STATE OF IOWA v. BRIAN FRANCISCO DUQUE (2023)

What started as a yelling match over household chores between Brian Duque and his nephew, Terry Warner, ended with Duque fatally shooting Warner in the home the two shared. Duque claimed that he shot Warner in self-defense, but a jury found him guilty of voluntary manslaughter.

Duque appeals, claiming the evidence was insufficient to establish that his shooting of Warner was not justified. Embedded within this challenge, Duque makes an argument under Musacchio v. United States, 577 U.S. 237 (2016) that we should review his claim not under the law provided to the jury, but the law as laid out by statute. If he does not prevail on his justification claim, Duque alternatively asserts the evidence was insufficient to prove he intentionally shot Warner. We affirm.

I. Background Facts and Proceedings

On December 7, 2019, Duque spent a couple of hours cleaning the upstairs bathroom in the home that he shared with Warner. Though they had lived together for ten years, the two were not close. Duque lived on one side of the house and Warner on the other, sharing the upstairs bathroom and kitchen in between. When he was done cleaning, Duque went out to lunch, returning home just after 1:10 p.m. He went upstairs to use the bathroom and saw Warner had “fouled it up” by wiping the bathroom mirror with toilet paper, which left “hundreds, if not thousands, of particles all over it.” So, at 1:16 p.m., Duque confronted Warner about messing up the bathroom. We know roughly when the argument started because Duque recorded part of it on his cell phone.

The three-minute video begins in the kitchen with Duque complaining that Warner never cleans—a long-running argument between the two. About thirty seconds in, Warner swatted his hand at Duque's phone, telling him to “[g]et that shit out of my face.” Duque accused Warner of assaulting him. Warner retorted that he took a swipe at Duque's phone because he had his camera in his face. Duque replied, “You are abusive. You are assaulting me.” The two kept yelling at each other, going back and forth over who did what in the house.

Eventually, Warner got closer to Duque and shouted in his face: “All you do is harass me. My whole god damn life all you've ever done is fucking harass me. Stay on your side of the house.” But Duque kept arguing, repeating that Warner doesn't do anything around the house. This led to Warner kicking the front door and then returning to the kitchen, slamming the door between the kitchen and the living room area behind him. The door swung back open, and Duque continued the argument by going into the kitchen to record a sink full of dirty dishes, which he said was Warner's mess. Warner yelled at Duque, “Record your shit too, Brian. Gimme your—.” And then, as Warner tries to knock the phone out of Duque's hand, the video shakes and cuts out.

Picking up where the video left off, Duque testified at trial that just before the footage ended, Warner “comes at me at the sink, and then I go by the refrigerator, and that video shakes because he had pushed me in such a manner that I flew all the way and impacted [a] wall.” The pushing alarmed Duque, so he left the kitchen and headed to his bedroom. On the way, Duque said that Warner shoved him twice from behind and followed him into his bedroom even though “[i]t was well understood that we would stay out of each other's sides without invitation.” Then, Duque testified that Warner tackled him to the ground. Duque landed on his chest by his desk, and he felt Warner's weight on top of him with what he assumed was an elbow on his neck. In an interview played for the jury, Duque told law enforcement that he remembered thinking: “I'm going to get the shit beat out of me.”

But Warner got off him, allowing Duque to get up and sit in his desk chair. Yet Warner stayed in the room. So, “knowing that it wasn't going to be over,” Duque grabbed his gun from his desk and “put it underneath [his] leg just in case.” The two continued to exchange words as Warner took “steps towards the door.” Duque explained the critical moment as follows:

We were going back and forth and his back was—his back was to me and he bows up, you know. He just (demonstrating), you know, in a fashion like, okay, you know, and then he turns to his side, and at that point when he bows up, fear is peaked again and I take my eyes off of him.

Again, there's an arm rest and the gun is under my thigh. I take my eyes off of him to negotiate the gun, and as I bring it up, it fires. I was not looking at [Warner]. I did not aim the pistol. And he got hit.

