STATE OF IOWA, Plaintiff-Appellee, vs. WILLIAM JACOB SHEKEY, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-634 / 08-1567
Filed November 25, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
WILLIAM JACOB SHEKEY,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Humboldt County, Bryan H.
McKinley, Judge.
Defendant appeals his conviction for murder in the second degree.
REVERSED AND REMANDED.
Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant
State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen Douglass and Douglas
Hammerand, Assistant Attorneys General, and Jennifer A. Benson, County
Attorney, for appellee.
Heard by Potterfield, P.J., Mansfield, J., and Mahan, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).
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MAHAN, S.J.
I.
Background Facts & Proceedings
When the Prowler, a bar in Humboldt, Iowa, closed in the early morning
hours of April 5, 2008, Colby Marchant invited some people over to the home he
shared with Alissa Wagner for an after-hours party. William Shekey, who lived
with his parents next door to Marchant and Wagner, came to the party, as well as
Michael Ruberg, a friend of Marchant’s. Shekey was about five feet nine or ten
inches tall and weighed about 158 pounds. Ruberg was almost six feet three
inches tall and weighed about 240 pounds. All of the people at the party were
drinking alcohol.
As the party progressed, Ruberg and Shekey had a disagreement while
they were standing in the kitchen. Shekey testified Ruberg said, “wow, you must
really think you’re tough or something like that.” Shekey responded, “yeah, I
guess so.” Shekey walked away into the living room. He told Lucinda Boge and
Cody Mayall that Ruberg was harassing him. Boge stated Shekey acted like he
was mad, and his legs were shaking. Mayall testified, “he was shaking and, you
know, you could tell he was real angry, like he was mad.”
Shekey returned to the kitchen to get another beer.
Shekey testified
Ruberg “stated he was pretty tough, and I said, well, so am I.”
The men
continued back and forth in this manner, until Marchant told them if they were
going to fight to go outside. Shekey walked outside and Ruberg followed him.
Shekey admitted that their purpose in going outside was to see who was
toughest, although he stated he did not know for sure they were going to fight.
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After a few minutes, Marchant and Wagner went outside to take their dog
to its kennel. They saw Shekey and Ruberg standing in the street. Wagner
testified she heard one of the men, probably Ruberg, say, “come on.”
Shekey testified that after he and Ruberg went outside, Ruberg urinated in
the street. He stated Ruberg threw a couple of punches at him, and Shekey
retaliated with a couple.
He stated they each landed two or three punches.
Shekey testified he then said, “are we done? Have you had enough?” Ruberg
said, “Let’s do this.” Shekey said the men circled each other, and Ruberg threw
a punch. Shekey hit Ruberg with his left fist, and Ruberg went down. Shekey
grabbed Ruberg by the collar, but saw he was unconscious.
As Marchant and Wagner were coming back into the house from taking
their dog out, Shekey walked up and went into the house with them. He stated
Ruberg needed help. Wagner and Boge went outside and saw Ruberg lying in
the street. Wagner went inside and called 911. Marchant and Boge’s husband
moved Ruberg off the street. Shekey told the group he only hit Ruberg once or
twice. Shekey was visibly distraught and was crying.
Ruberg died as a result of blunt force injury to the head and neck. Dr.
Michele Catellier testified there was at least one blow, but there could have been
two or more blows. Ruberg suffered a torn vertebral artery, and a person who
suffers this type of injury becomes unconscious immediately and does not
recover.1
1
Dr. Catellier testified that this was the first time as a pathologist she had ever seen a
torn vertebral artery.
4
Shekey was charged with murder in the second degree, in violation of
Iowa Code section 707.3 (2007). He waived his right to a jury trial. Shekey
raised a defense of justification, or self-defense.
The district court found Shekey guilty of second-degree murder. The court
found Shekey struck Ruberg, and Ruberg died as a result of being struck. The
court found Shekey acted with malice aforethought because Shekey had a fixed
purpose or design to do some physical harm to Ruberg. The court found Shekey
had an unlawful purpose to commit the crimes of disorderly conduct and assault.
The court also found his conduct was based upon dislike and bad feelings. On
the issue of self-defense, the court found Shekey’s testimony that he tried to stop
the fight by asking if Ruberg had enough to be “self-serving, opportunistic, and
lacking in believability.” Additionally, the court found Shekey’s statement was not
sufficient to show that he desired to terminate the conflict.
The court noted
Shekey had several opportunities to avoid the conflict.
Shekey filed a motion seeking a new trial, or in the alternative to vacate
the judgment or for the court to make new findings and conclusions. The district
court denied the motion. Shekey was sentenced to a term of imprisonment not to
exceed fifty years. He now appeals his conviction, claiming the verdict was not
supported by substantial evidence.
