IN THE SUPREME COURT OF IOWA
F4LED
MAR ! 8 2011
STATE OF IOWA,
CLERK SUPREME COURT
Plaintiff-Appellee
SUPREME COURT 10-0631
v.
MARK DARYL BECKER,
Defendant-Appellant.
APPEAL FROM THE IOWA DISTRICT COURT
IN AND FOR BUTLER COUNTY
HONORABLE STEPHEN P. CARROLL, JUDGE
APPELLANT'S BRIEF AND ARGUMENT
AND
REQUEST FOR ORAL ARGUMENT
No. AT0007410
MARK C. SMITH
State Appellate Defender
No. AT0004837
MARTHA J . LUCEY
Assistant Appellate Defender
mlucey@spd. state, ia.us
STATE APPELLATE DEFENDER'S OFFICE
Fourth Floor Lucas Building
Des Moines, Iowa 50319
(515) 281-8841 / (515) 281-7281 FAX
ATTORNEYS FOR DEFENDANT-APPELLANT
CERTIFICATE OF SERVICE AND FILING
th
On the 18 day of March, 2011, the undersigned certifies
J that a/ tnie copy of the foregoing instrument was served upon
the Attorney General's Office, Criminal Appeals Division by
electronic transmission to: CAmail@ag.state.ia.us and on
Defendant-Appellant by placing one copy thereof in the United
States mail, proper postage attached, addressed to Mark D,
Becker, # 6099733, Iowa Medical 8B Classification Center, 2700
Coral Ridge Avenue, Coralville, IA 52241.
I further certify that on March 18, 2011, I will file this
document by mailing 18 copies of it to the Clerk of the
Supreme Court, Iowa Judicial Building, 1111 East Court
Avenue, Des Moines, Iowa 50319 through Iowa State Capitol
Complex Local Mail.
APPELLATE DEFENDER'S OFFICE
MARTHA J . LUCEY AT0004837
Assistant Appellate Defender
mjl/d/10/10
mjl/jlb/03/11
i
TABLE OF CONTENTS
Page
Certificate of Service and Filing
i
Table of Authorities
iii
Statement of the Issues Presented for Review
1
Routing Statement
6
Statement of the Case
6
Argument
Division 1
47
Instruction 35
50
Instruction 10
64
Division II
86
Conclusion
89
Request for Oral Argument
89
Attorney's Cost Certificate
90
Certificate of Compliance
91
ii
TABLE OF AUTHORITIES
Cases:
Page:
Bassik v. Scully, 588 F.Supp 895 (E.D. N.Y. 1984).
67
Boykins v. Wainwright, 737 F.2d 1539
(11* Cir. 1984)
76
Durham v. United States, 214 F.2d 862
(D.C. Cir. 1954)
57
Guyton v. Irving Jensen Co., 373 N.W.2d 101
(Iowa 1985)
55
Hand v. Redman, 416 F.Supp. 1109 (D. Del. 1976).
67
In re Faris' Estate, 159 N.W.2d 417 (Iowa 1968)
54
In Re Detention of Garren, 620 N.W.2d 280
(Iowa 2000)
In re Estate of Henrich, 389 N.W.2d 78
81
(Iowa Ct. App. 1986)
54
In re L.E.H., 696 N.W.2d 617 (Iowa Ct. App. 2005)
Shannon v. United States, 512 U.S. 573,
114 S.Ct. 2419, 129 L.Ed.2d 459 (1994)
55
65, 69-72,
74, 83
Snethen v. State, 308 N.W.2d 11 (Iowa 1981)
84
State v. Beets, 528 N.W.2d 523 (Iowa 1995)
State v. Bruegger, 773 N.W.2d 862 (Iowa 2009)
50
68
iii
State v. Cline, 617 N.W.2d 277 (Iowa 2000)
68
State v. Collins, 305 N.W.2d 434 (Iowa 1981)
55
State v. Cox, 781 N.W.2d 757 (Iowa 2010)
48, 68
State v. Craney, 347 N.W.2d 668 (Iowa 1984)
57
State v. Dudley, 766 N.W.2d 606 (Iowa 2009)
86, 88
State v. Effler, 769 N.W.2d 880 (Iowa 2009)
66
State v. Fetters, 562 N.W.2d 770
(Iowa Ct. App. 1997)
65, 68-69
State v. Fountain, 786 N.W.2d 260 (Iowa 2010)
State v. Hamann, 285 N.W.2d 180 (1979)
49
68-69
State v. Harkness, 160 N.W.2d 324 (Iowa 1968)
58
State v. Heemstra, 721 N.W.2d 549 (Iowa 2006)
47
State v. Hrbek, 336 N.W.2d 431 (Iowa 1983)
85
State v. Marin, 788 N.W.2d 833 (Iowa 2010)
48
State v. Maxwell, 743 N.W.2d 185 (Iowa 2008)
85
State v. McKee, 312 N.W.2d 907 (Iowa 1981)
49
State v. OMeara, 177 N.W. 563 (Iowa 1920)
80
State v. Oppelt, 329 N.W.2d 17 (1983)
State v. Piper, 663 N.W.2d 894 (Iowa 2003)
iv
68-69
81
State v. Plaster, 424 N.W.2d 226 (Iowa 1988).
77, 81
State v. Reid, 394 N.W.2d 399 (Iowa 1986)
55
State v. Reynolds, 765 N.W.2d 283 (Iowa 2009)
76
State v. Risdal, 404 N.W.2d 130 (Iowa 1987).
50
State v. Schaer, 757 N.W.2d 630 (Iowa 2008)
85
State v. Schuler, 774 N.W.2d 294 (Iowa 2009)
53
State v. Seering, 701 N.W.2d 655 (Iowa 2005)
66
State v. Stark, 550 N.W.2d 467 (Iowa 1996)
82
State v. Thomas, 520 N.W.2d 311
(IowaCt. App. 1994)
86
State v. Wilkes, 756 N.W.2d 838 (Iowa 2008)
67
Strickland v. Washington, 446 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
Summy v. City of Des Moines, 708 N.W.2d 333
84
(Iowa 2006)
50
Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009)
68
Constitutional Provision:
Iowa Const, art. I, § 9
66, 85
Iowa Const, art. I, § 10
84
U.S. Const, amend VI
83
V
U.S. Const, amend XIV
84
Statutes and Court Rules:
Iowa Code § 13B.4(4)(a) (2009)
88
Iowa Code § 229.1(9) (2009)
54
Iowa Code § 232.2(6)(n) (2009)
55
Iowa Code § 701.4 (2009)
48, 50-52, 57
Iowa Code § 707.2 (2009)
87
Iowa Code § 815.9(3) (2009)
87
Iowa Code § 815.9(4) (2009)
87
Iowa Code § 815.14 (2009)
86, 88-89
Iowa Code § 910.2 (2009)
87
Iowa R. App. P. 6.907
86
Iowa R. Civ. P. 1.924
50
IowaR. Civ. P. 1.925
49
Iowa R. Crim. P. 2.22(8)
82
Iowa R. Crim. P. 2.22(8)(b)
82
Iowa R. Crim. P. 2.22(8)(e)
82
Iowa R. Evid. 5.404(b)
76
vi
Other Authorities:
Masha Bach, The Not Guilty bv Reason of Insanity
Verdict: Should Juries Be Informed of Its
Consequences?, 16 Whittier L. Rev. 645, 674 (1995)....72-74
Black's Law Dictionary 207 (6th ed. 1990)
54
Iowa Admin. Code r. 493-12.6(1)
88
Iowa Criminal Jury Instruction 200.10
52
Iowa Criminal Jury Instruction 200.11
53
http: / /www.nami.org (last visited 10/4/10)
54
Taber's Cyclopedic Medical Dictionary, 1108 (1989)
54
vii
STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
I. WHETHER THE DISTRICT COURT ERRED IN
FAILING TO PROPERLY INSTRUCT THE JURY?
Authorities
State v. Heemstra, 721 N.W.2d 549, 553 (Iowa 2006)
State v. Marin, 788 N.W.2d 833, 836 (Iowa 2010)
State v. Cox, 781 N.W.2d 757, 771 (Iowa 2010)
State v. Fountain, 786 N.W.2d 260, 262 (Iowa 2010)
State v. McKee, 312 N.W.2d 907, 915 (Iowa 1981)
Iowa R. Civ. P. 1.925
State v. Risdal, 404 N.W.2d 130, 131 (Iowa 1987)
IowaR. Civ. P. 1.924
Summy v. City of Des Moines, 708 N.W.2d 333, 340 (Iowa
2006)
State v. Beets, 528 N.W.2d 523 (Iowa 1995).
1. Jury Instruction 35 - failure to give the proposed jury
instruction on the elements of the insanity defense.
Iowa Code § 701.4 (2009)
Iowa Criminal Jury Instruction 200.10
Iowa Criminal Jury Instruction 200.11
1
State v. Schuler, 774 N.W.2d 294, 298 (Iowa 2009)
Iowa Code § 229.1(9) (2009)
Taber/s Cyclopedic Medical Dictionary, 1108 (1989)
http: / / www.nami.org (last visited 10/4/10)
Black's Law Dictionary 207 (6th ed. 1990)
In re Estate of Henrich, 389 N.W.2d 78, 81 (Iowa Ct. App.
1986)
In re Faris' Estate, 159 N.W.2d 417, 420 (Iowa 1968)
Guyton v. Irving Jensen Co., 373 N.W.2d 101, 105 (Iowa 1985)
Iowa Code § 232.2(6)(n) (2009)
In re L.E.H., 696 N.W.2d 617, 619 (Iowa Ct. App. 2005)
State v. Reid, 394 N.W.2d 399, 402-404 (Iowa 1986)
State v. Collins, 305 N.W.2d 434, 436 (Iowa 1981)
State v. Craney, 347 N.W.2d 668, 679 (Iowa 1984)
Durham v. United States, 214 F.2d 862, 874-75 (D.C. Cir.
1954)
State v. Harkness, 160 N.W.2d 324, 330 (Iowa 1968)
2
2. Jury Instruction 10- failure to give proposed jury
instruction on the consequences of a not guilty by reason
of insanity verdict.
State v. Fetters, 562 N.W.2d 770 (Iowa Ct. App. 1997)
Shannon v. United States, 512 U.S. 573, 575 114 S.Ct. 2419,
2422, 129 L.Ed.2d 459,
(1994)
Iowa Const, art. I, § 9
State v. Seering, 701 N.W.2d 655, 662 (Iowa 2005)
State v. Effler, 769 N.W.2d 880, 895 (Iowa 2009)
State v. Wilkes, 756 N.W.2d 838, 842 n . l (Iowa 2008)
Bassik v. Scully, 588 F.Supp 895, 899 (E.D. N.Y. 1984)
Hand v. Redman, 416 F.Supp. 1109, 1111 (D. Del. 1976)
State v. Cline, 617 N.W.2d 277, 292-93 (Iowa 2000), reVd on
other grounds State v. Turner, 630 N.W.2d 601 (Iowa 2001)
Varnum v. Brien, 763 N.W.2d 862, 906 (Iowa 2009)
State v. Bruegger, 773 N.W.2d 862, 886 (Iowa 2009)
State v. Cox, 781 N.W.2d 757, 768 (Iowa 2010)
State v. Hamann, 285 N.W.2d 180, 185-86 (1979)
State v. Oppelt, 329 N.W.2d 17, 21 (1983)
3
Masha Bach, The Not Guilty bv Reason of Insanity Verdict:
Should Juries Be Informed of Its Consequences?, 16 Whittier
L. Rev. 645, 674 (1995)
th
Boykins v. Wainwright, 737 F.2d 1539, 1545 (11 Cir. 1984)
Iowa R. Evid. 5.404(b)
State v. Reynolds, 765 N.W.2d 283, 289 (Iowa 2009)
State v. Plaster, 424 N.W.2d 226, 232 (Iowa 1988)
State v. O'Meara, 177 N.W. 563, 569-570 (Iowa 1920)
State v. Piper, 663 N.W.2d 894, 915 (Iowa 2003)
In Re Detention of Garren, 620 N.W.2d 280 (Iowa 2000)
Iowa R. Crim. P. 2.22(8)(b)
Iowa R. Crim. P. 2.22(8)
State v. Stark, 550 N.W.2d 467, 470 (Iowa 1996)
U.S. Const, amend VI
U.S. Const, amend XIV
Iowa Const, art. I, § 10
Strickland v. Washington, 446 U.S. 668, 686, 104 S.Ct. 2052,
2063, 80 L.Ed.2d 674, 692 (1984)
Snethen v. State, 308 N.W.2d 11, 14 (Iowa 1981)
State v. Maxwell, 743 N.W.2d 185, 195-196 (Iowa 2008)
4
State v. Schaer, 757 N.W.2d 630, 637 (Iowa 2008)
State v. Hrbek, 336 N.W.2d 431, 435-436 (Iowa 1983)
II. WHETHER THE DISTRICT COURT ERRED IN
ORDERING DEFENDANT TO PAY LEGAL ASSISTANCE FEES
IN EXCESS OF THE FEE LIMIT?
