from the Iowa District Court for Scott County, Paul L. Macek,
defendant appeals his convictions for murder in the first
degree, attempted murder, burglary in the first degree, and
arson in the first degree. AFFIRMED.
C. Smith, State Appellate Defender, and Robert P. Ranschau,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Linda J. Hines, Assistant
Attorney General, for appellee.
by Vogel, P.J., and Doyle and McDonald, JJ.
Fortune killed Betty Simmons and attempted to kill Jack
Simmons. Following a jury trial, Fortune was convicted of
murder in the first degree, attempted murder, burglary in the
first degree, and arson in the first degree. That is the
the detail. On a September evening in 2014, Fortune and his
on-again, off-again paramour Annette Aviles were at the
apartment of Aviles's mother and step-father, Betty and
Jack Simmons. Fortune and Betty were playing cards. At
approximately 9:00 p.m., Fortune and Aviles argued over
Aviles's constant use of her cellular phone. Fortune
became so upset during the argument he threw his cards in
Aviles's face. Betty became upset, and she and Fortune
started to argue. They both drew knives-Betty, a butcher
knife from her kitchen; Fortune, a Gerber knife he carried on
his person. Aviles called 911. Jack intervened and
de-escalated the situation. Fortune left the apartment.
police responded to Aviles's call and arrived at the
apartment at 9:31 p.m. By the time the police arrived at the
apartment, Aviles had already called a friend, arranged for a
ride, and left the apartment. The police investigated the
call for only a brief period of time. Although Fortune had
left the apartment, he remained in the vicinity and watched
the police arrive and leave. After the police left, Fortune
returned to the apartment. Fortune testified he returned to
the apartment to retrieve his cellular phone and knife and to
"confront" Aviles. However, Fortune did not go to
the front door. Instead, he clambered up the fire escape and
entered the apartment through a bathroom window. What
happened next was disputed at trial.
testified his recollection of events was impaired because of
his voluntary ingestion of Xanax and alcohol. He testified
his memory was limited to "snapshots" of events
from the evening in question. Fortune testified he entered
the apartment though the bathroom window. He waited in the
bathroom to confront Aviles. He heard Jack and Betty arguing.
He then fell asleep in the bathtub only to awake to the sound
of Betty screaming. Fortune testified he exited the bathroom
to investigate the scream and saw Jack stabbing Betty.
Fortune grabbed the knife from Jack, and the two men began to
struggle. Eventually, Jack broke free and went into the
bathroom. Fortune testified he could not remember exactly
what happened next. He "remember[ed] that there was a
fire that was started." He testified he remembered
trying to smother the fire. He remembered removing his shirt
while still inside the apartment. He also remembered getting
in his vehicle and starting the car.
Simmons testified he had fallen asleep in his bedroom after
the police left the scene. He testified he awoke when he
heard his wife calling his name. As Jack was waking up, he
saw Fortune walk past his bedroom door. Jack went into the
living room and observed Fortune stabbing Betty. Jack
returned to his bedroom to find something to defend against
Fortune. Before Jack found anything, Fortune was on top of
Jack, stabbing him. Jack testified Fortune said,
"It's your time to die." The men struggled and
fought in the bedroom until Jack managed to break away. Jack
went to the bathroom and barricaded the door, using his body
weight to prevent Fortune from opening the door. Fortune then
set fire to an umbrella outside the bathroom door in an
apparent attempt to smoke Jack out of the bathroom. Jack
escaped out the bathroom window and down the fire escape. He
sought help from another resident in the apartment. The
apartment resident called 911. Paramedics and police
responded quickly to the scene. Fortune had already left the
apartment by the time the first-responders arrived. Betty had
died from stab wounds to her chest. Jack suffered from
multiple stab wounds and was taken to the hospital for
Fortune left the apartment, he went to the house of a former
paramour, Ikponwonsa Oriaikhi. He also went to his former
place of employment, broke in, made a phone call, and
subsequently left a note apologizing for the damage. He drove
to a farmhouse and attempted suicide twice. He wrote notes to
three people-Oriaikhi, Aviles, and his mother. In the note to
Oriaikhi, Fortune wrote, "Don't know what came over
me but I'm past redemption. Never should've gotten
involved with crazy." In his note to Aviles, Fortune
wrote, "Sorry for everything but you pushed me to [sic]
far. Wish I had never met you but I did. . . . Don't push
a motherfucker to the edge and laugh about it. Wish it
could've been different." To his mother he wrote,
"I will see you soon. Don't try to understand this,
cremate me and scatter me, no marker, no stone." He was
found and arrested at a bar in the town near the farmhouse.
was charged with first-degree murder, attempted murder,
first-degree burglary, and first-degree arson. During the
course of proceedings, he filed a motion to suppress
statements he made to officers while in custody on the ground
his intoxication precluded a knowing waiver of his
Miranda rights. The motion to suppress was denied.
The jury ...