State of Iowa v. Dustin James Seley ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-0419
Filed February 22, 2023
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DUSTIN JAMES SELEY,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Adair County, Thomas P. Murphy,
Judge.
A defendant appeals his first-degree murder conviction. AFFIRMED.
Raya D. Dimitrova of Carr Law Firm, P.L.C., Des Moines, for appellant.
Brenna Bird, Attorney General, and Genevieve Reinkoester, Assistant
Attorney General, for appellee.
Heard by Tabor, P.J., and Schumacher and Ahlers, JJ.
2
TABOR, Presiding Judge.
No question, Dustin “D.J.” Seley shot his older brother, Timothy Fechter.
But Seley maintains it was not first-degree murder. And at trial, he pursued four
defenses. He first contested the State’s proof that he willfully, deliberately, and
premeditatedly killed his brother. Second, he urged that he was too intoxicated to
form specific intent. Third, he claimed the shooting was in self-defense. And
fourth, he argued Fechter seriously provoked him. A jury convicted Seley of first-
degree murder. On appeal, he insists the State provided insufficient proof for the
jury to reach that verdict. But on our review, we find the record contains substantial
evidence of Seley’s guilt for jurors to weigh against his proffered defenses. Giving
due deference to their factfinding, we affirm.
I. Facts and Prior Proceedings
Seley grew up on a family farm as the youngest of six siblings. His oldest
brother, Fechter, was sixteen when Seley was born. Growing up, Seley did not
know Fechter well because the older brother was incarcerated. But when Seley
was sixteen Fechter got out of prison. That same year, Seley’s father died. And
the family moved to the nearby town of Creston to be closer to his mother’s job.
For a while, Fechter stayed on the farm with his wife and step-children. But they
left around when Seley quit high school to take over running the farm.
Seley and Fechter did not have a good relationship. Seley recalled fearing
Fechter:
He was my big brother. I was very intimidated, very scared. He was
irate most of the time. There was nothing I could ever do that [ ] was
good enough for him. . . . [H]e liked . . . to hit people mentally, to
keep them down, to kick them. And I always had been fearful of him
. . . he could go off at any little moment. You never knew.
3
Family members agreed that Fechter was nasty. According to their sister,
“[Fechter] was very jealous of [Seley], and he put him down all the time.” When
threatened, Seley “would put his head down, usually start crying.” And he “would
never stand up” to Fechter. Their mother testified that Fechter “hated” Seley.
Their fraught fraternity was most apparent in three grievances that
preoccupied Seley. First, when Seley was nineteen, Fechter framed him for
stealing a neighbor’s four-wheeler. Second, both brothers had romantic
relationships with Nicki, the daughter of Fechter’s former wife. Seley and Nicki
raised three children together. And Seley sold the family farm when Nicki was
pregnant with the first child so they could buy a house in Creston. Soon after they
had their third child in 2007, Seley and Nicki broke up. And by 2019, Nicki and
Fechter were dating. But Seley suspected the two had been intimate while he and
Nicki were still together. The third flashpoint between the brothers came when
Seley quit his job to work for Fechter’s roofing business in 2021. Seley testified
that Fechter enticed him to change employment by professing that “he had so
many” roofing jobs but “didn’t have anybody” to help. But after only two projects,
the work dried up. And Fechter told Seley “there was nothing to do.”
That final fallout informs what happened between the brothers in the early
morning hours of June 20 that year. The night before, Seley was in Creston
“hopping from bar to bar drinking” whiskey. While bar hopping, Seley was armed
with a loaded pistol. He claimed he’d been trying to sell the gun “for at least around
five days.” During his night out, Seley ran into Billy Bird. When the bars closed
4
around 1:45 a.m., Bird suggested they walk to Fechter’s camper because Bird and
Fechter were friends. Seley testified he took “acid” before heading to the camper.1
When Bird and Seley arrived, they found Fechter with Keagan Trembley—
the boyfriend of Fechter’s oldest daughter. Trembley testified that Seley came
“stumbling” in and admitted that he was drunk. But Bird never came inside and
soon left. Trembley recalled Seley talking about “what was going good for
[Fechter], and what was going bad for him.” Fechter told Seley: “you’re drunk,”
“shut up,” and “you need to settle down.” Seley and Fechter smoked
methamphetamine. Fechter then told Seley to stay at the camper while he and
Trembley went to illegally dump some shingles Fechter had in the back of his truck.