Duque did not tell law enforcement about Warner “bowing up” in his interview after the shooting. Instead, he said that when Warner stopped about two-thirds of the way to the bedroom door and turned around, “it was go time.”

Duque testified that after the gun went off, Warner ran outside, yelling “out to the world, ‘He shot me.’ ” Not believing that Warner had been hit, Duque thought “this guy is grandstanding or showboating or something.” But then he saw Warner supporting himself on a vehicle outside before falling to the ground. At that point, Duque said to himself, “Terry might be in trouble.” So he called 911, telling the dispatcher:

Uh, I came home and I started arguing with my nephew. I have it all on video. He assaulted me. He tried hitting the phone out of my hand. He walked into—he followed me into my room. And then, I had a gun in my room and he was beating on me. He's threatened my life before. I have him threatening my life on video. So I shot him.

Law enforcement arrived at the scene minutes later. They ordered Duque—who was kneeling by Warner—down to the ground, where he was placed in handcuffs. The officers then turned their attention to Warner, who was still conscious and able to speak. He told them the bullet went through his shoulder and into his lung. Moments later, Warner said that he needed to be on his side because he couldn't breathe. He quickly faded into unresponsiveness. The officers on scene attempted CPR, to no avail. Warner was transported to the hospital, where he was later pronounced dead.

The medical examiner determined Warner's cause of death to be a gunshot wound to the outside of his left shoulder. He explained the bullet hit bone after entry and fragmented into pieces that travelled into the chest cavity, including through the left lung. The medical examiner could not determine how far away Warner was from the gun when he was shot, but he thought it was more than two or three feet because he did not locate any gun powder particles on Warner. A criminalist with the Division of Criminal Investigation testified that the firearm was at least five or six feet away from Warner when it was discharged based on his test fires of the gun with the same ammunition. A detective found a spent shell casing and a holster for a handgun on the floor in Duque's bedroom. He did not observe signs of a struggle or physical altercation there, and Duque did not complain of any injuries after being taken into custody. The sergeant who interviewed Duque at the station testified that Duque acknowledged Warner was not armed. And Duque agreed at trial that Warner did not punch or kick him that day, though they had gotten into fistfights in the past.

Duque was charged by trial information with first-degree murder. He filed notices of his intent to rely on justification defenses, and the case proceeded to trial. After the close of evidence, the defense did not object to the proposed jury instructions, which did not include the presumption of reasonableness for the person using deadly force found in Iowa Code section 704.2A (2019). The jury found Duque guilty of the lesser-included offense of voluntary manslaughter. Duque appeals.

II. Analysis

A. Justification

Duque claims the “State failed to prove beyond a reasonable doubt that [his] shooting of Terry Warner was not justified.” See State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993) (“The burden of proof is on the State to prove justification did not exist here.”). We review that claim for errors at law, giving deference to the verdict, which binds us if it is supported by substantial evidence. State v. Cahill, 972 N.W.2d 19, 27 (Iowa 2022). But before getting into the merits of Duque's sufficiency challenge, a constitutional detour into the jury instructions is necessary. See State v. Green, 896 N.W.2d 770, 775 (Iowa 2017) (“[W]hen a jury instruction implicates a constitutional right, our review is de novo.”).

As part of his sufficiency challenge, Duque takes issue with the jury instructions. He argues they did not address the presumption of a reasonable belief that deadly force is necessary under Iowa Code section 704.2A(1) when the person against whom force is used is “[u]nlawfully entering by force ․ the dwelling ․ of the person using force, or has unlawfully entered by force ․ and remains within the dwelling ․ of the person using force.” Duque contends the presumption applied because his “bedroom was his dwelling, and Warner had no right to be in that particular room.” The problem with Duque's argument is that his attorney did not object to the instructions the jury was given or request an instruction on the presumption in section 704.2A(1). So, under long-standing precedent from our supreme court, the unobjected-to jury instructions became “the law of the case for purposes of appellate review for sufficiency-of-evidence claims.” State v. Schiebout, 944 N.W.2d 666, 671 (Iowa 2020); accord State v. Brooks, 269 N.W. 875, 876 (Iowa 1936) (“This instruction was not excepted to, and is, therefore, the law of the case.”).