Authorities
Iowa Code §815.14 (2009)
State v. Dudley, 766 N.W.2d 606, 621 (Iowa 2009)
State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. App. 1994)
Iowa R. App. P. 6.907
Iowa Code § 707.2 (2009)
Iowa Code § 815.9(3) (2009)
Iowa Code § 910.2 (2009)
Iowa Code § 815.9(4) (2009)
Iowa Code§ 13B.4(4)(a) (2009)
Iowa Admin. Code r. 493-12.6(1)
5
ROUTING STATEMENT
This case should be retained by the Iowa Supreme Court
because the issues raised involve a substantial issue of first
impression. Iowa R. App. P. 6.903(2)(d) and 6.1101(2)(c).
STATEMENT OF THE CASE
Nature of the Case: Appellant Mark Becker appeals
following his conviction for murder in the first degree in
violation of Iowa Code section 707.2 (2009). The Honorable
Stephen P. Carroll presided at all relevant proceedings.
Course of Proceeding and Disposition Below
On June
30, 2009, the State charged Becker with murder in the first
degree for the death of Edward Thomas on June 24, 2009.
(Trial Information) (App. p. 2). On July 13, 2009, Becker filed
a defense notice asserting legal insanity. (Notice of Defense)
(App. p. 4).
Jury trial commenced on February 10, 2010. (Tr. p. 1
Ll-25) (App. p. 7). The jury found Becker guilty of first degree
murder.
(Tr. p. 1419 L19- 1420 Ll-24) (App. pp. 674-675).
6
On April 14, 2010, the defendant was sentenced to life in
prison. (Sent Tr. p. 65 L22-p. 66 L6; Judgment) (App. pp.
753-754, 755-757). Notice of Appeal was timely filed.
(Notice) (App. p. 758).
Facts: Mark Becker is the son of Joan and David
Becker. (Tr. p. 713 L25-p. 714 L l , p. 715 L12- 15) (App. pp.
196, 197). During the summer of his freshman year in high
school, Becker's personality started to change.
(Tr. p. 718
L6-18) (App. pp. 199-200). In high school, Becker played
football for Coach Ed Thomas. (Tr. p. 716 L20-p. 717 L9)
(App. pp. 198-199).
During his first semester at Wartburg College, Becker
exhibited significant depression. (Tr. p. 721 L5-12) (App. p.
201).
He left school and went to live with relatives in Orange
City. (Tr. p. 720 LlO-p. 721 L4) (App. p. 201).
Becker moved to Cedar Falls to attend community
college. (Tr. p. 722 L6-10) (App. p. 202).
Becker withdrew
more. His parents did not know whether his behavioral
7
changes were due to drug use or depression. (Tr. p. 722
L14-p. 723 L2) (App. p. 203).
Becker's roommates contacted
his parents because he had stopped eating, going to class, or
leaving the apartment. Becker's parents took him home. (Tr.
p. 723 L3-10) (App. pp. 203-204).
Becker lived with his brother in South Dakota for a year
and a half. It was shortly after the tornado in May 2008 that
Becker called his mother saying, "Mom, I'm okay, you know,
quit trying to get into my head." (Tr. p. 723 L16-p. 724 L3,
18-21) (App. pp. 204-05). His family was confused by
Becker's behavior. (Tr. p. 724 L4-12) (App. p. 205).
Becker returned to his parents' home in July 2008. (Tr.
p. 724 L16-23) (App. p. 205).
In September 2008, Becker's
parents were awakened one night. Becker was yelling "get off
me, get off me." Dave went downstairs to see what was
happening. Becker came upstairs and his parents "didn't
know who that young man was." (Tr. p. 725 L7-24) (App. p.
206).
Joan testified Becker's face looked different and his
8
voice was deeper.
He got a bat and hit doors in the kitchen.
The episode went on for hours. Becker repeatedly said "get
these feathers off me." He thought he was being turned into
their dog. They could not reason with him. (Tr. p. 726
Ll-19) (App. p. 207).
Becker said there was a big ring of people in town that
were ruining the children. Coach Thomas was one of the
people he named. He also named the other leaders from
church and his parents.
223).
(Tr. p. 739 L22- p. 740 L3) (App. p.
Becker threatened to go beat up coaches Thomas and
Wiegmann. (Tr. p. 740 Ll 1-22) (App. —). Becker said
Thomas was raping him, "Coach Thomas is behind me and get
him off me, he's raping me. I can't stand it anymore, he keeps
doing this to me." (Tr. p. 754 L3-13) (App. p. 232).
Sheriff Johnson was eventually called for help. Johnson
recommended they commit Becker. (Tr. p. 726 L23-p. 727
L10, p. 817 L13-25) (App. pp. 208, 267).
9
Becker told Johnson
that he had a "metaphysical ESP connection with Coach
Thomas." (Tr. p. 818 L1-6) (App. p. 268).
Becker was committed to the psychiatric unit in Mason
City. (Tr. p. 727 L7-18, p. 787 L20-p. 788 L l , p. 817 L19-23)
(App. pp. 208-209, 246-247, 267). Dr. Lassise's diagnosis
was bipolar disorder. (Tr. p. 789 L21-25, p. 790 Ll-20) (App.
p. 248). Becker told a nurse that he was hearing his football
coach's voice.
(Tr. p.793 L5-15) (App. p. 250). Seven days
later, Becker was discharged with medication. (Tr. p. 792
L2-10, p. 794 L8-9) (App. pp. 249, 250).
Becker returned to his parents' home. (Tr. p. 728
L16-21) (App. p. 210). He took his medication sporadically.
(Tr. p. 728 L13-15) (App. pp. 209-210). In November 2008,
Becker was arrested for hitting a man. Joan picked him up
and, on the way home, he "turned and started one of these
episodes." When she tried to call Dave, Becker grabbed the
phone and broke it in half. He was swearing and calling her
horrible names.
He tried to grab the steering wheel and he hit
10
Joan in the head, knocking her glasses off. Joan pulled the
car over and demanded he get out and he did. But he yelled
and kicked the car as she drove off. (Tr. p. 729 L16-p. 730
L18) (App. pp. 211-212). Becker later showed up at home,
telling his mother, "Wasn't me. It wasn't me, Mom." (Tr. p.
730 L19-p. 731 L8) (App. p. 213).
Becker was committed
again for a week shortly after this episode. (Tr. p. 731 L9-25,
p. 732 L5-12, p. 794 L10-14, p. 795 L3-5) (App. pp. 213, 214,
250-251).
The admitting doctor thought Becker was exhibiting more
intense psychotic symptoms, hallucinations and paranoid
delusional thinking. (Tr. p. 795 L15-22) (App. p. 252).
Becker thought he was receiving "telepathic messages." He
was mad at his parents and felt like he was receiving messages
from them. (Tr. p. 795 L23-p. 796 L4) (App. p. 252).
Becker's drug screen was positive for amphetamines. (Tr. p.
798 L6-14, p. 802 L3-8) (App. pp. 253-254, 257). The
diagnosis was psychotic disorder. (Tr. p. 796 L5-13, p. 799
11
L14-23) (App. pp. 252-253, 255).
He was discharged with
medication. (Tr. p. 799 L24-25) (App. p. 255).
In April 2009, Becker was approved to receive services
through Cedar Valley Community Services. (Tr. p. 856 L2-11,
17-21, p. 859 L13-p. 860 L18) (App. pp. 281-282, 283-284).
When Becker met with director, Judy Arjes, he reported that
"he could not feel water when he showered and he was - seemed to be questioning that." He felt that somebody was
behind him putting thumbs over his eyes applying constant
pressure.
He felt like he was being choked at times. (Tr. p.
855 L20-24, p. 861 L23-p. 862 L24) (App. pp. 281, 285-286).
Becker also reported wildly variant sleep patterns. (Tr. p. 862
L25-p. 863 L2) (App. pp. 286-287). Becker was not taking
medication at this time.
(Tr. p. 864 L21-25, 865 Ll-9, 22-p.
866 L3) (App. pp. 288-289, 289-290).
Adam Taylor was assigned to assist Becker. (Tr. p. 863
L25-p. 864 L15, p. 883 L20-22) (App. 287-288, 303).
Becker
rented an apartment in Waterloo. He got a job at Old Chicago
12
restaurant.
(Tr. p. 735 L2-13, p. 865 L10-15) (App. pp.
217-218,289).
Jeremy Kloberdanz worked with Becker at Old Chicago.
(Tr. p. 997 L24-25, p. 998 L13-17) (App. p. 390).
Becker
trained Kloberdanz in dough preparation. (Tr. p. 998 L18-p.
999 L5) (App. p. 391).
Kloberdanz described two odd
incidents when Becker took a drink of water and "almost like
shuddered or just shook a little bit, kind of like waking up
from like being hypnotized or something or not - - not being
there."
(Tr. p. 1000 L7-23, p. 1001 L7-13) (App. pp. 392-393,
394).
th
On June 10 , Becker went to a church camp where he
spoke with Leon Schwerdtfeger.
L7-14) (App. pp. 396, 397).
(Tr. p. 1009 L6-21, p. 1008
Becker was tense and appeared to
be searching for peace. (Tr. p. 1010 L21-25) (App. pp.
398-399). Becker said the "devil keeps messin' with him and
that there are times when he can actually see him." (Tr. p.
1011 Ll-6) (App. p. 399).
Becker said the devil had different
13
appearances at different times. (Tr. p. 1011 L7-9) (App. p.
399).
Becker demonstrated how he experienced pressure in
his eyes by placing his thumbs against his eye sockets. (Tr. p.
1012 L6-14) (App. p. 400).
They prayed together and
Schwerdtfeger thought Becker seemed better after prayer. (Tr.
p. 1011 L24-p. 1012 L5, p. 1016 Ll 1-20) (App. pp. 399-400,
401-402).
On June 20th, at about 9:00 p.m., Becker knocked on
Dwight Rogers' door. Becker asked him if he was Rogers and
he responded "yes." Rogers asked Becker who he was.
Becker responded "you know who the F I am." Rogers did not
know who he was and closed the door. He asked his wife to
call 911. Rogers asked Becker what this was about. Becker
went back to the car and retrieved a baseball bat. When
Rogers stepped outside to get the license plate number, Becker
approached him. Rogers retreated, but Becker swung the bat
breaking the storm door. Becker then broke out two windows.
Becker got into his car and drove into the garage door.
14
Becker backed away from the garage, sat there for a short time
and then left. (Tr. p. 827 L23-p. 828 L l , 12-p. 830 L18) (App.
pp. 274-278).
Law enforcement responded to Rogers' call. (Tr. p. 832
L17-23) (App. p. 280).
enforcement.
Becker did not stop for law
Becker's car hit a deer - ending the chase. (Tr.
p. 759 L4-15) (App. p. 234).
Without being ordered to do so,
Becker got out his car and laid on the ground with his hands
out to the side.
(Tr. p. 763 L17-24, p. 764 L4-19) (App. pp.
238-239). Becker said Rogers was Satan and had everyone
hypnotized. He also said, "why can't the cops get down to this
and finish him off." He said, "get me free." Becker also
stated that "he's hypnotized everybody" and "he uses a teddy
bear." Becker was yelling. (Tr. p. 759 L16-p. 760 L23, p. 812
L24-p. 813 L21) (App. pp. 234-236, 263-264).
Becker was transported to the Butler County Sheriffs
Office. (Tr. p. 814 L2-7) (App. p. 264).
15
Becker was placed in
the booking room where he was video recorded. (Tr. p. 814
L5-12) (App. pp. 264-265).
Becker stated that he worked for God, not Satan. He
questioned, "What did you do to me, God? Where's God?"
Johnson asked him what did you do tonight? Becker
responded, "I went over to Satan's house and I beat his door
in." Johnson asked, "who is Satan?" Becker stated, "Dwight
Rogers." Johnson asked him who Rogers was. Becker
stated, "He is the guy who has hypnotized me since I was a
little kid." Johnson asked, "where does he live?" Becker
responded, "He is making everything crazy. I can't sleep at
night. I can't breathe."
Johnson again asked where Rogers lived. Becker stated
"he lives west of Cedar Falls. I knocked his windows in. I
wanted to beat him up because all he does is suck the life out
of me." Johnson asked what road Rogers lived on. Becker
responded, "He forces me to be evil and I'm not. I work for
God, I don't work for Satan." After discussing where Rogers
16
resided, Becker said, "You need to get me out of there. He's
got me in there.