But Seley cut in, telling Trembley: “I would like to spend some alone time with my
brother.” Seley made sure Trembley understood by pointing his gun, wrapped in
a sweatshirt, at him. As Trembley left, Seley told him: “I just saved your life
tonight.”2
During the brothers’ drive, things got “kind of heated,” according to Seley’s
testimony. Fechter told him to return to his prior employment. But Seley thought
it would be humiliating to ask for his old job back. “[I]t just wasn’t right of him to tell
me he had all this work.” Once at the dumping site, the brothers stripped a tarp off
the shingles. As they worked, Seley decided to ask Fechter if he was the father of
1 Other than mentions by Seley, the record includes no discussion of this drug. But
commentators explain that “acid is the most common name for lysergic acid
(LSD).” Major Catherine L. Brantley, Spice, Bath Salts, Salvia Divinorum, and
Huffing: A Judge Advocate’s Guide to Disposing of Designer Drug Cases in the
Military, 2012 Army Law. 15, 37 (April 2012).
2 Trembley conceded that he did not mention these damning details when
interviewed by police several times. He only brought them up once called as a
witness.
5
his and Nicki’s oldest child. Fechter confirmed “that [the child] was his.” Seley
testified that upon hearing that confirmation, he became “enraged” and attacked
his brother:
I blacked out. Basically, I don’t even remember if I hit him, if I shot
him or not. I know that we got into a fistfight prior, kind of like during
the same time. When I pulled it, I remember falling off the tarp,
tripping on the tarp. And as I was falling backwards I was pulling the
trigger on the gun.
After the shooting, Seley drove off in his brother’s truck. Yet he called
Fechter nine times after: “I kept calling his phone because . . . I just wanted him to
pick up. I just wanted it to be like . . . it was just a bad dream.” Fechter had left
his cell phone, set to silent, on the dashboard of the truck. Seley testified that he
drove around much of the night “hoping to see” his brother. But the alleged search
proved difficult because he “was blacked out,” “intoxicated,” and “[t]he acid was
kicking in.” At some point, Seley tossed his gun into a ditch.
Later that morning, Trembley tried to contact Fechter with no success.
When Fechter didn’t show up for a second day, Trembley reported him missing.
Trembley found Fechter’s camper had been “ransacked.” It also reeked of bleach.
As he was leaving the camper, Trembley spotted Seley’s clothes in a trash can.
When he looked in Fechter’s truck, Trembley found a “bullet shell” and a bag of
methamphetamine. Later, he found Seley’s wallet on the passanger side.
Meanwhile, Seley hid out for nine days. On the first day, Seley called two
of his children to tell them Fechter “was gone” and that he killed him.3 Later, Seley
discarded his phone after hearing from his probation officer that police wanted to
3 Both children testified that they rarely talked with Seley on the phone.
6
talk to him. Seley then bought a flip phone in Greenfield.4 At some point, Seley
did return to Creston for gas and to hang out with his friend Dakota Brown. Brown
testified that while the two smoked methamphetamine, Seley confided that “he put
[Fechter] down on his knees, and he shot him several times, and then he stomped
his head in.” Seley also told Brown he went back to Fechter’s camper “changed
clothes, [and] slept in his bed.” Brown recalled he’d never seen Seley “so happy
before in my life.” Police arrived at Brown’s residence minutes after Seley left.5
On June 29, Seley again returned to Creston, led police on a chase, and
was arrested.6 During his police interview, Seley acknowledged that Fechter “set
me off that night.” But Seley did not admit to shooting Fechter. Instead, he claimed
that Fechter made a joke about the four-wheeler theft, prompting Seley to drive
off—leaving Fechter at the dump site. Seley embellished that version, saying a
downpour made it impossible to go back for Fechter. He told officers, “I wish I
could sit here and say I regret leaving him on that fucking road. But that was the
first time I ever stood up for myself.” Throughout the interview, Seley repeated his
frustration with Fechter’s “bologna story” about having a ton of roofing work and
making a “fucking fool” out of him by asking him to go back to his old job. 7 Two
days after the interview, police found Fechter’s body.
4 According to the phone’s data, Seley returned to the area where he killed Fechter
three days after leaving town.
5 On cross, the defense highlighted that police found methamphetamine in Brown’s
home, but did not charge him with possession.
6 Seley testified that “at that point I was honestly going in to talk to the police. I
was going to call and go in and turn myself in and talk to them that day.”
7 At trial, Seley testified the police interview was “mostly all bullshit.” And that he’d
been drinking alcohol and smoking methamphetamine while out of town, and was
sleep deprived.
