STATE OF IOWA, Plaintiff-Appellee, vs. ROBERT ALAN MACLAIRD, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-633 / 08-1559
Filed September 2, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ROBERT ALAN MACLAIRD,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Warren County, Paul R. Huscher,
Judge.
Defendant appeals his conviction for second-degree murder. AFFIRMED.
Mark C. Smith, State Appellate Defender, and David Adams, Assistant
State Appellate Defendant, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney
General, Bryan Tingle, County Attorney, and Tiffany Koening, Assistant County
Attorney, for appellee.
Considered by Vogel, P.J., and Potterfield, J., and Miller, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).
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MILLER, S.J.
I.
Background Facts & Proceedings
On August 7, 2007, while his wife, Cheryl MacLaird, was at work, Robert
MacLaird (MacLaird) and his girlfriend, Diana Graham, went to the home of
MacLaird’s friend Dennis Holt in Beech, Iowa. Although Holt lived only a few
houses away from MacLaird, they drove to Holt’s house. MacLaird and Graham
assisted Holt in counting cans to take to the redemption center. The three then
left in Holt’s vehicle to drive to Indianola, where they redeemed the cans, and
then bought beer at a Hy-Vee Store. MacLaird, Graham, and Holt all drank the
beer as they drove through Warren County.
After they returned to Holt’s house, Holt suggested they go swimming at a
nearby pond. MacLaird returned to his house to get some shorts. The three
then drove to Pleasantville to get more beer, before going to the swimming pond.
They agreed to go swimming in their underwear. After Holt made a comment
noticing that Graham’s panties were transparent when wet, Graham and
MacLaird exchanged underwear.
They spent several hours swimming and
drinking.
Eventually a thunderstorm broke out.
MacLaird became impatient
because Graham waited for Holt before getting out of the water. Graham stated
MacLaird threw her clothes at her, and a bottle that was in them hit her on the
head. MacLaird was unable to find his shorts before they left. As they stopped
at Holt’s house, MacLaird got out of the car and walked home, wearing only
Graham’s panties. Graham went into Holt’s home.
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Cheryl let MacLaird into their home. He changed into dry clothes and told
Cheryl ―they wouldn’t let him have his belongings‖ and stated he wanted to call
the state patrol. MacLaird asked Cheryl to drive him to Holt’s house so he could
get his keys, cell phone, and car. Cheryl testified, ―It could be assumed he was
angry, yes.‖ She described MacLaird as ―Frustrated. Agitated.‖ Cheryl told an
officer she took MacLaird to Holt’s home because she did not want to get beat.
MacLaird took a black powder revolver, a modern replica of an antique gun, with
him.
MacLaird knocked on Holt’s door, and Holt answered the door carrying an
eight-inch survival knife. MacLaird repeatedly asked for his car keys and cell
phone, and Holt kept telling him to go home. Cheryl got out of the car and came
up to Holt’s porch as Holt came out of the door. Holt raised up the knife, and told
Cheryl ―get your old man out of here.‖ Cheryl said, ―I’ll get Bob out of here,‖ and
began trying to reason with him. In the meantime, MacLaird had obtained the
revolver from Cheryl’s car. MacLaird shot the revolver.1
Holt said, ―I can’t believe you just did that.‖ MacLaird replied that he would
not shoot Holt.
Holt came up to MacLaird and put the knife to his throat.
MacLaird struck Holt on the head with the heavy revolver about three to five
times. Cheryl told MacLaird to stop, and he did. Holt fell to the ground, bleeding
1
The percussion cap, used to ignite the powder used in the revolver, ―went off,‖ but the
powder did not ignite and discharge the bullet that was in the cylinder. According to
MacLaird’s testimony, he had in the past regularly used the black-powder revolver for
recreational shooting. He further testified, however, that when shooting the revolver in
1994 the percussion cap on the one cylinder that remained loaded with powder and a
bullet ―went off‖ but the revolver did not fire, he replaced the cap, and he had not
subsequently shot the revolver.
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profusely from the head. Graham came out of Holt’s house as he lay on the
ground. Graham attempted to assist Holt. MacLaird came over and said, ―Get
away from him. He’s my friend.‖ Graham yelled at MacLaird. Cheryl told him his
keys were in his car. MacLaird got in his car and drove home. Cheryl called
911.
After law enforcement officials and paramedics arrived, MacLaird returned
from his home to turn himself in. MacLaird told a deputy sheriff he had gone to
Holt’s house ―to confront Diana and Dennis about what they were doing, about
how it wasn’t right, and he wanted to run away with Diana and make a new life.‖
Officers found MacLaird’s cell phone in his car. Holt died of blunt-force injuries to
the head.
