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High court strikes 911 call requirement in self-defense jury instructions
April 17, 2020 – The Iowa Supreme Court has held in a trial for homicide, the trial judge may not instruct the jury to require the defendant to make a 911 call to present a self-defense claim. The case interprets the complex self-defense criminal law legislation enacted in Iowa in 2017. The case also highlights the use of surveillance cameras, since a light pole camera played a central role in the investigation.
In 2017, Levi Gibbs shot and killed Shane Wessels. A police camera at the top of a light pole captured the shooting and the opinion notes there were also “numerous eyewitnesses.”
Writing for the court, Justice Mansfield noted that the shooting was a result of a melee that Defendant initiated. Several people and weapons were involved, including a vodka bottle, extendable baton, and a stun gun. When Wessels, beaten on the ground, picked himself up and declared he was done with the fight, Gibbs went to get a gun out of his car and shot Wessels, wrote Justice Mansfield. The bullet penetrated Wessels’ heart and he died at the scene, according to the opinion. The Court noted that Gibbs pointed the gun at a witness and threatened to shoot her if she “told anyone.”
Justice Mansfield’s opinion notes that Gibbs repeatedly denied possession of a firearm during interrogation and, consequently, the murder itself. However, at trial he claimed justification.
The jury instructions summoned Iowa Code § 704.2B(1), part of the so-called “stand your ground law” passed in 2017, that requires a person to call 911 if they use deadly force in self-defense.
The jury found Gibbs guilty of the lesser included offense of Murder in the Second Degree, requiring a sentence of 50 years instead of life. On appeal, Gibbs argued the 911 call requirement violated his right to be free from self-incrimination.
The Court in its analysis recalled the United States Supreme Court case Griffin v. California, 380 US 609, 615 (1965), in which it forbade comment by the prosecution on defendant’s failure to testify, and Doyle v. Ohio, 426 U.S. 610, 619 (1976), in which it prohibited impeachment of the defendant for his post-arrest silence.
Justice Mansfield characterized the 911 call requirement as a failure-to-report law but noted that the US Supreme Court required tax returns to report illegal income and civilian targets of investigation to “identify themselves” on the street.
In Gibbs, the Defendant argued other states had decriminalized failure to report. The State countered that the stand-your-ground 911 call requirement did not carry a criminal penalty and therefore did not, on its face, violate due process. The Court agreed with the State-- implying that the Legislature might impose a distinct criminal penalty to give the statute a "regulatory" purpose-- but focused its attention on how the judge instructed the jury.
The Court wrote:
“The district court’s implementation of section 704.2B through a jury instruction puts someone who has used deadly force in a dilemma. Either the person gives up his or her right to remain silent, or in a later prosecution, the person faces a jury told that he or she violated the law in not doing so. The question, as before, is whether this imposes an improper penalty on the exercise of the constitutional right to remain silent,” adding, “We think it does.”
The Court distinguished other cases regarding prearrest silence, noting that the instruction in Gibbs “penalizes the defendant in the guilt or innocence stage for failing to affirmatively seek out the authorities and speak to them prearrest—with no Fifth Amendment exception.”
Justice Mansfield noted that the State directly rebutted Defendant’s self-defense claim by concentrating on his failure to call 911.
“Did the Defendant ever call 911? And the answer was no,” the Court quoted the prosecutor as saying at trial.
In the end, however, Justice Mansfield held that the Fifth Amendment violation was “harmless error,” noting that the evidence was so overwhelming in every other regard that the Supreme Court would not overturn the verdict.
“[H]ere any error was harmless beyond a reasonable doubt because the evidence of guilt was so strong and that of justification was so weak,” wrote Justice Mansfield.
Justices McDonald and newly minted Justice Oxley concurred specially finding that Defendant waived his state constitutional claim by not stating why federal constitutional due process law differs from the Iowa constitution. The concurrence further noted that federal due process law approves of failure-to-report laws and that the jury instruction really wasn’t a Fifth Amendment violation. Nevertheless, because the majority affirmed, the concurrence joined.
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