7
The State charged Seley with first-degree murder one month later. Seley
gave notice that he intended to rely on the defenses of intoxication and self-
defense. At trial, the jury heard testimony that Fechter had a quick temper and
was mentally and physically abusive to people—including Seley. Seley testified in
his own defense. He conceded he was angry with Fechter, but denied having a
plan to shoot him. Seley claimed he became “enraged” when Fechter admitted
being the father of Seley’s oldest child. But he also testified that he did not shoot
Fechter on purpose, instead pulling the trigger as he was falling backwards. And
Seley spoke to his level of intoxication on the night of the murder.
Michele Catellier, associate state medical examiner, testified that Fechter
suffered a single gunshot wound to the back of the head fired at close range. The
trajectory of the bullet was from “the lower part of his body to the top part.”
Dr. Catellier suspected, but could not confirm, the gun was pressed to the back of
Fechter’s head. Fechter also had blunt force injuries to his skull that were inflicted
near the time of his death.
Dr. Catellier also testified that toxicology samples showed Fechter had
consumed methamphetamine before his death. She explained that
methamphetamine was “a complicated drug” with “both stimulant and sedating
properties.” She added that “the part of the body that’s affected by
methamphetamine is . . . the fight-or-flight part.” And she confirmed that users can
feel “some euphoria” as well as agitation, confusion, and hallucinations.
After a five-day trial, the court instructed the jury on the necessary elements
of first-degree murder and on Seley’s defenses. The jury found Seley guilty as
charged. He now appeals.
8
II. Analysis
On appeal, Seley argues the State presented insufficient evidence for the
jury to convict him of first-degree murder. The district court instructed the jury that
the State had the burden to prove:
1. Seley shot Fechter.
2. Fechter died as a result of being shot.
3. Seley acted with malice aforethought.
4. Seley acted willfully, deliberately, premeditatedly, and with a specific
intent to kill Mr. Fechter.
5. Seley was not justified.
Seley does not contest that he shot and killed Fechter. But he claims the
State failed to meet its burden otherwise. First, in not showing that Seley willfully,
deliberately, and premeditatedly killed his older brother. And then in failing to rebut
his three defenses of intoxication, justification, and provocation.
We review his sufficiency claim for correction of legal error. See State v.
Crawford, 974 N.W.2d 510, 516 (Iowa 2022). We consider the evidence “in the
light most favorable to the State,” allowing for all reasonable inferences. State v.
Sanford, 814 N.W.2d 611, 615 (Iowa 2012). If a rational jury could find guilt beyond
a reasonable doubt, we affirm. Id. While we consider all evidence—exculpatory
and inculpatory alike—we are mindful in our standard of review that the jury is “free
to reject certain evidence, and credit other evidence.” Id.A. Willfulness, deliberation, and premeditation
We begin with Seley’s argument that the State did not prove that the
shooting was willful, deliberate, and premeditated. Let’s start by defining terms.
9
Willful means “intentionally and not accidentally.” State v. Roberts, No. 18-0575,
2019 WL 1953679, at *3 (Iowa Ct. App. May 1, 2019) (citation omitted). Deliberate
means “weighing the considerations for and against the act.” State v. Hofer, 28
N.W.2d 475, 483 (Iowa 1947). And premeditated means “to think or ponder before
acting.” State v. Buenaventura, 660 N.W.2d 38, 48 (Iowa 2003).
Each of these states of mind “must exist before and at the time” of the killing.
State v. Wilson, 11 N.W.2d 737, 754 (Iowa 1943). But not for any particular length
of time before the fatal act. Id. (“The question is, not only did the accused have
time to think, but did he think.”). And the State can prove deliberation and
premeditation through circumstantial evidence of planning, motive, or the nature
of the killing itself. State v. Helm, 504 N.W.2d 142, 146 (Iowa Ct. App. 1993).
Viewing the record in the light most favorable to the verdict, we find ample
circumstantial evidence that Seley acted with the requisite mental states. For
evidence of planning, we look to Trembley’s testimony. Pointing his gun at
Trembley, Seley ominously said he wanted “to spend some alone time” with
Fechter, and that by leaving Trembley behind, Seley had “saved [his] life tonight.”
Turning to motive, the record brimmed with evidence of the brothers’ toxic
relationship. Family members testified to Fechter’s history of tormenting his
younger brother. And Seley himself told the jury about his grievances against
Fechter. Taking the fall for a stolen four-wheeler. Job promises unfulfilled. And
his first-born child not his own. “The prior relationship between the defendant and
the victim, including bad feelings, quarrels, and physical acts, is a circumstance
that may be shown to prove the defendant’s state of mind and motivation at the
10
time of the crime. State v. Newell, 710 N.W.2d 6, 21 (Iowa 2006) (citations
omitted).
