review from the Iowa Court of Appeals.
from the Iowa District Court for Polk County, Douglas F.
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
C. Smith, State Appellate Defender, and Nan Jennisch,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, Darrel Mullins, Assistant
Attorney General, and John P. Sarcone, County Attorney, for
case is a companion to State v. Shorter, __ N.W.2d__
(Iowa 2017). On appeal, Yarvon Russell asserted there was
insufficient evidence to support his conviction based on
principle, aiding and abetting, or joint criminal conduct
theories in connection with the death of Richard
Daughenbaugh. Russell argued that if there was insufficient
evidence on joint criminal conduct, but sufficient evidence
on the other two theories, his conviction should be reversed.
See State v. Heemstra, 721 N.W.2d 549, 558 (Iowa
2006). Russell additionally contended that his attorney
provided ineffective assistance of counsel for failing to
object to the identification testimony of Monica Perkins as
going beyond the scope of the minutes of testimony. Finally,
Russell asserted that the district court erred in admitting
prior inconsistent testimony of a minor witness, T.T., who on
direct examination testified that she did not remember the
events or her prior inconsistent statements. Russell
similarly asserted that testimony from a police detective
that the minor witness identified Russell in an unsworn prior
statement as "kicking" Daughenbaugh was
transferred the case to the court of appeals. The court of
appeals reversed Russell's conviction on the ground that
there was insufficient evidence to support a joint criminal
conduct instruction. We granted further review. For the
reasons expressed below, we vacate the judgment of the court
of appeals and affirm Russell's conviction.
Facts and Background Proceedings.
Tyler, Russell, James Shorter, and Leprese Williams were
charged with first-degree murder in connection with the death
of Richard Daughenbaugh. Tyler was tried separately from
Russell, Shorter, and Williams. At the trial of the three
codefendants, a jury convicted Russell and Shorter of
second-degree murder. Williams, however, was acquitted.
evidence introduced at the trial of Russell, Shorter, and
Williams was described in Shorter, __ N.W.2d__, and
need not generally be repeated here. With respect to the
identification of Russell as a perpetrator of the crime,
B.B., a seventeen year old, placed Russell in the crowd that
assembled around Daughenbaugh. Monica Perkins testified that
Russell "stomped" Daughenbaugh. L.S., a fifteen
year old at the time of the murder, however, did not see
Russell participating in the attack. The jury was instructed
on theories of liability as a principle, liability as an
aider and abettor, and liability through joint criminal
conduct. The jury returned a general verdict of guilty of
Testimony of T.T. and Youngblut.
case differs from Shorter because Russell challenges
the admission of testimony at trial from T.T. and Detective
Bradley Youngblut. T.T., a juvenile, was at the scene of
Daughenbaugh's attack on August 24-25, 2013. On August
27, T.T. was interviewed by police, including Youngblut.
During the interview, T.T. identified Russell as a person who
was "kicking" Daughenbaugh. She later testified as
a witness at Tyler's trial.
was deposed in connection with the trial of Russell and
Shorter. During her deposition, T.T. repeatedly stated that
she did not remember who knocked Daughenbaugh to the ground
or who kicked him when he was on the ground. She acknowledged
that she was interviewed by the police after the incident but
did not remember what she said to them.
State called T.T. as a witness at the codefendants'
trial. At trial, however, T.T. repeatedly stated that she did
not remember events surrounding the attack or what she told
police on August 27. Because of her "I don't
remember" testimony at trial, the State sought to
introduce evidence of T.T.'s prior statements to the
police through impeachment of T.T. and through the testimony
of Youngblut. The district court allowed the impeachment and
testimony. Russell challenges the admission of T.T.'s
out-of-court statements as hearsay.
Pretrial motions in limine.
to trial, Russell filed two motions in limine. He argued that
"[s]tatements made to law enforcement officers were made
outside court" and were hearsay. He further asserted
that when a witness's prior out-of-court statements were
not under oath and the witness could not remember the events
or what he or she said to law enforcement officers, the State
is precluded from using the substantive content of the
statements under State v. Gilmore, 259 N.W.2d 846,
857 (Iowa 1977).
State responded by arguing that under State v.
