Appeal from the Iowa District Court for Allamakee County, John J. Bauercamper, Judge.
Defendant appeals his conviction after a jury found him guilty of second-degree murder.
Mark C. Smith, State Appellate Defender, and Theresa R. Wilson, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget A. Chambers and Andrew B. Prosser, Assistant Attorneys General, and Jill M. Kistler, County Attorney, for appellee.
An Allamakee County jury found defendant, Christopher Craig Thompson, guilty of second-degree murder for the death of his live-in girlfriend, Angela Gabel. He fatally shot her twice in the head after she made an obscene gesture from inside a parked car where she had retreated during an argument. He appeals on four grounds, arguing the district court erred by (1) failing to submit an instruction on the lesser included offense of voluntary manslaughter; (2) excluding hearsay evidence relevant to his diminished-capacity defense based on his posttraumatic stress disorder (PTSD); (3) declining to obtain and review the deceased victim's mental health records for exculpatory information under State v. Cashen, 789 N.W.2d 400 (Iowa 2010), and Iowa Code section 622.10(4) (Supp. 2011); and (4) applying the wrong standard in rejecting his claim the verdict was contrary to the evidence.
We retained the appeal to decide the constitutionality of section 622.10(4). For the reasons explained below, we uphold the statute as constitutional on its face. We conclude the district court committed no reversible error in any of the rulings challenged on appeal. We therefore affirm Thompson's conviction.
I. Background Facts and Proceedings.
"We recite the facts in the light most favorable to the verdict." State v. Garcia, 616 N.W.2d 594, 595 (Iowa 2000). By all accounts, Thompson and Gabel had a rocky relationship. They had been living together at a farmhouse outside Monona, Iowa, for about two years. In October 2010, the other residents of the farmhouse were their eight-month-old son and Gabel's teenage daughters from a prior marriage, Sierra and Savana. Thompson worked on the road during the week and returned home on weekends.
On the weekends, Thompson would drink heavily—typically consuming a case of beer. Thompson and Gabel regularly argued. During their arguments, they would sometimes slap each other. Gabel often slept in her daughters' bedroom to get away from Thompson. Thompson's relatives viewed Gabel as the verbal aggressor. A friend urged Thompson to break up with her.
On Saturday, October 2, Thompson was home most of the day watching football and taking care of their son, while Gabel was at work. Thompson began drinking at around 3 p.m. Sierra and her boyfriend returned home about 6 p.m. to get ready for her high school's homecoming dance. Gabel arrived home between 7 and 8 p.m. Sierra noted Thompson was being "grouchy" towards her mother. Shortly after 8 p.m., Sierra and her boyfriend left for the dance. At around 11:30 p.m., Gabel called Sierra, who was still at the dance. Sierra went home after receiving the call because her mother sounded scared, "like something was wrong." She found police cars blocking the entrance. The officers would not let Sierra in and later told her that her mother was dead.
Law enforcement from the Allamakee County Sheriff's Office and the Monona Police Department responded to a 911 call Thompson placed at 11:32 p.m. Thompson told the dispatcher he and his girlfriend got in a fight and while she was sitting in a car, "[s]he gave me the big F finger and I f_____ shot her." When the officers arrived they found Gabel dead inside a red Corsica parked in the farmhouse driveway. Thompson came out of the house with his son in his arms. Officers advised him to put his hands up, but Thompson retreated back into his house. Thompson ultimately surrendered to the police at 1:19 a.m. and was taken to the Waukon Police Department.
Thompson was read his Miranda rights at approximately 2 a.m. He agreed to a videotaped interview. During that interview, Thompson estimated that he drank eighteen beers, but said he did not know whether he was sober. Deputy Clark Mellick testified Thompson was intoxicated but "was actually functioning at that time." Thompson was later given a breath test after the interview ended at 4:40 a.m. His blood alcohol level was .184.
