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State v. Shorter

Supreme Court of Iowa

April 14, 2017

STATE OF IOWA, Appellee,

         On review from the Iowa Court of Appeals.

         Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, Judge.

         The State seeks further review after the court of appeals reversed the defendant's conviction based on one of three alternative theories of guilt lacking substantial evidence. DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

          Jennifer J. Bonzer of Johnson & Bonzer, P.L.C., Fort Dodge, for appellant.

          Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant Attorney General, John P. Sarcone, County Attorney, and Daniel Voogt and Stephanie Cox, Assistant County Attorneys, for appellee.

          APPEL, Justice.

         Richard Daughenbaugh died after he was assaulted by a group of people on the banks of the Des Moines River in Des Moines. Four people-Kent Tyler, James Shorter, Yarvon Russell, and Leprese Williams-were originally charged with murder in connection with Daughenbaugh's death. Tyler was tried separately from the others and was convicted of second-degree murder for his role in punching Daughenbaugh in the face prior to the group assault which caused Daughenbaugh's death.

         In State v. Tyler, we held the evidence in Tyler's case did not support the trial court's instruction on joint criminal conduct. 873 N.W.2d 741, 753 (Iowa 2016). Because we could not determine whether the jury convicted him under the tainted instruction or under the legally supported theory that he acted as a principal or aider and abettor, we reversed the conviction and remanded the case to the district court. Id. at 753-54.

         In this case, as in Tyler, a jury convicted Shorter of second-degree murder. On appeal, Shorter claimed that there was insufficient evidence to support the jury's verdict under any of the State's theories. Shorter also claimed that if there was insufficient evidence on the joint criminal conduct theory but sufficient evidence as a principal or aider and abettor, the conviction should be reversed under Tyler, 873 N.W.2d 741. Shorter additionally claimed that his counsel provided ineffective assistance by failing to object to the testimony of a witness that identified Shorter when the minutes of testimony did not state that she would make such an identification. Shorter further asserted that once this tainted evidence was admitted, his counsel should have moved for a mistrial. Shorter also claimed that the district court erred when it and counsel discussed how to respond to questions posed by the jury when Shorter was not present. Finally, Shorter claimed that his trial counsel gave ineffective assistance for failure to request a stock jury instruction on eyewitness identification.

         The court of appeals reversed Shorter's conviction. Relying on Tyler, the court of appeals concluded that although there was sufficient evidence to support the conviction on the ground that Shorter was a principal in the murder or aided and abetted the murder, there was insufficient evidence to support the joint criminal conduct instruction. See 873 N.W.2d at 753.

         We granted further review. For the reasons expressed below, we vacate the judgment of the court of appeals and affirm Shorter's conviction.

         I. Factual and Procedural Background.

         A. Evidence at Trial.

         The State offered evidence at Shorter's trial which showed that on the evening of August 24, 2013, a group of teenagers and young adults began drinking and partying in a parking lot at the intersection of Second and Center Street near the Wells Fargo Arena and the Des Moines River. Witnesses estimated the size of the group was between thirty to fifty people.

         Daughenbaugh arrived at the location and parked in the parking lot. He appeared drunk when he arrived. He approached the group and began participating in drinking and dancing.

         A short time after Daughenbaugh arrived, Raymond Shorter, a cousin of the defendant here, testified that Tyler struck Daughenbaugh, declaring, "Don't touch me" or "Don't fucking touch me." Daughenbaugh fell to the ground. At the time of the assault, Monica Perkins was in a parked car in the vicinity. Perkins testified that after Daughenbaugh fell to the ground, a group assembled around Daughenbaugh and jumped and stomped on his face. Perkins exited her vehicle and attempted to protect Daughenbaugh by lying across his body.

         When the group appeared to be about to attack Perkins, her boyfriend, Isaiah Berry, attempted to intervene. He was assaulted by the group and suffered minor injuries. While the group was assaulting Berry, Perkins was able to get off Daughenbaugh's body and call 911. Two young women wrestled the phone from Perkins and threw it toward the river. About two or three minutes after Perkins's 911 phone call, Des Moines police arrived at the scene.

