State v. Newell
| Decision Date | 10 February 2006 |
| Docket Number | No. 03-0624.,03-0624. |
| Citation | 710 N.W.2d 6 |
| Parties | STATE of Iowa, Appellee, v. Jerry Lee Michael NEWELL, Appellant. |
| Court | Iowa Supreme Court |
Linda Del Gallo, State Appellate Defender, and Tricia A. Johnston, Assistant State Appellate Defender, for appellant, and Jerry Newell, pro se.
Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and James Katcher and Linda
Myers, Assistant County Attorneys, for appellee.
The appellant, Jerry Newell, was convicted of first-degree murder in the death of his live-in girlfriend, Kathy Gillen. See Iowa Code § 707.2 (2001) (). His counsel on appeal specifies several errors in the district court's rulings and asserts a claim of ineffective assistance of counsel. The defendant has filed a pro se brief raising additional claims. Finding no basis for reversal, we affirm.
The following unchallenged evidence was admitted at the defendant's trial. At the time of the victim's death, the defendant and the victim were living together with their two-month-old baby in Waterloo, Iowa. On June 15, 2001, the couple left the baby with the defendant's mother, Mary Culbert, went to some garage sales, and then drank at a local bar. While at the bar, they each had about five drinks. Witnesses who saw them there said the couple appeared to be getting along well. Around 6:30 p.m., Newell and Gillen returned to Culbert's house and picked up their child.
After arriving home, Gillen left on foot at approximately 7:45 p.m. to get something for them to eat from a nearby grocery store. When she did not return right away, Newell called Gillen's father to ask if she was there. Eventually, Newell fixed himself something to eat, fed the baby, and dozed off on the couch.
Newell later told the police that he woke up sometime after 10:00 p.m. when he heard Gillen toss a bag of groceries on the living room floor. Shortly after that, he claimed he heard a noise in the kitchen. When he went to investigate he found Gillen lying on the floor, unresponsive. Newell claimed he tried to revive her by pushing her, throwing water on her, lifting her head, and attempting CPR. When Gillen did not respond, Newell said he "freaked." Instead of calling 911, he called his mother's house, looking for his mom. After speaking with his brother, Newell gathered up the baby and drove to his mother's house.
Evidence admitted at trial showed that Newell omitted some facts in his statements to the police and that not all of his assertions about the events up to this point in time were true. A cash register receipt from a nearby grocery store established that Gillen had purchased groceries at 9:29 p.m. that evening. Neighbors testified they saw Gillen outside as it was getting dark, trying to catch Newell's dog. One of these neighbors testified that he saw Newell standing at the back door while Gillen chased the dog and returned to the house. About an hour later this neighbor heard the defendant talking to his brother, and then heard the defendant's car leave. Another neighbor testified that at about this same time he heard "a lot of yelling and screaming, doors slamming." Afterwards, he heard a truck pull out and speed south down the street. A third witness testified he actually saw the defendant get into his car and speed off.
The defendant's brother, Jonathan Newell, testified that around 9:40 p.m. he answered the phone at the home of Mary Culbert, the Newell brothers' mother. The caller was the defendant; he wanted to talk to Culbert, but Culbert was not home. In a second call to the house, Newell told his brother that something was wrong with Gillen and said, "She might be dead." Jonathan contacted Culbert at a friend's house, gave her Newell's message, and then got on his bike and headed toward Newell's house. On the way, he met Newell, and they both returned to Culbert's house, where they met Culbert. There, Newell told his mother that Gillen was on the floor, and he could not tell whether she was breathing. Culbert then left for Newell's house.
After Culbert left, Newell went into his mother's house with the baby. Shortly thereafter, he called his own house and talked to Culbert, asking about Gillen's condition. He also spoke with Jonathan about what happened at Newell's house. According to Jonathan, Newell told him that Gillen was leaving out the back door when Newell told her, "You ain't leaving again," and pushed her back. Newell told his brother that Gillen made a funny noise and dropped to the floor. Jonathan testified Newell told Jonathan that he attempted CPR, poured water on Gillen, and also poured something into her mouth. Newell was scared and told his brother that he "thought he was going to get it for murder." After talking with his brother, Newell left his mother's house without his child, but did not tell Jonathan where he was going.