MacLaird was charged with murder in the first degree, willful injury
resulting in serious injury, and burglary in the first degree. MacLaird filed notice
of his intent to rely on the defense of self-defense, or justification, at trial.
MacLaird testified that he shot the revolver at the ground, and he was hoping to
scare Holt off. He said Holt threatened to slit his gullet like a fish, and that he
pushed the knife at his throat. MacLaird stated he thought Holt was killing him,
and he hit Holt with the revolver. MacLaird sustained no injuries in the incident.
MacLaird moved for judgment of acquittal on all counts. The district court
granted the motion on the charge of first-degree burglary. The court also ruled
that willful injury could not be submitted as a separate charge because it was a
lesser included offense of first-degree murder. The court denied the motion as to
first-degree murder.
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The jury returned a verdict finding MacLaird guilty of second-degree
murder, in violation of Iowa Code section 707.3 (2007). MacLaird was sentenced
to a term of imprisonment not to exceed fifty years. He appeals his conviction,
claiming he received ineffective assistance of counsel.
II.
Standard of Review
We review claims of ineffective assistance of counsel de novo. State v.
Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). To establish a claim of ineffective
assistance of counsel, a defendant must show (1) the attorney failed to perform
an essential duty, and (2) prejudice resulted to the extent it denied defendant a
fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2008). To show prejudice,
a defendant must demonstrate there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.
State v. Reynolds, 746 N.W.2d 837, 845 (Iowa 2008).
Absent
evidence to the contrary, we assume that the attorney’s conduct falls within the
wide range of reasonable professional assistance.
State v. Hepperle, 530
N.W.2d 735, 739 (Iowa 1995).
III.
Ineffective Assistance
A.
MacLaird asserts he received ineffective assistance because his
defense counsel did not argue in the motion for judgment of acquittal that there
was insufficient evidence to establish that he had acted without justification. ―A
person is justified in the use of reasonable force when the person reasonably
believes that such force is necessary to defend oneself or another from any
imminent use of unlawful force.‖ Iowa Code § 704.3.
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Once a defendant raises this defense and presents substantial evidence
in support of it, the State has the burden to prove that the defendant acted
without justification. State v. Ceaser, 585 N.W.2d 192, 193-94 (Iowa 1998). The
State must prove beyond a reasonable doubt that the alleged justification did not
exist. State v. Rubino, 602 N.W.2d 558, 565 (Iowa 1999). The State may meet
its burden by proving any one of the following elements:
1.
The defendant started or continued the incident which
resulted in injury.
2.
An alternative course of action was available to the
defendant.
3.
The defendant did not believe [he or] she was in imminent
danger of death or injury and the use of force was not necessary to
save [the defendant].
4.
The defendant did not have reasonable grounds for the
belief.
5.
The force used by the defendant was unreasonable.
State v. Shanahan, 712 N.W.2d 121, 134 (Iowa 2006).
MacLaird urges us to view the evidence as involving two separate
disputes—one a verbal dispute, and the second a physical confrontation
beginning when Holt threatened MacLaird with a knife. He asserts that he should
not have been expected to retreat from a verbal argument. MacLaird claims Holt
was the aggressor because he came down off of his porch carrying the knife. He
also asserts that Holt escalated the threat of violence by thrusting the knife at his
throat. MacLaird claims that at that point, he no longer had an opportunity to
escape or retreat with safety.
We determine the State presented sufficient evidence to disprove
MacLaird’s claim of justification. We do not follow MacLaird’s suggestion to treat
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the event as two separate incidents. Generally, we consider the complete story
of a crime. See State v. Shortridge, 589 N.W.2d 76, 83 (Iowa Ct. App. 1998).
MacLaird initiated the incident by going to Holt’s home while he was angry
and bringing a loaded revolver with him. He was asked multiple times to leave
by Holt and Cheryl, but continued to demand the return of his car keys and cell
phone. MacLaird had an alternative course of action available to him in that he
could have retreated or left the area at any time during this discussion. Instead
he continued the incident by returning to Cheryl’s car to get the revolver he
brought to Holt’s home. MacLaird admitted that as he came forward with the
revolver he pulled it up to show Holt, and Holt ―went to head towards – in the
house.‖ Thus, as Holt was retreating, MacLaird further escalated the incident by
shooting the revolver.