         Perkins promptly took the police to Daughenbaugh. He moved slightly but did not answer questions. Paramedics soon arrived and Daughenbaugh was taken to a Des Moines hospital. Daughenbaugh died on the morning of August 25. At trial, the medical examiner testified that Daughenbaugh had multiple blunt force injuries to his head and torso. The medical examiner testified the cause of death was tears to the mesenteric artery-the artery that supplies blood to the large and small intestines-which caused internal bleeding resulting in death.

         At trial, the fighting issue was whether Shorter was involved in the assault. The State sought to prove Shorter was one of the participants in the assault that led to Daughenbaugh's death, while the defense, in addition to attacking the State's proof, sought to establish Shorter was in the vicinity but not among the people who gathered around Daughenbaugh.

         The State called Perkins to support its case. Perkins was questioned at length about whether she could identify who was involved in the assault on Daughenbaugh. Perkins testified that she remembered identifying one person from an array of photos on the morning of August 25, but could not provide a description of the person she identified. When asked by the prosecutor if she could now identify the person she picked in the earlier photo lineup, she stated that she did not remember. When pressed by the prosecutor, however, Perkins testified that Shorter was one of the persons she saw stomp on Daughenbaugh. On cross-examination, Perkins admitted that in an earlier deposition, she was unable to identify any of the defendants as having been involved in the assault on Daughenbaugh.

         B.B., who was seventeen in 2013, testified she saw Shorter in the crowd that formed around Daughenbaugh. B.B. testified that she left when the crowd formed. B.B. further testified Shorter contacted her shortly after the night of the murder and asked B.B. to tell the police that Shorter had been with B.B. at a pedestrian bridge some distance away from the site of the assault on Daughenbaugh. On cross-examination, B.B. admitted that she had given inconsistent answers in an earlier deposition and that she had been drinking vodka continuously for about three or four hours prior to the murder.

         L.S., who was fifteen at the time of the murder, testified she saw Shorter kick Daughenbaugh. She testified that after the assault on Daughenbaugh began, she left the scene. Like B.B., L.S. too had been drinking on the evening of the assault and was impeached by the defense regarding inconsistent statements she made to the police and in a prior deposition.

         T.T., another minor witness, claimed at trial to not remember many of the events on the night of the murder. She did, however, testify Shorter was not involved in the assault on Daughenbaugh.

         Detective Timothy Peak testified as a rebuttal witness for the State. Peak testified that after police arrived at the scene, Shorter told him that he had gone up to Daughenbaugh and kicked him while he was on the ground to check to see if Daughenbaugh was okay.

         The defense offered evidence that Shorter was not a participant in the assault. Berry testified that he knew Shorter and that Shorter was not in the crowd surrounding Daughenbaugh. Berry further testified that he was positive that Shorter was not one of the people who assaulted Berry after his girlfriend had tried to intervene on Daughenbaugh's behalf.

         Raymond Shorter also testified at trial. He stated Shorter was near the pedestrian bridge at the time the assault began and was not involved in it. Similarly, Jontay Williams testified that Shorter was not involved and that when the assault broke out, he was talking to a girl down the hill near the water. Williams testified that when the fight broke out, he called for Shorter and Russell and they immediately left in his car. Finally, Nakeba Blair-a friend of Shorter and Russell-testified they were not involved in the fight.

         B. Jury Instructions and Verdict.

         The district court instructed the jury on first- and second-degree murder. On second-degree murder, the jury was instructed that the defendant could be found guilty if the jury found "the defendant, individually or through joint criminal conduct or through aiding and abetting another, assaulted Richard Daughenbaugh, " Daughenbaugh died as a result of the assault, and "[t]he defendant, individually or through joint criminal conduct or someone he aided and abetted, acted with malice aforethought."