I can see myself in the house." Johnson
assured Becker that he was there with him.
Becker stated, "We're not pets. We're not doing this.
We're not doing this anymore." Becker told Johnson he broke
out the windows and knocked down his garage door. Johnson
asked him where the house was exactly. Becker told Johnson
he was being Satan. Johnson responded, "no, I'm Jason."
Becker said, "Ok, stay Jason, please for all the right reasons,
for God's sake." Becker said Rogers had "all of us hypnotized.
Everyone is hypnotized right now." Johnson told him to relax,
he knew where he was.
Becker responded, "This isn't Allison.
This is not Iowa. I don't believe it. None of it is real."
Johnson attempted to assure Becker "this part is real -1
don't know about the other stuff. . ." Becker stated, "None of
it is real. I'm not even here right now, Officer. Can't you see
that this is not me, can't you see?" Johnson responded that
17
this was not the personality he liked to see.
Becker stated,
"I'm willing to work with you."
A compass was found on Becker. Johnson asked Becker
what the compass was for. Becker stated, "If I get lost."
Johnson asked him if he had been lost. Becker stated, "I'm
trying to get out of this hell hole." He then told Johnson, "I'm
not going to sit here and go back and forth between Satan and
Jason. Come on. I'm trying to get out of this hell hole."
Johnson informed Becker he was going to try to help him with
that.
A jailer entered the room and Johnson left. The jailer
tried to talk with Becker. Becker told him "I'm not your
Goddamn pet." The jailer stopped talking with him. Becker
questioned "Where's white?" "Where's God? Where's the real
deal?" Becker then said, "I don't believe in Satan, anymore."
(Ex. A) (App. p. 715).
Johnson transported Becker to Covenant Hospital where
he was admitted to the psychiatric unit on a 48-hour hold.
18
(Tr. p. 817 Ll-14, p. 904 L12-19, p. 905 L14-22) (App. pp.
266-267, 322, 323).
In response to why he was there, Becker
said "he vandalized someone's house, has fears he's being
controlled by the owner." The nurse noted that "someone he
met in preschool put a spell on him and he doesn't feel like
he's here." (Tr. p. 944 L10-19, p. 945 L15-22) (App. pp. 361,
362).
st
Becker was evaluated by a doctor on Sunday, June 21 .
Becker was diagnosed with schizophrenia. (Tr. p. 905 L23-p.
906 L9) (App. pp. 323-324). Becker described "hearing voices
that were telling him to do bad things, hurt people, do drugs
and also commenting about him." (Tr. p. 906 L12-20) (App. p.
324).
He indicated he was seeing Satan, he was dead in a
coffin, and that he was being controlled by other people. (Tr.
p. 906 L21-p. 907 Ll) (App. p. 324).
Becker was having
command hallucinations - "when the voice tells you to do
something." (Tr. p. 907 L4-15) (App. p. 325).
Becker stated
that he was being controlled by a rich satanic cult. (Tr. p. 907
19
L16-25) (App. p. 325).
Becker described voices that were
telling him to kill other people. (Tr. p. 909 L3-6, p. 919
Ll l-14) (App. pp. 327, 339).
Becker was given medication.
(Tr. p. 908 L4-15) (App. p. 326).
nd
On Monday, June 2!2 , Dr. Kantamneni became Beckefs
attending physician. (Tr. p. 909 L14-17) (App. p. 327).
Becker reported hallucinations, including seeing Satan. (Tr.
p. 910 L6-12) (App. p. p. 328).
Kantamneni confirmed the
diagnosis of schizophrenia. (Tr. p. 910 L13r25) (App. pp.
328-329).
Becker was agitated, but snowed minor improvements.
Becker was given a medication for anxiety and agitation. (Tr.
p. 911 L15-24) (App. p. 330). The medication can take three
days to work. (Tr. p. 911 L25- p. 912 L13) (App. pp. 330-331).
The medication will decrease the intensity of the voices, but
may not eliminate the delusions. (Tr. p. 912 L18-p. 913 L l , p.
921 L15-p. 922 L4) (App. pp. 331-332, 341).
20
Taylor went to the hospital to see Becker. (Tr. p. 887
L16-23) (App. p. 306).
Becker was easily agitated. Becker
appeared to have delusions.
He said his parents were "robots"
and they were against him. (Tr. p. 888 L6-p. 889 L9) (App.
pp. 307-308). Taylor spoke to Joan and said it would be besl
if they did not visit.
(Tr. p. 892 L24-p. 893 L15) (App. pp.
312-313).
rd
Kantamneni met with Becker again on June 23 .
Becker reported feeling better and discussed the 48-hour hold.
Kantamneni explained she wished him to stay in the hospital
for another couple of days. Becker agreed.
(Tr. p. 913 L3-22,
p. 927 L24-p. 928 L6) (App. pp. 332-333, 346). That
afternoon, Kantamneni was informed Becker requested to be
discharged. (Tr. p. 914 L18-p. 915 L6) (App. p. 334).
Kantamneni agreed to the discharge. (Tr. p. 915 L7-p. 916
Ll) (App. pp. 334-335).
Taylor picked Becker up from the hospital. (Tr. p. 873
L5-21) (App. pp. 296-297). Becker had been prescribed two
21
medications.
(Tr. p. 890 L7-21) (App. pp. 309-310). Taylor
planned to take Becker to get the medications the next
morning. (Tr. p. 891 L2-12) (App. p. 310).
Taylor took
Becker to his apartment and unlocked the door for him as he
dfd not have his keys. (Tr. p. 891 L13-15, 892 L9-16) (App.
pp. 310, 311-312). Taylor asked Becker to stay at his
apartment and not go to his parent's home.
(Tr. p. 893 L22-p.
894 L14) (App. pp. 313-314). Becker denied having
hallucinations or delusions and said the medication was
working. (Tr. p. 896 L12-p. 897 L12) (App. pp. 316-317).
Later that night, Becker called his parents from a Burger
King in Waterloo and asked to spend the night with them. (Tr.
p. 737 L6-18) (App. p. 220).
Joan had reservations about
letting Becker stay with them. She called Taylor to go pick
him up, but was unable to reach him. (Tr. p. 745 L14-p. 746
21, p. 893 L22- p. 894 L14) (App. pp. 225-226, 313-314).
They picked him up and returned home. Becker spoke of
feeling like he had God's purpose in mind and wanted to help
22
with recovery from the tornado. (Tr. p. 737 L6-p. 738 L22, p.
744 L3-11, p. 745 Ll-13) (App. pp. 220-222, 223, 224).
Becker appeared to be better than he had been in a long time.
(Tr. p. 747 L8-21) (App. pp. 226-227).
th
Early morning of June 24 , Becker woke Dave to have
coffee. (Tr. p. 748 L5-13) (App. pp. 227-228). Becker seemed
very happy, very at peace. (Tr. p. 748 L21-25) (App. p. 228).
Later that morning, Dave was going to take Becker to get the
keys to his apartment and pick up his prescription. (Tr. p.
744 L6-11, p. 750 L5-24) (App. pp. 223, 229-230)
Without his parents' permission, Becker drove the spare
car to Aplington. (Tr. p. 751 L24-p. 752 L23) (App. pp.
230-231). Becker approached Janice Stahls house. He
asked if Ed Thomas lived there. Stahl told him no. Becker
said, "Oh, I must have the wrong house." (Tr. p. 625 L10-16,
24-p. 626 L25) (App. pp. 157, 158-159). Thomas did not live
in Aplington. (Tr. p. 629 L17-22) (App. pp. 159-160).
23
Brian Buseman was running on a residential street in
Aplington. (Tr. p. 635 L9-25, p. 636 L5-11) (App. pp.
162-163,163-164). Becker stopped to speak with Buseman.
He asked him whether he had seen Thomas. Buseman said
he was probably in Parkersburg at the elementary school. (Tr.
p. 637 L13-p. 638 L2) (App. p. 165).
Becker thanked him.
(Tr. p. 640 L22-p. 641 L3) (App. p. 169).
Craig Kalkwarf was cleaning and waxing the floors in the
elementary school when Becker approached him. (Tr. p. 646
L25-p. 647 L3, 21-25, p. 648 Ll-7, p. 650 L21-25) (App. pp.
172-173, 173-174, 175).
Becker asked where Thomas was.
Kalkwarf found out that Thomas was in the weight room. (Tr.
p. 652 L17-p. 653 L23) (App. pp. 176-178). Becker thanked
him.
(Tr. p. 654 L25-p. 655 'Lib) (App. pp. 179-180).
The high school weight room was located in the bus barn
because the school was being rebuilt after the tornado. (Tr. p.
395 L7-21) (App. pp. 11-12). During the summer months, the
high school athletes could participant in a weight lifting
24
program. Ed Thomas supervised the program. (Tr. p. 394
L7-23, p. 396 L22-p. 397 L5, p. 416 L25-p. 417 L15) (App. pp.
10, 13, 24-25).
th
On June 24 , numerous students were in the weight
room. (Tr. p 397 L6-8, 23-25, p. 398 L10-22, p. 417 L16-18,
22-p. 418 L18, p. 434 L15-22, p. 435 L12-19, p. 446 L7-25, p.
463 L5-20, p. 474 L10-15) (App. pp. 13-14, 25, 34-35, 42-43,
53, 59).
Becker opened the door, peaked inside and then
closed the door. (Tr. p. 420 L2-16, p. 464 L6-11, 21-25, p.
465 Ll-4) (App. pp. 26, 54, 55).
Brandon Simkins was talking
with Thomas when he noticed Becker. (Tr. p. 399 L8-p. 400
L9, p. 408 L23-p. 409 L3) (App. pp. 14-16, 21). Becker
approached Thomas. He did not say anything. Becker pulled
out a gun and pointed it at Simkins' head.
(Tr. p. 401 L3-p.
402 Ll 1) (App. pp. 17-18). Becker then shot Thomas.
Thomas fell to the ground. Becker shot Thomas while he was
on the ground. (Tr. p. 402 L12-25, p. 403 L8-p. 404 L2, p.
467 L16-p. 468 L8, p. 476 L25-p. 477 L22 ) (App. pp. 18-19,
25
19-20, 56, 61-62). Becker kicked Thomas and stomped on his
head. Becker yelled, "fuck you, old man." (Tr. p. 421 L7-p.
423 L19, p. 428 L23-p. 429 L12, p. 448 L16-p. 450 L25, p. 451
Ll-14, p. 458 L12-18, 21-25) (App. pp. 27-30, 31-32, 43-46,
50-51). Another student said Becker said, "you stupid son of
a bitch." (Tr. p. 438 L3-8, p. 443 Ll 1-15) (App. pp. 38, 40-41).
Becker "was just acting normal, just didn't have any look
on his face, it was just a blank look." (Tr. p. 424 L12-18, p.
440 L24-p. 441 L4) (App. pp. 30-31, 39).
Becker then walked
out the door. (Tr. p. 423 L20-22, p. 429 L13-14, p. 438
L9-11, 451 L15-17) (App. pp. 30, 32, 38, 46-47).
Several students were in the parking lot. (Tr. p. 958
L17-25, p. 969 L12-21, p. 981 L5-9) (App. pp. 367-368,
374-375, 382).
Tiffany Frey was walking toward the building
until she saw Becker. At that time, "the stuff he did, [she]
realized it wasn't normal." (Tr. p. 959 Ll-5, 15-22) (App. pp.
368-369). Frey testified, "[h]e was screaming stuff about
Satan and how he wants Satan to know and something about
26
Thomas' body, and there was just all a big jumbled mess."
(Tr. p. 960 L5-8, p. 962 L2-10) (App. pp. 369, 370). Other
witnesses reported Becker said "Thomas isn't God, he's Satan.
And go get his carcass." (Tr. p. 971 L21-p. 972 L7, p. 983
L22-p. 984 L5) (App. pp. 377, 384).
Daniel Smith was dropping off his daughter when he
noticed girls running across the road. (Tr. p. 486 L3-p. 487
L21, p. 490 L8-25) (App. pp. 67, 69).
Becker was standing by
his car and was yelling. (Tr. p. 491 L19-p. 492 Ll 1) (App. pp.
70, 71).
Becker got into a car and drove away. (Tr. p. 424 L23-p.
425 L4, p. 454 L3-4, p. 470 L8-12, p. 494 L22-p. 495 L8, p.
962 L20-21, p. 972 L17-19, p. 973 L7-12, p. 984 L12-13,
20-23) (App. pp. 31, 48, 58, 73, 371, 378, 385).
