendant aided and
abetted White’s commission of intimidation with a dangerous weapon with
intent. Only after his participation in this predicate felony had commenced
did Millbrook himself fire his gun, an independent assault that caused the
victim’s death.
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This case is similar to the Massachusetts case of Commonwealth v.
Gunter, 692 N.E.2d 515, 524–27 (Mass. 1998), in which Massachusetts’
highest court applied the rule that conduct which constitutes the predicate
felony must be independent of the act of violence causing death in order to
support a finding of felony murder. In that case, the defendant and other
individuals drove to an apartment to find three men who had earlier stolen
drugs from the defendant and his companions. Gunter, 692 N.E.2d at 518–
19. While the defendant waited in the car, his cohorts, including one Selby,
entered the apartment, brandishing weapons. Id. at 519. After holding the
occupants at gunpoint while they unsuccessfully searched the apartment for
the thieves, the defendant’s companions left. Id. As the door was closing
behind them, Selby pushed the door back open and fatally shot one of the
apartment occupants. Id. The defendant was charged with felony murder,
with armed assault in a dwelling with intent to commit a felony serving as
the predicate felony, illegal possession of a firearm, and armed assault in a
dwelling with intent to commit a felony. Id. at 518. His culpability was as a
joint venturer, based on his role in transporting his companions to and from
the murder scene. Id. Upon his conviction of the charged offenses, the
defendant appealed. Id.
On appeal, the Massachusetts court considered whether the predicate
felony was sufficiently independent of the murder itself to support the felony-
murder conviction. Id. at 524–25. The court concluded the commonwealth
had proved more than the assault on the murder victim; it also established
the prior, independent assault on all the apartment occupants when the
defendant’s cohorts entered the apartment and held the occupants at
gunpoint while they searched the premises. Id. at 526. The court held the
prior assault on the apartment occupants was sufficiently independent of
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Selby’s later shooting of the victim such that it could serve as the predicate
felony for the defendant’s felony-murder conviction. Id. at 526–27.
Similarly, here, the record shows Millbrook participated in the crime of
intimidation with a dangerous weapon with intent prior to discharging his
own weapon and causing Howard’s death. We think Millbrook’s aiding and
abetting of White’s commission of intimidation with a dangerous weapon
with intent is sufficiently independent of Millbrook’s firing of his gun into the
crowd so as to support his conviction of felony murder. 2
Under these circumstances, it is unnecessary for us to determine
whether the seven shots fired by Millbrook constitute one act of intimidation.
Moreover, because Millbrook’s firing of his gun need not serve as the
predicate felony, the State’s failure to prove that Howard was hit by a shot
subsequent to the first shot that arguably constituted intimidation is not
fatal to the defendant’s felony-murder conviction. Cf. Nay v. State, 167 P.3d
430, 431–35 (Nev. 2007) (“ ‘[I]n order for the felony-murder doctrine to be
invoked, the actor must intend to commit the underlying felony at the time
the killing occurs; there is no felony-murder where the felony occurs as an
afterthought following the killing.’ ” (quoting State v. Buggs, 995 S.W.2d 102,
107 (Tenn. 1999)).
V. Disposition.
Having found no error in the trial court’s submission of the felony–
murder charge, we affirm the defendant’s conviction.
2We note the district court’s instruction on the felony-murder charge did not
distinguish between the various shots constituting intimidation with a dangerous weapon
with respect to which ones could serve as the predicate felony for felony murder. See
Commonwealth v. Kilburn, 780 N.E.2d 1237, 1241, 1243 (Mass. 2003) (noting “judge did not
distinguish between the two possible [assaults] when he charged the jury on felony-murder,”
but concluding “the judge’s error had no material impact on the outcome of the trial”). The
defendant did not object to the court’s instruction on this ground, and therefore, we do not
consider whether this omission was reversible error.
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DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT
COURT AFFIRMED.