STATE OF IOWA, Plaintiff-Appellee, vs. JUSTIN ALLEN ROBUCK, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-743 / 08-1864
Filed November 12, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JUSTIN ALLEN ROBUCK,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Jasper County, Dale Hagen,
Judge.
Defendant appeals his conviction for murder in the second degree.
AFFIRMED.
Maria Ruhtenberg, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney
General, Steve Johnson, County Attorney, Michael Jacobsen and Scott
Nicholson, Assistant County Attorneys, 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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VOGEL, P.J.
Justin Robuck appeals his conviction for murder in the second degree in
violation of Iowa Code sections 707.1 and 707.3 (2007). Because we find the
district court did not err in excluding Robuck’s expert witness or in refusing to
give an instruction on Robuck’s right to arm himself, we affirm.
I.
Background Facts and Proceedings
Robuck was found guilty of second-degree murder following the stabbing
death of Jerry Pittman II in October 2007. Given the testimony presented, the
jury could have found the following facts pertinent to the issues raised on this
appeal. On the night of Friday, October 5, 2007, Robuck and a group of friends,
including Tyler Oberhart, Ray Travis, Courtney Hummel, and Mishana Cornejo,
spent the evening partying together. Earlier that evening, Oberhart gave Pittman
some Xanax pills in exchange for marijuana, and Oberhart later discovered that
the marijuana he received was actually lawnmower clippings. Around 3:00 a.m.,
October 6, Robuck, Oberhart, Travis, Hummel, and Cornejo, went to Pittman’s
house in order to “punk him out,” or scare him into giving them their marijuana or
money back. When they arrived at Pittman’s, Robuck, Oberhart, and Travis
exited the car, all carrying a knife or other weapon. After summoning Pittman to
come out of the house, they discovered he was in the backyard wielding a knife.
Threats were exchanged, and Pittman lunged at Oberhart. Pittman then went
into the garage, purportedly to get the marijuana, but instead came out of the
garage swinging a PVC pipe and struck Oberhart. After wrestling the pipe away
from Pittman, Oberhart told Pittman, “You better run.” Pittman began running,
chased by Oberhart and Robuck, both armed with knives, and Travis, armed with
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a rock-like weapon. Upon catching him, Oberhart held him to the ground by
sitting on his upper body and Robuck sat on Pittman’s legs. Both Oberhart and
Robuck repeatedly stabbed Pittman.
suffered twenty-nine stab wounds.
A later autopsy would reveal Pittman
Immediately after the stabbing, the three
returned to the car with Robuck exclaiming, “I killed him. I killed him. I killed
him. . . . I stabbed him at least 30 times.” He also said, “He is dead. He is dead.
He is fricking dead.”
During the altercation, Robuck’s hand was injured. When he later sought
medical treatment at a hospital, he informed the doctor he threw a knife into the
air, and as it came back down, the knife stabbed him in the hand. Suspicious of
the explanation, the doctor contacted the police.
Robuck told the police a
different story as to how his injury occurred. Following an investigation, Robuck
and Oberhart were charged with first-degree murder. On December 11, 2007,
Robuck filed a notice of intent to rely on self defense. He also filed a designation
of witnesses, including Dr. Jerome Fialkov, who had evaluated Robuck and
prepared a psychiatric report as to his findings.
Dr. Fialkov concluded (1)
“Robuck did not form specific intent at the time of the alleged crime because of
his tendency to act impulsively and without foresight;” and (2) “it was not in
[Robuck’s] nature or character to perpetrate an act of violence,” but that he was
acting as a “Good Samaritan.” The State then filed a motion in limine to exclude
Dr. Fialkov’s testimony and report. Accepting the State’s arguments, the district
court granted the motion.
degree, Robuck appeals.
Following his conviction for murder in the second
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II.
Scope of Review
The admissibility of opinion evidence falls squarely within the trial court’s
sound discretion. State v. Hulbert, 481 N.W.2d 329, 332 (Iowa 1992). Reversal
is justified only when that discretion is abused; that is, when the court’s decision
rests on clearly untenable grounds. Id. We review challenges to jury instructions
for correction of errors at law. State v. Heemstra, 721 N.W.2d 549, 553 (Iowa
2006).
III.
Expert Testimony
Robuck argues the district court erred in excluding Dr. Fialkov as a
defense expert offered to prove he lacked specific intent to kill Pittman. We
agree with the State that Robuck failed to plead either insanity or diminished
responsibility, both of which implicate a person’s ability to form specific intent to
do an act. State v. McVey, 376 N.W.2d 585, 587 (Iowa 1985) (stating that the
insanity defense is available for any crime in which specific intent is an element);
State v. Collins, 305 N.W.2d 434, 436, 437 (Iowa 1981) (“The diminished
responsibility defense allows a defendant to negate the specific intent element of
a crime by demonstrating due to some mental defect she did not have the
capacity to form that specific intent.”). Under our rules of criminal procedure,
such a defense must be timely pleaded or the defendant is precluded from
asserting the defense.
Iowa R. Crim. P. 2.11(11)(b)(1) and (d).
Moreover,
because Robuck was convicted of second-degree murder, a crime that does not
require a showing of specific intent to kill, any possible error in excluding the
testimony was harmless. Iowa Code § 707.3; See State v. Traywick, 468 N.W.2d
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452, 454-55 (Iowa 1991) (stating any error in excluding testimony is harmless if
the rights of the complaining party have not been injuriously affected).
