Vincent Cortez Brown appeals his second-degree murder conviction for his role in a barbaric shoot-out which resulted in the death of an innocent bystander. We find Brown’s statements to police voluntary and admissible, the second-degree murder conviction supported by substantial evidence, and the evidentiary rulings by the trial court were within the court’s discretion. For these reasons, we affirm.
J. Background Facts & Proceedings.
On April 8, 1996, Phyllis Davis was shot and killed while driving home from work. Davis unknowingly drove between two cars engaged in a gun battle. A driver of one of the vehicles, David Flores, fired the shot that killed Davis. The defendant, Vincent Cortez Brown, was the driver of the other vehicle involved in the battle.
The fray began when the occupants of a black Blazer began to follow a car being driven by Brown near the Oakridge neighborhood in Des Moines. Near the intersection of 18th and Atkins Streets, passengers of Brown’s car fired bullets at the Blazer. A bullet crashed through the front windshield of a bystander’s car and grazed the driver’s head. The driver was injured, but not killed. Brown’s car rolled north on 18th Street, the Blazer in the hunt, while the passengers of both cars were firing shots at each other. Brown turned onto University and raced to a friend’s house at 9th Street and University. Brown and another person dashed toward the house. The passengers of the Blazer were shooting at them as they arrived. Once inside, occupants of the house returned fire to the Blazer. It was in the cross-fire of this engagement that a bullet penetrated Davis’s car and struck her under her left armpit. The bullet ripped through her lungs and heart, killing her.
The warring parties continued their fight. At one point Brown pursued the Blazer. Brown sought more ammunition at a nearby store. Officer Michael Hoffman stopped Brown’s car, about a mile and one-half from the shooting, questioned Brown, and searched the car. Brown was arrested. At the Polk County Jail, Brown was interviewed by Detective Rowley of the Des Moines Police Department. The next day, Brown asked to speak to the police again. During the second interview Brown made inculpatory statements. Brown was charged with first-degree murder, attempted murder, and terrorism. A jury found him guilty of second-degree murder, assault with intent to commit serious injury, and assault. Vincent Cortez Brown appeals.
II. Denial of Motion to Suppress State-. ments to Police Officers.
Because Brown’s motion to suppress statements made to police officers involves a constitutional challenge, we review de novo.
See State v. Howard,
Brown argues his question to officers, “Is my lawyer here?” was a request for counsel -which should have ceased further questioning by the officers.
See Edwards v. Arizona,
During the interrogation, Brown said passengers of his vehicle were shooting at the Blazer while driving through town.' He also told of his firing a gun that night, pursuing the Blazer, and driving to a hardware store to buy more ammunition.
Brown suggests interrogation techniques of the officers were coercive and promised him leniency. Specifically, he objects to the following: (1) accusing Brown of lying repeatedly; (2) telling Brown thirty witnesses saw him firing guns; (3) telling Brown he was facing first-degree murder charges and this would mean he was in jail until “they throw dirt on you”; (4) suggesting Brown fired a gun in self-defense; and (5) telling Brown to tell the truth so they had something to take to the county attorney. The State does not dispute that this conduct occurred. The interrogation was tape recorded and the court heard exactly what was said and the tone and manner qf the discussion.
The State has the burden of establishing by the preponderance of evidence the confession is voluntary.
State v. Oliver,
... the defendant’s age, experience, prior record, level of education and intelligence; the length of time the defendant is interrogated; whether physical punishment was used; defendant’s ability to understand the questions; defendant’s physical and emotional condition; whether any deceit or improper promises were used in gaining the 1 admission; and any mental weaknesses the defendant may possess. Id. (citations omitted). In the event the questioning was custodial, defendant’s knowledge and waiver of his Miranda rights and the length of his detention would also be considered. Id.
State v. Davis,
None of the statements or actions by the,officers in this case can be interpreted as promising Brown better treatment, less severe punishment, or more mercy by confessing guilt.
State v. Nolan,
Brown also argues the statements were coercive because of the relative strength of position, age, and experience of the parties. Brown was seventeen years of age when he was interrogated by a detective with over twenty years of experience on the police force. (After a totality-of-the-circumstanees review, we find the statements were not coercive so as to render Brown’s confession involuntary. Brown had numerous prior contacts with police and knew how interviews were conducted. The interview lasted only an hour. Demanding Brown tell the truth is not coercive.
See State v. Hodges,
Because we find Brown’s statements were voluntary, the district court properly admitted them to be considered by the jury in determining Brown’s guilt or innocence.
III. Sufficiency of Evidence for Second-Degree Murder.
Brown contends there was not sufficient evidence to eonviet him of second-degree murder. He argues the State presented no evidence connecting him to the shooting of Davis and the State failed to prove beyond a reasonable doubt his actions were the proximate cause of Davis’s death. He further contends the State failed to prove he, was not justified in his actions.