Yet Duque contends we should rethink this doctrine because of the United States Supreme Court's decision in Musacchio, 577 U.S. at 243, which held that “when a jury instruction sets forth all the elements of the charged crime but incorrectly adds one more element, a sufficiency challenge should be assessed against the elements of the charged crime, not against the erroneously heightened command in the jury instruction.” Even assuming the reasoning of Musacchio applied to the instructional issue raised here, which we question, we are “not at liberty to overrule controlling” precedent from our supreme court.¹ State v. Beck, 854 N.W.2d 56, 64 (Iowa Ct. App. 2014); see also State v. Pass, No. 22-0862, 2023 WL 6620337, at *2 n.3 (Iowa Ct. App. Oct. 11, 2023) (rejecting an argument defendant made under Musacchio in his appellate brief for the same reason); State v. Morales, No. 22-0208, 2023 WL 152343, at *3 (Iowa Ct. App. Jan. 11, 2023) (sidestepping the State's argument under Musacchio that even though the marshalling instruction in a sexual abuse case included a timeframe for the sex acts, the State was not required to prove that extra element). We accordingly examine Duque's sufficiency challenge to his justification defense under the instructions given to the jury. See Pass, 2023 WL 6620337, at *2 n.4 (“[A]s the unchallenged jury instructions are the law of the case, we assess the sufficiency of the evidence in light of what the instructions say, not what they should have said.” (citing State v. Mathis, 971 N.W.2d 514, 518 (Iowa 2022)). And when we do that, we find substantial evidence that the force used by Duque was not reasonable, and he was therefore not justified in shooting Warner.

In support of his justification claim, Duque points out he was in his home and had a right to defend himself, he had no duty to retreat, and Warner “made a motion that intimidated” him. According to Duque, he “had every reason to believe that the man who had kicked a door, shoved him several times as he retreated to his room, and tackled him to the ground was coming after him again.”

First, under the instructions given to the jury,² Duque was justified only if he reasonably believed the use of deadly force was necessary to defend himself against death or injury. Duque's initial interview with law enforcement disclosed that the physical portion of the spat—from which Duque sustained no injuries—was over when he shot Warner. True, Warner started to turn around as he was on his way out of Duque's bedroom. But Warner was unarmed, he was at least five to six feet away from Duque when he was shot, and he did not make any threatening statements to Duque as he turned. While Duque later testified that Warner “bowed up,” which Duque explained meant he intimidatingly arched his back, the jury “was free to discount that testimony based on its inconsistency with other evidence and [Duque's] interest in the trial.” State v. Jenkins, No. 21-1718, 2023 WL 4759448, at *6 (Iowa Ct. App. July 26, 2023); accord State v. Frake, 450 N.W.2d 817, 819 (Iowa 1990); see also State v. Jones, 967 N.W.2d 336, 343 (Iowa 2021) (“While the defendant has an alternative explanation for the evidence, the jury was not required to accept the defendant's version of the events.” (cleaned up)). Viewing the evidence in the light most favorable to the State, see Mathis, 971 N.W.2d at 517, a rational jury could conclude any belief by Duque that the use of deadly force was necessary to defend against death or injury was not reasonable.