Thompson vented to the officers about the problems in his relationship with Gabel. They fought over money. He said he paid the bills while she gambled at the riverboats. Thompson complained about their infrequent sex life. He complained that she failed to properly discipline the children. Thompson said they fought often and that Gabel would slap him or punch him all the time. Gabel had also put a pistol to his head and pulled the trigger. Thompson said he had been telling Gabel for the past four months that she should leave because they didn't get along and because his "head was snappin'." As he put it, "Sometimes a guy just can't f___ take it anymore."
Thompson told officers that they began arguing on the day of the incident sometime after the game they were watching ended. Thompson claimed Gabel was upset with him because he wanted to watch more football while she wanted to go have sex with him. Gabel decided to go to bed without him at around 10:30 p.m. When Thompson came up later, she was asleep. He woke her up to have sex. Gabel told him it was too late. Thompson told the officers that her temper flared after he called her a "bitch" and told her he pays for everything for her even though she does nothing for him. Gabel got out of bed and slapped him. Thompson then pushed her against the wall. Gabel left the room and ran downstairs and outside while they continued to yell at each other. Thompson accused her of leaving to go to the riverboat casino. Once outside, Gabel climbed into her daughter's car after finding hers locked. Thompson, watching from the deck, saw Gabel flip him off and saw her talking on her cell phone. Thompson believed Gabel was talking to his mother, telling her what a "bad guy" he is. He was "pissed off" and went inside to retrieve a .22 caliber rifle from their bedroom.
He came back out onto the deck with the rifle. Gabel flipped him off again. Without aiming, Thompson fired the gun at her from fifteen to twenty feet away. The bullet went through the driver's side window. He told police he only meant to scare her with the first shot, not kill her. He approached to find her breathing, but could tell "she wasn't gonna make it." Thompson told officers he shot her a second time to "put her out of her misery." He was three feet away when he fired the second shot. The autopsy showed Gabel was shot twice in the head and either shot could have been fatal.
On October 7, the State filed a trial information charging Thompson with murder in the first degree, in violation of Iowa Code sections 707.1, 707.2(1), and 707.2(2) (2009). He pled not guilty and waived his right to speedy trial. He filed a notice of intent to rely on the defenses of insanity and diminished responsibility. He filed a motion to suppress his statements to police, claiming he lacked the mental capacity to waive his Miranda rights. The district court held a hearing on the motion and denied it. Thompson does not appeal the ruling allowing his videotaped confession into evidence.
On August 15, 2011, Thompson filed an application for discovery asking the district court to conduct an in camera review of Gabel's mental health records to determine if they contained exculpatory evidence. The district court held a hearing on September 12 and denied the application in a written ruling two days later.
The jury trial began November 8. The jury found Thompson guilty of the lesser included offense of murder in the second degree, in violation of Iowa Code section 707.3. The district court denied Thompson's combined motion for new trial and arrest of judgment. The court sentenced Thompson to a term of incarceration not to exceed fifty years. Thompson appealed.
We discuss additional facts and procedural history with the specific issues decided below.
II. Scope of Review.
A district court's refusal to submit a requested jury instruction is reviewed for correction of errors at law. State v. Rains, 574 N.W.2d 904, 915 (Iowa 1998). We review the district court's evidentiary rulings for abuse of discretion. State v. Huston, 825 N.W.2d 531, 536 (Iowa 2013). Rulings on the admissibility of hearsay evidence are reviewed for correction of errors at law. State v. Buenaventura, 660 N.W.2d 38, 50 (Iowa 2003). Discovery rulings challenged on constitutional grounds are reviewed de novo. Cashen, 789 N.W.2d at 405 ("Because the issues in this case rest on constitutional claims involving Cashen's due process right to present a defense, our review is de novo."). Nonconstitutional challenges to discovery rulings are reviewed for abuse of discretion. Id. ("Ordinarily, we review discovery orders for an abuse of discretion."). We review claims of ineffective assistance of counsel de novo. In re Det. of Blaise, 830 N.W.2d 310, 315 (Iowa 2013). We review a district court's ruling as to whether a verdict was contrary to the weight of the evidence for abuse of discretion. State v. Reeves, 670 N.W.2d 199, 202–03 (Iowa 2003).
