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State v. Fordyce

Court of Appeals of Iowa

June 5, 2019

STATE OF IOWA, Plaintiff-Appellee,
STEVE W. FORDYCE II, Defendant-Appellant.

          Appeal from the Iowa District Court for Black Hawk County, David P. Odekirk, Judge.

         The defendant appeals his conviction for voluntary manslaughter.

          Christopher Kragnes, Sr., Des Moines, for appellant.

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

          Heard by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.

          POTTERFIELD, Judge.

         Steve Fordyce[1] appeals his conviction after bench trial for voluntary manslaughter. He claims (1) the State did not present substantial evidence to disprove his justification defense beyond a reasonable doubt, (2) the district court erred in not applying the amended Iowa Code chapter 704 (2017)-also known as the "stand your ground" law-to his case, and (3) his due process rights were violated by the length of time between his trial and the entry of the district court's verdict.

         I. Prior Facts and Proceedings.[2]

         On August 14, 2015, Fordyce and his two six-year-old children visited Fordyce's sister, Nikki, at Nikki's residence on West First Street in Waterloo. Nikki's property abuts Samantha Harrington's Locust Street property; the properties are partially divided by a fence. While Fordyce and the children visited Nikki, Fordyce's red pickup truck was parked in Nikki's driveway. At some point during this visit, Fordyce's children are alleged to have thrown fruit-snack wrappers over the fence into Samantha's yard.

         Around the same time, Donald Harrington walked across the street to visit Samantha, his estranged wife, at her Locust Street residence.[3] Donald was coming from his adult nephew's birthday party, where Donald had consumed one or two beers. Donald was calm and not agitated when he left for Samantha's residence.

         According to Samantha's testimony, Donald called her around 6:30 or 7:00 p.m. that night and wanted to see her. Once Donald arrived, the two sat on the front porch of the Locust Street residence. Donald asked who drove the red truck parked next door, and Samantha told him the truck belonged to Nikki's brother. Donald told Samantha garbage was being thrown over the fence; he was "visibly shaken" and upset as he told her. Samantha tried to change the subject of their conversation to calm him down.

         While Samantha and Donald sat on the porch together, they observed Fordyce back his red pickup out of the driveway. Samantha testified that as Fordyce drove by, Donald "flipped the bird" at Fordyce. Fordyce stopped his truck in front of Samantha's property. Donald, whom Samantha described as upset, left the porch and proceeded to walk toward Fordyce's vehicle. Donald was a large person, standing at approximately six feet three inches tall and weighing about 281 pounds. Samantha testified once Donald reached Fordyce's truck, Donald tried to open the truck door but the door was locked. Samantha opined that Donald would not have been able to see Fordyce's children-who were seated in the back seat of the truck-due to the dark windows.

         Fordyce made a questioning gesture in response to Donald giving him the finger. Fordyce reported he and Donald had never had any problems with each other and he was confused as to what triggered Donald's hostile behavior. Although Fordyce has some hearing difficulties, he was able to make out that it had something to do with the children's fruit snacks. Fordyce had a gun on his person while in the truck, which he had a lawful permit to carry. According to Fordyce's later statement to police, he carries a gun in his pocket "ninety-five percent of the time." Fordyce did not brandish or point the weapon at Donald at that time.

         After unsuccessfully attempting to get in Fordyce's truck, Donald then attempted to provoke Fordyce into a fight by saying something to the effect of "Come on. You want to go?" Fordyce sped away before Donald walked around the back of the truck.

         Donald then walked back to the porch. Samantha flagged down two of her children's friends and instructed them to find her boys because she thought something was going to happen. Samantha and Donald expected more trouble.

         Fordyce drove up the street and made a U-turn, returning to Nikki's house, where Nikki and Katia[4] were sitting on the porch. Fordyce parked on Nikki's lawn in front of her house, rolled down his window, and, from his truck, told Nikki and Katia what had just happened so Nikki would have warning if any drama resulted with Donald and Samantha. Nikki and Katia ran next door to confront Samantha and Donald. Fordyce told his kids to stay in the truck before getting out to follow Nikki and Katia. Fordyce followed them because he was worried about what might happen; Fordyce believed Donald was "on something" at the time.

         Samantha and Donald were sitting on the porch when they saw Nikki, Katia, and Fordyce approaching Samantha's residence on the sidewalk. Nikki was in front of the group, and Fordyce was trailing behind the two women. Samantha got up to confront Nikki and Katia at the bottom of the porch steps. The women all argued with one another, but Fordyce stood back as an observer and did not say anything or join in any way. He stood near Samantha's property line but remained on Nikki's side of the property line throughout the incident.