The appellate scope of review from the denial of such a motion is well established:
[R]eview of a substantial evidence claim is on error. [An appellate court is] bound by the jury verdict unless the verdict is not supported by substantial evidence. In making this determination, [the court will] consider all the evidence in the light most favorable to the State. We accept all legitimate inferences that may fairly and reasonably be deducted from the evidence. Evidence is substantial if it could convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. Direct and circumstantial evidence are equally probative. Evidence, whether direct or circumstantial, must however do more than create speculation, suspicion or conjecture.
State v. Sanborn,
“A person who kills another person with malice aforethought either express or implied commits murder.” Iowa Code § 707.1 (1995). The court instructed the jury in order to prove Brown guilty of second-degree murder the State must prove the following elements:
1. On or about the 8th day of April, 1996, the Defendant, Vincent Cortez Brown, or someone he knowingly aided and abetted, shot at another person.
2. The acts of the Defendant, or someone he knowingly aided and abetted, were the proximate cause of Phyllis Davis being shot and her death.
3. The Defendant, or a person he aided and abetted, acted with malice aforethought.
4. The Defendant was not justified ...
The first two elements set out by the court’s jury instructions constitute the actus reus 1 of the crime of second-degree murder. The third sets out the mens rea 2 for second-degree murder.
Phyllis Davis was undoubtedly a victim in a shoot-out between Brown and his rivals. To determine the existence of actus reus for second-degree murder we must determine whether Brown’s conduct was the proximate cause of Davis’s death. Proximate cause for the purpose of a criminal trial has the same meaning as used in a civil trial.
State v. Caldwell,
Brown’s engagement in conduct that created a very high risk of death or serious bodily injury to others was a proximate cause of
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Davis’s death.
See State v. Marti,
Brown was the first to exchange gunfire with the Blazer at 18th Street. In that encounter, he nearly' shot a bystander. Brown went to' 9th and University to get more firepower. He encouraged others to join in the battle royal. He fired shots at the Blazer. He chased the Blazer after Davis had been killed, going to a local hardware store to restock his ammunition. He returned to the scene of Davis’s death to continue his battle with the riders in the Blazer, but stopped when he saw police had arrived at the scene. These actions resulted in Davis’s death, even if Brown’s shot was not the physical impetus of death.
In consideration of the mens rea element of second-degree murder, we hold that if death to an innocent bystander ensues from gang-style gunplay in a crowded urban area, each participant in the lethal encounter has exhibited malice.
See State v. Taylor,
Brown argues the State did not prove he was unjustified in his actions. At several points during the shoot-out Brown could have chosen to retreat. At these crucial points, however, the State proved he chose to further instigate the shoot-out. Brown was not a mere victim in the shoot-out, but an aggressor.
Substantial evidence supports the jury’s verdict Brown was guilty of second-degree murder beyond a reasonable doubt. The jury’s verdict is affirmed.
IV. Jury Instructions.
Brown challenges the jury’s submission of a second-degree murder instruction to the jury. When jury instructions are challenged on appeal, we review them to determine whether they correctly state the law and are supported by substantial evidence.
State v. Predka,
As discussed in section IV, Brown’s gun-battle participation was a proximate cause of Davis’s death. The State presented sufficient evidence of malice aforethought by showing Brown’s intent to cause someone bodily harm immediately before Davis’s death. Because substantial evidence proved each element of the crime, the trial court did not err in submitting the second-degree murder instruction to the jury.
Brown contends the second-degree murder instruction should not have been submitted to the jury because it is not a lesser-included offense of felony murder. This objection was -not raised to the district court, and, for that reason, is not preserved for appellate review. We consider only those objections to instructions a party previously raised with the district court.
State v. Maghee,
*76 V. Admission of Evidence.
Brown contends the trial court erred in admitting two bullets found in a duplex on 9th Street. Brown argues the bullets were not relevant because they were found almost forty-eight hours after Davis’s death.
Review of the district court’s evi-dentiary ruling is for an abuse of discretion.
See State v. Anderson,
Evidence is relevant when it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Iowa R. Evid. 401. The test of relevancy is whether the evidence offered would render the desired inference more probable than it would be without such evidence.
State v. Knox,
The State offered sufficient evidence the bullets were fired in the perpetration of the offense. There was a shootout on 9th Street. A .38 caliber revolver was found in Brown’s vehicle shortly after the shoot-out. The bullets could have been fired from a .38 caliber revolver. The duplex did not have bullet holes in the walls when they were inspected by the owner on April 4th, but, by April 10th the bullet holes existed. The inability to identify the exact source of the bullets goes to the weight of evidence and not admissibility.
See Foster v. State,
AFFIRMED.