from the Iowa District Court for Black Hawk County, David P.
defendant appeals his conviction for voluntary manslaughter.
Christopher Kragnes, Sr., Des Moines, for appellant.
J. Miller, Attorney General, and Israel J. Kodiaga and Linda
J. Hines, Assistant Attorneys General, for appellee.
by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
Fordyce 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.
Prior Facts and Proceedings.
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
the same time, Donald Harrington walked across the street to
visit Samantha, his estranged wife, at her Locust Street
residence. 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
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.
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.
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.
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.
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.
drove up the street and made a U-turn, returning to
Nikki's house, where Nikki and Katia 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.
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
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.
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.
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."
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.
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.
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.
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.
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.
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.
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 ...