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State v. Merrett

Court of Appeal of Iowa

July 24, 2013

STATE OF IOWA, Plaintiff-Appellee,
v.
MARSHAUN JORDAN MERRETT, Defendant-Appellant.

Appeal from the Iowa District Court for Polk County, Richard G. Blane II, Judge.

Marshaun Merrett appeals from his judgments, convictions, and sentence for assault with intent to inflict serious injury, two counts of assault, and intimidation with a dangerous weapon with intent.

Mark C. Smith, State Appellate Defender, and Bradley M. Bender, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney General, John Sarcone, County Attorney, and Daniel Voogt, Assistant County Attorney, for appellee.

Considered by Eisenhauer, C.J., and Potterfield and Tabor, JJ.

POTTERFIELD, J.

Marshaun Merrett appeals from his judgments, convictions, and sentence after a jury trial for assault with intent to inflict serious injury, two counts of assault, as lesser included offenses of attempted murder; and intimidation with a dangerous weapon with intent. He argues the jury's negative finding on a special interrogatory regarding the dangerous weapon sentencing enhancement is in conflict with the jury's finding of guilt on the charge of intimidation with a dangerous weapon. He also argues that the lesser-included assault verdicts cannot stand in the face of this inconsistency and his counsel was ineffective in failing to address this issue after the jury reported its verdicts. We find the intimidation-with-a-dangerous-weapon-with-intent guilty verdict is inconsistent with the negative special interrogatory and remand for further proceedings on that count. We affirm the remaining charges, finding the challenge to the assault verdicts was not preserved for our review.

I. Facts and proceedings.

Marshaun Merrett was arrested after several shots were fired from a vehicle he was driving into another vehicle containing three people: Jones, Johnson, and Klueppel. Merrett's vehicle contained one passenger, a man known as "Thirsty." Merrett was charged by trial information with three counts of attempt to commit murder (one for each person in Jones's car) and with intimidation with a dangerous weapon with intent.[1] Each of the four charges required proof Merrett possessed or aided and abetted in the possession of a firearm and required proof of specific intent. Each of the four charges is a forcible felony, requiring submission to the jury of a special interrogatory under Iowa Rule of Criminal Procedure 2.22 together with Iowa Code section 902.7 (2011). Section 902.7 provides for a minimum five-year sentence where a jury finds the defendant: 1. guilty of a forcible felony and 2. "represented that the person was in the immediate possession and control of a dangerous weapon, displayed a dangerous weapon in a threatening manner, or was armed with a dangerous weapon while participating in the forcible felony."

A jury trial was held June 4, 2012. The court instructed the jury that each of the three attempted-murder counts include the lesser offenses of assault with intent to inflict serious injury and assault, with elements as follows:

As to Count [I, II and III], the State must prove all of the following elements of Assault with Intent to Inflict Serious Injury:
1. . . . the Defendant intentionally pointed a firearm at [Jones, Johnson, or Klueppel].
2. This was done with the specific intent to cause a serious injury.
3. If the State has proved both elements, the Defendant is guilty of Assault with Intent to Inflict Serious Injury. If the State has proved only element number 1, the Defendant is guilty only of Assault. If the State has failed to prove both elements, the Defendant is not guilty in Count [I, II and III].

On the charge of intimidation with a dangerous weapon with intent, the marshaling instruction read that the State must prove:

1. On or about the time period between November 25, 2011 and November 26, 2011 the Defendant shot or discharged a dangerous weapon into a vehicle which was occupied by [Jones, Johnson, and/or Klueppel].
2. A firearm is a dangerous weapon, as explained in Instruction No. 34.
3. [Jones, Johnson, and/or Klueppel] actually experienced fear of serious injury and the fear was reasonable under the existing circumstances.
4. The Defendant shot or discharged the dangerous weapon with the specific intent to injure or cause fear or anger in [Jones, Johnson, and/or Klueppel].
If the State has proved all of these elements, the Defendant is guilty of Intimidation with a Dangerous Weapon with Intent. If the State has proved elements 1, 2 and 3 but not 4, the Defendant is guilty of the included offense of Intimidation with a Dangerous Weapon. If the State has failed to prove any one or more of the elements 1, 2 or 3, the Defendant is not guilty of Count V.

The court also instructed the jury on the theory of aiding and abetting. The verdict forms for attempted murder each specified the name of the alleged victim and stated:

Verdict No. 1
We find the Defendant guilty of Attempt to Commit murder. If this is your verdict, you must answer the following interrogatory:
During the commission of the offense the Defendant represented he was in the immediate possession and control of a dangerous weapon, displayed a dangerous weapon in a threatening manner or was armed with a dangerous weapon __Yes __No
Presiding Juror
Verdict No. 2
We find the Defendant guilty of the crime of Assault with Intent to Inflict Serious Injury.
Presiding Juror
Verdict No. 3
We find the Defendant guilty of the crime of assault.
Presiding Juror
Verdict No. 4
We find the Defendant not guilty of Count [I, II, III]
Presiding Juror

As to Jones, the jury found Merrett guilty of Assault with Intent to Inflict Serious Injury and as to Johnson and Klueppel, the jury found Merrett guilty of Assault, apparently finding no specific intent to inflict serious injury on those occupants of Jones's car. The special interrogatory was not asked or answered on any of these three lesser included counts, since none was a forcible felony.

The verdict form for Intimidation with a Dangerous Weapon with intent stated:

We find the Defendant guilty of the crime of Intimidation with a Dangerous ...

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