         On joint criminal conduct, the jury was instructed that "[w]hen two or more persons act together and knowingly commit a crime, each is responsible for the other's acts done in furtherance of the commission of the crime." Among the elements that the State had to prove in the case to show joint criminal conduct, the State had to show that "[w]hile furthering the crime of assault, the other person or persons committed the different crime of murder."

         The jury returned a general verdict finding Shorter guilty of second-degree murder. The district court denied Shorter's motion for a new trial and entered judgment. Shorter appealed.

         C. Issues Presented.

         On appeal, Shorter claims the evidence at trial was insufficient to support his conviction as a principal, an aider and abettor, or under a joint criminal conduct theory and the submission of these theories to the jury was erroneous. Shorter also claims trial counsel provided ineffective assistance for failing to object and request a mistrial when Perkins testified that she saw Shorter stomping on Daughenbaugh when the minutes of testimony did not state that Perkins would make an identification. Shorter further claims he is entitled to a new trial because the district court and counsel discussed how to respond to questions posed by the jury when Shorter was not present. Finally, Shorter asserts his trial counsel gave ineffective assistance by failing to request a stock jury instruction on eyewitness identification.

         II. Challenge to Verdict Based on Sufficiency of the Evidence.

         A. Standard of Review.

         Challenges to sufficiency of the evidence are reviewed for correction of errors at law. State v. Hearn, 797 N.W.2d 577, 579 (Iowa 2011). We will affirm a trial court's denial of a motion for judgment of acquittal if the record contains substantial evidence supporting the defendant's conviction. State v. McCullah, 787 N.W.2d 90, 93 (Iowa 2010).

         On a motion for a new trial, the district court uses a weight-of-the-evidence test. State v. Nitcher, 720 N.W.2d 547, 559 (Iowa 2006); State v. Reeves, 670 N.W.2d 199, 202 (Iowa 2003). This test is more searching than the sufficiency-of-the-evidence test, involves questions of credibility, and requires the district court to determine whether more credible evidence supports one side or the other. State v. Ary, 877 N.W.2d 686, 706 (Iowa 2016); Nitcher, 720 N.W.2d at 559. We have cautioned trial courts, however, "to exercise this discretion carefully and sparingly" because of the deference owed to the jury's credibility determinations. State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). We review the trial court's ruling on a motion for a new trial for abuse of discretion. Nitcher, 720 N.W.2d at 559; Reeves, 670 N.W.2d at 202.

         B. Positions of the Parties.

         1. Sufficiency of the evidence as principal.

         Shorter first challenges the sufficiency of the evidence as a principal. Shorter begins by attacking the eyewitness testimony of Perkins and L.S. He directs our attention to State v. Henderson, 27 A.3d 872 (N.J. 2011). In Henderson, the New Jersey Supreme Court canvassed the evolving scientific literature related to eyewitness testimony that raised questions about its reliability. Id. at 896-910. Because of the reliability issues, the New Jersey Supreme Court imposed limitations on the admission of eyewitness testimony in New Jersey courts under the due process clause of the New Jersey Constitution. Id. at 928.

         Turning to the facts of this case, Shorter notes that Perkins was unable to identify Shorter as one of the attackers at her pretrial deposition. With respect to L.S., Shorter emphasizes that she admitted she had been drinking vodka for three or four hours and was very intoxicated at the time of the attack. In contrast, Shorter notes that Berry, Raymond Shorter, Blair, and T.T. all testified that Shorter was not involved in the assault on Daughenbaugh.

         Further, Shorter asserts there is no evidence that he directly contributed to the death of Daughenbaugh. Shorter notes that the coroner testified that Daughenbaugh died as a result of internal bleeding to the abdominal cavity caused by tears to the mesentery. Shorter, however, points out that Perkins testified Shorter stomped on Daughenbaugh's head. The coroner testified that Daughenbaugh suffered head injuries before the abdominal injuries and that the injuries to the head did not directly contribute to Daughenbaugh's death. There is no evidence, according to Shorter, that he kicked Daughenbaugh in the abdomen. After Daughenbaugh fell to the ground, about fifteen people started to kick and stomp him. There was no evidence, however, that Shorter's kick incapacitated him or led to his death.