         Samantha had known Fordyce for three to four years, but she was unaware that he carried a gun. Donald and Fordyce had not personally interacted in many years, although they knew of each other; Fordyce was aware of allegations of Donald's past drug use. Fordyce had a violent encounter with Donald's brother, John Harrington, many years before this incident, but it did not involve Donald. Samantha and Nikki, however, had ongoing and serious disputes with one another that involved violent behavior. In fact, Samantha testified that just three days prior to August 14, 2015, Nikki had attacked her on her front porch. Samantha says she felt terrorized by Nikki but acknowledged Fordyce was never involved in this.

         Donald apparently was not concerned with Nikki and Katia. However, while Samantha was arguing with Nikki at the bottom of the porch steps, Donald became upset when he saw Fordyce. Donald's angry behavior was directed at Fordyce and not the women. Donald moved quickly from the porch toward Fordyce, who was standing in the driveway on his sister's property. Under cross-examination, Samantha admitted telling the police that Donald wanted to fight Fordyce at that time.

         As Donald approached Fordyce, Nikki announced Fordyce had a gun and asked Donald what he was going to do now. Samantha then saw Fordyce standing approximately three feet from Donald with a gun in his hand pointed at Donald; she had not seen the gun prior to that. Fordyce had the gun in his pocket and had not brandished it prior to Donald rushing at him. According to Samantha's testimony, Donald had his hands outstretched in the air but was holding nothing but a cell phone. Samantha recalled Donald asking Fordyce if Fordyce was going to shoot him before saying something along the lines of "shoot me then."

         The State provided as evidence a recording of a voice message discovered on John Harrington's phone from the time of the incident. This message was made by Donald's phone calling John's phone, and it recorded some of the incident after Nikki arrived at Samantha's home. Donald can be heard saying something to the effect of "it's over with," "fucking kill you," and "go ahead, go ahead." Donald sounds agitated and is not calm in the voice recording. Nikki can be heard on the recording stating, "[Fordyce] has a gun." There is no evidence Fordyce verbally engaged with either Samantha or Donald during this incident.

         According to Fordyce's statement to police officers, Donald then charged at him. Fordyce felt threatened, especially considering his history with Donald's brother, so he backed up, drew his weapon, and fired. Fordyce shot three or four rounds from his Glock model 27 .40 caliber handgun. Fordyce moved several feet while firing the gun; he did not initiate the process to draw and shoot his gun until after Donald charged at him. Samantha estimated it took approximately four seconds from the time Donald left the steps until the time he was shot. It is undisputed Fordyce shot and killed Donald on August 14.

         The firearms-testing report completed by Carl Bessman of the Iowa Department of Criminal Investigation Criminalistics Laboratory found the middle hole on the front of Donald's shirt was caused by a shot fired with the muzzle of the pistol at some distance greater than two feet but less than four feet. Bessman's testing found the upper hole on the front of Donald's shirt and the hole in the back of that shirt were caused by shots fired with the muzzle of the pistol at some distance of three feet or greater from the shirt. These distances are consistent with the descriptions of Samantha and Fordyce concerning how close Donald was to Fordyce at the time of the shooting.

         The location of the recovered bullet casings are consistent with Fordyce stepping away from Donald as he fired the gun. Donald remained standing following the first two shots but fell after being hit the third time. Fordyce then walked back to his truck, put the gun in the glove box, and told his children to get inside the house. He locked the truck and waited for law enforcement to arrive.

         When officers arrived on scene, Nikki, Katia, and Fordyce were sitting on the front porch of Nikki's residence. Fordyce admitted to officers that he shot Donald but informed them he believed this was self-defense. Fordyce informed officers the handgun he used was in his pickup, and the officers seized a Glock model 27 .40 caliber handgun-which testing confirmed was the weapon used in the shooting incident-as well as a 9 mm handgun found in Fordyce's vehicle.

         Officer Edward Savage testified he instructed Fordyce to sit in the back of the patrol car and that, at the time, Fordyce was calm-not upset, agitated, afraid, or injured. Investigator Brice Lippert, who asked Fordyce to come to the station for questioning, also testified the Defendant was "oddly calm" but indicated Fordyce was cooperative.

         Fordyce was transported to the Waterloo Police Department for questioning. Investigator Christopher Gergen described Fordyce as calm during the interview, and Fordyce did not complain to him of any injuries. Fordyce's cell phone was seized during the interview, and he willingly provided his passcode to access the cell phone. During his testimony, Investigator Gergen acknowledged he told Fordyce investigators would attempt to obtain ...

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