Opinion
No. 2-826 / 02-0199.
Filed March 12, 2003.
Appeal from the Iowa District Court for Clinton County, MARK J. SMITH, Judge.
The State of Iowa appeals the decision of the trial court granting defendant Valerie Reeves's motion for new trial following a jury verdict finding her guilty of second-degree murder. REVERSED AND REMANDED WITH DIRECTIONS.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, and Michael Wolf, County Attorney, for appellant.
Jon Kinnamon, Cedar Rapids, for appellee.
Heard by SACKETT, C.J., and MILLER and EISENHAUER, JJ.
The State of Iowa appeals the decision of the trial court granting defendant Valerie Reeves's motion for new trial following a jury verdict finding her guilty of second-degree murder. On appeal the State contends the trial court abused its discretion in concluding the verdict was against the weight of the evidence and granting defendant a new trial. We reverse the trial court and remand with directions to reinstate the jury verdict finding defendant guilty of second-degree murder.
I. BACKGROUND FACTS AND PROCEEDINGS
This case is in its third appeal. In the second appeal, State v. Reeves, 636 N.W.2d 22, 23-24 (Iowa 2001), the Iowa Supreme Court summarized the case with the following facts, noting they were based largely on defendant's testimony. On September 28, 1997, defendant left on a hitchhiking trip from her home in Illinois to Sabula, Iowa. Along with clothing, defendant packed her husband's ten-millimeter handgun. Upon reaching Sabula, defendant went to a tavern to drink and inquire about lodging. One bar customer, Eugene Malone, offered to let her stay at the house he shared with his mother. After receiving reassurances from the bartender, who knew Malone, defendant left the bar with Malone. Both were very intoxicated: Malone's autopsy later indicated his blood alcohol limit was nearly twice the legal limit, and defendant testified she was periodically blacking out.
Defendant testified that after Malone took her to his mother's home he kissed her on the mouth and she told him, "No," stating he had a girlfriend and she had a husband. Iowa Division of Criminal Investigation (DCI) agent Morris testified that notes made by two other DCI agents of their September 30 interview of Malone's mother indicated Malone's mother said she had heard a female say something to the effect, "You are just like my brothers," which was then repeated, followed by the female saying, "No, no, no, no."
Malone's mother testified she heard a female voice say, "You sound just like my brother," followed, after a pause, by the female saying, "Okay, okay, okay." She testified she had not told the agents she heard the female say, "No, no, no, no," and that if the persons who did the interview testified she had told them that, or their notes reflected her stating the female had said "no" several times in succession, that would be mistaken or untrue. Deputy Sheriff Phelps testified that he talked to Malone's mother on September 29, the day Malone was killed. He testified she told him she had heard the female say, "You sound like my brothers," and then "Okay, okay, okay." Malone's sister testified she was present when the two DCI agents spoke with her mother on September 30, and her mother told them she heard a female say, "You sound just like my brothers; okay, okay, okay."
Defendant testified Malone became angry because she had disturbed his mother, and he suggested they leave. According to defendant, Malone drove them in his truck into the country. He stopped the truck, leaned into defendant, and pinched her breasts hard. Defendant testified she panicked, began screaming, and fired her gun, although she did not recall retrieving it from her handbag. Defendant ran from the truck, afraid Malone would follow her. She wandered for thirty hours through road ditches and fields before entering a nearby town where she was spotted in broad daylight by a sheriff's deputy and arrested. Defendant stated she was aware of the search being conducted by law enforcement.
Authorities later found a pile of defendant's clothing in a road ditch, including a pair of soiled pants. Defendant testified she had changed out of her clothes because they had blood on them and because she had soiled her pants out of fright during the incident with Malone. The gun and defendant's bag were found in a stream approximately two miles from where the truck was found. The gun had three safeties designed to prevent accidental discharge. All three safeties could be disengaged by pulling the trigger.
