Appeal from the Iowa District Court for Polk County, Robert Blink, Judge.
The opinion of the court was delivered by: Miller, S.J.
Defendant appeals his conviction for voluntary manslaughter. AFFIRMED.
Considered by Vaitheswaran, P.J., Doyle, J., and Miller, S.J.*fn1 Tabor, J., takes no part.
I. Background Facts & Proceedings
A grand jury indictment issued on August 6, 1997, accused Jarmaine Allen of first-degree murder, in violation of Iowa Code sections 707.1 and 707.2 (1995), in the shooting death of Jody Stokes on October 14, 1995. Thereafter followed a long procedural history.*fn2
This case involves Allen's fourth jury trial, which was held in July 2010. The evidence presented during the trial showed that on the evening of October 13, 1995, Allen and Stokes were both at a party and they "got into it." Allen's good friend Shaun Brown testified Stokes and Allen had words and Stokes hit Allen, knocking him down. Brown stated he got Allen up, Stokes hit Allen again, and Brown and Allen left the party. Marquetta Slater, Stokes's girlfriend, testified she was sitting in a car across the street from the party when she noticed Allen standing outside with a 9 millimeter gun in his hand and saying, "[b]ring your fat ass outside." Slater got Stokes into her car and they drove away.
The next day, on the afternoon of October 14, 1995, Stokes was outside the TNT Lounge in Des Moines selling drugs. Allen and his friend Cortez Brown were down the street outside the Drake Liquor Store when they ran into William "Chuck" Holder. Holder observed Stokes make a gesture toward Allen which he took to mean, "[l]ike, come down here to me or like, I don't know." Holder heard Cortez Brown call Allen, "a punk." Holder walked away, and a little bit later heard gunshots. Stokes was shot at least five times. Bullet casings from a 9 millimeter gun were found on the ground near him.
Nicholas Jones stated that he walked past Stokes on the sidewalk outside the TNT Lounge. He testified that after he walked by he heard shots, and he ducked down on the ground, so that he did not see the shooter. He heard Stokes say, "oh, cuz, oh, cuz." During the present trial Jones testified about the following statements he made in the past: (1) after the incident he told the county attorney that he had seen Allen shoot Stokes; (2) he later told the grand jury that he did not know who had killed Stokes; (3) during a trial in 1998 he testified that Allen was the person who killed Stokes; and (4) in the 2006 trial he had again stated he did not know who had shot Stokes. Jones stated he was pressured into identifying Allen as the shooter by Stokes's brothers. Officer Paul Houston testified Jones had previously stated he saw Allen shoot Stokes with a 9 millimeter chrome-plated handgun, and after the shooting he saw Allen run towards an alley.
Robert Hawthorne was working at the TNT Lounge, and he was standing outside near the door when he heard shots. He testified the shots came from the corner of the building. Hawthorne was asked if he saw who was firing the gun, and he answered, "I seen a vision of a guy." On further questioning, he answered, "I would have believed at the time a guy named Jarmaine," and he identified Allen in the courtroom. On cross-examination, when asked, "[a]nd, in fact, you only saw a silhouette of a person standing at the other end of that building," Hawthorne answered in the affirmative.
Jerry Ball was in his vehicle stopped at a stoplight on Martin Luther King Jr. Parkway when he saw a man come out from behind the TNT Lounge and shoot another man. He testified that shooter took off behind the bar. Ball was not close enough to identify the shooter.
Kelly Scott testified that in 1995 he lived down the alley and around the corner from the TNT Lounge. Scott stated he was in his yard when he heard gunshots. He saw someone running down the alley from the direction of the TNT Lounge and then run through his yard. After the incident, Scott picked a photograph of Allen out of a photo array. He identified Allen in the courtroom as the same person he had identified for police officers from the photo array. On cross-examination, Scott stated that he told the grand jury he could not see the person because they ran through his yard real fast, and this statement to the grand jury was made because he was afraid of Allen.
After Stokes's death, Slater began dating Shyrome Avant. In late 1996 or early 1997 Allen and Avant were both at the Iowa Medical and Classification Center. Avant testified that Slater sent him a picture of herself and Allen saw it.*fn3
He stated he and Allen were talking about Slater, when Allen stated, "Man, I remember when I shot big Jody's fat ass." He stated Allen told him he, "just started dumping on him," which Avant stated meant, "[u]nloading, just emptying the gun on somebody." Avant stated Allen told him he used a "Nina," which meant a 9 millimeter gun. He also recalled that Allen told him that Stokes said, "oh, cuz, oh, cuz," when he was shot. According to Avant, Allen stated he came out from behind the TNT Lounge, shot Stokes, and then ran away. Avant stated another person, B.J. Harris, was present when Allen made these statements to him.
After the State presented its evidence, the district court denied Allen's motion for judgment of acquittal. Defendant presented the testimony of Anthony Marshall, who wanted to obtain some crack cocaine from Stokes on October 14, 1995. As Marshall was waiting for Stokes to finish another deal, someone said, "Jody," and started shooting. Marshall said he saw a 9 millimeter gun and an arm, but did not see the shooter.
Pecola Fugate testified that in 1995 she lived near the TNT Lounge. She stated that almost simultaneously with the shooting Holder appeared on her porch. After that another man ran up the street. She testified this man who ran by was not Allen, who she knew from the neighborhood.
John Harris testified that he was at the Iowa Medical and Classification Center at the same time as Allen and Avant. Harris stated he did not remember Avant getting any pictures from Slater. He also testified he did not hear Allen make any of the statements Avant testified Allen had made.
Attorney James Benzoni testified he took a deposition of Scott in 1997 when he was representing Allen, and at that time Scott was unable to identify Allen as the person who ran through his yard. He stated that during the first trial, which resulted in a mistrial, Scott did not identify Allen, but at ...