One witness
believed prior to driving away Becker yelled, "nobody F-ing
does that." He was yelling toward the building. (Tr. p. 479
L8-20, p. 483 L7-17) (App. pp. 63-64, 66).
27
Smith exited his car when he noticed Dave Schneiderman
running toward the building. Schneiderman said somebody
shot Thomas. (Tr. p. 494 L2-13) (App. p. 72).
Schneiderman
then ran after Becker's car and Smith went into the weight
room. (Tr. p. 494 L14-21) (App. pp. 72-73).
The students who were still in the weight room were
mostly huddled towards the south side of the building. Many
were on their cell phones, some were frozen and many were
crying. (Tr. p. 496 Lll-20) (App. p. 75).
Smith went to
Thomas. (Tr. p. 497 L6-12, 19-22) (App. pp. 75-76). Thomas
was lying sideways with his knees up and he was not moving.
There was a large pool of blood underneath his head. (Tr. p.
497 L23-p. 498 Ll l) (App. p. 76).
Smith checked Thomas to see whether he was still
breathing and had a pulse. (Tr. p. 498 L12-24) (App. pp.
:
76-77). Another adult came into the room. Smith told him to
get the kids out of the building. Schneiderman came into the
building. Schneiderman wrapped Thomas' head in a towel.
(Tr. p. 499 Ll-18) (App. pp. 77-78). Thomas was not able to
communicate with them. He was struggling to breath and
gray matter was coming out of his nose. (Tr. p. 500 L3-11)
(App. pp. 78-79).
Parkersburg Chief of Police Christopher Luhring
responded to the high school. (Tr. p. 506 L25-p. 507 Ll 1)
(App. p. 83).
The scene was chaotic. (Tr. p. 507 L12-18)
(App. p. 83).
The kids were placed on a bus to keep them in
one area and safe. (Tr. p. 509 L12-p. 510 Ll3) (App. pp.
85-86).
The ambulance arrived. Luhring told the crew that it
was a "load and go situation." (Tr. p. 512 L7-p. 513 L3) (App.
pp. 88-89). Thomas was loaded in the ambulance and
transported to a spot where a medical helicopter landed. (Tr.
p. 513 L16-p. 514 L7) (App. pp. 89-90). Thomas was flown to
Covenant Hospital. (Tr. p. 514 L8-12) (App. p. 90).
Sheriff Johnson received information about the shooting.
(Tr. p. 517 L23-p. 518 L2) (App. p. 92).
29
Johnson immediately
drove toward Parkersburg. (Tr. p. 518 L22-p. 519 L3) (App. p.
92).
En route, Johnson was informed Thomas was shot, the
suspect vehicle was registered to Dave Becker and the physical
description of the suspect which matched Becker (Tr. p. 520
L5-15, 25-p. 521 L24, p. 522 L7-14) (App. pp. 93-96).
Johnson decided to go to the Becker residence.
(Tr. p. 522
L18-22, p. 538 L10-18) (App. pp. 96, 109-110).
As Johnson turned onto the road towards the residence,
he could see a vehicle coming over the hill. The vehicle
turned in behind Johnson. (Tr. p. 523 L23-p. 524 L13) (App.
pp. 97-98). The car followed Johnson into the driveway.
Johnson accelerated, turned his vehicle at an angle for cover
and drew his weapon.
(Tr. p. 525 L6-23) (App. pp. 99-100).
As the car approached, Johnson saw an arm come out of the
window. The driver was holding a handgun which was
pointed downward. (Tr. p. 527 L5-17, 23-25) (App. pp.
100-101).
30
The vehicle came toward Johnson and stopped.
Johnson ordered him to drop the gun and he complied. (Tr.
p. 528 L4-23, p. 539 L19-25) (App. pp. 101-102, 111).
Becker
stepped out of the car. Becker said, "I'm done, I'm done."
Johnson handcuffed him. (Tr. p. 529 L4-21) (App. pp.
102-103).
Becker stated, "Ed is done and I'm done with Ed." (Tr. p.
530 L24-p. 531 L3) (App. p. 104).
Becker told Johnson "he
would work for the police, he would work for the FBI, and he
said he thought [the police] had done a good job." (Tr. p. 531
Lll-17) (App. p. 105).
Portions of Beckefs boots were covered
in blood and one pant leg was soaked in blood up to the ankle.
(Tr. p. 531 L18-p. 532 Ll-3) (App. p. 105).
Johnson told a
deputy to take a picture of Becker's boots. Becker said, "I
stomped him for you cops." Johnson did not think he had
, heard him correctly and he asked him what he had said.
Becker repeated, "I stomped him for you cops." (Tr. p. 532
L22-p. 533 L5, p. 541 L8-17) (App. pp. 106, 112-113).
31
A deputy was called to the residence and drove Becker
and Johnson to the sheriffs office. (Tr. p. 534 L20-24, p. 993
L12-25) (App. pp. 107-108, 386-387). No one questioned
Becker during the trip. (Tr. p. 994 L3-5) (App. p. 387).
Becker made several statements. (Tr. p. 535 L8-12, p. 542
L21-p. 543 L l , p. 994 L6-7) (App. pp. 108, 114, 387). Becker
stated, "It's better for the community, thats all I know; it's all I
know." Approximately two minutes later, Becker said, "so
much heavenly power right now you don't even know. Satan
seems like a rag doll to me right at this moment." A short
time later, Becker said, "and that's why I'm done with him."
(Tr. p. 995 L4-13) (App. pp. 388-389).
Becker was placed in the booking room. He remained
there until DCI Agent Callaway arrived. (Tr. p. 535 L4-17)
(App. p. 108).
Becker "made some interesting statements."
(Tr. p. 544 L12-19, p. 571 Lll-22) (App. pp. 116, 137). Other
times, he sat silently.
(Tr. p. 544 L25-p. 545 L3) (App. p. 116).
32
When Becker was first brought into the booking room, he
stated, "I'm done with him. I'm done with him." (Ex. B, 8:31)
(App. p. 716).
Becker stated he worked for the "true white
god." (Ex. B, 8:45) (App. p. 716).
Later while alone in the
room, Becker announced, "The devil is among us" "Let fate take
its course" "I did it for me" "Free" (Ex. B, 8:53-8:56) (App. p.
716).
Becker questioned "why isn't everyone playing, singing,
dancing? That's how it's supposed to be." (Ex. B, 8:57) (App.
p. 716).
Becker then cried. (Ex. B, 9:02) (App. p. 716). He
stated, "It's over, it's done. You're free, you're free, you're free
to go, you're free to go." "(inaudible), Lucifer. Why, why?"
"Let the light shine through on the authorities now, God." "Let
there be no more Satan, God." (Ex. B, 9:04) (App. p. 716).
Becker continued to cry. He stated, "It's brainwashing."
"Just stop and watch. Let there be freedom. Don't be afraid
to be clean, don't be afraid to be happy. Let there be freedom,
Let there be freedom. Put it in good hands. I got him, I got
33
him, I got it. Now let him go, let me go. Maybe not, it's up to
you. Let the white power of God come through in judgment."
(Ex. B, 9:05) (App. p. 716).
Becker yelled, "Get this monster away from me. Get him
away from me - ugh. Get back, Ed. You're done, you're
done, you're done, you're over with, you're through, you're
history, you are done, Ed. Ed Thomas, you are done. You
are never coming back, you are done, you are done. You're
never coming back, you're done, Ed, you are done, you are
done, keep going, you are done, you're done, you're done,
you're gone, you are gone forever, you are gone forever.
You're dead, you are gone. You are going to hell. I don't
know how you got away with so much. But you're not getting
away with it anymore. I can't judge you. Is he in heaven or
hell, I don't know. Let God decide. Let me decide. I don't
want to be a god devil like him. Go away. You're sick,
(inaudible). I'm too white, I'm too white for this land. Too
white, I'm too white, I'm too white." (Ex. B, 9:06-9:08) (App. p.
34
716).
Then he said, "I've had enough of this charade." (Ex.
B, 9:09) (App. p. 716).
Becker sat quietly for a short time. He then yelled, "Let
me go. Let him go." (Ex. B, 9:10) (App. p. 716).
Becker later
stated, "Everyone of you are to shine. You know you can,
you're perfect. Be free, enjoy it, dance, sing, play, be happy."
(Ex. B, 9:13) (App. p. 716).
Becker then announced, "Investigate all you can. Just,
let there be real justice. You know what's right. You know
it's right. Be quick to be white, be slow to be dark." (Ex. B,
9:14) (App. p. 716).
Becker stated, "Let your fate decide itself.
Fellow brothers and sisters, there are no more play things,
there are no more pets, no more machines. It's heaven,
experience it." "They're playing with me." Becker then cried
more. In a different tone of voice, he said, "Stop judging.
Stop playing." Sheriff Johnson then re-entered the room.
(Ex. B, 9:15) (App. p. 716).
35
Agent Callaway interviewed Becker. The interview was
audio taped and videotaped. (Tr. p. 558 L3-13, 559 L22-p.
560 L12, p. 564 L19-25) (App. pp. 123, 124, 129).
Johnson asked Becker if he was okay. He responded, "I
got to get this disease off of me." (Ex. 61, Ll-3) (App. p. 678).
Callaway asked Becker how he was doing. Becker said,
"Pretty good considering I'm working for the white
(unintelligible), the only true power that exists oh earth." (Ex.
61, L15-18) (App. p. 678).
Becker also stated, "Like I said, I'll
work for anybody but the devil. I'll work for the feds, the
sheriff, the police, anybody but the devil. It hurts me to see
all these children suppressed by somebody for so long. My
mom and dad too. And me, my brothers were all suppressed
by this devil tyrant for so long. Now it's gone. Pull myself
together, sir." (Ex. 61 L40-44) (App. p. 679).
Becker
announced, "I feel like I have death in me right now . . . so
much I can taste it. In my nostrils. It's in my lungs . . . Can
you see it in me?" Callaway indicated he could not. Becker
36
thanked him for his opinion. (Ex. 61 L160-166) (App. pp.
681-682).
Callaway asked Becker if he wished to speak with him.
Becker responded, "If I wish to talk with you, I would." (Ex.
61 L166-168) (App. p. 682).
Becker said, "I'm telling you I
have a firm hold on Satan as we speak right now." Then in
response to no question, Becker said, "All I have to do is clench
my right fist and say he's gone." (Ex. 61 L174-182) (App. p.
682).
Becker told Callaway, "I did it for the police. I swear to
everything that is true on earth I did it for the police and me."
(Ex. 61 L203-204) (App. p. 682).
He said, "It was an act of
God." (Ex. 61 L223) (App. p. 683).
Becker told Callaway, "I did this for you. I did this for
me." "It's . . it's the devil. He's a devil tyrant and he's been
suppressing the children around here and my family since I've
been a little kid. I can't. . I couldn't put up with it another
second. We can hardly breathe at night because of that man."
Becker continued, "He comes through and he makes . . he
37
turns us into fish and he turns us into animals and he turns
us into dead people, but he won't let us be our true heavenly
selves." (Ex. 61 L284-297) (App. p. 684).
Becker then said, "I think I'm in everything right now." "I
feel like I'm in a lot of things right now, not just the animals."
When questioned what he meant, Becker said,"... my
presence, my white presence as in . . as in a Godly presence
or an angelic presence. That's all I can feel. All that crying
and mumbling was because of human darkness." (Ex. 61
L310-324) (App. p. 685).
Becker explained that he had not thought about his
relationship with Thomas until the last year or so. He had not
thought about doing anything until the previous night when he
could not breathe. (Ex. 61 L338-365) (App. pp. 685-686).
Callaway asked him what made him start thinking it. Becker
stated, "They just told me to take him out because he was
being a devil. He was being Lucifer. The only way for the
children to be free is if he was gone. I could see that visually."
38
(Ex. 61 L401-406) (App. p. 687).
He "just decided that
something had to be done and so something got into me and
did it." (Ex. 61 L441-453) (App. p. 688).
Becker then
explained what he did. (Ex. 61 L456-834) (App. pp. 688-696).
Becker said after he shot Thomas, "I walked out and I
said be free." "I said, you go in there and kick him if you want
to but be free. I said this . . from this day on everyone's free.
I yelled it at the top of my lungs. I said be free. Everyone,
from this day on be free. He's done. It's done. It's done.
It's over, I said. And I went back to the car. And I went back
to the car." (Ex. 61 L836-843) (App. p. 696).
Becker then said he got arrested and come in here and "I
babbled and I've been swayed by the dark and the light since."
Callaway asked him what he meant by that. Becker said,
"It's a joke. Because white always wins. The true white
always wins and it has won." (Ex. 61 L852-858) (App. p. 697).
Becker said he "felt relief." (Ex. 61 L869-871) (App. p. 697).