Investigation of the crime scene revealed six shots had been fired, four of them striking Malone. Dr. Peter Stephens testified for the defendant. He described the four shots that struck Malone as being one to his right chest close by the armpit, one to his right shoulder, one a graze wound running from behind his right ear to his right nostril, and one to the back of his skull. Dr. Stephens described the chest, shoulder, and head wounds as "contact wounds," meaning the muzzle of the firearm was actually in contact with the skin surface when fired. In Dr. Stephens's opinion the grazing shot to the right side of Malone's face was probably fired from about a foot and a half away, as suggested by "stippling" or "powder tattooing," in which unburned flakes of powder are driven beneath the skin surface. The pathologist who performed an autopsy testified the chest wound went through the liver and, if unattended, would result in death in ten minutes at the most.
Dr. Stephens acknowledged he could not state with certainty the order in which the shots were fired. He opined, however, that the first two were the shots to the body, with the chest wound probably preceding the shoulder wound. He explained that the chest wound's right to left, downward trajectory in Malone's body was consistent with Malone leaning to his right with his right arm extended and toward the path of the bullet. He further explained that the graze wound to Malone's right cheek, and the fatal shot to the back of Malone's head, were consistent with Malone having sustained the first two shots, then facing toward the left and looking out the left window with a view to escaping through the left door.
In Dr. Stephens's opinion, as the shots were fired the muzzle of the gun became increasingly elevated, which frequently occurs with inexperienced shooters and is a natural consequence of the gun's recoil. Dr. Stephens further testified that the sequence of shots was consistent with a struggle, and the progressive elevation of shots was consistent with rapid fire with a gun climbing from recoil.
Dr. Stephens acknowledged he could not be certain the wound to Malone's chest occurred with his right arm extended, and that if it was extended there was no way of knowing whether it was an offensive or defensive arm movement. He agreed that the wound to the right side of Malone's face would be consistent with him moving toward his door in an attempt to flee the truck, and the wound to the back of Malone's head was consistent with him trying to get out of the truck.
Following trial, the jury found defendant guilty of second-degree murder. The trial court denied defendant's combined motions for a new trial and in arrest of judgment, failing to find insufficient evidence to support the verdict. In State v. Reeves, No. 98-1684 (Iowa Ct.App. Dec. 27, 1999), we reversed the court's denial of defendant's motion and remanded to the district court to make its determination on that motion according to whether the weight of the evidence was contrary to the verdict rather than whether there was insufficient evidence to support it.
On remand the district court granted defendant's motion, finding the verdict was contrary to the weight of the evidence, as the evidence had not shown defendant had had an opportunity to deliberate before firing the gun, and thus malice aforethought had not been established.
The State appealed, arguing malice aforethought could be inferred simply from the use of a deadly weapon, and that a separate opportunity to deliberate along with the use of a deadly weapon for purposes of making an inference of malice was not necessary. The supreme court agreed in Reeves, 636 N.W.2d at 26, holding an inference of malice aforethought in cases of second-degree murder could be made simply from the use of a deadly weapon. The supreme court remanded to the trial court to enter a ruling on the defendant's motion without regard to whether the defendant had an opportunity to deliberate.
On this second remand, which is the subject of the appeal at hand, the trial court again granted defendant's motion for a new trial, concluding the evidence of provocation to rebut malice overcame the inference of malice from the use of a deadly weapon. The court determined the provocation evidence negated the inference, and it was the State's burden to present additional evidence of malice. As there was inadequate additional evidence of malice, especially in light of the evidence of provocation, the court concluded the verdict of second-degree murder, requiring a finding of malice, was contrary to the weight of the evidence.
The State appeals that decision, arguing the trial court may only exercise its discretion to overturn a verdict in exceptional circumstances. See State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). Under Ellis, the trial court must exercise its discretion to grant a new trial "carefully and sparingly," in order not to "lessen the role of the jury as the principal trier of the facts. . . ." Id.
The State argues the case at hand is not such an exceptional case, as the weight of the evidence supports the jury's verdict. As the State argues, the trial court's alternative interpretation of the evidence, while reasonable, simply is not mandated by the evidence, and therefore cannot supplant the verdict, also supported by the evidence, which was reached by the jury.
