State v. Love

• Court: Iowa Supreme Court
• Writing for the Court: HARRIS; All Justices concur except McCORMICK and ALLBEE, JJ., who dissent and SCHULTZ; McCORMICK; ALLBEE
• Citation: State v. Love, 302 N.W.2d 115 (Iowa 1981)
• Decision Date: 18 February 1981
• Docket Number: No. 63773,63773
• Parties: STATE of Iowa, Appellee, v. Willie Benjamin LOVE, Appellant.

Page 115

302 N.W.2d 115

STATE of Iowa, Appellee, v. Willie Benjamin LOVE, Appellant.

No. 63773.

Supreme Court of Iowa.

Feb. 18, 1981.

Henry E. Nathanson, Cedar Rapids, for appellant.

Thomas J. Miller, Atty. Gen., Julie F. Pottorff, Asst. Atty. Gen., and John Ehrhart, Asst. Linn County Atty., for appellee.

Considered en banc.

HARRIS, Justice.

This appeal follows defendant's convictions of second-degree murder (§ 707.3, The Code 1979) and attempt to commit murder (§ 707.11, The Code 1979). Finding no merit in the four assignments of error, we affirm the trial court.

At about noon on January 23, 1979, the defendant, accompanied by his girlfriend, drove to a Cedar Rapids bar. Defendant left his girlfriend in the car and entered the bar at about the same time a friend, Troy Perkins, also entered.

Already in the bar were Bailey Taylor, the bartender, Roy Williams (also known as Roy Brown), Hoover Coffee, Robert Williams, and Robert Musgrove. The defendant made his way to the bar, ordered a drink, and spoke with the others there with whom he was acquainted. Presently brothers Ernest and William Gibson entered the bar. William entered through a door located at the southwest corner of the building. At the same time Ernest came through the only other entrance which was located along the south wall, toward the east end of the building. Defendant was then standing in front of a jukebox located several steps inside the southeast door.

Ernest approached the defendant and called for him to come over. It is defendant's claim that, as he approached Ernest, Ernest opened his coat so that defendant could see a pistol tucked in Ernest's waistband. Others present deny seeing such a gun. As this was going on, William Gibson walked toward the two, defendant and Ernest and stood at the end of a pool table near them, a few feet behind Ernest. Sensing trouble, Roy Williams elbowed Hoover Coffee, who was sitting next to him. Both immediately got up and left.

Defendant claims he thought the Gibson brothers were angry with him because of an earlier fight he had with their older brother, Mack Gibson. Accordingly, defendant claims to have then said, "Hey man, like, like I figured, you know, like, you know, your brother hit me first. Like I figured it was a fair fight, you know." The bartender testified he then heard defendant say, in a loud voice. "That's a damn lie."

At this point the evidence differs even more widely. Defense witnesses said Ernest Gibson drew what appeared to be a black metallic object and swung it at the defendant, hitting him in the left side of the head. The bartender, Hoover Coffee, and Robert Musgrove, on the other hand, testifying for the State, said they saw no object being pulled by Ernest Gibson and did not see him strike defendant. All witnesses agreed that a light in the corner where the two were standing was struck by Ernest Gibson and broken. This further obscured the already dimly lit corner of the bar.

Robert Williams began moving toward cover behind the bar. Robert Musgrove moved quickly toward the west end of the bar to hide behind some tables. Troy Perkins ducked under the pool table. Defendant claims he then stumbled against the east wall of the building because of a blow from Ernest Gibson and that Ernest Gibson stepped toward him and confronted him with a gun. He says he therefore drew his gun and fired in self-defense.

The State's testimony of course disputes this. When the bartender, Bailey Taylor, saw the confrontation he ducked for cover behind the bar. Before doing so he observed William Gibson move to a position behind his brother.

Defendant fired his weapon toward Ernest Gibson and saw Gibson's head suddenly tilt forward. Then defendant stepped to his left. He claims he then headed toward the nearest exit. He says William Gibson was still standing close by. He said that William Gibson had a reputation for generally being armed and had shot and killed a man outside the same bar the previous year. According to his testimony defendant was therefore concerned. This concern, coupled with a dazed condition from the blow received from Ernest, caused him to think William was in the process of shooting at him. Defendant admits he fired in William's direction. William then headed for cover behind the bar. Defendant fled. As he drove away he threw his weapon, a .22 caliber pistol, into a snow bank from which it was recovered by a citizen and turned over to the police.