Callaway asked if Becker was going to hurt anyone else.
39
Becker responded "No. Nobody else. Nobody but him. It's
crossed my mind to take his family when I was drinking coffee,
but I decided against it right away. It must have been him in
here. His force is that big. It felt so right and so true. I
have no guilt or shame." "There's so much more at peace."
"It's like I was literally going insane the last year. I knew that
somebody was pushing me . . . think tanks from hell." (Ex. 61
L897-905) (App. pp. 697-698).
Becker said he chose his outfit that day because "[i]t
wouldn't get caught on anything. I wanted to wear less cotton
as possible because Tm tired of licking it. Somewhere they
have me licking cotton. They have me so brainwashed." (Ex.
61 L912-916) (App. p. 698).
Becker thought what had
happened was "a great thing" "It's so good." He stated, "I've
been in hell." "I feel like I've been dead for my whole life.
And I'm just getting over that right now." He said he felt so
much better and "so sane right now." (Ex. 61 L945-970) (App.
p. 699).
40
Becker stated he "literally minimized a huge Satan tyrant
to something this big in this room earlier today." But he
wanted to do it for the right reason - for God. "He talked in
my head." (Ex. 61 L1012-1030) (App. p. 700).
Becker said it
was not him, "[o]ne hundred percent it was God." (Ex. 61
L1058-1069) (App. p. 701).
Becker stated, "Get out Satan, get out of here. Being
dead right now. Free me from these chains." Callaway asked
what he meant by that. Becker answered, "That was not me.
That was not me right there. The devil's amongst us right
now." (Ex. 61 Ll 110-1116) (App. p. 702).
He said he could
see the devil. (Ex. 61 Ll 120-1127) (App. p. 702).
Becker
asked Callaway if he had the power to get Satan out of there.
Callaway said he did not
(Ex. 61 Ll 129-1158) (App. p. 703).
Becker told Callaway, "Right now I'm Satan. For some
reason I envy you." "Damn Satan. Damn you. . ." "I'm ready
to join the team." Callaway did not understand and asked
him what he meant. Becker said, "I'm ready to join the team.
41
If it's good I'm in. That's all I can tell you." (Ex. 61
Ll 166-1172) (App. p. 703).
Later, Becker said Callaway was
glowing and his eyes were shining. (Ex. 61 L1274-1283) (App.
p. 706).
When asked what should happened to him, Becker said
"I'll work for you" "I'll be your hitman." He wanted to be
accepted on the "white team." (Ex. 61 L1383-1398,
1483-1487) (App. pp. 708, 710).
Becker told Callaway that he
did not see Satan anymore. All he saw was lights and angels
holding Callaway. Callaway asked if he heard anything.
Becker said "she talks . . she said something to me. She said
you're here with me and you're here to stay." (Ex. 61
L1408-1446) (App. p. 709).
During the booking process, Becker provided a urine
sample. A toxicology screen was negative for drugs. (Tr. p.
1018 L16-p. 1019 L2, p. 1022 L15-p. 1023 L13) (App. pp.
402-403, 404-405).
42
Becker was placed in a cell after being booked into the
jail.
(Tr. p. 824 L3-5) (App. p. 271).
Becker moved all around
the cell touching the walls. After what Johnson termed,
"something along the lines of shadow boxing" Becker "touched
himself a few times." Becker took off his clothing, threw it in
the shower, waved for something to come out of the shower,
crouched outside the shower stall, swatted at the shower
water. Johnson was not sure what Becker was doing whether
he was washing himself or probing his rectum. Becker later
bathed in toilet water. (Tr. p. 824 L15-p. 826 L5) (App. pp.
272-274).
Ed Thomas died. Thomas had been shot at least six
times.
(Tr. p. 701 L13-25) (App. pp. 192-193). Thomas had
been shot four times in the head. (Tr. p. 689 L17-p. 690 L12)
(App. pp. 184-185). Each of the head wounds would have
been fatal. (Tr. p. 694 L18-23, p. 708 L20-p. 709 L5) (App.
pp. 186, 194). Thomas' left hand had an entrance and exit
wound. (Tr. p. 695 L16-20) (App. pp. 187-188). He was shot
43
in the left knee and in the chest. (Tr. p. 697 L20-22, p. 698
L21-p. 699 L2, 18-p. 700 L3) (App. pp. 189, 190, 191).
Thomas also suffered blunt force injuries to his head and
chest. (Tr. p. 702 Ll-15) (App. pp. 193-194).
Nurse practitioner Nicolle Amos saw Becker in the jail on
th
June 26 .
(Tr. p. 1029 L17-p. 1030 L4) (App. pp. 407-408).
Becker was very delusional and hallucinating. He was seeing
frozen sharks. He referred to Thomas as Lucifer. Becker
showed no remorse for what he had done. He spoke of
demons.
He had jumping thoughts and did not track the
conversation.
(Tr. p. 1030 L22-p. 1032 L14) (App. pp.
409-411). Amos prescribed medication.
(Tr. p. 1032 L15-p.
1033 L13) (App. pp. 411-412). The medication normally
works pretty fast and within a week one should see positive
changes. (Tr. p. 1033 L14-19) (App. p. 412).
After five days on the medication, Becker showed little
-
• • •' •)
••
improvement. Amos added another antipsychotic medication.
(Tr. p. 1035 L3-17, 23-p. 1036 L4) (App. pp. 414-415). Seven
44
days later, Amos observed he was still hallucinating and very
delusional. (Tr. p. 1036 L5-p. 1037 L8) (App. pp. 415-416).
An antipsychotic medication was increased. (Tr. p. 1037
L13-14) (App. p. 417).
ld
Amos again saw Becker on July 22 .
(Tr. p. 1037 L15-16) (App. p. 417).
Becker said he was more
balanced and felt steady. However, by talking with him, Amos
observed he was still delusional.
417).
(Tr. p. 1037 L22-25) (App. p.
The medication was increased again. (Tr. p. 1038
L12-20) (App. p. 418).
Becker was evaluated by four mental health
professionals. All agreed Becker has paranoid schizophrenia.
(Tr. p. 1067 L5-11, p. 1149 L7-16, p. 1221 L9-25, p. 1238
L5-15, 1268 Lll-p. 1269 Ll) (App. pp. 433, 512-513,
570-571).
Dr. Resnick concluded that due to his diseased mind,
Becker was not capable of knowing the nature and quality of
the act of shooting Thomas. (Tr. p. 1090 L5-p. 1092 L25)
(App. pp. 460-463). Resnick also concluded Becker was not
45
capable of distinguishing betweenrightand wrong with respect
to the shooting of Thomas. (Tr. p. 1093 L16-p. 1098 L3) (App.
pp. 464-470). Resnick concluded Becker met the criteria for
insanity.
(Tr. p. 1098 L4-18) (App. p. 470).
Dr. Rogers concluded that Becker was not capable of
knowing the nature and quality of his act. (Tr. p. 1166 L6-p.
1167 L9) (App. pp. 533-534). Rogers also concluded that
Becker was not capable of distinguishing right from wrong in
relation to his act. (Tr. p. 1169 L6-p. 1171 L14) (App. pp.
536-539). Rogers opined within a reasonable degree of
psychological certainty Becker was insane on June 24, 2009.
(Tr. p. 1171 L22-p. 1172 L18, p. 1173 L12-p. 1174 L3) (App.
pp. 539-540, 541).
Dr. Spodak agreed with the defense experts about
Becker's illness and that he was sick on the day these events
occurred but disagreed he met the Iowa legal standard for
insanity. (Tr. p. 1222 L16-23, p. 1224 L2-p. 1228 L13, p.
1229 L13-p. 1231 L3) (App. pp. 572-577, 578-580).
46
Dr. Taylor opined that Becker had sufficient mental
capacity to know and understand the nature and quality of his
acts and to know the difference between right and wrong. (Tr.
p. 1269 L2-1270 L10) (App. pp. 598-600).
Taylor stated that
paranoid schizophrenia is characterized by hallucinations and
delusions but, generally speaking, does not involve any
disruption of the thought process or the abilities to reason and
think clearly, except for the delusions and hallucinations. (Tr.
p. 1270 L25-p. 1271 L5, p. 1284 L2-p. 1285 L7) (App. pp. 600,
615-616).
Other relevant facts will be mentioned below.
ARGUMENT
I. THE DISTRICT COURT ERRED IN INSTRUCTING
THE JURY.
A. Standard of Review and Preservation of Error
This Court reviews challenges to jury instruction for
corrections of errors at law. State v. Heemstra. 721 N.W.2d
549, 553 (Iowa 2006). The related claim that a trial court
should have given the defendants requested instruction is
47
reviewed for an abuse of discretion. State v. Marin, 788
N.W.2d 833, 836 (Iowa 2010). Error in refusing to give a
particular instruction warrants reversal unless the record
shows the absence of prejudice. Id. When the error is not of
constitutional magnitude, the test of prejudice is whether it
sufficiently appears that the rights of the defendant have been
injuriously affected or that the defendant has suffered a
miscarriage of justice. Id. To establish harmless error when
a defendant's constitutional right has been violated, the State
must prove beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.
State v. Cox, 781 N.W.2d 757, 771 (Iowa 2010).
Becker objected to jury instructions number 10 and 35.
Becker requested the elements of insanity follow Iowa Code
section 701.4. (Requested Ins; Tr. p. 1293 L4-p. 1294 L14;
Ins 35) (App. pp. 618-619, 724).
Becker also requested the
jury be instructed on the consequences of a not guilty by
reason of insanity verdict. (Proposed Ins; Tr. p. 1292 LlO-p.
48
1293 L3; Ins 10) (App. pp. 617-618, 720).
The court declined
to instruct the jury as requested. (Tr. p. 1297 L15- p. 1303
L23) (App. pp. 623-631). Error was preserved when Becker
objected to the jury instructions in final form. State v.
Fountain. 786 N.W.2d 260, 262 (Iowa 2010).
However, when given the opportunity to do so, defense
counsel did not object to the courts answer to a jury question
regarding the insanity consequences. (Tr. p. 1398 LlO-p.
1399 L10) (App. pp. 672-673). Counsel filed a motion for new
trial challenging the court's failure to give the requested
instructions. (Motion for New Trial) (App. p. 728).
Error was
preserved by the motion for new trial. State v. McKee, 312
N.W.2d 907, 915 (Iowa 1981); Iowa R. Civ. P. 1.925.
If this Court were to find error was waived, defense
counsel provided ineffective assistance of counsel. Ineffective
assistance of counsel claims involve the violation of a
constitutional right. The totality of the circumstances relating
49
to counsel's conduct is reviewed de novo. State v. Risdal, 404
N.W.2d 130, 131 (Iowa 1987).
B. Discussion.
The Court is required to "instruct the jury as to the law
applicable to all material issues in the case." Iowa R. Civ. P.
1.924. The court is required to give a requested instruction so
long as it correctly states the law having application to the
facts of the case and when the concept is not otherwise
embodied in other instructions. Summv v. City of Des
Moines, 708 N.W.2d 333, 340 (Iowa 2006). This Court has
been reluctant to disapprove uniform jury instructions.
However, if an instruction is faulty, the Court will do so. State
v. Beets, 528 N.W.2d 523 (Iowa 1995).
1. Jury Instruction 35.
Becker pled not guilty by reason of insanity. (Notice of
Defense) (App. p. 4). Iowa Code section 701.4 provides:
A person shall not be convicted of a crime if at the
time the crime is committed the person suffers from
such a diseased or deranged condition of the mind
as to render the person incapable of knowing the
50
nature and quality of the act the person is
committing or incapable of distinguishing between
right and wrong in relation to the act. Insanity
need not exist for any specific length of time before
or after the commission of the alleged act. If the
defense of insanity is raised, the defendant must
prove by a preponderance of the evidence that the
defendant at the time of the crime suffered from
such a deranged condition of the mind as to render
the defendant incapable of knowing the nature and
quality of the act the defendant was committing or
was incapable of distinguishing between right and
wrong in relation to the act.
Iowa Code § 701.4(2009).
Becker requested the jury be instructed in accordance
with the statute. Becker requested the jury be instructed that
in order for the defendant to establish he was insane, he must
prove by a preponderance ofthe evidence either of the
following:
1. At the time the crime was committed, the
defendant suffered from such a deranged condition
of the mind as to render him incapable of knowing
the nature and quality of the acts he is accused of;
or
2. At the time the crime was committed, the
defendant suffered from such a deranged condition
of the mind as to render him incapable of
51
distinguishing between right and wrong in relation
to the act.
(Requested Ins) (App. p. 5). Defendant's requested instruction
follows the statutory language. Iowa Code § 701.4 (2009).