II. SCOPE OF REVIEW
The trial court has broad discretion in ruling on a motion for new trial. See Ellis, 578 N.W.2d at 658. Appellate review of a weight of the evidence claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000). Motions for a new trial should be granted only in exceptional circumstances. Ellis, 578 N.W.2d at 659.
III. MERITS
We conclude the trial court's granting defendant's motion for a new trial was an abuse of discretion. The trial court must employ its discretion carefully and sparingly and only when the evidence "preponderates heavily against the verdict." Ellis, 578 N.W.2d at 658-59 (quoting 3 Charles A. Wright, Federal Practice and Procedure, § 553, at 245-48 (2d ed. 1982)). The evidence in this case could reasonably be construed in two ways. The jury concluded that the facts showed malice. The evidence did not preponderate heavily against this conclusion: Malone was large and would have had difficulty posing too great a threat in the cramped confines of the truck; there was no physical evidence Malone pinched defendant's breasts, in spite of her claim that he pinched them "hard"; defendant was carrying a concealed semi-automatic weapon; she would have had to initially load and cock the gun; she would have had to reach into her bag to retrieve her gun to shoot Malone; she would have had to pull the seven-pound trigger four distinct times for the shots that struck Malone (and two more times for the two that apparently did not strike him); she fled the scene of the crime; she discarded clothes tending to connect her to the crime; she discarded the weapon; and she eluded the police for thirty hours, in spite of claiming to have only "wandered."
As the State argues, the very evidence used by the trial court to find provocation, specifically Malone's pinching defendant's breasts, may have been reasonably viewed by the jury as proving Reeves harbored malice toward Malone. Further, Dr. Stephens opined that the grazing shot to Malone's face and the shot to the back of his head came after the shot to his chest and the shot to his shoulder. If the jury accepted this and Dr. Stephens's other opinions, as it reasonably could, it could quite reasonably find that as an already mortally wounded Malone turned away and was attempting to flee the truck Reeves shot him from behind twice, first shooting from a distance of about one and a half feet, and then administering the coup de grace by placing the muzzle of the firearm against the back of his head and shooting a final time. Reasonable and credible evidence, much of it presented by the defendant herself and consistent with known facts, thus fully supports the jury's finding of malice. Despite the trial court's independent interpretation of the evidence resulting in a contrary conclusion, we conclude the evidence of provocation simply does not preponderate heavily against the jury's finding of malice, given the evidence discussed above.
Provocation sufficient to rebut malice must be "serious provocation," based upon an objective standard. State v. Taylor, 452 N.W.2d 605, 606 (Iowa 1990). We assume without deciding that the provocation in this case was serious provocation.
We conclude the trial court abused its considerable discretion by displacing the jury's verdict with its contrary construction of the facts. A trial court must approach an invitation to overturn a jury verdict with "great trepidation and reserve with all presumptions running against its invocation." State v. Lemmon, 576 N.W.2d 129, 135-36 (Mich. 1998) (quoting People v. Bart, 558 N.W.2d 449 (Mich.Ct.App. 1996)). If the "evidence is nearly balanced, or is such that different minds would naturally and fairly come to different conclusions," the judge may not disturb the jury findings although his judgment might incline him the other way. Lemmon, 576 N.W.2d at 138 (quoting State v. Kringstad, 353 N.W.2d 302, 307 (N.D. 1984)). In this case different minds could naturally and fairly come to different conclusions. In such a situation the jury verdict controls.
We conclude the jury verdict was not contrary to the weight of the evidence. We therefore remand with directions to the trial court to reinstate the verdict finding defendant guilty of murder in the second degree.
REVERSED AND REMANDED WITH DIRECTIONS.
I would depart from the decision of my esteemed and learned colleagues and affirm the trial court.