We conclude that even if defense counsel had argued in the motion for
judgment of acquittal that there was insufficient evidence to establish that he had
acted without justification, the district court would have denied the motion
because the State presented sufficient evidence to show that the defendant
acted without justification. See State v. Lane, 743 N.W.2d 178, 183 (Iowa 2007)
(noting counsel is not ineffective based on grounds raised in a motion for
judgment of acquittal, if the district court would have denied the motion based on
evidence presented). Where a verdict is supported by sufficient evidence, a
defendant is unable to show there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.
See State v. Leckington, 713 N.W.2d 208, 218 (Iowa 2006). We
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conclude MacLaird has failed to show he received ineffective assistance on this
ground.
B.
MacLaird also contends that he received ineffective assistance
because defense counsel did not argue in the motion for judgment of acquittal
that the evidence did not support a finding of ―malice aforethought,‖ but did
support a finding of ―serious provocation.‖ He claims defense counsel should
have argued that the evidence, at most, supported a guilty verdict on the lesser
included offense of voluntary manslaughter.
A person commits murder, either first or second degree, when the person
kills another with malice aforethought. State v. Heemstra, 721 N.W.2d 549, 555
(Iowa 2006).
Malice aforethought ―is a fixed purpose or design to do some
physical harm to another that exists before the act is committed.‖
State v.
Buenaventura, 660 N.W.2d 38, 49 (Iowa 2003) (citation omitted). There is no
requirement that this purpose exist for any specific length of time.
State v.
O’Shea, 634 N.W.2d 150, 157 (Iowa Ct. App. 2001).
There is a permissive presumption of malice aforethought from the use of
a deadly weapon. State v. Reeves, 670 N.W.2d 199, 207 (Iowa 2003). ―[T]he
presumption may be rebutted by evidence showing the killing was accidental,
under provocation, or because of mental incapacity.‖ Id. Also, ―[e]vidence of bad
feelings or quarrels between the defendant and the victim are circumstances that
may be used to support a finding of malice aforethought.‖ Buenaventura, 660
N.W.2d at 49.
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We conclude the State presented sufficient evidence to permit the jury to
find MacLaird acted with malice aforethought.
MacLaird brought a loaded
revolver to Holt’s home, which permits a presumption of malice aforethought.
MacLaird asserts this presumption is rebutted because he was under provocation
by Holt’s use of the knife. Provocation is that which is sufficient to excite sudden,
violent, and irresistible passion in a reasonable person. See State v. Taylor, 452
N.W.2d 605, 606 (Iowa 1990) (citing Iowa Code § 707.4).
Again, MacLaird ignores his own conduct prior to the time Holt placed a
knife by his throat.
We first note there was a prior violent incident between
MacLaird and Holt, which arose several months previously when Holt believed
MacLaird had not treated Graham right by pulling her out of a vehicle. MacLaird
testified Holt beat him with a pick axe handle, resulting in broken ribs. MacLaird
stated he apologized to Holt, and they continued to be friends. Evidence of a
quarrel between the victim and the defendant may show malice aforethought.
Buenaventura, 660 N.W.2d at 49.
MacLaird, who was ―angry,‖ ―frustrated,‖ and ―agitated,‖ demanded that his
wife drive him to Holt’s home, ostensibly to get his car keys and cell phone.2 He
found his black powder revolver, and brought it with him for ―protection,‖ although
he claimed he and Holt remained friends. Holt repeatedly asked MacLaird to
leave, and told Cheryl to take him home.
Cheryl added her requests that
MacLaird leave Holt’s yard and come home. MacLaird instead walked over to
2
MacLaird’s cell phone was found in his car. There was also evidence that MacLaird’s
car keys were in his car. After MacLaird bludgeoned Holt, Maclaird got in his car and
drove home.
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Cheryl’s car and got out the revolver. He admitted that even though Holt was
heading towards the house, he pulled the trigger. It was not until this point, when
Holt could well have been in fear of his life, that Holt placed his knife at
MacLaird’s throat.
We determine that even if defense counsel had raised the issue of malice
aforethought in the motion for judgment of acquittal, the district court would have
denied the motion. There was evidence of ―a fixed purpose or design to do some
physical harm to another that exists before the act is committed.‖ See Reeves,
670 N.W.2d at 207 (citation omitted). MacLaird is unable to show he received
ineffective assistance due to defense counsel’s failure to argue the issue of
malice aforethought in the motion for judgment of acquittal.
We affirm MacLaird’s conviction for murder in the second degree.
AFFIRMED.
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