State of Iowa v. Magai Aring Nathaniel Anai Kur ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 18-2057
Filed September 23, 2020
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MAGAI ARING NATHANIEL ANAI KUR,
Defendant-Appellant.
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Appeal from the Iowa District Court for Polk County, Robert B. Hanson,
Judge.
Magai Anai Kur appeals his convictions for first-degree murder, first-degree
robbery, and first-degree burglary, claiming his counsel provided ineffective
assistance. AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Nan Jennisch, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Katie Krickbaum, Assistant
Attorney General, for appellee.
Considered by Bower, C.J., and May and Ahlers, JJ.
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BOWER, Chief Judge.
Magai Anai Kur appeals his convictions for first-degree murder, first-degree
robbery, and first-degree burglary, claiming his counsel provided ineffective
assistance concerning a felony-murder jury instruction. We find the error Anai Kur
asserts is without merit and affirm.
I. Background Facts & Proceedings
In the pre-dawn hours of September 3, 2017, Anai Kur broke into a home
by cutting a screen and climbing through the window. Anai Kur beat, strangled,
and stabbed the homeowner, Robert, with a knife taken from the kitchen while
demanding money. Anai Kur left after assaulting Robert, taking his wallet, cell
phone, and van, as well as Robert’s wife’s laptop.1
Anai Kur was arrested on September 8 in Council Bluffs. On October 19,
he was criminally charged with attempted murder, first-degree robbery, first-
degree burglary, and second-degree theft.
Robert was hospitalized for his injuries. One of his lungs collapsed from the
stabbing. The beating broke his jaw, which required two surgeries to repair. While
in the hospital, Robert suffered a stroke caused by the beating and strangulation
and then fell ill with pneumonia.
On January 8, 2018, Robert died. The medical examiner concluded Robert
died of complications of the strangulation and beating, ruling the manner of death
as homicide.2
1 The wife’s cell phone was knocked to the floor when Anai Kur entered the home
through the window.
2 The initial stab wounds, though serious, had healed before Robert died.
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In March, the State amended the trial information, changing the “attempted
murder” charge to first-degree murder. The charging document listed two theories
of guilt for the murder charge: it was deliberate and premeditated, or it occurred
while Anai Kur was participating in a forcible felony. The State dismissed the
second-degree theft charge before trial.
The matter proceeded to a four-day jury trial starting on September 10. The
jury found Anai Kur guilty of murder in the first degree, robbery in the first degree,
and burglary in the first degree.
Anai Kur appeals. He claims his trial counsel provided ineffective
assistance by failing to object to the submission of the felony-murder instruction,
thus failing to adequately preserve error.3
II. Standard of Review
We review a claim of ineffective assistance of counsel de novo. State v.
Harrison, 914 N.W.2d 178, 188 (Iowa 2018). To establish an ineffective-
assistance claim, a defendant must demonstrate “(1) trial counsel failed to perform
an essential duty; and (2) this omission resulted in prejudice.” State v. Graves,
668 N.W.2d 860, 869 (Iowa 2003). Failure to prove either element is fatal to the
claim. Id.3 The Iowa legislature recently amended Iowa Code section 814.7, eliminating
direct-appeal ineffective-assistance-of-counsel claims. Iowa Code § 814.7 (Supp.
2019). However, this amendment “do[es] not apply to cases pending on July 1,
2019.” State v. Macke, 933 N.W.2d 226, 235 (Iowa 2019). Because Anai Kur’s
appeal was pending before July 1, 2019, we may address his ineffective-
assistance-of-counsel claim on direct appeal. See State v. Trane, 934 N.W.2d
447, 464–65 (Iowa 2019).
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III. Analysis
Anai Kur asserts his trial counsel was ineffective for failing to object to the
felony-murder instruction submitted to the jury. Anai Kur claims there is not
sufficient evidence to support a finding of separate assaults so his convictions
should merge. He further claims the jury was not properly instructed on a
requirement of separate assaults.