Robuck also argues it was error to exclude Dr. Fialkov’s testimony, as he
had concluded that Robuck’s character was nonviolent. Robuck moved to admit
this evidence under Iowa Rule of Evidence 5.702, which allows a witness
qualified as an expert to testify in the form of an opinion, if it will “assist the trier of
fact to understand the evidence or to determine a fact in issue.”
Opinion
evidence garnered by an expert through the use of psychological testing and
offered to show a defendant’s own good character for the purpose of proving it
unlikely that he committed the crimes charged has been rejected in Iowa. See
State v. Hulbert, 481 N.W.2d 329, 332 (Iowa 1992) (holding expert psychological
evidence may not be used to merely bolster a witness’s credibility). Under Iowa
Rule of Evidence 5.404(a)(1), evidence of a pertinent character or a character
trait of the accused may be offered by an accused, or by the prosecution to rebut
the same.
However, this type of evidence is ordinarily offered through the
testimony of laypersons in the community who are aware of the defendant’s
“real” character, either by direct knowledge or reputation of the accused before
the commission of the offenses.
Hulbert, 481 N.W.2d at 332-33.
Several
witnesses did so testify as to Robuck’s peaceful or nonviolent character. Since
Robuck claimed he acted in self-defense, it was then up to the jury to determine
the veracity of this claim. Id. (“Assessment of a witness’s credibility is uniquely
within a lay jury’s common understanding.”). Where evidence is in conflict, the
issue of whether the defendant acted in self-defense should be submitted to the
jury. See State v. Beyer, 258 N.W.2d 353, 357 (Iowa 1977). We find the district
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court did not abuse its discretion in excluding the testimony of Dr. Fialkov. In
addition, other evidence was appropriately admitted under Iowa Rule of Evidence
5.404(a) for the jury to assess Robuck’s character.
IV.
Jury Instruction
Robuck next assets the district court erred in refusing to instruct the jury
that he had a right to arm himself. As the testimony unfolded, Robuck’s assertion
of self-defense expanded to include a claim he was acting in defense of another.
Robuck’s requested language is as follows:
Any act or acts by Justin Robuck which merely afforded an
opportunity for a conflict with Jerry Pittman, or which did not
proximately contribute to the conflict will not deprive the Defendant
of the defense of justification of another. If a person reasonably
believed that he or another is to be attacked or an injury is to be
inflicted on himself or another, he has the right to arm himself.
Thereafter, before the person can be said to have provoked
the attack or conflict so as to preclude self-defense or justification,
he must have willfully and knowingly done some act after the [sic]
meeting the other person which reasonably led to the conflict,
resulting in death. Unless it is shown that Justin Robuck did an act,
after arrival at the Pittman residence, which a reasonable person
would find to have been clearly calculated and intended to lead to
the conflict resulting in death, the right of defense of another is not
precluded, even though Justin Robuck armed himself and went to
meet Jerry Pittman for the purpose of a conflict.
We agree with the district court, Robuck’s proposed instruction is not a correct
statement of the law. The district court instead instructed the jury as to defense
of another:
Justin Alan Robuck claims he acted in defense of a third person. A
person is justified in using reasonable force if he reasonably
believes the force is necessary to defend another from any
imminent use of unlawful force. If the State has proved any one of
the following elements, then the defendant was not justified:
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1. The defendant knew the person he helped had started or
continued the incident, or the defendant himself started or
continued the incident which resulted in death.
2. An alternative course of action was available to the
defendant.
3. The defendant did not believe the person he helped was in
imminent danger of death or injury and the use of force was
not necessary to save the person.
4. The defendant did not have reasonable grounds for the
belief.
5. The force used by the defendant was unreasonable.
The question is not whether the court erred in rejecting Robuck’s
instruction on his right to arm himself, but whether the court properly instructed
the jury on the evidence presented. The facts presented to the jury included that
Robuck was carrying his opened knife when he, Oberhart, and Travis
approached Pittman’s backdoor; that Pittman was initially armed with a knife,
then a PVC pipe; that Robuck, Oberhart and Travis then chased after an
unarmed Pittman; and finally, when Pittman had been tackled to the ground, he
remained unarmed as Robuck and Oberhart sat on him and stabbed him twentynine times. The fact that Robuck was armed did not preclude the district court
from instructing the jury on defense of another. See State v. Ebelsheiser, 242
Iowa 49, 59, 43 N.W.2d 706, 712 (Iowa 1950), (explaining that in a case involving
an assertion of self-defense, “The fact that either or each party armed himself
beforehand is only a circumstance bearing on prior intentions. It is not a question
of the right to arm but of the evidentiary significance attaching to the fact that the
party did arm. The reasonableness of any fear or anticipation of danger is not so
important as is the honesty or good faith of such fear or anticipation, as bearing
on the party’s intention either merely to defend or to become the aggressor.”).
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The district court was correct in denying Robuck’s requested jury
instruction, as Robuck’s right to arm himself would only bear on his intention to
defend or become the aggressor. Ebelsheiser, 242 Iowa at 59, 43 N.W.2d at
712.
In convicting Robuck of second-degree murder, the jury necessarily
rejected Robuck’s assertions he was acting either in defense of another, or as he
originally asserted, self-defense.
Having considered all of Robuck’s arguments on appeal, we affirm
Robuck’s conviction.1
AFFIRMED.
1
The testimony was difficult to follow in the appendix, as each witness’s name was not
designated at the top of each page where the witness’s testimony appears. Although
not applicable to this appeal, effective January 1, 2009, the rules of appellate procedure
require the name of each witness whose testimony is included in the appendix to appear
at the top of each page where the witness’s testimony appears. See Iowa R. App. P.
6.905(7)(c) (2009).
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