II.
Standard of Review
We review challenges to the sufficiency of the evidence in a criminal case
for the correction of errors at law. State v. Heuser, 661 N.W.2d 157, 165 (Iowa
2003). The district court’s fact finding is binding on an appeal from a bench trial,
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unless it is unsupported by substantial evidence. State v. Tovar, 580 N.W.2d
768, 770 (Iowa 1998). Substantial evidence means evidence that could convince
a rational fact-finder that the defendant is guilty beyond a reasonable doubt.
State v. Shortridge, 589 N.W.2d 76, 80 (Iowa Ct. App. 1998). We view the
evidence in the light most favorable to the State. State v. Padavich, 536 N.W.2d
743, 751 (Iowa 1995).
III.
Malice Aforethought
Malice aforethought is an element of either first or second degree murder.
State v. Heemstra, 721 N.W.2d 549, 555 (Iowa 2006). It is the element that
separates second-degree murder from other lesser included offenses. State v.
Reeves, 670 N.W.2d 38, 49 (Iowa 2003). “Malice aforethought is a fixed purpose
or design to do physical harm to another that exists before the act is committed.”
State v. Myers, 653 N.W.2d 574, 579 (Iowa 2002). It does not need to exist for
any particular length of time. State v. Reeves, 636 N.W.2d 22, 25 (Iowa 2001).
The term “malice” has been defined as follows:
[A] state of mind which leads one to intentionally do a wrongful act
to the injury of another out of actual hatred, or with an evil or
unlawful purpose. It may be established by evidence of actual
hatred, or by proof of a deliberate or fixed intent to do injury. It may
be found from the acts and conduct of the defendant, and the
means used in doing the wrongful and injurious act. Malice
requires only such deliberation that would make a person
appreciate and understand the nature of the act and its
consequences, as distinguished from an act done in the heat of
passion.
State v. Shanahan, 712 N.W.2d 121, 134 (Iowa 2006) (citations omitted). The
element of malice aforethought refers to a state of mind, and is often proven by
circumstantial evidence. State v. Buenaventura, 660 N.W.2d 38, 49 (Iowa 2003).
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Shekey contends there is not sufficient evidence in the record to show that
he acted with malice aforethought. He claims he did not act with an unlawful
purpose because he and Ruberg mutually agreed to engage in a sporting
contest, similar to a boxing match. Shekey states he did not intend to seriously
injure Ruberg.
He asserts there is no evidence of actual hatred or an evil
purpose.
Shekey raises an additional argument that the act of committing assault or
disorderly conduct is not sufficient proof of malice aforethought. He points out
that in Heemstra, 721 N.W.2d at 558, the Iowa Supreme Court changed previous
law to conclude that if the act causing willful injury is the same act that causes
the victim’s death, the act of willful injury cannot serve as the predicate felony for
a felony-murder charge. Shekey argues that prior to the holding in Heemstra, the
element of malice could be inferred from the underlying felony, such as assault.
He argues that due to the change in Heemstra, the element of malice
aforethought should not be inferred from the commission of assault or disorderly
conduct.
The State argues that Shekey reads the malice element too narrowly. The
State asks this court to reject Shekey’s claim that proof of disorderly conduct or
assault somehow relieved the State from proving malice aforethought. The State
agrees that proof of these offenses does not prove malice per se and the court
cannot find malice solely on evidence Shekey committed these crimes. The
State then argues that the district court did not find malice solely for this reason
and, instead, considered many factors in reaching its conclusion. We agree.
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We determine the district court did not find the element of malice
aforethought was established alone by commission of assault or disorderly
conduct. The court considered all of the facts and circumstances surrounding
the crime in making its determination of malice. However, our review of these
factors leads us to a different conclusion. We conclude the finding of malice
made by the district court is unsupported by substantial evidence. The evidence
is insufficient to establish malice aforethought beyond a reasonable doubt. We
therefore reverse the defendant’s conviction for murder in the second degree.
IV.
Involuntary Manslaughter
Malice aforethought is the element that separates second-degree murder
from other lesser included offenses. Reeves, 670 N.W.2d at 49. Having found
insufficient proof of the element of malice aforethought, we now turn to a
discussion of the lesser included offense of involuntary manslaughter.2
The
crime of involuntary manslaughter is found in section 707.5, as follows:
1.
A person commits a class “D” felony when the person
unintentionally causes the death of another person by the
commission of a public offense other than a forcible felony or
escape.
2.
A person commits an aggravated misdemeanor when
the person unintentionally causes the death of another person by
the commission of an act in a manner likely to cause death or
serious injury.
Involuntary manslaughter as defined in this section is an
included offense under an indictment for murder in the first or
second degree or voluntary manslaughter.
