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State v. Merrett

Supreme Court of Iowa

January 17, 2014

STATE of Iowa, Appellee,
v.
Marshaun Jordan MERRETT, Appellant.

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

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

MANSFIELD, Justice.

This case asks us to decide whether a jury's general verdict and special interrogatory answer were inconsistent and, if so, whether the district court could enter judgment on inconsistent verdicts at the defendant's urging.

Here the jury found the defendant guilty of intimidation with a dangerous weapon with intent based on his involvement in a shooting. At the same time, the jury answered " no" to a special interrogatory that asked whether the defendant had possessed a firearm. If the jury had answered " yes" to the interrogatory, the defendant

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would have been subject to a five-year minimum sentence under Iowa Code section 902.7 (2011). The district court viewed the verdicts as inconsistent and proposed that the matter be resubmitted to the jury. However, the defendant requested the court to accept the verdicts as rendered rather than run the risk of the jury changing its answer to the special interrogatory upon further inquiry. The State joined in the defendant's request, and the district court accepted the verdicts. The defendant then appealed, claiming the district court erred in accepting inconsistent verdicts. The court of appeals reversed and remanded for a new trial on the intimidation charge. We granted both parties' requests for further review.

Upon our review, we find the verdicts were not inconsistent based on how the case was charged to the jury. Accordingly, we affirm the defendant's convictions and sentences.

I. Facts and Procedural History.

At some point late on November 25, 2011, three friends— Janee Jones, Nauriesha Johnson, and Alexia Klueppel— went to a club in Clive, Iowa. They stayed there until the club closed at approximately 1:45 a.m. on November 26. The three women then departed, traveling east on Hickman Road in a rented Buick Enclave driven by Klueppel.

The women first stopped at a QuikTrip located at the intersection of Hickman Road and Martin Luther King, Jr. Parkway in Des Moines. When the QuikTrip turned out to be closed, they drove across the street to a Burger King where a group of people who had been at the club were gathered. A blue Chevrolet Monte Carlo driven by the defendant, Marshaun Merrett, pulled into the parking lot. Merrett was accompanied by Justin " Thirsty" Triplett.

Jones knew Merrett and Triplett to be affiliated with a group known as " C-Block." Jones belonged to a group known as " Infamous." While Johnson and Klueppel denied being affiliated with any group, they knew of the two groups and were friends with or hung around with members of Infamous. Jones indicated that C-Block and Infamous " don't get along." According to Jones, the feud between the two groups had resulted in " [a] lot of fights at the clubs" and she had personally been in a fight with Merrett before.

When Merrett entered the Burger King parking lot, he pulled his vehicle in front of the Buick Enclave and had a verbal altercation with Jones. Jones admitted she made a derogatory statement about C-Block. Klueppel testified that Merrett yelled, " B - - - -, I'm going to kill you," at Jones. At that point, Jones told Klueppel they needed to leave.

By that time, police had arrived at the Burger King after receiving a tip that people were gathered in the parking lot and it appeared a fight was about to break out. The Enclave and the Monte Carlo departed from the Burger King parking lot shortly thereafter.

The two vehicles traveled together in a southbound direction on Martin Luther King, Jr. Parkway. The Enclave was driven by Klueppel, with Jones riding in the front passenger seat and Johnson riding in back. One lane to the right, the Monte Carlo was driven by Merrett, with Triplett riding next to him in the front passenger seat.

As Merrett pulled alongside the passenger side of the Enclave, he rolled down his window in the Monte Carlo. Jones testified that she saw Merrett make a gun-like hand gesture, but did not see a gun at that

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time. She testified Merrett then rolled the window back up and his Monte Carlo got behind the Enclave. As the vehicles continued to move southbound, according to Jones, the Monte Carlo once again came alongside the Enclave on the passenger side, and Merrett again rolled his window down. At this point, gunshots were fired.

Jones testified that Merrett fired the shots. Johnson testified she did not see who fired the shots, but she thought they came from the Monte Carlo, and she heard Jones say Merrett had fired them. Klueppel likewise believed the shots came from the Monte Carlo, although she did not see who fired them. Klueppel recalled hearing several bullets strike the passenger side of the Enclave. All three women testified they feared they were going to be shot.

At this point, Klueppel stopped the Enclave and switched seats with Jones. Jones drove the vehicle initially to her apartment building, and then to another convenience station, where an unrelated fight was going on and police were present. A police officer spoke to Jones and inquired about bullet holes in the Enclave, but she did not report the shooting incident at that time. [1] In fact, no report was made until a week later. Jones explained that she and Klueppel subsequently received letters from the rental car agency about damage to the vehicle. At that point, they decided to report the incident to the police because they were concerned about paying for the repairs.

Merrett was eventually charged with three counts of attempted murder (Jones, Klueppel, and Johnson), see Iowa Code § 707.11, one count of criminal gang participation, see id. §§ 723A.1-.2, one count of intimidation with a dangerous weapon with intent, see id. § 708.6, and one count of operating a motor vehicle while barred, see id. § 321.561. Trial began on June 4, 2012.

Following the presentation of evidence, the jury was instructed on all charges. In addition to receiving instructions on attempted murder for Counts I, II, and III, the jury was also given instructions on the lesser included offenses of assault with intent to inflict serious injury and simple assault. These instructions read as follows:

As to Count [I, II, or III], the State must prove all of the following elements of Assault with Intent to Inflict Serious Injury:
1. On or about the time period between November 25, 2011 and November 26, 2011, 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

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Defendant is not guilty in Count [I, II, or III].

On Count V, intimidation with a dangerous weapon with intent, the jury was told the State had to 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 Janee Jones, Nauriesha Johnson and/or Alexia Klueppel.
2. A firearm is a dangerous weapon, as explained in Instruction No. 34.
3. Janee Jones, Nauriesha Johnson and/or Alexia 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 Janee Jones, Nauriesha Johnson and/or Alexia 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.

Thus, under Count V, the jury was also charged on the lesser included offense of ...


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