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State v. Davisson

Court of Appeals of Iowa

December 21, 2016

STATE OF IOWA, Plaintiff-Appellee,
BRADLEY DAVISSON, Defendant-Appellant.

         Appeal from the Iowa District Court for Polk County, Richard G. Blane II (trial), Judge, and Carol S. Egly (motion to dismiss), District Associate Judge.

         A defendant appeals his conviction challenging the court's denial of his motion to dismiss and his objection based on prosecutorial misconduct. AFFIRMED.

          Jamie L. Hunter of Dickey & Campbell Law Firm, P.L.C., Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Aaron Rogers, Assistant Attorney General, for appellee.

          Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ. Blane, S.J., takes no part.

          VOGEL, Presiding Judge.

         Bradley Davisson appeals his conviction for operating a motor vehicle without owner's consent, in violation of Iowa Code section 714.7 (2013). Davisson claims the district court erred in denying his motion to dismiss on speedy indictment grounds and in overruling his objection to a portion of the State's closing argument, which he asserts shifted the burden of proof onto him. Because the State dismissed the original complaint in furtherance of justice, the speedy indictment requirements were not violated. Further, the State's comment during closing argument regarding a lack of exculpatory evidence did not shift the burden onto Davisson. We affirm.

         I. Background Facts and Proceedings

         On April 7, 2015, a truck was reported stolen in Madrid. On April 9, two Des Moines Police Department officers located a truck that matched the description of the one reported stolen and had an identical license plate number. The officers observed the driver, Davisson, exit the truck and enter a convenience store. The officers entered the store and arrested Davisson. Davisson told them he had borrowed the truck from a friend named "Nate."

         On April 9, the State charged Davisson with theft in the first degree by preliminary complaint. On May 22, shortly before the speedy indictment period was set to run, the State file a notice of intent not to prosecute, which requested the theft charge be dismissed without prejudice due to "a lack of evidence to continue prosecution." The district court granted the State's motion, citing the reasons in the State's motion and Iowa Rule of Criminal Procedure 2.33(1). On June 22, the State by trial information charged Davisson with operating a vehicle without owner's consent. On July 17, Davisson filed a pro se motion to dismiss, which was amended through counsel on July 23. Davisson's motion claimed the charge fell outside the speedy indictment period allotted by rule 2.33(2)(a). The State did not file a written resistance; however, the district court allowed the State to resist orally at the hearing on the motion to dismiss and gave Davisson an opportunity to respond in writing after the hearing. The district court found the prior dismissal was in the interest of justice and denied Davisson's motion to dismiss.

         Davisson's case proceeded to a jury trial. Davisson did not testify. In the rebuttal portion of its closing argument, the State noted that, although Davisson had told the arresting officers he borrowed the car from someone named Nate, he did not call anyone by that name to testify at trial. The district court overruled Davisson's objection to this statement. On September 17, the jury convicted Davisson. Davisson appeals.

         II. Standard of Review

         We review motions to dismiss a trial information for errors at law. State v. Petersen, 678 N.W.2d 611, 613 (Iowa 2004). We review rulings on evidentiary objections for an abuse of discretion. State v. Sallis, 574 N.W.2d 15, 16 (Iowa 1998).

         III. Motion to Dismiss

         Davisson claims the district court erred in denying his motion to dismiss the State's trial information. Specifically, he argues the State subverted speedy indictment rules because dismissal of the theft charge was not "in furtherance of justice" and he was recharged with the same offense based on the same incident. The State argues the dismissal was appropriate because it was based on a lack of evidence to prosecute and the State retained the opportunity to gather more evidence and refile.

         Rule 2.33(1) provides:

The court, upon its own motion or the application of the prosecuting attorney, in the furtherance of justice, may order the dismissal of any pending criminal prosecution, the reasons therefor being stated in the order and entered of record, and no such prosecution shall be discontinued or abandoned in any other manner. Such a dismissal is a bar to another prosecution for the same offense if it is a simple or serious misdemeanor; but it is not a bar if the offense charged be a felony or an aggravated misdemeanor.

         In explaining what grounds qualify for dismissal under rule 2.33(1), our supreme court has "said that 'furtherance of justice' under rule [2.33(1)] includes 'facilitating the State in gathering evidence, procuring witnesses, or plea bargaining.'" State v. Fisher, 351 N.W.2d 798, 801 (Iowa 1984) (citation omitted). The State requested dismissal based on a lack of evidence, and the district court cited that reason in granting the motion. A lack of evidence and the opportunity for further evidence-gathering is a factor our supreme court has identified as proper grounds for dismissal in furtherance of justice. See id. Accordingly, we find the dismissal of the theft charge without prejudice was appropriate under rule 2.33(1). Because theft in the first degree is a felony, [1] the State was not barred from refiling charges against Davisson at a later date. See Iowa R. Crim. P. 2.33(1). Therefore, we affirm the district court's denial of Davisson's motion to dismiss.[2]

         IV. Evidentiary Objection

         Davisson also asserts the district court erred in overruling his objection to a portion of the State's closing argument. Davisson claims the State committed prosecutorial misconduct by improperly commenting on his decision not to present evidence to support his defense, thereby shifting the burden of proof onto him.[3] The State contends there was no misconduct.

         In order to receive a new trial, a defendant must show both misconduct on the part of the prosecutor and prejudice resulted. State v. Bishop, 387 N.W.2d 554, 562 (Iowa 1986). While our supreme court has expressed concern about prosecution comments relating to a defendant's failure to produce evidence, such comments are generally allowed as long as they do not focus on a defendant's decision not to testify. See id. at 563 ("A prosecutor may properly comment upon the defendant's failure to present exculpatory evidence, so long as it is not phrased to call attention to the defendant's own failure to testify."). Additionally, prosecution comments that are aimed at exposing a lack of evidence to support a defendant's general theory or a particular proposition are not improper. State v. Hanes, 790 N.W.2d 545, 556-57 (Iowa 2010) (citing United States v. Emmert, 9 F.3d 699, 702-03 (8th Cir.1993) and State v. Swartz, 601 N.W.2d 348, 353 (Iowa 1999)).

         Here, Davisson takes issue with prosecutor's statement during closing arguments referring to his claim that he borrowed the truck from a person named Nate:

We have subpoena power and we bring people in, people that exist, to testify about this. Defense counsel also has an opportunity, if they bring forth an idea like mistake of fact, to bring people in, to subpoena people, to subpoena people like Nate. . . . It's ...

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