The court denied the request finding Instructions 34 and 35
were correct statements of the law and mirrored the uniform
jury instructions.
(Tr. p. 1298 L22-p. 1299 L2) (App. p. 625)
The court instructed the jury that "insane" or "insanity"
meant "such a diseased or deranged condition of the mind as
to make a person either incapable of knowing or
understanding the nature and quality of his acts, or incapable
of distinguishing right and wrong in relations to the acts."
(Ins 34) (App. p. 722). The instruction also stated a person is
"sane" if at the time he committed the criminal act he had
"sufficient mental capacity" to know and understand the
nature and quality of the act and had "sufficient mental
capacity and reason" to distinguish right from wrong as to the
particular act.
(Ins 34) (App. p. 722).
Instruction 200.10.
52
See Iowa Criminal Jury
The jury was additionally instructed that the defendant
had the burden to prove he was insane. This instruction did
not include the statutory language of "diseased or deranged
condition of the mind." Instead the instruction used the
language from the second half of Jury Instruction 34 - the
defendant must prove he did not have sufficient "mental
capacity." (Ins 35) (App. p. 724).
See Iowa Criminal Jury
Instruction 200.11.
Although an instruction need not contain or mirror the
precise language of the applicable statute, it must be a correct
statement of the law. State v. Schuler, 774 N.W.2d 294, 298
(Iowa 2009). The difference between the statutory language
and the jury instruction is not stylistic, but it is substantive.
Id. The phrases "diseased or deranged condition of the mind"
and "mental capacity" are not synonymous.
"Diseased or deranged condition of the mind" means a
mental illness, disorder or disease. The Iowa Code does not
define mental illness for the purposes of the criminal code.
53
See Iowa Code § 229.1(9) (2009) (Definition of mental illness
excludes insanity). "Mental disorder" is an imprecise and
general term, but can be described as "a clinically significant
behavioral or psychological syndrome or pattern typically
associated with either a distressing symptom or impairment of
function." Taber's Cyclopedic Medical Dictionary, 1108
(1989). Simply put, mental illness means a medical condition
that disrupts a person's thinking, feeling, mood, ability to
relate to others and daily functioning, http: / /www.nami.org
(last visited 10/4/10).
"Mental capacity" was not defined in the jury
instructions. "Capacity" is defined as "[ljegal qualification (i.e.
legal age), competency, power or fitness. Mental ability to
understand the nature and effect of one's acts." Black's Law
Dictionary 207 (6th ed. 1990). While "mental capacity" refers
generally to cognitive ability, the specific meaning varies. In
re Estate of Henrich, 389 N.W.2d 78, 81 (Iowa Ct. App. 1986)
!
(general mental capacity to make a will); In re Faris Estate.
54
159 N.W.2d 417, 420 (Iowa 1968) (sufficient mental capacity to
make a valid contract); Guvton v. Irving Jensen Co., 373
N.W.2d 101, 105 (Iowa 1985) (mental capacity a factor in
worker's comp determination); Iowa Code§ 232.2(6)(n) (2009)
(parent's mental capacity results in the child not receiving
adequate care.); In re L.E.H., 696 N.W.2d 617, 619 (Iowa Ct.
App. 2005) (Father possessed the desire, mental capacity, and
intellectually functioning to parent.); State v. Reid, 394 N.W.2d
399, 402-404 (Iowa 1986) (mental capacity a factor in
determination of voluntariness of confession). "Mental
capacity" may mean intellectual functioning, based on I.Q. or
age, level of functioning or impairment due to alcohol or drug
use, physical injury, or mental illness.
In State v. Collins, this Court examined the three
affirmative defenses related to a mental condition: insanity,
diminished capacity, and intoxication. State v. Collins, 305
N.W.2d 434, 436 (Iowa 1981). The Collins Court made clear
55
that "mental capacity" does not have the same meaning for
each defense. The Court stated:
It must be recognized that diminished capacity is
not a subdivision of the general subject, insanity,
but a different type of mental condition, a defect
which affects (the accused's) capacity for thinking,
rather than an illness which distorts his thought
processes. Diminished capacity is not an absolute
defense as is insanity, but is a fact which must be
considered by the court or jury in its deliberations
as to whether a particular mens rea has been
proved.
Id- at 436-437.
Jury Instruction 34 used different language to define
"insane" and "sane." (Ins 34) (App. p. 722).
The jury was not
instructed in Jury Instruction 34 that the definition for
"insanity" contained any consideration of "mental capacity" or
"reason." (Ins 34) (App. p. 722). Yet in Jury Instruction 35,
the jury was only instructed to consider "mental capacity" and
not whether defendant had "such a diseased or deranged
condition of the mind" which caused him to be incapable of
either factor. (Ins 35) (App. p. 724).
56
The erroneous
instruction required the defense to prove Becker was not
"sane" instead ofthe legal requirement of "insanity."
Additionally, Jury Instruction 35 incorrectly omitted the
language which connects the mental illness to the inability to
know and understand the nature and quality of the acts or
distinguish right and wrong in relation to the acts. (Ins 35)
(App. 724).
See Iowa Code § 701.4 ("as to render"); State v.
Craney, 347 N.W.2d 668, 679 (Iowa 1984)(Under the rule a
defendant must be acquitted if from a diseased or deranged
mind he is incapable. . . ).
Iowa Code section 701.4 requires a causal connection
between the mental illness and the person's incapacity. This
standard is not "that an accused is not criminally responsible
if his unlawful act was the product of mental disease or mental
defect." Durham v. United States, 214 F.2d 862, 874-75 (D.C.
Cir. 1954). It does require, however, as stated by this Court,
"[w] nether this defense of mental irresponsibility should prevail
in a given case, of course, is determined in a large degree by
57
the standard the court provides the jury with which 'to
measure whether the degree of relationship between the
mental illness of the accused and his offensive conduct is
sufficient to relieve him from responsibility."' State v.
Harkness, 160 N.W.2d 324, 330 (Iowa 1968). (emphasis
added).
Jury Instruction 35 is an incorrect statement of the law.
The jury instructions as a whole did not sufficiently provide
the law to apply to the defendants defense of insanity,
Becker was prejudiced by the erroneous jury instruction.
Dr. Resnick concluded Becker had a diseased or
deranged condition of the mind on June 24, 2009. (Tr. p.
1087 L12-21, p. 1088 Ll-p. 1089 L25) (App. pp. 457,
458-460).
Dr. Rogers also opined Becker suffered from a
diseased or deranged condition of the mind. (Tr. p. 1159
L20-p. 1160 L22) (App. pp. 525-526).
Neither defense experts
spoke of "mental capacity" unless questioned by the
prosecutor.
Resnick was questioned about the "choices" Becker made.
(Tr. p. 1106 L6-p. 1109 L7) (App. pp. 478-482). The
prosecutor asserted that the choices were rational decisions
made by Becker. (Tr. p. 1109 L8-12) (App. p. 482).
Resnick
stated the decisions were a great example of rationality within
irrationality. (Tr. p. 1109 L8-12) (App. p. 482).
Resnick
previously explained the concept of "rationality within
irrationality." A person can engage in many rational
behaviors in order to respond to a delusional belief system.
(Tr. p. 1065 LlO-p. 1066 L15) (App. pp. 431-432). The
prosecutor then questioned that "nonetheless, he had the
mental capacity to do those things." Resnick agreed. (Tr. p.
1109 L13-15) (App. p. 482).
People with paranoid
schizophrenia do not lose the ability to make choices.
However, the choices can be influenced by their delusions and
hallucinations.
(Tr. p. 1125L17-p. 1126 L7) (App. pp.
500-501). Intellectual functioning has little to do with the
insanity standard. There is no reason a smart person cannot
59
have paranoid schizophrenia. The reason for the plan is as
important as the plan. (Tr. p. 1167 L17-p. 1168 L5) (App. pp.
534-535).
Dr. Spodak spoke of Beckefs "mental capacity." In
concluding Becker was sane, Spodak looked at his
"fundamental thinking capacity, his ability to think rationally,
whether there was this irrational umbrella or he was simply
thinking rationally,. . . all the evidence is that he was capable
of thinking in a rational manner and his capacity to make - - to
understand what was going to happen and what he was about
was - was not impaired." (Tr. p. 1232 L20-p. 1233 Ll) (App.
pp. 582-583). Spodak testified that because Becker was not
acting in "some bizarre, out of control way, spouting forth all
kinds of - - of strange sounds or anything" he showed
organized, rational, and goal directed behavior. (Tr. p. 1248
L15-p. 1249 L16) (App. pp. 587-588).
Taylor also spoke in terms of "mental capacity." Taylor
noted that Becker was not "running around like a chicken with
60
his head cut off," he was "pursuing his prey in a
well-organized, meticulous, methodical manner." (Tr. p. 1275
L12-p. 1276 L2) (App. p. 606).
Taylor stated that the fact that
Becker was organized is the indication he had sufficient
mental capacity to understand the nature and quality of his
acts. (Tr. p. 1276 L3-24) (App. pp. 606-607).
In objecting to the proposed instruction the State
maintained to add "deranged or diseased mind," "whatever that
means," would insert a causal connection that would be
confusing and incorrect. (Tr. p. 1296 L23-p. 1297 L14) (App.
pp. 622-623). As outlined above, the statute contains a
causal connection. The failure to include the language linking
the diseased or deranged condition of the mind to the inability
to know and understand the nature and quality of the acts or
distinguish right and wrong in relation to the acts allowed the
jury to consider Becker's sole defense using the incorrect
standard.
61
The prosecutor affirmatively stated the law was contained
in the instructions.
(Tr. p. 1351 L4-19) (App. p. 634). The
prosecutor argued there was a legal standard to apply to
Becker. The prosecutor then stated
Let's look at insanity as cause and effect. If you're
thinking that defendant suffered from mental
illness, paranoid schizophrenia, that condition
caused or contributed to his decision to kill Ed
Thomas, therefore the defendant is insane because
he is mentally ill. This is not the standard of. .
insanity. This is not the legal standard in the state
of Iowa.
(Tr. p. 1349 L18-p. 1350 Ll) (App. p. 632).
The statement is
not correct and confused the legal standard. Iowa's standard
focuses on the cognitive aspect - knowing, understanding and
distinguishing. If the mental illness rendered Becker
incapable of understanding and knowing or distinguishing as
required, the jury, with the correct instruction, could find him
legally insane.
The prosecutor argued that "if you have sufficient mental
capacity to do a lot of things, then how can you not have
sufficient mental capacity to understand the nature and
62
quality of your acts, to understand the difference between right
and wrong? It sort of doesn't go together; right?" (Tr. p. 1352
L18-23) (App. pp. 635-636). The prosecutor argued Becker
had the sufficient mental capacity to: hold a job and train
other people; flee from Rogers' residence; convince his parents
he was locked out of his apartment; and to convince his
parents he was better than he had been in a long time. (Tr. p.
1358 Ll-p. 1361 L2) (App. pp. 642-645). The prosecutor also
argued Becker had the sufficient mental capacity to:findthe
keys to the car; break into the gun cabinet; load the gun;
practice shooting the gun; drive the car; hide the gun in the
car; ask for Ed Thomas instead of Satan; fabricate a reason he
was looking for Thomas; find Kalkwarf at the school; follow the
directions to Thomas' location; call Thomas "old man;" avoid
shooting the students; think about turning himself into police;
and know Thomas was his coach and teacher. (Tr. p 1362
L9-p. 1373 L19) (App. pp. 647-660). Therefore, he had the
mental capacity to make the decision to kill Thomas. (Tr. p.
63
1361 L3-8) (App. pp. 645-646). This argument confuses the
issue. As Dr. Rogers stated, "a crazy person doesn't have to
be stupid when they're trying to accomplish their delusions.".
(Tr. p. 1170 Ll-23) (App. pp. 537-538).
The jury instruction misstated the legal standard by the
use of "mental capacity" instead of the statutory language of
"diseased or deranged condition ofthe mind" and by omitting
the language of a causal connection. The prosecutor added to
the confusion by the questions and argument regarding
"mental capacity," which is not synonymous with "diseased or
deranged condition of the mind." The incorrect jury
instruction allowed the jury to determine the only fighting
issue by using an instruction that was not consistent with
Iowa law. The error in instructing the jury caused prejudice
to Becker. The case must be remanded for a new trial.
2.
Jury Instruction 10.
Becker requested the court instruct the jury:
64
Punishment is not for the Jury. The duty of the
jury is to determine if the defendant is guilty or not
guilty.
In the event of a guilty verdict, you have nothing to
do with punishment.
If you find a verdict of not guilty by reason of
insanity, the defendant shall be immediately ordered
committed to a state mental health institute or other
appropriate facility for a complete psychiatric
evaluation.