State v Ellis, 578 N.W.2d 655, 659 (Iowa 1998) held that "contrary to . . . the evidence" in Iowa Rule of Criminal Proc. 2.24(2)( b)(6) means "contrary to the weight of the evidence." Thus in a criminal jury trial, in considering a proper motion for a new trial, the trial court's duty is to determine whether the verdict is contrary to the weight of the evidence. The trial judge makes this determination from a unique position, being both educated and practiced in the law and having heard all the evidence and seen all the witnesses. He or she may weigh the evidence and consider the credibility of witnesses. If [he or she] reaches the conclusion that the verdict is contrary to the weight of the evidence and that a miscarriage of justice may have resulted, the verdict may be set aside and a new trial granted.
Ellis, 578 N.W.2d at 658, references Tibbs v. Florida, 457 U.S. 31, 37-38, 102 S.Ct. 2211, 2216, 72 L.Ed.2d 652, 658 (1982), in which the United States Supreme Court explained the difference between the weight of the evidence and the sufficiency of the evidence this way:
[A] conviction rests upon insufficient evidence when, even after viewing the evidence in the light most favorable to the prosecution, no rational factfinder could have found the defendant guilty beyond a reasonable doubt. A reversal based on the weight of the evidence, on the other hand, draws the appellate court into questions of credibility. The "weight of the evidence" refers to "a determination [by] the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other."
Ellis, 578 N.W.2d at 658-59 (quoting 3 Charles A. Wright, Federal Practice and Procedure § 553 at 245-48 (2d ed. 1982)). Under this standard, if the trial judge does grant a new trial, as in the case of a hung jury, double jeopardy does not attach and the State has the opportunity to retry the case with the same or additional evidence. Prior to Ellis, "contrary to . . . the evidence" had often been interpreted to require a trial court to find insufficient evidence to support a verdict before granting a new trial. Ellis, 578 N.W.2d at 656-57. In Tibbs v. Florida, 457 U.S. 31, 40-41, 102 S.Ct. 2211, 2217, 72 L.Ed.2d 652, 660 (1982), however, the United States Supreme Court determined that a finding of insufficient evidence to support the verdict could not result in a new trial. The case instead must be dismissed, as the defendant had once been put in jeopardy, there had been insufficient evidence to support a verdict convicting him, and he therefore could not be put in jeopardy again.
Significantly, the shift in Ellis from "sufficiency of the evidence" to "weight of the evidence" demonstrates an attempt to increase the discretion of the trial court in determining whether a new trial is warranted. The State argues the case at hand is not a sufficiently exceptional case to merit a new trial, that new trials may be granted only when justice "demands" it. In fact, under Ellis, in order to avoid the double jeopardy problem, trial courts must only find, upon making credibility determinations and weighing the evidence, a miscarriage of justice may have resulted, to grant a new trial. Id. at 658-59. Restricting the trial court's discretion to only the most highly extraordinary circumstances essentially imposes a "sufficiency of the evidence" standard upon the trial court in motions for new trial. Under Ellis, that standard is unconstitutional.
Furthermore, the district court's evaluation of the facts is entitled to a great deal of deference. While the district court's view of the law may not be entitled to deference, its weighing of the evidence, by contrast, is. State v. Reeves, 636 N.W.2d 22, 26 (Iowa 2001). As in the second appeal of this case, in which the Iowa Supreme Court reversed the trial court, if the trial court applies the wrong law in reaching its conclusion that the guilty verdict is against the weight of the evidence, a reversal is in order. Id. at 25-26. With respect to a challenge to the trial court's weighing of the evidence, however, we must find an abuse of discretion to reverse. In granting a new trial the trial court has discretion based on fair trial considerations. State v. LaDouceur, 366 N.W.2d 174, 178 (Iowa 1985); State v. Luncsford, 428 N.W.2d 314, 315 (Iowa Ct.App. 1988). Ordinarily a motion for a new trial is directed to the sound discretion of the trial court, and on appeal from an order entered by the trial court in the exercise of discretion the presumption is that the trial court properly exercised its discretion. Id. We are slower to interfere with the grant of a new trial than with its denial. Iowa R.App.P. 6.14(6)( d).