Second, a rational jury could also have concluded that the force used by Duque under the circumstances was unreasonable, which under its instructions would negate justification.³ The long history of physical conflict between Duque and Warner never went beyond a fistfight. And not only did Duque know that Warner did not own any firearms, but he also knew that Warner was not armed with any kind of weapon during their argument. As a result, Duque's “use of force was unreasonable because he brought a gun to a fistfight—he used lethal force without any indication that he faced danger that made it reasonably necessary” to shoot the unarmed Warner. Jenkins, 2023 WL 4759448, at *7 (cleaned up). “In other words, substantial evidence shows that [Duque] ‘escalated the level of force beyond what was reasonable under the circumstances.’ ” Id. (quoting State v. Seley, No. 22-0419, 2023 WL 2148800, at *6 (Iowa Ct. App. Feb. 22, 2023)).

We accordingly conclude substantial evidence supports the jury's determination that Duque was not justified in shooting Warner.

B. Intent

Alternatively, Duque claims the evidence was insufficient to show his conduct was intentional. The jury was instructed the State was required to prove “the defendant intentionally shot Terry Warner” and that to

commit ․ voluntary manslaughter ․ a person must intend to do an act which is against the law. While it is not necessary that a person knows that act is against the law, it is necessary that the person was aware he or she was doing the act and he or she did it voluntarily, not by mistake or accident. You may, but are not required to, conclude a person intends the natural result of his or her acts.

While Duque agrees he “may have intentionally shot the gun,” he argues “he did not intentionally shoot Warner.” He highlights his statements to law enforcement that “he pulled his gun out as fast as he could, didn't aim, and shot it once when he saw Warner turning toward him”; his testimony that he wasn't looking directly at Warner when he shot; and the facts that Warner was not shot in the back, he was shot only once, and Duque called 911.

While the evidence may have shown that Duque did not aim with precision, it also showed that Duque pointed the gun at Warner before pulling the trigger. The sergeant who interviewed Duque asked him, “what happen[ed] to prompt you to pull your gun out and point it at him?” Duque responded, “he turned around.” Later, Duque demonstrated to the sergeant how he pulled the gun, which the video of his interview shows was like a wild west quick-draw, with the shooter aiming in the general direction of the target and squeezing off a round as quickly as possible. While Duque claimed, “I didn't even aim,” the way he demonstrated the shooting on the video of his interview shows he at least pointed the firearm at Warner.

Because the evidence shows Duque pointed the firearm at Warner before pulling the trigger, we conclude a rational jury could have concluded he intentionally shot Warner. See State v. Bedard, 668 N.W.2d 598, 601 (Iowa 2003) (“[D]efendants will ordinarily be viewed as intending the natural and probable consequences that ordinarily follow from their voluntary acts.”). As a result, there was substantial evidence to support this element of his conviction for voluntary manslaughter.

IV. Conclusion

We affirm, rejecting Duque's challenge to the instructions and concluding his conviction is supported by substantial evidence.

AFFIRMED.

FOOTNOTES

1.   We agree with the Washington Supreme Court that “Musacchio discusses sufficiency review only in the context of a federal statute and the federal ‘law of the case’ doctrine,” thus resolving “how federal courts are to determine the elements of a federal crime for purposes of sufficiency review.” State v. Johnson, 399 P.3d 507, 515 (Wash. 2017). Duque does not argue that Musacchio overrules Iowa Supreme Court precedent on our law-of-the-case doctrine for jury instructions, instead asserting, “There are good reasons for the Iowa Supreme Court to follow Musacchio and evaluate sufficiency claims based on the legal elements presented by the statute and not upon faulty but unobjected-to instructions.” But that is not a route we can take as an intermediate appellate court. See In re C.L.C. Jr., 798 N.W.2d 329, 335 n.1 (Iowa Ct. App. Mar. 30, 2011) (“[A]s an intermediate appellate court we must follow the precedents of our supreme court.”).

2.   Instruction 33 provided: “The defendant was justified in using reasonable force if he reasonably believed that such force was necessary to defend himself. Reasonable force is only the amount of force a reasonable person would find necessary to use under the circumstances to prevent death or injury.”

3.   Instruction 36 stated that “the defendant's use of force was not justified” if the “defendant used unreasonable force under the circumstances.”

BADDING, Judge.