(Proposed Ins) (App. p. 717).
The district court denied Becker's requested instruction.
The court determined the Court of Appeals decision in State v.
Fetters, 562 N.W.2d 770 (Iowa Ct. App. 1997) was directly on
point. (Tr. p. 1299 L22-p. 1300 L7) (App. p. 626).
The court
also found the United States Supreme Courts decision in
Shannon v. United States persuasive.
(Tr. p. 1300 L8-p. 1303
L23) (App. pp. 626-631). The court stated that if the
defendant wanted to give the jury some assurances that he
would be committed for a lengthy period, an accurate
instruction would not provide that assurance. (Tr. p. 1302
L3-8) (App. pp. 628-629).
65
The court only instructed the jury as follows: "The duty of
the jury is to determine if the Defendant is guilty or not guilty.
In the event of a guilty verdict, you have nothing to do with
punishment." (Ins 10) (App. p. 720).
This instruction
omitted any reference to the verdict of not guilty by reason of
insanity.
The proposed instruction was required by due process
and the right to a fair trial guaranteed by Article I, section 9 of
the Iowa Constitution. (Proposed Ins) (App. p. 717).
Article I,
section 9 of the Iowa Constitution guarantees that "no person
shall be deprived of life, liberty, or property without due
process of law." Iowa Const, art. I, § 9. In the past, this
Court has interpreted the United States and the Iowa
Constitutions "in similar fashion." State v. Seering. 701
N.W.2d 655, 662 (Iowa 2005). However, this Court has
expressed a willingness to depart from the federal precedents
in important state constitutional questions.
State v. Effler,
769 N.W.2d 880, 895 (Iowa 2009) (Appel, J, specially
66
concurring). The Iowa Supreme Court has jealously guarded
the right and duty to differ in the interpretation of our state
constitution.
State v. Wilkes, 756 N.W.2d 838, 842 n.l (Iowa
2008).
The United States Supreme Court has not decided this
issue on constitutional grounds. It appears the only
published case law addressing this issue is from United States
District Courts in habeas corpus proceedings challenging state
convictions.
Bassik v. Scully, 588 F.Supp 895, 899 (E.D. N.Y.
1984)(The federal constitution leaves the states free to decide
whether or not to use the instruction); Hand v. Redman, 416
F.Supp. 1109, 1111 (D. Del. 1976)(No apparent constitutional
underpinning to theory). Because the United States Supreme
Court has provided no guidance in the application of the
federal constitution, this Court should apply the Iowa
Constitution.
This Court has demonstrated that the Iowa Constitution
provides significant protection of individual rights. State v.
67
Cline, 617 N.W.2d 277, 292-93 (Iowa 2000), rev*d on other
grounds State v. Turner, 630 N.W.2d 601 (Iowa 2001) (holding
the good faith exception incompatible with the Iowa
Constitution); Varnum v. Brien, 763 N.W.2d 862, 906 (Iowa
2009) (Iowa's marriage statute deprives the gay and lesbian
people equal protection ofthe law as promised by the Iowa
Constitution); State v. Bruegger, 773 N.W.2d 862, 886 (Iowa
2009) (Remand for a new sentencing hearing whether Iowa
Code § 901A.2(3) is unconstitutional as applied.); State v. Cox,
781 N.W.2d at 768 (The Iowa Constitution prohibits admission
of prior bad acts evidence based solely on propensity). The
application of the Iowa Constitution to the present case will
provide Becker its fundamental guarantee of due process.
Iowa cases have held that such an instruction is generally
inappropriate and unnecessary. State v. Hamann, 285
N.W.2d 180, 185-86 (1979); State v. Qppelt, 329 N.W.2d 17, 21
(1983); State v. Fetters, 562 N.W.2d 770, 775 (Iowa Ct. App.
1997). Despite this precedent, there are compelling reasons
68
the jury should be informed of the effect of such a verdict and
this line of cases should be overruled.
The court in Hamann found that a trial court did not err
in refusing instruction on a defendants disposition after
acquittal on ground of insanity. State v. Hamann, 285
N.W.2d at 187. Two principal reasons were cited for the view
that the jury should not be given such an instruction. The
first was that such information is irrelevant to the jury's proper
function, the determination of the insanity issue. The second
reason was that the information would invite a compromise
verdict. IcL
The Court adhered to that holding in State v. Oppelt, 329
N.W.2d at 17, 21 (1983). In Fetters, the Court of Appeals
relied on the Iowa Supreme Courts holding in Hamann and
Oppelt and the United States Supreme Court decision in
Shannon v. United States. State v. Fetters, 562 N.W.2d at
776.
The Iowa cases and Shannon do not rest on
constitutional grounds.
69
In Shannon, the Supreme Court considered whether the
federal district court is required to instruct the jury regarding
the consequences to the defendant of a verdict of not guilty by
reason of insanity (NGI) either under the Insanity Defense
Reform Act of 1984 or as a matter of general federal practice.
Shannon v. United States, 512 U.S. 573, 575, 114 S.Ct. 2419,
2422, 129 L.Ed.2d 459,
(1994). The Court concluded that
language of the statute did not indicate the jury should be
instructed regarding the consequences of an NGI verdict. Id.
at 580, 114 S. Ct. at 2425, 129 L.Ed.2d at
. The Court
emphasized the principle that, within the judicial system,
there is a "basic division of labor . . . between judge and jury"
which discourages jurors from considering the consequences
of their verdicts. Id. at 579, 114 S. Ct. at 2424, 129 L.Ed.2d
at
. The jurors are the finders of fact. Id. The judge, on
the other hand, is the finder of the law, who imposes the
sentence upon the defendant after the jury returns a guilty
verdict. Id The Court feared that providing the jurors with
70
information concerning the consequences of the verdict would
"invite[] them to ponder matters that are not within their
province, distract[] them from their factfinding responsibilities,
and create[] a strong possibility of confusion." Id.
Shannon also asked the Court to use its supervisory
powers over the federal courts to require the instruction. Id.
at 584, 114 S.Ct. at 2427, 129 L.Ed.2d at
. The Court
found there was no reason to depart from the assumption that
jurors follow their instructions.
Indeed, although it may take effort on a juror's part
to ignore the potential consequences of the verdict,
the effort required in a case in which an NGI defense
is raised is no different from that required in many
other situations. For example, if the Government
fails to meet its burden of proof at trial, our judicial
system necessarily assumes that a juror will vote to
acquit, rather than convict, even if he is convinced
the defendant is highly dangerous and should be
incarcerated. We do not believe that the situation
involving an NGI verdict should be treated
differently.
Id. at 585, 114 S.Ct. at 2427, 129 L.Ed.2d at
.
On the other hand, Justice Stevens in his dissent
maintained that the instruction should be given whenever
71
requested by the defendant.
Shannon v. United States, 515
U.S. at 587-93, 114 S. Ct. at 2428-31, 129 L.Ed.2d
(Stevens, J., dissenting). He summarized his key position,
"[t]here is no reason to keep this information from the jurors
and every reason to make them aware of it." Id. at 592-93,
114 S.Ct. at 2431, 129 L.Ed.2d
. Justice Stevens
suggested that the Court should not simply focus on the
traditional rule against informing the jury as to the
consequences of a not guilty by reason of insanity verdict, but
instead consider the seriousness of the harm to the defendant
that may result from refusal of such an instruction, especially
in the absence of any countervailing harm that would result
from giving the instruction. Id. at 592-93, 115 S.Ct. at 2430,
129 L.Ed.2d
.
Numerous studies on juror behavior indicate that in
cases in which the insanity defense is raised, jurors are
extremely interested in the consequences of an insanity
acquittal. Masha Bach, The Not Guilty bv Reason of Insanity
72
Verdict: Should Juries Be Informed of Its Consequences?, 16
Whittier L. Rev. 645, 674 (1995). Preliminary findings from a
study conducted by the University of Chicago Law School
pointed out that the evaluation of the possible consequences of
the verdict was one of the most important factors in the jury
deliberations. Id. The researchers indicated that not a single
jury studied refrained from considering what would happen to
the defendant as a precondition for arriving at a decision
concerning his guilt or innocence, sanity, or insanity. Id.
Most importantly, the study revealed that in the absence of a
not guilty by reason of insanity instruction, juries did
speculate, and sometimes erred, in their conclusions to the
detriment of the defendant. Id. at 674-675. One of the most
recent studies confirms that not all jurors accurately perceive
the dispositional consequences of a not guilty by reason of
insanity verdict. This study states that "the public
overestimates the extent to which insanity acquittees are
released upon acquittal and underestimates the extent to
73
which they are hospitalized." Id. at 678.
These and similar
findings clearly validate Justice Stevens' contention that "[a]s
long as significant numbers of potential jurors believe that an
insanity acquittee will be released at once, the instruction
serves a critical purpose." Shannon v. United States, 515 U. S.
at 592, 114 S.Ct. 2430-31, 129 L.Ed.2d _ _ (Stevens, J.,
dissenting).
As he summed up, "even if, as the Court seems
prepared to assume, all jurors are already knowledgeable
about the issue, surely telling them what they already know
can do no harm." Id. at 593, 114 S.Ct. at 2431, 129 L.Ed.2d
The availability of an informative instruction may reduce
the risk that during deliberations juries would speculate about
the consequences of an insanity acquittal rather than on the
evidence.
Masha Bach, The Not Guilty By Reason of Insanity
Verdict: Should Juries Be Informed of Its Consequences?,
16
Whittier L. Rev. 645, 681 (1995). When a jury is denied
access to accurate information, it frequently speculates about
the consequences of a not guilty by reason of insanity verdict
during deliberations, and relies on erroneous assumptions,
often to the detriment of the defendant. Id. at 682. The
concern is that a "preventive" verdict will result because some
jurors, mistakenly assuming that the insanity acquittee is
immediately released into society, would choose to convict in
order to avoid the release of a dangerous individual into the
community. IcL
Becker was prejudiced by the failure to instruct the jury
regarding the consequences of a verdict of not guilty by reason
of insanity. The jury did not know what would happen in the
event of this verdict. The jury sent a question to the judge.
The jury's questions stated, "What would happen to Mark
Becker if we find him insane?" (Tr. p. 1398 L10-13; Question)
(App. pp. 672, 725). The court answered, "You need not
concern yourself with the potential consequences of a verdict
of not guilty by reason of insanity. Please refer to Instruction
Number 10. You must decide whether he is guilty, and if you
75
decide he is guilty, you must then decide the issue of insanity.
In the event of a guilty verdict or a verdict of not guilty by
reason of insanity, you have nothing to do with the
consequences. Those are issues for the Court, not the jury."
(Tr. p. 1398 L14-20; Answer) (App. pp. 672-673).
The question shows the jury was concerned about the
outcome of their decision. This concern is understandable
because a jury in an insanity case is given significantly more
information about the defendants history, including prior
offenses and the failure of mental health treatment, than in an
ordinary criminal trial. See Bovkins v. Wainwright 737 F.2d
1539, 1545 (11* cir. 1984) (in "resolving the complex issue of
criminal responsibility it is of critical importance that the
defendant's entire relevant symptomatology be brought before
the jury and explained."). In an ordinary criminal trial, prior
acts would be excluded as propensity evidence. Iowa R. Evid.
5.404(b); State v. Reynolds. 765 N.W.2d 283, 289 (Iowa 2009)
(listing potential definitions of bad acts). But because the
76
defendant has the burden to prove insanity, the defendant
must present evidence that ordinarily would be the subject of a
motion in limine. Under normal circumstances, the court
would exclude evidence that would incite the emotions,
passions and prejudices of the jury. Or, at a minimum, the
court would provide a jury instruction to minimize the
prejudice to the defendant.
See e.g. State v. Plaster, 424
N.W.2d 226, 232 (Iowa 1988) (Consideration ofthe degree of
emotion the evidence would rouse in the jurors' minds and the
use of cautionary instructions to lessen danger of prejudice).
The consequence instruction is necessary to minimize the
unfair danger of a verdict based upon an emotional response.
The practice of shielding the jury from the consequences of
their verdict is not sound.
In the present case, the jury heard a sizable amount of
evidence that could cause great concern for public safety if
Becker is not sufficiently monitored. The jury heard of
Becker's violent behavior: being arrested for hitting a man
77
(Tr. p. 729 L16-p. 730 L2) (App. p. 211); using a baseball bat to
destroy his parents' kitchen (Tr. p. 726 Ll-11) (App. p. 207);
using a baseball bat to terrorize Dwight Rogers, breaking
windows and driving into his garage (Tr. p. 827 L23-p. 828 L l ,
12-p. 830 L18) (App. pp. 274-275, 278); hitting his mother,
knocking off her glasses (Tr. p. 730 L3-18) (App. pp. 211-212);
and, most significantly, the shooting and stomping of Thomas.
