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State v. Fortune

Court of Appeals of Iowa

July 6, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
GARY MICHAEL FORTUNE, Defendant-Appellant.

         Appeal from the Iowa District Court for Scott County, Paul L. Macek, Judge.

         The defendant appeals his convictions for murder in the first degree, attempted murder, burglary in the first degree, and arson in the first degree. AFFIRMED.

          Mark C. Smith, State Appellate Defender, and Robert P. Ranschau, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney General, for appellee.

          Heard by Vogel, P.J., and Doyle and McDonald, JJ.

          MCDONALD, Judge.

         Gary 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 tale.

         This is 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.

         The 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.

         Fortune 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.

         Jack 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 treatment.

         After 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.

         Fortune 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 ...


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