In the meantime, Culbert had entered her son's house and had discovered Gillen on the floor, warm to the touch but with no pulse. After speaking with her son on the phone, Culbert called 911 from Newell's home at 10:18 p.m. Paramedics were dispatched on a "fall, unconscious person" call. They arrived at the house within two to three minutes and found the victim on the kitchen floor, without pulse or respirations. The paramedics attempted to resuscitate Gillen by initiating CPR and intubating her. Intubation was difficult because Gillen's throat kept filling up with a clear liquid fluid, which contained no evidence of stomach contents. During an attempt at intubation, the fluid came up through the ET tube and into one paramedic's mouth. He testified the fluid tasted like straight tequila, and he thought that it had been poured into the victim's mouth. Despite their efforts, emergency personnel were unable to revive Gillen. It was estimated that she had been dead from fifteen minutes to an hour when the paramedics arrived.
Meanwhile Newell had left Culbert's house, riding a bicycle over to a friend's home, Deanne Waniorek, arriving between 10:00 p.m. and 11:00 p.m. Newell told Waniorek that he had been upset with Gillen because she had been gone so long. When Gillen told Newell she was leaving, he responded, "No, you're not," and stopped her by pushing her. Gillen, he stated, fell over. Newell told Waniorek that initially he thought that Gillen was faking, and he tried shaking her. When she did not respond, he attempted CPR, and he was afraid he might have hurt her by doing it incorrectly. Newell also confided in his friend that he was concerned he "might have done something wrong and he could be in trouble, he might go to prison." While at Waniorek's home, Newell also talked to another person there, Keith Wirtz. Newell told Wirtz a different story than he had told Waniorek. According to Wirtz, Newell told Wirtz that Newell had had an argument with his girlfriend and that Newell thought she had died of alcohol poisoning.
Newell stayed at Waniorek's house a short time and then returned to his mother's home. There, he was told that Gillen was dead. When asked what had happened, Newell said that Gillen had been fine when he left. Newell paced nervously in the house and repeatedly stated, "What am I going to do?" After a short time, Newell left his mother's house. He did not go home or contact the police. The following day he called his father, and at about 2:45 p.m., his father took him to the police station.
Newell was interviewed at the police station on June 16, 2001. As previously noted, he told the police he heard a noise in the kitchen and found Gillen passed out on the floor. He claimed he did not know why he had not called 911, just that the baby was screaming. He also failed to tell the police about his visit to Waniorek's house and his conversations with her and Wirtz.
A couple of days after Gillen's death, Newell discussed what had occurred with his friend, Jim McClain. According to McClain, Newell told him that when Gillen came home, she threw some beer on the floor, and a few seconds later, she fell over something. When Newell heard her fall, "he [came] running out, and one thing led to another, and he started giving her CPR, and she started vomiting." McClain testified that Newell said he did not know if he left any marks on Gillen but that he began to panic and started "hitting her back and forth trying to bring her to." Newell also surmised that in his attempt to perform CPR "he might have came up and hit [Gillen] in the neck . . . and made marks on her neck."
An autopsy of the victim's body revealed injuries to the internal structures of Gillen's neck and pinpoint hemorrhages on her neck, face, and eyelids, indications that she had been strangled. Gillen also had two large bruises on her head that had caused subarachnoid hemorrhaging. Over two dozen bruises were found on her hands, arms, torso, legs and inside her mouth that had been inflicted about the time of her death. The injuries to her hands were interpreted to be defensive in nature. A toxicology evaluation revealed her body contained a low level of alcohol and no other drugs. The medical examiner ruled the cause of death was strangulation and blunt force trauma to the back of the victim's head. The injuries were consistent with someone strangling the victim and banging her head against the wall or floor. The injuries were inconsistent with a simple accidental fall to the floor.
Newell was subsequently arrested for Gillen's death. While awaiting trial, Newell confided in a fellow jail inmate, Eric Pasket, telling him what happened the night Gillen died. According to Pasket, Newell told him that after Gillen returned home from the store, the couple argued...
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