As for the nature of the killing, the jury could have believed Brown’s
testimony that Seley gleefully recounted putting Fechter “down on his knees”
before shooting him and stomping on his head. See State v. Frazer, 267 N.W.2d
267 N.W.2d 34, 39 (Iowa 1978) (“The use of a deadly weapon accompanied by an
opportunity to deliberate, even for a short time, is evidence of malice, deliberation,
and premeditation.”). That version of events was corroborated by Dr. Catellier,
who believed that Fechter was shot at close range and suffered other blunt force
injuries to his skull. The brutality of the killing serves to “refute any suggestion of
inadvertence or mistake and supply strong evidence of malice and intent to kill.”8
State v. Poyner, 306 N.W.2d 716, 718 (Iowa 1981).
While Seley argues that the State offered insufficient evidence of
premeditation or deliberation, his true contention appears to be that the jury
believed the wrong testimony. But weighing the evidence and accepting or
rejecting parts of Seley’s testimony was the jury’s prerogative—not ours. See
State v. Nitcher, 720 N.W.2d 547, 556 (Iowa 2006). Thus, viewing the evidence in
favor of the verdict, a rational jury could find beyond a reasonable doubt that Seley
willfully, deliberately, and premeditatedly killed Fechter.
8 On top of this, Seley’s conduct after killing Fechter betrayed a consciousness of
guilt. He did not call the police. And he discarded the murder weapon. He then
left town for nine days, shedding his cell phone when he learned police were
looking for him. And when law enforcement interviewed him, he did not tell them
Fechter was dead, essentially saying, “Am I my brother’s keeper?” Hickory v.
United States, 160 U.S. 408, 415 (1896) (invoking the biblical story of Cain and
Abel). And then he later admitted his answers were “bullshit.”
11
B. Intoxication
Seley next claims that the State failed to show he had the specific intent to
kill Fechter. Specific intent requires proof that Seley was aware of his acts and did
them with a specific purpose. See State v. Guerrero Cordero, 861 N.W.2d 253,
259 (Iowa 2015), abrogated on other grounds by Alcala v. Marriott Int’l, Inc., 880
N.W.2d 699 (Iowa 2016). To prevail on his intoxication defense, Seley must show
he was so drunk or high that he “could no longer reason and was incapable of
forming a felonious intent.” See id. When a defendant invokes the intoxication
defense, “the State retains the burden of proving the element of specific intent.”
State v. Templeton, 258 N.W.2d 380, 383 (Iowa 1977).
According to Seley, his history of drug use along with his consumption of
alcohol and other drugs before shooting Fechter left him unable to form murderous
intent. He relies on his own testimony about drinking whiskey, taking acid, and
then smoking methamphetamine. He contends his actions following the murder—
including calling Fechter’s cell phone and driving around looking for him as if he
were still alive—supported his defense. He also highlights Trembley’s testimony
corroborating his intoxication. And he directs us to Dr. Catellier’s testimony on the
general effects of methamphetamine.
Viewing the evidence in the light most favorable to the verdict, we find a
reasonable jury could conclude that Seley had the specific intent to kill Fechter.
The court instructed jurors they could infer Seley possessed specific intent to kill
when firing the gun so long as he had a chance to deliberate. See State v. Wilkens,
346 N.W.2d16, 20 (Iowa 1984). And based on what Seley told Brown, Seley had
time to deliberate when forcing Fechter to his knees before shooting him.
12
Further, Seley’s testimony supports the jury’s conclusion. He recalled
specific conversations he had with his brother on the way to the dump site. He
also could describe details of the fight days later to Brown and then on the stand.
See Hicks, 2018 WL 1433788, at *7 (finding sufficient evidence of specific intent
because Hicks could “provide a detailed account of his actions the day before the
attack and the day of the attack”); see also Guerrero Cordero, 861 N.W.2d at 259(finding resolving claims of intoxication is “entrusted to the jury based on the facts
of each case”).
C. Justification
Next, Seley contends he shot his brother in self-defense. The State bears
the burden “to prove justification did not exist.” State v. Thornton, 498 N.W.2d 670,
673 (Iowa 1993). “A person is justified in the use of reasonable force when the
person reasonably believes that such force is necessary to defend oneself or
another from any actual or imminent use of unlawful force.” Iowa Code § 704.3(2021). Justification is both subjective and objective. State v. Elam, 328 N.W.2d
314, 317 (Iowa 1982). “The actor must actually believe that he is in danger and
that belief must be a reasonable one.” Id. To rebut this defense, the State had to
prove either: (1) Seley started or continued the incident, (2) Seley had an
alternative course of action available, (3) Seley did not believe he was in imminent
danger of death or injury and his use of force wasn’t necessary to save him, (4)
Seley did not have reasonable grounds for his belief, or (5) the force used by Seley
was unreasonable. See State v. Shanahan, 712 N.W.2d 121, 134 (Iowa 2006).