2
We do not discuss the crime of voluntary manslaughter because the State did not
contend there was evidence of “sudden, violent, and irresistible passion resulting from
serious provocation.” See Iowa Code § 707.4.
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In his Post-Trial Brief, Shekey argues that this case clearly falls within the
definition of involuntary manslaughter under either section 707.5(1) or section
707.5(2).3 The legislature has made involuntary manslaughter a lesser-included
offense of second-degree murder. See Iowa Code § 707.5; State v. Inger, 292
N.W.2d 119, 123 (Iowa 1980).
Section 707.5(1) requires the commission of a public offense other than a
forcible felony or escape. State v. Boley, 456 N.W.2d 674, 680 (Iowa 1990).
Assault may be used to prove the public offense element of an involuntary
manslaughter charge under section 707.5(1). State v. Webb, 313 N.W.2d 550,
552-53 (Iowa 1981). Shekey admitted he struck Ruberg, which would meet the
definition of an assault under section 708.1. The district court found Shekey
committed the public offenses of assault and disorderly conduct.4 We conclude
there is sufficient evidence to show Shekey unintentionally caused the death of
another by the commission of a public offense other than a forcible felony or
escape.
Furthermore, by finding Shekey had committed second-degree murder,
the district court necessarily found the State had established all of the elements
of the lesser-included offense of involuntary manslaughter. See State v. Morris,
677 N.W.2d 787, 788 (Iowa 2004) (“[T]he jury necessarily found that the State
had established all elements of the included offense.”). We found insufficient
evidence of malice aforethought, and have reversed the conviction for second-
3
This brief was submitted prior to appeal and is set forth on pages 250 to 262 of the
appendix.
4
The evidence shows Shekey engaged in disorderly conduct, a simple misdemeanor,
by engaging in fighting or violent behavior in a public place. See Iowa Code § 723.4(1).
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degree murder. We conclude there is evidence beyond a reasonable doubt to
enter a judgment of conviction on the charge of involuntary manslaughter under
section 707.5(1).
V.
Justification
Shekey claims the district court erred by finding the State proved beyond a
reasonable doubt that he did not act with 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. When the defense of justification is raised, the State must
prove the lack of justification by proof beyond a reasonable doubt.
State v.
Begey, 672 N.W.2d 747, 752 (Iowa 2003).
The State may meet its burden to show a lack of justification 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] was in imminent danger of
death or injury and the use of force was not necessary to save
[him].
4. The defendant did not have reasonable grounds for the belief.
5. The force used by the defendant was unreasonable.
Shanahan, 712 N.W.2d at 134.
Shekey contends he attempted to withdraw from the conflict, and his
statement, “are we done? Have you had enough?,” to Ruberg reflects his intent
to withdraw.
The defense of justification may be available to a person who
“withdraws from physical contact with the other and indicates clearly to the other
that the person desires to terminate the conflict but the other continues or
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resumes the use of force.” Iowa Code § 704.6(3)(b). The district court found
Shekey’s testimony that he attempted to withdraw from the conflict not credible.
The court found his statement to be “self-serving, opportunistic, and lacking in
believability.” The credibility of witnesses was a matter for the court, as the fact
finder, to determine. See State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993).
Based on the court’s credibility finding, the evidence does not show Shekey
attempted to withdraw from the conflict.
Furthermore, the district court found Shekey started or continued the fight
which resulted in Ruberg’s death. Shekey walked outside with Ruberg, knowing
they were probably going to fight to see who was the toughest. Also, even if we
accepted that at one point Shekey asked, “are we done?
Have you had
enough?,” he continued to punch Ruberg, including the punch that caused his
death.
In addition, Shekey had alternative courses of action open to him. Of
course, he simply could have refused to go outside with the intent to fight
Ruberg. Shekey lived right next door to the home where the party was held, and
could have gone home at any time. The district court additionally noted that
Shekey could have expressed more clearly his intent to terminate the conflict, if
that was indeed his intent.
As the court found, assuming Shekey made the
statement, it could be taken to say Shekey was done fighting only if Ruberg was
done fighting, otherwise he would continue.
We conclude there is substantial evidence in the record to support the
district court’s conclusion that the State proved a lack of justification. The State
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was only required to prove one element to show a lack of justification. See State
v. Rubino, 602 N.W.2d 558, 565 (Iowa 1999). The State proved Shekey initiated
or continued the conflict, and an alternative course was open to him.
We reverse the conviction for second-degree murder. We remand to the
district court to enter a judgment on the lesser included offense of involuntary
manslaughter, and for resentencing. See State v. Pace, 602 N.W.2d 764, 774
(Iowa 1999); Morris, 677 N.W.2d at 789.
REVERSED AND REMANDED.
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