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State v. Makuey

Court of Appeals of Iowa

May 3, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
NGOR MAKUEY, Defendant-Appellant.

         Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell, Judge.

         Defendant appeals from his convictions for murder in the first degree, robbery in the first degree, and assault with intent to commit serious injury.

          Mark C. Smith, State Appellate Defender, and Maria L. Ruhtenberg, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney General, for appellee.

          Considered by Potterfield, P.J., Tabor, J., and Goodhue, S.J. [*]

          GOODHUE, Senior Judge.

         Ngor Makuey appeals from his conviction of murder in the first degree, robbery in the first degree, and assault with intent to commit serious injury and the sentences imposed following a bench trial. We affirm Makuey's convictions and sentence.

         I. Facts and Proceedings

         Ruppert and Harriet Anderson, residents of Des Moines, had an animal-boarding business operated by their grandson that was adjacent to their home. Ruppert was ninety-seven years old and Harriet was ninety-two on July 2, 2014, when they received a knock at their door. Harriet assumed someone was wanting to pick up an animal and opened the door. She observed a young man and told him the kennel was closed, but the man, later identified as Ngor Makuey, pushed her aside and entered the residence. He hit Ruppert twice on the head with an instrument he held in his hand, later determined to be a metal spatula. He then hit Harriet with the spatula and knocked her down. Harriet was able to retrieve a telephone by pulling on the cord and called 911.

         The police arrived, and a young man wearing a gray hooded sweatshirt was observed outside the Anderson home but near its entry door. When questioned by an officer, he advised he was picking up a dog. Two more officers soon arrived, and a cameraman from the television show COPS was traveling with them. The cameraman was operating his camera when he arrived at the house. By coincidence, the video reflected the young man who had been near the house. Both Harriet and Ruppert were taken to the hospital where Harriet was stitched up and eventually released, but Ruppert died. The medical examiner determined Ruppert died from a blunt force trauma to the head.

         By use of the video, Makuey was identified as the young man near the Anderson home. A blood-stained spatula, sweatshirt, and shorts were retrieved from Makuey's residence, and the blood stains matched Harriet's blood type. Pieces of wood, which were identified as the handle to the spatula, were recovered at the Anderson home. It was discovered that a jewelry box Harriet kept on a dresser had been removed and opened, but nothing had been taken.

         Makuey was arrested and charged with murder in the first degree, attempted murder, robbery in the first degree, and burglary in the first degree. Makuey waived his right to a jury trial and was tried to the court. Makuey put forth a defense of insanity, and his expert witness, Dr. Lewis Rosell, diagnosed Makuey as suffering schizophrenic spectrum and other psychotic disorders and further testified that Makuey was not able to distinguish right from wrong or control his behavior on the date of the incident. The State called Dr. Tim Kockler, who reviewed Dr. Rosell's report and criticized his conclusions in several respects. The State also called Dr. Michael Taylor, who diagnosed Makuey as having a psychotic disorder but nevertheless stated that, on the date in question, Makuey was able to act with specific intent, was able to understand the nature and quality of his act, and had the ability to distinguish between right and wrong.

         After the bench trial, the court did not accept the insanity defense and found Makuey guilty of murder in the first degree, assault with intent to commit serious injury as a lesser included offense of attempted murder, robbery in the first degree, and burglary in the first degree. The court did not find Makuey guilty of attempted murder but instead the lesser-included offense because it did not find Makuey intended to kill anyone. The guilty verdict of murder in the first degree was based on the felony-murder rule. Makuey was sentenced to life in prison on the murder conviction, two years on the assault with intent to commit serious injury, and twenty-five year terms each for robbery in the first degree and burglary in the second degree. All of the sentences were to run concurrently except the assault charge, which was made to run consecutive to the other offenses. Makuey has appealed, claiming the sentences imposed constituted cruel and unusual punishment prohibited by the Eighth Amendment of the United States Constitution and article 1 section 17 of the Iowa Constitution.

         II. ...


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