After defendant left the bar Robert Williams called the police. William Gibson had sustained two gunshot wounds, one in his neck and a superficial wound across the front of his right leg. Ernest Gibson sustained one gunshot wound from the pistol. The bullet entered Ernest's body from the left side of his neck, passing through the spinal cord and lodging just to the right of it. The examining physician testified that it was probable that Gibson had been shot while standing near someone else who was standing to his side and slightly behind him.

Immediately after the shooting, before the police arrived, William Gibson, although bleeding, walked around the inside and outside of the bar. Several witnesses saw him go to the bathroom. The two witnesses, Coffee and Roy Williams, who had left when they suspected trouble, saw him outside the bar leaning over a trash barrel. When the police arrived none of the witnesses told them about William Gibson's activities after the shooting or that they had seen the Gibsons with a gun. The trail of William Gibson's blood in the snow outside the bar was shown to the police but the area was not sealed off or searched for evidence.

Later the same day, after the police had left the bar, Roy Williams and Landy Waller searched the snow in back of the bar in the area where William Gibson had been seen after the shooting. There they found a .22 caliber pistol. Waller took possession of the weapon but did not testify at trial.

After the shooting a fourth Gibson brother, Edgar, received word that two of his brothers had been shot. He testified that he went to the hospital and talked to his brother William. Edgar claims that William told him he had removed heroin from Ernest's pocket and hidden it in the bathroom. Edgar also claims that William told him he had hidden a gun outside in the snow. Edgar Gibson returned to the bar and found the heroin but not the gun.

Defendant was arrested later in the day and taken to the hospital where he was treated for a laceration on this left temple. The treating physician testified the laceration was caused by a blunt instrument. Although he was seriously wounded and hospitalized for several days, William Gibson survived the shooting. Ernest Gibson died as a result of the shot fired by defendant. For the killing of Ernest, defendant was tried for first-degree, and was convicted of the included offense of second-degree murder. He was tried and convicted of attempting to murder William.

I. Defendant's first challenge is to the sufficiency of the evidence to show premeditation, deliberation, or malice. We can set aside the challenge to the sufficiency of the evidence of premeditation or deliberation. Those are showings necessary to prove first-degree murder under section 707.2. They are not required to show second-degree murder under sections 707.1 and 707.3. It is the duty of a jury, if it finds against a defendant, to find guilt of the highest offense proven by the evidence. State v. Drosos, 253 Iowa 1152, 1164, 114 N.W.2d 526, 533 (1962). Since the jury in effect found the defendant not guilty of first-degree murder he cannot complain of any failure on the part of the State to prove elements necessary only for first-degree murder. See State v. Brooks, 181 Iowa 874, 890-91, 165 N.W. 194, 200 (1917).

II. It remains for us to consider defendant's challenge to the sufficiency of the evidence to show that the killing of Ernest was done with malice, an element of all murders under section 707.1. Malice, in homicide cases called malice aforethought, is "that condition of mind which prompts one to do a wrongful act intentionally, without legal justification or excuse." State v. McCollom, 260 Iowa 977, 988, 151 N.W.2d 519, 525 (1967). It need not exist for any specific period of time. It is sufficient if it exists any time before the killing. State v. Hofer, 238 Iowa 820, 834, 28 N.W.2d 475, 482 (1947). The use of a deadly weapon, accompanied by an opportunity to deliberate, even for a short time, is evidence of malice. State v. Frazer, 267 N.W.2d 34, 39 (Iowa 1978); State v. Hahn, 259 N.W.2d 753, 758-59 (Iowa 1977).

Defendant cites our decisions in State v. Borwick, 193 Iowa 639, 187 N.W. 460 (1922), and State v. Wilson, 234 Iowa 60, 11 N.W.2d 737 (1943), to support his position. Neither case is in point. In Borwick there was no question that the victim was the aggressor. Here there is conflicting testimony on the point and we are bound by the version of the evidence most consistent with the jury verdict. R.App.P. 14(f)(1). In Wilson the victim picked up a club, stating that he was going to knock Wilson's head off, and attempted to do so. The State's version of the evidence here does not make the victim the aggressor.

Defendant's first assignment is without merit.

III. In a separate assignment the defendant asserts that he was denied a fair trial by several instances of prosecutorial misconduct. To prevail on this assignment defendant must show the misconduct and also that he was prejudiced by it. Trial courts have considerable discretion in ruling on motions for new trial, including those grounded on claims of prosecutorial misconduct. We do not overturn trial court rulings in the absence of a showing of abuse of that discretion. State v. Harrington, 284 N.W.2d 244, 251 (Iowa 1979). With these general principles in mind we take up defendant's various complaints against the prosecutor.

Defendant called Roy Williams who testified he was in the bar on the day...