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State v. Pena

Court of Appeals of Iowa

November 8, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
RODOLFO GONZALEZ PENA, Defendant-Appellant.

         Appeal from the Iowa District Court for Black Hawk County, Kellyann M. Lekar, Judge.

         Rodolfo Gonzalez Pena appeals from his convictions for first-degree murder and carrying weapons. AFFIRMED.

          Mark C. Smith, State Appellate Defender, and Bradley M. Bender, Assistant Appellate Defender, for appellant.

          Rodolfo Gonzalez Pena, Fort Madison, appellant pro se.

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

          Heard by Danilson, C.J., and Doyle and Mullins, JJ.

          DANILSON, CHIEF JUDGE.

         Rodolfo Gonzalez Pena (Gonzalez) appeals from his convictions for first-degree murder and carrying weapons. Gonzalez asserts the facts do not support a felony-murder conviction, the court erred in summarily denying his motion for new trial and instructing the jury on felony murder, and trial counsel was ineffective in not requesting that the jury determine if Gonzalez committed one or more criminal acts. Because we find the two shots fired were sufficiently independent of each other to support a conviction of felony murder, trial counsel was not required to seek an additional jury instruction, the court did not err in denying Gonzalez's motion for new trial, and there is substantial evidence to support a finding of malice aforethought, we affirm the convictions.

         I. Background Facts & Proceedings.

         At approximately 11:00 p.m. on August 22, 2014, Meighan Middleton was in a Waterloo bar with her fiancé, Celio Posada. Also in the bar were Jose Ruben Villalpando, the owner who was bartending that night, and Ruben's sons, George and Ivan Villalpando. Middleton and Posada sat at the bar for approximately twenty-five minutes before Gonzalez entered and took a seat near them at the bar. Although Middleton and Posada did not know Gonzalez, the three engaged in casual conversation. The men bought each other shots of tequila, and Gonzalez purchased a bottle of Buchanan's, which was placed in an ice bucket on the bar near the three customers.

         Around 12:00 a.m., Gonzalez exited the building leaving the bottle on the bar. Posada followed him carrying the bottle of Buchanan's. A brief time later, Middleton picked up Posada's wallet and cell phone from the bar and followed the men out into the parking lot. She saw Gonzalez and Posada talking, approached Posada, and asked him if he and she were leaving. Posada told her no. Middleton then went back inside to use the restroom.

         When Middleton left the restroom, George Villalpando was running towards her yelling, "He's been shot. He shot your husband." Middleton ran outside and saw Posada "on the ground, up against" her Jeep. There was blood on the right side of Posada's head. Middleton ran to Posada and held his arm and neck as he took his last breaths.

         At approximately 12:20 a.m. on August 23, Deputy Sheriff Matthew Harris, was on his regular patrol and driving westbound when he observed a silver truck driving with no headlights. Deputy Harris stopped the truck, and Gonzalez was the truck's driver. Deputy Harris discovered that Gonzalez's license was suspended and placed him under arrest. Deputy Harris performed an inventory of Gonzalez's truck-he found a pistol between the driver's and passenger's seats. Deputy Harris also arrested Gonzalez for carrying weapons and transported him to the county jail.

         Sometime later, Ruben, George, and Ivan Villalpando and Middleton went to the police station to give statements. Each was shown a photo array, and each selected Gonzalez's photo as the person who had been in the parking lot.

         Two bullet cartridges were found in the bar parking lot. One cartridge was located six feet from Posada. Another cartridge was located approximately thirty-five feet from Posada's body. An open knife was found near Posada's body. There was a trail of Posada's blood between the location of the furthest cartridge and Posada's body. A bullet was found in Posada's left arm. Testing revealed that both this bullet and the cartridges found in the parking lot were fired from the gun seized from Gonzalez's vehicle.

         During an interview with Detective Brice Lippert, Gonzalez did not initially admit any involvement in the shooting at the bar. Gonzalez explained he was at the bar with a friend, Roberto. Gonzalez denied being in the parking lot at the same time as Posada. He then stated that Posada grabbed him by the shirt when they were in the parking lot. When asked whether Posada had any weapons on him, Gonzalez was uncertain. He later mentioned being poked by a knife; however, when questioned about whether he saw a knife, Gonzalez stated he did not see one. Eventually, Gonzalez asserted that it was Roberto, his twin brother, who had shot Posada.[1] Gonzalez was charged with first-degree murder and carrying weapons.

         An autopsy revealed that Posada had been shot in the chest and in the head; both shots would have been fatal. The medical examiner, Dr. Dennis Klein, concluded the first shot was to Posada's chest and came from a distance. Dr. Klein testified that Posada could have been mobile after being shot in the chest but not after being shot in the head. Further, Dr. Klein stated Posada was in a seated position when he was shot in the head and this shot was from close range.

         Michael Halverson, a blood-stain-pattern analyst with the Iowa Department of Criminal Investigations, also concluded Posada was in a seated position by Middleton's Jeep when he was shot in the head. Victor Murillo, the State's firearm's expert concurred with Dr. Klein's conclusion Posada was shot in the chest from a distance and in the head from a close range.

         At trial, Gonzalez testified that when he exited the bar, Posada walked outside with him. Gonzalez stated that as he walked toward his parked truck, he waved his hand and told Posada, "See you later." Posada then grabbed Gonzalez by the shirt in the corner of the parking lot and tried to stab him with a knife. Gonzalez testified Posada said, "MS-13 and I kill people."[2] Gonzalez stated he hit Posada's hand and Posada dropped the knife. Gonzalez then ran away and heard Posada say to him, "I'm going to kill you." Gonzalez testified he was carrying a gun, and as he tried to get to a lighted area of the parking lot he fired the first shot; he did not know whether it struck Posada. He testified Posada came in front of him and he fired the second shot. Gonzalez then got in his truck and drove away.

         During the discussion regarding the jury instructions, Gonzalez objected to the inclusion of the felony-murder alternative of the first-degree murder instruction. Specifically, Gonzalez argued:

We're objecting to the inclusion of the felony murder instruction which essentially is 4B and anything that's applicable to it following that marshalling instruction. I understand the State's argument will be that they have two separate acts because there is the first gunshot and the second gunshot. Presumably, the argument is that the first gunshot was an attempted murder or willful injury being the predicate felony for-forcible felony, excuse me, for the second gunshot which led to the death of Mr. Posada.
The first argument is that these are not different acts or sufficiently different acts to warrant parsing them out. . . .
And that-where that ties into, Your Honor, is it goes back to the-the Velez case, as well as the Ross case where we're kind of looking at-in those cases, they're looking at units of prosecutions, but you start with the idea that you can say these are separate acts and then ultimately convict somebody of separate acts.

         The court denied Gonzalez's request and included the felony-murder alternative in the instruction.

         Thus, with respect to the charge of first-degree murder, the jury was instructed that to prove Gonzalez guilty the State was required to prove all of the following elements beyond a reasonable doubt:

1. On or about the 23rd day of August, 2014, the defendant shot Celio Posada.
2. Celio Posada died as a result of being shot by the Defendant.
3. The defendant acted with malice aforethought.
4(a). The defendant acted willfully, deliberately, premeditatedly and specific intent to kill Celio Posada, or
4(b). The defendant was participating in the offense of attempted murder or willful injury causing serious injury, as defined in [other instructions].

         Concerning element 3, the jury was instructed malice aforethought "may, but is not required to, be inferred from the defendant's use of a dangerous ...


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