In State v. Reeves, 636 N.W.2d 22, 24 (Iowa 2001), the supreme court said the sole substantive issue on appeal was whether the district court erred in applying the weight-of-the-evidence standard by ruling that the inference of malice in second-degree murder required an opportunity to deliberate as well as the use of a deadly weapon. The court said the court of appeals correctly noted that case law was confusing on this issue. Id. The court concluded the district court erred in requiring proof of an opportunity to deliberate as a part of the inference arising from the use of a deadly weapon in second-degree murder cases. Id. at 26 The court overruled State v. Love, 302 N.W.2d 115 (Iowa 1981) and its progeny to the extent they were inconsistent with that holding. Id.
Given the facts in favor of the trial court's position, I would find the trial court did not abuse its discretion. I recognize, as the majority argues, there is evidence to support a verdict finding defendant guilty beyond a reasonable doubt. From the printed record, I could well interpret the facts in favor of the State's position. But it is not my charge to reweigh the facts. As the majority concedes, the evidence can be construed in two ways. In reversing, the majority has separately reweighed the evidence and concluded, contrary to the finding made by the trial court, that the evidence "[did] not preponderate heavily" against the jury's conclusion that the facts showed malice. (emphasis added). The majority concludes the trial court abused its discretion in finding otherwise. I believe it is neither within the law nor the spirit of Ellis for an appellate court to reweigh the evidence and find, contrary to the trial court, that the facts do not "preponderate heavily [enough] against the verdict." This is more a "substantial evidence" review than an "abuse of discretion" review. As an appellate court, we are not to reweigh the evidence; rather, our charge is only to review the trial court's exercise of discretion and determine that discretion was not abused. See Commonwealth v. Widner, 744 A.2d 745, 753 (Pa. 2000).
The following evidence appears to support the trial court's conclusion: (1) Malone was a stranger to defendant, who met him the night of the incident; (2) Malone made sexual advances earlier to defendant, which she rejected; (3) Malone took defendant to an isolated area at night and stopped his truck; (4) Malone was a large man; (5) Malone pinched defendant's breasts; (6) defendant panicked; (7) defendant's gun was semi-automatic, with all three safeties disengaging with a pull of the trigger; (8) defendant fired six shots; (9) only four of those shots hit Malone, who was sitting right next to her; (10) the pattern of Malone's wounds indicate the gun was fired erratically; (11) defendant and Malone were intoxicated; (12) defendant ran from the truck immediately after the shooting, fearful Malone was coming after her; (13) defendant was discovered wandering down an open road in plain view.
Weighing evidence involves making credibility determinations. Ellis, 578 N.W.2d 655 at 658 (citing Tibbs, 457 U.S. at 37-38, 102 S.Ct. at 2216, 72 L.Ed.2d at 658.) The trial court is in the unique position of seeing witnesses and hearing them testify. Historically in Iowa the weighing of evidence has been left exclusively to the fact-finder in law cases, and the fact-finder's findings of facts are binding on the appellate courts if supported by substantial evidence. Iowa R.App.P. 6.14(6)( a). Even in equity cases, where the appellate courts retain the right of de novo review, we give weight to the fact-findings of the district court. Iowa R. App. Proc. 6.14(6)( g). I understand that Ellis requires the weight of the evidence to "preponderate heavily" against the verdict for a defendant to receive a new trial. Because this standard is not easily defined, its definition should be determined according to jurisprudence constante.
The Ellis standard is an especially difficult standard, as it provides that evidence can somehow both "preponderate heavily" against a guilty verdict and yet still be adequate to convict defendant, in a second trial, beyond a reasonable doubt. The only way to reconcile two apparently contradictory evaluations of the same evidence is to rely upon credibility assessments and evidentiary inferences, which the trial court is in the best position to make.
Furthermore, I cannot ignore the fact that our court and the supreme court remanded this matter to the district court to consider the motion for a new trial based upon the premise that the verdict was against the weight of the evidence. I need not decide whether these prior decisions establish the law of this case, for I find the district court did not abuse its discretion. I would affirm the trial court.