         The State counters that under Iowa Code section 703.1 (2013), "All persons concerned in the commission of a public offense, whether they directly commit the act constituting the offense or aid and abet its commission, shall be charged, tried and punished as principals." Thus, according to the State, there is no difference between liability as a principal and liability as an aider or abettor. See State v. Black, 282 N.W.2d 733, 735 (Iowa 1979).

         On the question of causation, the State asserts the convictions may be sustained on a theory of aggregate causation. In support of its argument, the State cites Paroline v. United States, 572 U.S., 134 S.Ct. 1710 (2014). In Paroline, the Supreme Court noted "it would be anomalous to turn away a person harmed by the combined acts of many wrongdoers simply because none of those wrongdoers alone caused the harm." Id. at__, 134 S.Ct. at 1724. Thus, according to the State, if the evidence is sufficient to show that Shorter took part in the assault, the State does not have to prove which kick delivered the fatal blow.

         With respect to identity, the State agrees that it has the burden of establishing that Shorter participated in the assault. The State notes that Perkins identified Shorter as an assailant in a pretrial photo lineup as well as at trial. Further, Shorter's attempt to persuade B.B. to concoct a story establishing an alibi and his admission to Detective Peak that he kicked Daughenbaugh, if only to see if he was okay, provided substantial evidence that Shorter was a participant in the assault. The fact that Shorter admitted to Detective Peak that he was in the assault area contradicted the testimony of other witnesses who claimed that Shorter was not in the area.

         2. Sufficiency of the evidence on aiding and abetting.

         On the alternative theory of aiding and abetting, Shorter emphasizes that mere nearness to, or presence, at the scene of the crime, without more, is not aiding and abetting. See State v. Allen, 633 N.W.2d 752, 754-55 (Iowa 2001). Shorter argues that there is simply no evidence that he advised or encouraged anyone to assault Daughenbaugh or cheered the attackers on. Shorter claims he was merely present at the scene and that is insufficient to support a second-degree murder conviction on an aiding and abetting theory.

         The State responds that the evidence goes well beyond establishing Shorter's mere presence at the crime scene. Perkins and L.S. testified that Shorter participated in kicking Daughenbaugh. A reasonable jury could believe that Shorter's telling police that he kicked Daughenbaugh "to see if he was okay" was simply an effort to deflect culpability for the crime and was absurd on its face. Once the State established that Shorter participated in the assault, the elements of aiding and abetting were established.

         3. Sufficiency of the evidence on joint criminal conduct.

         On the theory of joint criminal conduct, Shorter asserts there was no showing that he was acting in concert with others to cause the death of Daughenbaugh. Further, Shorter asserts there were not two crimes- instead, everyone was assaulting Daughenbaugh at the same time. As a result, Shorter argues the submission of the joint criminal conduct instruction was erroneous.

         Shorter asserts the case is similar to State v. Smith, 739 N.W.2d 289 (Iowa 2007). In Smith, we emphasized the need for two separate crimes to support a joint criminal conduct instruction. Id. at 294. The defendant must act in concert with another for the first crime, and a different crime must then be committed by another participant in furtherance of the original offense. Id.

         The State asserts that joint criminal conduct does not require an explicit agreement, but only that the participants acted together. Further, the State suggests each kick or stomp inflicted on Daughenbaugh constitutes a separate assault. See State v. Hohle, 510 N.W.2d 847, 849 (Iowa 1994). The State argues that there were, in fact, two crimes-the crime of assault and the crime of murder. According to the State, the fact that Daughenbaugh's death was reasonably foreseeable from the group assault is sufficient to satisfy the legal requirement that the murder be "in furtherance" of the conspiracy. See State v. Satern, 516 N.W.2d 839, 844 (Iowa 1994).

         4. Impact of unsupported instruction on ...

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