Turecek, prior inconsistent statements could be used to
impeach a witness when the witness was not called for the
primary purpose of gaining admission of hearsay. 456 N.W.2d
219, 225 (Iowa 1990). The State further argued that prior
inconsistent statements might be used to refresh a
witness's recollection under Iowa Rule of Evidence
5.803(5) (2014). Finally, the State noted that to the extent
the prior statements were made under oath, such statements
were admissible under Iowa Rule of Evidence
5.804(a)(3). Prior to trial, the district court
reserved ruling on the motions in limine related to the
substantive use of hearsay statements made to police
Initial hearing regarding appointment of counsel.
State elected to call T.T. as a witness at Russell's
trial. Prior to her testimony in the Russell trial, the
prosecution advised the court that T.T. or her relatives
indicated T.T. wanted a lawyer. As a result, the district
court held a hearing outside the presence of the jury.
T.T. denied seeking a lawyer, T.T.'s mother told the
court that T.T. was "kind of confused so I suggested
that she get a lawyer." The district court asked T.T.
whether she understood that she would be questioned by the
lawyers and asked to give testimony under oath. T.T. said she
understood. Under the circumstances, the district court
declined to appoint counsel for T.T.
Initial trial testimony of T.T. and appointment of
State called T.T. as a witness. T.T. remembered arriving at
the scene after dark and that she arrived with her cousin and
friends. She stated there were "a lot" of people
present. She stated Tyler and Russell were there and Shorter
was "down by the river." T.T. also made courtroom
identifications of Russell and Shorter.
point, the prosecution turned to examining T.T. specifically
about the attack on Daughenbaugh. T.T. testified that she
remembered seeing Daughenbaugh arrive. She also recalled that
Daughenbaugh walked by her cousin and bumped into her and
that Daughenbaugh ended up on the ground.
point, T.T. testified that she did not remember what happened
after Daughenbaugh was on the ground. She repeatedly
testified she did not remember how Daughenbaugh got to the
ground and did not remember what happened to him on the
further testified that she did not remember talking to police
after the attack. When the prosecutor asked whether T.T. had
testified before under oath in the Tyler case, she answered,
"I guess." When pressed again whether she had
testified under oath before about the attack on Daughenbaugh,
T.T. declared, "I don't know what you are talking
point, the State asked for the jury to be excused and once
outside the presence of the jury, recommended that a lawyer
be provided for T.T. According to the State, T.T. might have
perjured herself already, but in any event, T.T. should be
allowed to "consult with a lawyer before we go any
further." The district court agreed, counsel was
appointed, and court adjourned for the remainder of the day.
Further hearing outside the presence of the jury
regarding T.T.'s testimony.
following Monday morning, T.T., though still under subpoena,
did not appear. The district court issued a bench warrant for
her arrest and continued the trial until that afternoon. When
T.T. appeared in the courtroom, the district court held a
hearing outside the presence of the jury.
State asked T.T. a series of questions about her memory of
the events of August 24-25. When asked by the State if she
saw something happen to Daughenbaugh when he was on the
ground, whether she saw somebody punch him, whether she
testified about the matter previously under oath, and whether
she gave a statement to police, T.T. repeatedly declared,
"I don't remember."
State next confronted her with a page from the transcript of
Tyler's trial where T.T. testified that "somebody
punched" Daughenbaugh. T.T. declared that the transcript
did not refresh her recollection and repeated that she did
not remember her testimony in the Tyler trial.
State further asked T.T. about statements made to detectives
at the Des Moines police station on August 27, a few days
after Daughenbaugh's death. She stated she remembers
talking to detectives, but did not remember looking at a
picture on Facebook or identifying people in the picture for
police. She was able to provide in-court identifications of
her ex-boyfriend, another person, and Russell from the
Facebook photograph. When asked if she had told detectives on
August 27 that Russell was kicking the man in the parking
lot, T.T. repeatedly stated, "I don't
State then confronted T.T. with passages from the written
record of her August 27 interview:
Q: And Detective Youngblut says, "During our previous
interview before you ever looked at the Facebook or Instagram
or Twitter or any of that stuff, you described a yellow
shirt, red hat. Is that the same outfit you saw [on] the
person that you saw kick the victim?"
And what was your answer? You said, "Yes, he kicked him,
" right? ...