13
Looking at the record, we find Seley’s own testimony dooms his claim:
Q. Now, did you say that after he told you [your first-born was]
not your child there was a—. A. Yeah.
Q. A fistfight? A. Yes, I hit him, I punched him, and we got
into a quarrelsome fight.
Q. Okay. And then you shot him? A. I did.
Based on this testimony, a jury could reasonably believe that Seley started
the altercation by punching Fechter after he confirmed he was the father of Seley’s
child. In Seley’s own words, that punch led to “a quarrelsome fight” ending when
he shot Fechter. And beyond starting the fight, Seley’s use of force was
unreasonable because he “brought a [gun] to a fistfight—he used lethal force
without any indication that he faced danger that made it reasonably necessary” to
shoot the unarmed Fechter. See State v. Bowers, No. 18-1827, 2020 WL
1310290, at *2 (Iowa Ct. App. Mar. 18, 2020). Based on the evidence, the jury
could determine Seley “escalated the level of force beyond what was reasonable
under the circumstances.” See State v. Hall, No. 15–0628, 2016 WL 2748358, at
*4 (Iowa Ct. App. May 11, 2016). Thus, we cannot reverse on justification grounds.
D. Provocation
Turning to Seley’s final claim, he asserts the jury should have found Fechter
provoked the shooting. Generally, serious provocation can reduce an offense from
murder to voluntary manslaughter. See State v. Ambrose, 861 N.W.2d 550, 558
(Iowa 2015) (“Provocation is the linchpin of the crime of voluntary manslaughter.”).
And provocation is serious when it is “sufficient to excite such passion in a person
and there is not an interval between the provocation and the killing in which a
person of ordinary reason and temperament would regain control and suppress
the impulse to kill.” Iowa Code § 707.4.
14
To be seriously provoked is both subjective and objective. State v.
Thompson, 836 N.W.2d 470, 477 (Iowa 2013). Subjectively, “the defendant must
act solely as a result of sudden, violent, and irresistible passion.” State v. Inger,
292 N.W.2d 119, 122 (Iowa 1980). Objectively, the defendant must be provoked
in a way “sufficient to excite such passion in a reasonable person.” Id. Further,
the State can rebut this defense if there is “an interval between the provocation
and the killing in which a person of ordinary reason and temperament would regain
his or her control and suppress the impulse to kill.” Id. And because Seley used
a gun, “the provocation must be great, indeed, to lower the offense from murder to
manslaughter.” State v. Holder, 20 N.W.2d 909, 914 (1945) (citation omitted).
To show serious provocation, Seley relies on his testimony that right before
the shooting, Fechter confirmed the paternity of Seley’s child:
[J]ust the shock of him telling me and saying that [my first-born] was
his child and everything that I gave up and everything I got rid of in
my life for him, I was enraged. I was so angry. I was not thinking at
all. I didn’t know where I was.
Based on this revelation, Seley contends no reasonable jury could reject his claim
of serious provocation.
We disagree. If true, Fechter’s confirmation—alone—could not be serious
provocation. See Thompson, 836 N.W.2d at 478 (“words alone, historically, have
been insufficient to provide a factual basis for serious provocation”). Plus, in his
police interview, Seley did not mention the paternity issue. Instead, he brought up
other resentments—including Fechter framing him for theft when he was nineteen
and making a “fucking fool” out of him recently by limiting his job options. The jury
could believe Fechter did not act solely based on the “sudden, violent, and
15
irresistible passion” he felt from the revelation. See State v. Wadsworth, No. 19-
0698, 2020 WL 2487618, at *2 (Iowa Ct. App. May 13, 2020) (stating that “a long-
simmering anger . . . does not establish a ‘sudden’ passion”).
To recap, the State presented substantial evidence that Seley committed
first-degree murder. The court instructed the jurors on Seley’s alternative defenses
of intoxication, justification, and provocation. From there, it was for the jury as fact
finder to resolve those questions—not us. And the jury could believe as much or
as little of Seley’s testimony as it desired. See Sanford, 814 N.W.2d at 615.
AFFIRMED.