(Tr. p. 402 L12-25, p. 403 L8-p. 404 L2, p. 421 L7-p. 423
L19, p. 428 L23-p. 429 L12, p. 437 L6-20, p. 438 L3-8, p. 443
Lll-15, p. 448 L16-p. 450 L25, p. 458 L12-18, p. 467 L16-p.
468 L8, p. 475 L5-13, p. 476 L13-p. 477 L22) (App. pp. 18-20,
27-30, 31-32, 37, 38, 40-41, 43-46, 50, 56, 60, 61-62).
No doctor disputed Becker suffered from paranoid
schizophrenia. (Tr. p. 1067 L5-11, p. 1149 L7-16, p. 1221
L9-25, p. 1238 L5-15, p. 1268 Lll-p. 1269 Ll) (App. pp. 433,
512-513, 570-571, 583, 597-598). The jury heard evidence of
the severe mental illness. There is no cure for schizophrenia.
(Tr. p. 1067 L12-p. 1069 L12, p. 1150 L17-p. 1153 L19) (App.
78
pp. 433-436, 514-518). Noncompliance with medication is a
major problem. Resnick stated that 50-75 percent of persons
with schizophrenia do not take medications at all. (Tr. p.
1124 L14-23, p. 1154 L12-p. 1155 L8) (App. pp. 499,
519-520). Becker lacked insight into his illness. (Tr. p. 1125
L6-16) (App. p. 500).
Schizophrenia is treatable. But Becker's prognosis is
uncertain. He needs antipsychotic medications, possibly
injections to ensure compliance. He probably requires a
much lengthier hospitalization than he has had. Dr. Rogers
testified that most people with really severe paranoid
schizophrenia require nursing home care where medication
can be monitored and they can be redirected in their thinking.
(Tr. p. 1157 L3-p. 1158 L12) (App. pp. 522-523).
The jury also heard evidence that Becker had supportive
services.
(Tr. p. 856 L2-11, 17-21, p. 859 L13-p. 860 L18)
(App. pp. 281-282, 283-284). However, even with voluntary
supportive services, his disease was not well managed. (Tr. p.
79
735 L14-20, p. 827 L23-p. 828 Ll , 12-p. 830 L18, p. 864
L21-25, p. 865 Ll-9, 22-p. 866 L3, p. 868 L4-p. 869 L4, p. 906
L21-p. 907 L15, p. 909 L3-6, p. 919 Lll-14, p. 1011 Ll-6; Ex.
A) (App. pp. 218, 274-278, 288-290, 292-293, 324-325, 327,
339, 399, 715).
The prosecution noted Becker had the support of his
family and community agencies. (Tr. p. 1101 L16-p. 1104 L6,
p. 1376 L4-p. 1378 L6) (App. pp. 472-476, 663-666). The
prosecutor asserted that a.fairly significant factor in the jury's
determination was that Becker turned away from the resources
he had. The prosecutor stated, "It's not like he is some
homeless person that has no family and no support, or
somebody, you know, that, I mean, he comes from what is
seemingly a decent family. Right?" (Tr. p. 1376 L4-14) (App.
pp. 663-664).
The prohibition of instructing a jury regarding
punishment has historical support. State v. O'Meara, 177
N.W. 563, 569-570 (Iowa 1920). Yet, the penalty for first
80
degree murder is fairly well known by the average Iowa citizen.
Even assuming the jurors did not know of the mandatory life
sentence, "they know that if they find a defendant guilty, he
will be punished in some fashion. They also know that the
more serious the offense of which the defendant is convicted,
the more serious punishment the defendant will receive."
State v. Piper, 663 N.W.2d 894, 915 (Iowa 2003). As the
Court stated, "[j]urors are simply not that naive." Id.
The consequence of a not guilty by reason of insanity
verdict is not punishment or punitive. In Re Detention of
Garren, 620 N.W.2d 280 (Iowa 2000). The jury was put in a
position where they had all of the evidence to cause them great
safety concern for the community, but no information as to
what would happen if they voted not guilty by reason of
insanity. The instruction requested would have provided that
needed information to lessen the risk of a verdict based on an
emotional reaction. Cf. State v. Plaster, 424 N.W.2d 226,
232 (Iowa 1988).
81
The requested instruction was a correct statement of the
law. Iowa R. Crim. P. 2.22(8)(b). While the Rule has
additional safeguards against unnecessary confinement, the
entire process need not be explained to the jury in order to
provide a fair trial. See Iowa R. Crim. P. 2.22(8); State v.
Stark, 550 N.W.2d 467, 470 (Iowa 1996)(The court has the
authority to order a conditional release under Rule 2.22(8)(e)
and impose measures necessary to control defendants mental
illness). A jury's concern about the consequences of the not
guilty by reason of insanity verdict is not about how long a
person may be confined, but whether the person will be
evaluated and treated. The key to such a consequence
instruction is to ease the concern that there is no procedure in
place to address insane defendants. The jury would then be
aware the system manages any danger that an insane person
presents independent of whether that person is convicted.
The jury then can focus on whether the defendant is legally
responsible or legally insane.
82
The failure of the trial court to instruct jurors on the
consequences of a finding of not guilty verdict by reason of
insanity violated Becker's due process rights under the Iowa
Constitution. The benefits of the instruction may effectively
eliminate unnecessary and dangerous speculation, thus
safeguarding the rights of the accused against biases,
misconceptions, and undeserved guilty verdicts, and
substantially outweigh the professed harm of inviting jurors to
consider matters not within their province. The instruction
safeguards the rights of the defendant and preserves the
fairness and integrity of the judicial process. This Court
should adopt the well-reasoned approach in Justice Stevens'
dissenting opinion in Shannon by holding that the jury
instruction on the dispositional consequences of an acquittal
on grounds of insanity is necessary. To the extent this
Court's prior cases hold otherwise, they should be overruled.
If this Court finds error was not preserved, Becker
received ineffective assistance of counsel. The Sixth and
83
Fourteenth Amendments of the United States Constitution and
article I section 10 of the Iowa Constitution provide a
defendant is entitled to the assistance of counsel. A
defendant is entitled to effective assistance of counsel.
Strickland v. Washington, 446 U.S. 668, 686, 104 S.Ct. 2052,
2063, 80 L.Ed.2d 674, 692 (1984).
To prevail on a claim of ineffective assistance of counsel,
the defendant must show the following elements by a
preponderance ofthe evidence: (1) trial counsel failed to
perform an essential duty, and (2) prejudice resulted from
counsel's failure. Snethen v. State, 308 N.W.2d 11, 14 (Iowa
1981).
To prove the attorney failed to perform an essential duty,
the defendant must show the attorney's performance fell
outside the normal range of competency.
Snethen v. State,
308 N.W.2d at 14. The Court starts with the presumption the
attorney performed in a competent manner. The Court then
measures the attorney's performance against the standard of a
84
reasonably competent practitioner. State v. Maxwell, 743
N.W.2d 185, 195-196 (Iowa 2008). An attorney has no duty to
raise an issue that has no merit. State v. Schaer. 757 N.W.2d
630, 637 (Iowa 2008). Prejudice exists when it is reasonably
probable that the result of the proceeding would have been
different. Id. at 638.
A reasonable probability is a probability
sufficient to undermine confidence in the outcome. Id.
If this Court determines that counsel's lack of objection to
the court's response to the question waived error, counsel
breached an essential duty. The failure of counsel to preserve
error may constitute a denial of effective assistance of counsel.
State v. Hrbek, 336 N.W.2d 431, 435-436 (Iowa 1983). As
discussed above, the failure to provide the instruction violated
Becker's due process right as guaranteed by Article I, section 9
of the Iowa Constitution. Counsel breached a duty if error
was not preserved.
There was compelling evidence that defendant was legally
insane at the time the crime was committed. Without such an
85
instruction, there is a great risk the jury may have relied on
erroneous assumptions as to the effect of a not guilty by
reason of insanity verdict. Trial counsel's error undermines
the confidence in the outcome of the proceedings. Becker
should be granted a new trial.
II. THE DISTRICT COURT ERRED IN ORDERING
DEFENDANT TO PAY LEGAL ASSISTANCE FEES IN EXCESS
OF THE FEE LIMIT.
A. Standard of Review and Preservation of Error
The court ordered Becker to pay restitution for his legal
assistance.
(Judgment) (App. p. 755). The order for
reimbursement of legal assistance fees in excess of the fee
limitation is illegal. Iowa Code § 815.14 (2009); State v.
Dudley. 766 N.W.2d 606, 621 (Iowa 2009). The general rule of
error preservation is not applicable to void, illegal or
procedurally defective sentences.
State v. Thomas. 520
N.W.2d 311, 313 (Iowa Ct. App. 1994). A sentence imposed
by the district court is reviewed for errors at law. Iowa R.
App. P. 6.907.
86
B. Discussion.
Becker was charged with murder in the first degree, a
class A felony. (Trial Information) (App. p. 2). Iowa Code §
707.2 (2009). The court appointed the public defender to
represent Becker. (Financial; Attorney Fees) (App. pp. 1, 727).
If a person is granted an appointed attorney, the person
shall be required to reimburse the state for the total cost of
legal assistance provided to the person. Iowa Code § 815.9(3)
(2009). "Legal assistance" means not only an appointed
attorney, but also transcripts, witness fees, expenses, and any
other goods or services required by law to be provided to an
indigent person entitled to an appointed attorney. Iowa Code
§815.9(3) (2009).
In all criminal cases where judgment is entered, the
sentencing court shall order restitution which includes court
appointed attorney fees. Iowa Code §§910.2 and 815.9(4)
(2009). When determining the amount of restitution for each
case under section 910.3, the expense ofthe public defender
87
shall not exceed the fee limitation. Iowa Code § 815.14
(2009). Iowa Code section 815.14 caps the total expense of
the pubic defender, not only the attorney fees. Iowa Code
§815.14 (2009k State v. Dudley, 766 N.W.2d at 621.
The State Public Defender has established fee limitations
for each category of cases. The fee limitation for a class A
felony is $18,000. Iowa Code § 13B.4(4)(a) (2009); Iowa
Admin. Code r. 493-12.6(1). (App. p. 766). Defense counsel
filed a certification regarding attorney fees. (Attorney Fees)
(App. p. 727). The court ordered Becker to pay $16,600 for
attorney fees, $53,709.82 for expert fees and $824.80 for other
miscellaneous expenses. (Sent Tr. p. 66 L13-16; Judgment)
(App. pp. 754, 755). The court ordered Becker to reimburse
the State of Iowa for his legal assistance in a total amount of
$71,734.62. The expense of the public defender exceeded the
fee limitation. Iowa Code § 815.14 (2009); Iowa Admin. Code
r. 493-12.6(1). (App. p. 766).
88
Becker cannot be required to reimburse the State for the
expense of his court appointed attorney in an amount above
the fee limitation. Iowa Code §815.14 (2009). This portion
of the sentence must be vacated and remanded for an order for
reimbursement of attorney fees not to exceed the fee limit of
$18,000.
CONCLUSION
Mark Becker respectfully requests this Court reverse his
conviction and remand for a new trial. Additionally, Becker
requests this Court vacate the legal assistance restitution and
remand for an order consistent with Iowa Code§ 815.14
(2009).
REQUEST FOR ORAL ARGUMENT
Counsel requests to be heard in oral argument.
Respectfully submitted,
STATE APPELLATE DEFENDER'S OFFICE
Assistant Appellate Defender
89
ATTORNEY'S COST CERTIFICATE
I, the undersigned, hereby certify that the true cost of
producing the necessary copies of the foregoing Brief and
Argument was
_, and that amount has been paid
in
full by the Office of the Appellate Defender.
IARTHA J . LUCEY V No. AT0004837
Assistant Appellate Defender
90
CERTIFICATE OF COMPLIANCE WITH TYPEVOLUME
LIMITATIONS, TYPEFACE REQUIREMENTS AND
TYPE-STYLE REQUIREMENTS
1. This brief complies with the type-volume limitation of
Iowa R. App. P. 6.903(l)(g)(l) or (2) because:
[X] this brief contains 14,580 words, excluding the parts
of the brief exempted by Iowa R. App. P. 6.903(l)(g)(l). The
Court granted Appellant permission to exceed the word count
in the final brief.
2. This brief complies with the typeface requirements of
Iowa R. App. P. 6.903(l)(e) and the type-style requirements of
Iowa R. App. P. 6.903(l)(f) because:
[x] this brief has been prepared in a proportionally
spaced typeface using Microsoft Word 2010 in Bookman Old
Style, font 14 point.
Assistant Appellate Defender
91