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Shank v. State

Court of Appeal of Iowa

August 7, 2013

MERLE ANDREW SHANK, Applicant-Appellant,
STATE OF IOWA, Respondent-Appellee.

Appeal from the Iowa District Court for Linn County, Sean W. McPartland, Judge.

The applicant appeals the decision of the district court denying his request for postconviction relief.

Lars G. Anderson of Holland & Anderson, L.L.P., Iowa City, for appellant.

Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Jerry Vander Sanden, County Attorney, and Robert A. Hruska, Assistant County Attorney, for appellee.

Considered by Doyle, P.J., Danilson, J., and Miller, S.J. [*]


I. Background Facts & Proceedings

For these postconviction proceedings we adopt the detailed recitation of facts made by this court on the direct appeal of Merle Shank, as follows:

Around 3 a.m. on April 9, 2005, Linn County Deputy Douglas Riniker passed a pick-up truck just outside Cedar Rapids. Riniker believed he smelled ether coming from the truck, and decided to follow. The truck accelerated to seventy-five to eighty miles per hour. He activated his lights and siren, but the truck did not stop. Instead, the truck engaged Riniker in a chase reaching ninety-five miles per hour. When the driver attempted to make a right turn at an intersection, the truck rolled into the ditch.
The truck was lying on its top when officers approached. Shank's lower body was trapped underneath the cab on the driver's side. On the other side of the truck, Kirby Truesdell was lying on his back in the grass. Deputies found Mark Loesel on his stomach in the cab of the truck. Finally, Katrina Nelson was pinned under the truck with her arms and legs sticking out. In one hand, she was clutching a lighter. She had no pulse.
At the scene, officers questioned Truesdell about the number of passengers in the truck. He responded, "What truck?" and denied being in the truck. Loesel, who was lying inside the cab, told officers he was fine and asked permission to get out of the truck. He was handcuffed and eventually placed in the back of a patrol car. Sometime later, Loesel waved Deputy Chad Colston over to the patrol car to ask when he could leave. Colston asked Loesel if he could help officers identify the driver. According to Colston, Loesel stated he was not a "snitch" but the person trapped under the truck was the driver. Loesel told another officer, Sergeant Pete Wilson, that the driver was pinned under the truck. When asked if the female was the driver, Loesel stated the driver was not the female but the other person trapped under the truck. Loesel reportedly told another officer, Captain Brian Gardner, that the driver had shorter hair than Gardner, who was balding. He also stated the driver was the husband of the female passenger and the father of her unborn child.
At the hospital, Truesdell told an officer the passengers were seated in the following order: the driver, the female passenger, Truesdell, and another male passenger. Shank, however, maintained Nelson was the driver. He initially told officers Nelson was driving, with Truesdell, Shank, and Loesel sitting in that order. Later, he stated he sat next to Nelson as she drove.
Shank was charged with vehicular homicide as an habitual offender on May 13, 2005. The State amended the charge on August 31, 2005, to add counts of vehicular homicide as an habitual offender (count II) and nonconsensual termination of a human pregnancy (count III). Prior to trial, Shank filed a motion in limine to exclude as hearsay the statements Loesel and Truesdell made shortly after the accident. The district court ruled that the statements qualified as "excited utterances" and would be allowed at trial.
At trial, both Truesdell and Loesel testified Nelson was driving the truck during the chase. Shank's family members testified only Nelson drove the truck and they never saw Shank driving it. Due to the court's ruling on the motion in limine, police officers testified to the statements Truesdell and Loesel made after the accident. The State's accident reconstruction expert testified he determined Shank was the driver. He based his conclusion on bruises Shank sustained that were consistent with hitting the steering wheel and driver's door. The State's expert also determined Nelson was sitting somewhere in the middle of the cab. He found injuries on her knees that were consistent with hitting the sharp edge of an ash tray. Further, DNA evidence taken from the exterior of the driver's side door, the driver's side visor, and from glass found on the seat matched a sample taken from Shank.[1]The defense's accident reconstruction expert, however, testified the State's evidence did not identify where the occupants of ...

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