State v. Gibbs

• Decision Date: 17 April 2020
• Docket Number: No. 18-1298,18-1298
• Citation: 941 N.W.2d 888
• Parties: STATE of Iowa, Appellee, v. Levi GIBBS III, Appellant.
• Court: Iowa Supreme Court

941 N.W.2d 888

STATE of Iowa, Appellee,

v.Levi GIBBS III, Appellant.

No. 18-1298

Supreme Court of Iowa.

Filed April 17, 2020

I. Introduction.

This homicide case requires us to address another aspect of the recently enacted stand-your-ground legislation. A man was charged with murdering another man by firing a single fatal shot. Initially he denied involvement in the shooting, but at trial he asserted the defense of justification. Over the defendant’s objection, the district court gave a jury instruction incorporating the terms of Iowa Code section 704.2B. Thus, the instruction included a statement that "[a] person using deadly force is required to notify or cause another to notify a law enforcement agency about his use of deadly force within a reasonable time period after the use of the deadly force." The defendant, who was convicted, claims that both section 704.2B itself and the jury instruction incorporating that section violated his Fifth Amendment rights.

On our review, we conclude that it invades the defendant’s Fifth Amendment rights when a trial judge instructs the jury in a homicide case that the defendant was required to notify law enforcement of his or her use of deadly force. However, because the evidence of guilt in this case was overwhelming, we find the error to have been harmless beyond a reasonable doubt. Therefore, we affirm the defendant’s conviction and sentence.

II. Facts and Procedural History.

Around 3:34 a.m. on September 3, 2017, the defendant, Levi Gibbs III, shot and killed Shane Wessels. The shooting was captured on a law enforcement digital camera attached to a light pole at the scene. A contemporaneous 911 caller reported the shooting and identified Gibbs as the shooter. There were numerous eyewitnesses to the shooting.

Gibbs killed Wessels during a melee at a street intersection in Fort Dodge. Gibbs initiated the melee when he shoved Wessels and indicated he wanted to fight. Gibbs was "very angry." Gibbs and Wessels exchanged punches. Several other individuals joined in and attacked Wessels. Latricia Roby, Gibbs’s sister, struck Wessels with a vodka bottle and later an extendable baton. Chassdie Mosley used a stun gun on Wessels.

Gibbs left the fracas and went to his vehicle to retrieve a gun. While Gibbs was retrieving his gun, Wessels, who had been beaten and knocked to the ground, picked himself up and said he was done with the fight. Wessels began to retreat. Gibbs then returned and shot Wessels. Wessels fell to the ground. Gibbs stood over the fallen Wessels and tried to shoot him again. This time, the gun jammed, and Gibbs instead hit Wessels with the gun. One eyewitness testified Gibbs pointed his gun at her and said, "B****, if you say anything, I'll shoot you too."

Wessels died at the scene from a single gunshot wound

that penetrated his heart. After firing the fatal shot and threatening a witness, Gibbs fled. The gun that Gibbs used was never recovered.

Detective Larry Hedlund of the Fort Dodge Police Department led the investigation into Wessels’s shooting. Because of the video evidence, the 911 call, and the statements from the eyewitnesses to the shooting, Gibbs became the immediate focus of the investigation. The day of the shooting, Hedlund went to Gibbs’s girlfriend’s house to interview her and look for Gibbs. Later the same day, the police executed search warrants at the girlfriend’s house and at what the police believed to be Gibbs’s main residence. The next day, September 4, Hedlund also interviewed Gibbs’s sister, Roby, at her residence. And Hedlund went to Gibbs’s mother’s house. Hedlund informed each of these interviewees he was looking for Gibbs, and Hedlund provided each of the interviewees his contact information. For nearly two days, Hedlund was unsuccessful in tracking down Gibbs.

At around 4:17 p.m. on September 4, Gibbs called Hedlund. Hedlund told Gibbs he wanted to take his statement, and the two arranged for a meeting. Approximately ten minutes later, Gibbs called back, indicating that he had changed his mind about meeting. The two continued to talk throughout the remainder of the day as Hedlund tried to coax Gibbs into meeting. Gibbs said he was going to "try to drag this thing out." Eventually, Hedlund gave up and went home to go to bed. Finally, Gibbs woke up Hedlund around 1:49 a.m. on September 5 and stated he would be willing to meet the detective at Gibbs’s residence.