The felony-murder rule developed from a common-law doctrine “that any
death resulting from the commission or attempted commission of a felony
constitutes murder.” State v. Tribble, 790 N.W.2d 121, 124 (Iowa 2010). The Iowa
legislature codified a limited version of the rule as part of the first-degree murder
statute: “A person commits murder in the first degree when . . . [t]he person kills
another person while participating in a forcible felony.” Iowa Code § 707.2(1)(b)
(2017); Tribble, 790 N.W.2d at 125. The legislature has designated both robbery
and first-degree burglary as forcible felonies. See Iowa Code § 702.11(1).
Anai Kur claims that because both his first-degree robbery and first-degree
burglary convictions include an assault element, those acts cannot be a predicate
for a felony–murder conviction without a specific finding by the jury of multiple
assaults.
Anai Kur’s argument proposes a substantial extension to the Heemstra
merger doctrine. See State v. Heemstra, 721 N.W.2d 549, 558 (Iowa 2006),
superseded by statute on other grounds as recognized in State v. Leedom, 938
N.W.2d 177, 190 (Iowa 2020). Under Heemstra, a single assault causing willful
injury which ends in death “cannot serve as the predicate felony for felony-murder
purposes.” Id. However, “if the defendant assaulted the victim twice, first without
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killing him and second with fatal results, the former could be considered as a
predicate felony, but the second could not because it would be merged with the
murder.” Id. at 557.
Our supreme court recently rejected a similar attempt to expand the merger
doctrine to felony robbery as the predicate for felony-murder in Harrison. 914
N.W.2d at 208. The court stated, “[R]obbery is clearly distinguishable from assault
for the purpose of the merger doctrine.” Id. The court explained, “[F]elony robbery
is a distinct crime that necessitates the showing of a different intent from the killing.”
Id. The court specifically noted language in Heemstra stating robbery and burglary
were “sufficiently independent from the act of killing to preclude [them] from being
merged into the murder.” Id. The Harrison court reiterated that robbery “is
expressly listed as a forcible felony under section 702.11(1) to qualify as a basis
for felony murder.” Id. The overbreadth concern expressed in Heemstra does not
apply to robbery. Id.; see Heemstra, 721 N.W.2d at 557 (requiring separate
assaults for willful injury to serve as predicate because “[o]therwise all assaults
that immediately precede a killing would bootstrap the killing into first-degree
murder, and all distinctions between first-degree and second-degree murder would
be eliminated”).
The supreme court’s reasoning in Harrison applies in equal measure to first-
degree burglary. See Walker v. State, No. 16-1796, 2019 WL 478192, at *1 (Iowa
Ct. App. Feb. 6, 2019). Even prior to Harrison, we had concluded that “although
the supreme court has seemingly adopted a ‘two separate acts’ approach for
felony-murder, we believe that approach is best served by limiting it to felonious
assaults.” State v. Tucker, 810 N.W.2d 519, 523 (Iowa Ct. App. 2012) (citation
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omitted) (declining to extend Heemstra to arson); see also State v. Keasling, No.
16-1283, 2017 WL 6520728, at *3 (Iowa Ct. App. Dec. 20, 2017) (declining to
extend Heemstra to the assault alternative of first-degree burglary). We conclude
that, like robbery, first-degree burglary is clearly distinguishable from assault for
purpose of the merger doctrine. See Harrison, 914 N.W.2d at 208.
Because the merger-doctrine jurisprudence does not extend to felony
robbery or first-degree burglary, we find Anai Kur’s claims regarding lack of
“separate assaults” instruction to be without merit. See Harrison, 914 N.W.2d at
208 (“Based on the fundamental differences between felony robbery and felony
assault in the felony–murder context, in addition to the merger rule jurisprudence
in Iowa, it can hardly be said that trial counsel in this case ‘performed below the
standard demanded of a reasonably competent attorney.’” (citation omitted)). We
decline to find counsel provided ineffective assistance for not challenging the
felony-murder instruction and affirm.
AFFIRMED.