A. Voluntary Manslaughter Jury Instruction.
Thompson contends the district court erred by failing to submit his requested jury instruction on the lesser included offense of voluntary manslaughter. The district court concluded the evidence of provocation was insufficient to support submission:
The court is concerned that the factual record is inadequate to give Voluntary Manslaughter under Uniform Instruction 700.15, specifically finding evidence in the record of provocation as defined by Uniform Instruction 700.16. The court understands that there is evidence of the victim having slapped the Defendant. There is evidence of the victim having given the Defendant the finger on several occasions. The court is not satisfied that that constitutes provocation.
We agree. Thompson had to show "serious provocation" by Gabel. See Iowa Code § 707.4. The evidence of serious provocation in this case— that Gabel slapped Thompson and flipped him off before he shot her— was insufficient to submit a voluntary manslaughter instruction.
"Lesser offenses must be submitted to the jury as included within the charged offense if but only if they meet both the appropriate legal and factual tests." State v. Ware, 338 N.W.2d 707, 714 (Iowa 1983). An offense meets the legal test if " '[t]he lesser offense [is] composed solely of some but not all elements of the greater crime.' " State v. Sangster, 299 N.W.2d 661, 663 (Iowa 1980) (quoting State v. Furnald, 263 N.W.2d 751, 752 (Iowa 1978)). The legal test is met here because Iowa Code section 707.4 explicitly provides "[v]oluntary manslaughter is an included offense under an indictment for murder in the first or second degree." Iowa Code § 707.4; accord State v. Inger, 292 N.W.2d 119, 121–22 (Iowa 1980) ("By the second paragraph of section 707.4, the legislature has seen fit to make voluntary manslaughter a lesser included offense in second-degree murder. Therefore, the 'legal' test . . . is satisfied."). But, Thompson fails to meet the factual test.
Determining whether a lesser included offense meets the factual test involves " 'an ad hoc determination whether there is a factual basis in the record for submitting the included offense to the jury.' " Sangster, 299 N.W.2d at 663 (quoting Furnald, 263 N.W.2d at 752). A factual basis exists if the defendant has produced "substantial evidence of each necessary element of the lesser-included offense." State v. Royer, 436 N.W.2d 637, 643 (Iowa 1989).
Section 707.4 provides:
A person commits voluntary manslaughter when that person causes the death of another person, under circumstances which would otherwise be murder, if the person causing the death acts solely as the result of sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a person and there is not an interval between the provocation and the killing in which a person of ordinary reason and temperament would regain control and suppress the impulse to kill.
Iowa Code § 707.4 (emphasis added).
In Inger, we explained that "[s]ection 707.4 requires that both a subjective standard and objective standards be met before a defendant can be convicted of voluntary manslaughter." 292 N.W.2d at 122. We elaborated:
The subjective requirement of section 707.4 is that the defendant must act solely as a result of sudden, violent, and irresistible passion. The sudden, violent, and irresistible passion must result from serious provocation sufficient to excite such passion in a reasonable person. This is an objective requirement. It is also necessary, as a final objective requirement, that there is not an interval between the provocation and the killing in which a person of ordinary reason and temperament would regain his or her control and suppress the impulse to kill.
The district court declined to give the voluntary manslaughter instruction because there was insufficient evidence of the first objective requirement—that "[t]he sudden, violent, and irresistible passion . . . result[ed] from serious provocation sufficient to excite such passion in a reasonable person." Id. Thompson presented evidence that Gabel had slapped him, was arguing with him, and had given him "the finger" before he shot her. In Inger, we recognized that evidence the victim assaulted the defendant could be sufficient to establish serious provocation. Id. We summarized the evidence in that case as follows:
Defendant testified that decedent attempted to strike him, thereby inducing defendant to swing at [decedent] out of fear or anger. Other evidence showed [decedent] then hit defendant in the head with his fist. [Decedent] somehow fell down against a metal pole supporting the grocery store and, while [the decedent] was down, defendant quickly kicked [decedent] in the head.