Shortly thereafter, Hedlund arrived at Gibbs’s residence and conducted an interview. Gibbs’s mother and grandmother were in the house and in the vicinity of the interview as it was going on. Hedlund later testified Gibbs was not under arrest. Hedlund testified Gibbs was coherent and appeared to understand Hedlund’s questions. Hedlund interviewed Gibbs for two hours and sixteen minutes at Gibbs’s dining room table. Hedlund repeatedly asked Gibbs if he had a gun at the time of the shooting, and Gibbs "adamantly and repeatedly denied he had a gun." Hedlund told Gibbs the shooting was on video. Gibbs nonetheless denied shooting Wessels. Hedlund asked Gibbs about the clothing he had been wearing at the time, and Gibbs gave inconsistent answers. None of the answers were consistent with the clothing that Gibbs was actually shown as wearing on the light pole video. Hedlund asked Gibbs to produce the clothing, and he declined to do so. After taking Gibbs’s statement, Hedlund left the residence.

Hedlund returned to Gibbs’s residence that afternoon and asked Gibbs to accompany him to the law enforcement center pursuant to a search warrant to provide a DNA sample, fingerprints, and photographs. Gibbs did so. At the center, in addition to collecting DNA, fingerprints, and photographs, Hedlund again interviewed Gibbs. Hedlund told Gibbs he was on camera shooting a gun. Gibbs said he "didn't believe a video existed of him shooting a gun or killing Shane Wessels." Gibbs was at the law enforcement center for a few hours in total. Once more, he denied having a gun or shooting Wessels.

After the interview, Hedlund drove Gibbs back to Gibbs’s residence. When they arrived at Gibbs’s residence, Gibbs volunteered to give Hedlund a damaged cell phone and told Hedlund it was the phone Gibbs had been carrying the night of the shooting. Subsequent forensic examination showed the phone had not been used since May.

On September 11, eight days after the shooting, the State charged Gibbs in the Webster County district court with murder in the first degree in violation of Iowa Code section 707.2 (2018). Gibbs was taken into custody on September 18 in Des Moines and transported to Fort Dodge. Upon arrival, he was read his Miranda rights and questioned. The questioning was recorded. Detective Hedlund showed Gibbs still pictures from the light pole video. Gibbs nonetheless continued to deny he shot Wessels. "I'm not the shooter at all," he said.

Despite his repeated pretrial denials that he had shot Wessels, Gibbs asserted a justification defense at trial. Specifically, Gibbs maintained he was acting in defense of his sister, Roby. The State put into evidence, without objection, testimony regarding Gibbs’s flight from the scene, his failure to report his use of deadly force, his failure to produce his clothing from the night of the shooting, his failure to produce his gun from the shooting, his repeated denials of shooting Wessels, and the recorded interviews with law enforcement. Meanwhile, several eyewitnesses confirmed what the light pole video showed: that Gibbs shot Wessels as he was standing shirtless, unarmed, and backing away from any confrontation.

Trial began on June 25, 2018. The defendant did not testify, but he did call two eyewitnesses on his behalf. One testified she saw Wessels hit Roby repeatedly and stomp on the face of another woman. She claimed she believed at the time that Roby was badly hurt. However, she also admitted she "d[id] not know how it initially started." And on cross-examination, this witness acknowledged she was "on [Roby’s] team" and had posted on Facebook to that effect. She also testified she did not see the shooting. In fact, she did not "remember seeing" Gibbs and did not know if he had a gun.

Another defense witness testified he saw five or six people, including Gibbs and several women, jumping Wessels and Wessels fighting back. He saw Wessels hit Mosley after Mosley had tased Wessels. At that point, Wessels, Mosley, and Roby were all on the ground. Wessels then got up and tried to leave. At this point the witness saw Gibbs, who had returned with a gun, shoot Wessels.

The district court’s proposed jury instructions included an instruction that paraphrased Iowa Code section 704.2B, part of the stand-your-ground legislation adopted by the legislature in 2017. See 2017 Iowa Acts ch. 69, § 40 (codified at Iowa Code § 704.2B (2018)).¹ Thus, the proposed instruction, Instruction No. 36, read as follows:

A person using deadly force is required to notify or cause another to notify a law enforcement agency about his use of deadly force within a reasonable time period after the use of the deadly force, if the Defendant or another person is capable of providing such notification.

A person using deadly force is also required to not intentionally destroy, alter, conceal, or disguise physical evidence relating to the person’s use of deadly force, and a person using deadly force cannot intentionally intimidate witnesses into refusing to cooperate with any investigation relating to the use of such deadly force or induce another person to alter testimony about the use of such deadly force.

Defense counsel objected to Instruction No. 36. Counsel contended the instruction violated the defendant’s rights under the Iowa Constitution and the Fifth and Fourteenth Amendments. Defense counsel also argued if the district court were to give the instruction, the instruction should include language that the failure to notify law enforcement did not bar Gibbs’s justification defense. The district court submitted Inst...