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State v. Russell

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.

          Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, and John P. Sarcone, County Attorney, for appellee.

          APPEL, Justice.

         This 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 inadmissible hearsay.

         We 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.

         I. Facts and Background Proceedings.

         A. Overview.

         Kent 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.

         The 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 second-degree murder.

         B. Testimony of T.T. and Youngblut.

         1. Introduction.

         This 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.

         T.T. 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.

         The 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.

         2. Pretrial motions in limine.

         Prior 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).

         The 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 investigators.

         3. Initial hearing regarding appointment of counsel.

         The 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.

         While 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.

         4. Initial trial testimony of T.T. and appointment of counsel.

         The 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.

         At this 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.

         At this 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 ground.

         T.T. 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 about."

         At this 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.

         5. Further hearing outside the presence of the jury regarding T.T.'s testimony.

         The 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.

         The 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."

         The 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.

         The 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 remember."

         The 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? ...

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