Id. (citations omitted). We concluded "[d]efendant's own testimony provide[d] a sufficient factual basis to meet the subjective requirement that the defendant acted solely as a result of sudden, violent, and irresistible passion." Id. (emphasis added).
Additionally, words alone, historically, have been insufficient to provide a factual basis for serious provocation. See, e.g., State v. Rutledge, 243 Iowa 179, 192, 47 N.W.2d 251, 259 (1951). Thompson contends, however, that some jurisdictions are beginning to reevaluate the historical approach. In support of this proposition, Thompson cites Wayne R. LaFave's treatise, Substantive Criminal Law. According to this treatise, some courts have recognized that words alone may be sufficient to establish provocation if the words are informational (conveying information of a fact which constitutes a reasonable provocation when that fact is observed) rather than merely insulting or abusive words." 2 Wayne R. LaFave, Substantive Criminal Law § 15.2(b)(6), at 499–500 (2d ed. 2003). Two of the cases cited in support of this proposition involved a defendant being told that the victim had assaulted a close relative. See id. at n.60 (citing State v. Copling, 741 A.2d 624, 631–32 (N.J.Super.Ct.App.Div. 1999) (noting "a person can be provoked without actually witnessing the provoking assault on the relative" while analyzing whether defendant, whose mother told him the victim had attacked defendant's younger brother, was provoked), and Commonwealth v. Berry, 336 A.2d 262, 263–65 (Pa. 1975) (holding jury could find defendant was provoked when, arriving on the scene shortly after the attack, his mother told him she had been assaulted by man defendant then killed)). Those cases are inapposite because the words Gabel used were "merely insulting or abusive"—she did not tell Thompson she had assaulted anyone close to him.
We agree with the district court that Gabel's actions in slapping him and insulting him with obscene gestures fell short of the objectively serious provocation required to submit a voluntary manslaughter instruction. See State v. Ballinger, No. 79974, 2002 WL 962835, at *6 (Ohio Ct. App. May 2, 2002) (holding "trial court did not err in refusing to instruct on the inferior offense of voluntary manslaughter" when victim slapped defendant and may have accidentally come into contact with defendant's infant daughter and called defendant a bitch).
Finally, the State argues Thompson had time to think twice and calm down. After Gabel gave him the finger through the car window fifteen to twenty feet away, he walked from the outside deck to his bedroom to get the rifle and returned to the deck to shoot her. But, given our holding that provocation was insufficient, we need not decide whether this was a sufficient interval for a "person of ordinary reason and temperament [to] regain his or her control and suppress the impulse to kill." Inger, 292 N.W.2d at 122. Accordingly, we affirm the district court's refusal to submit an instruction on voluntary manslaughter.
B. Exclusion of Hearsay Evidence.
Thompson appeals the district court's exclusion of hearsay evidence showing that on an earlier occasion Gabel threatened him with a firearm. Specifically, the district court excluded testimony from his friend Joseph Christen that Thompson told him thirty to forty-five days earlier that Gabel had aimed a revolver at him the same morning. The district court also excluded testimony from Gabel's daughter that Gabel told her about putting a gun to Thompson's head. We conclude after reviewing the record that this evidence was correctly excluded as hearsay. Thompson did not lay a foundation to admit the evidence under any exception to the hearsay rule.
Thompson also claims the district court erroneously excluded evidence supporting his PTSD defense. The evidence includes correspondence Thompson sent from Iraq describing his war experiences. The State responds that the district court correctly excluded his letters as hearsay. We agree. Thompson failed to lay a foundation supporting any exception to the hearsay rule such as present sense impression or then existing mental, emotional, or physical state of mind. See Iowa R. Evid. 5.803(1), (3). For example, Thompson never showed the letters were written while he was "perceiving the event . . . or immediately thereafter." See ...