from the Iowa District Court for Polk County, Jeanie K.
Gene Shawhan appeals from his conviction for second-degree
C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Tabor and McDonald, JJ.
DANILSON, CHIEF JUDGE.
a jury trial, Richard Gene Shawhan was convicted of
second-degree murder for the death of Jeffrey Butts, who
suffered brain trauma and eventual death after being hit
three times in the head with a blunt instrument. On appeal,
Shawhan contends the trial court abused its discretion in not
allowing him to impeach a witness with a prior incident of
untruthfulness, erred in instructing the jury, and did not
apply the correct standard in ruling on his motion for new
trial. In a supplemental pro se brief, Shawhan asserts
counsel was ineffective in failing to object to additional
instructional errors. Finding no reason to overturn the
conviction, we affirm.
December 21, 2014, Shawhan did not return to the Fort Des
Moines residential correctional facility. At that time, Butts
and Kimberly Goemaat-Clark (Clark) were living together in an
apartment and were allowing Brian Mabrier and Nicole Martin
to stay with them. While on escape status, Shawhan
occasionally stayed with Butts and Clark.
December 26, Butts, Clark, Mabrier, and Martin returned to
the apartment after having all been at
"Junebug's" (the nickname of an acquaintance
who was a mechanic). Mabrier and Martin were in one vehicle.
Butts and Clark were in another, and they had picked up
Shawhan, who called and asked for a ride. Shawhan showered at
the Butts/Clark apartment and was given clothes to wear
belonging to Butts. The five ate dinner together and spent
the rest of the evening "hanging out, " playing
darts, and using methamphetamine. At some point, Thomas Beall
was also present but left. Butts and Clark left for a time.
Shawhan became increasingly paranoid as time passed. He took
Mabrier's dog outside. He reported to Mabrier he was
seeing police officers and dogs in the trees. Shawhan saw a
baseball bat in Martin's vehicle and asked Mabrier if he
could have it for protection. Mabrier gave Shawhan the bat.
about 5:30 a.m. on December 27, Butts and Clark returned to
the apartment. They were on the bed, which was located in the
main room of the apartment. Mabrier and Martin were in the
spare room, and Shawhan was pacing between the two rooms
"back and forth throughout the night, " still
carrying the baseball bat. Clark dozed off. She was awakened
by a loud noise (a "ping" she recognized as the
sound of an aluminum bat) and saw Shawhan holding a bat aloft
and standing over her and Butts. Martin heard Clark
screaming, "Don't do that. Why did you do
that?" Shawhan yelled, "You should have killed me
when you had the chance, motherfucker." Mabrier saw
Shawhan come into the spare room holding the bat and having a
"crazy look on his face." Mabrier jumped out the
demanded that Martin give him a ride. When Martin came out of
the spare room, she saw Butts on the bed, "laying there
with his hands wrapped up over his face and rocking back and
forth . . . . gurgling." She and Shawhan encountered
Mabrier outside on the stairs to the apartment building.
Mabrier tried to convince Martin not to go with Shawhan;
Martin said, "I'm just going to get him out of here
so he don't hurt nobody else." Shawhan said to
Mabrier, "I wasn't even going to hurt you."
Clark then came out onto the balcony of the apartment and
yelled to Mabrier, "Help me, help me. He hit him in the
head with a ball bat. He hit him in the head with the ball
bat." The front security door to the building was
locked, so Mabrier climbed onto the deck and returned to the
apartment as Martin and Shawhan drove away.
and Clark tried to carry Butts out of the apartment to take
him to the hospital. Butts (who was much larger than Mabrier)
was struggling and was on the ground near the bottom of the
steps when an ambulance arrived, having been summoned by
neighbors' calls to 911.
Patrick Hickey was one of the first to respond to the 911
call to the Butts/Clark apartment. Clark told Officer Hickey
she was sitting on the bed and Butts was there on the bed
with her. She stated "Ricky"-she did not know him
by Shawhan-was sitting at the end of the bed in a red chair.
She was not paying attention to either of them when she heard
what she said sounded like two or three pings like somebody
getting hit on the head with a baseball bat. When she turned
around, she saw Butts was bleeding a lot.
told Officer Hickey he was not in the apartment at the time
of the assault. "He said that he had left prior to the
assault with their dog and walked through the living room,
which is [also] a bedroom where he saw both Clark [and] Butts
on the bed and Shawhan sitting in the chair."
meantime, Shawhan was directing Martin to drive to the
apartment of a friend but he could not remember the unit,
then to his sister's house but she was not home, and then
to his girlfriend's house. There, Shawhan's
girlfriend got in the vehicle with Martin and Shawhan, who
was lying on the floor in the back seat of the van. They went
to the gas station because the van was running out of gas.
Martin took money inside to pay for gas, told an attendant
she was being held against her will, and then locked herself
in the bathroom and called 911. When officers arrived at the
gas station and surrounded the van, Shawhan was lying on the
floor and had a baseball bat next to his left hand. He
surrendered without incident.
speech was not coherent when he arrived at the hospital.
Because of the seriousness of his injuries, he was taken to
University of Iowa Hospitals. He sustained a skull fracture,
intracranial bleeding, and facial bone fractures.
Clark and Mabrier gave additional statements to police. While
in the interview room at the police station, Mabrier ripped
off his shirt, which was covered in Butts's blood, and
attempted to hide it in the ceiling. Detective Danny White
confronted Mabrier about his attempt to hide his clothes.
Mabrier stated he did not want to be a "snitch."
During the interview, Mabrier was "sobbing and you could
tell that he was highly upset about what had occurred."
was taken off of life support and died on January 4, 2015.
Shawhan was charged with first-degree murder.
State filed a motion in limine seeking to exclude any
reference to an incident when Officer Hickey had not been
truthful during an internal affairs investigation. After a
hearing, the district court ruled:
[I]t's legitimate for [the defense] to ask if he has ever
had any issues regarding his propensity for truthfulness or
however they want to cast that, you know what the rule says
in terms of what the buzz words are, regarding the assignment
of his job duties.
And by that I mean [the prosecutor] has indicated he's
been a professional in law enforcement for a lot of years. If
he has something in his background related to the assignment
of whatever he was tasked to do as an officer of some kind
for Des Moines PD, I think that's fair game. I do not
think the internal affairs investigation is fair game because
in the Court's view-and I understand why the defense
wants to get at this because, in fact, if there is something
related to what he was assigned to do, he was assigned to do
something here. So for me that's the link between the
subsequent offer of proof, Officer Hickey testified that
about four years prior, a fellow officer had discharged his
firearm inside a building belonging to the police department.
During the resulting internal affairs investigation, Officer
Hickey corroborated the fellow officer's statement that
the other officer had not been responsible for the firearm
discharge. However, after the fellow officer admitted he had
accidentally discharged the weapon, Officer Hickey changed
his own statement. As a consequence of the rule violation,
Officer Hickey was suspended for seventeen days, removed from
the Metro SWAT team and as the team leader of another team,
and "sent back to day patrol."
court made a further ruling:
I think that Officer Hickey can be asked if he ever had any
issues with truthfulness regarding the work that he was
assigned to do in however many positions he's held with
the Des Moines Police Department.
That does not include this internal investigation or delving
into this internal investigation that was at least three or
four years ago for the following reason: His ability to be
truthful or not, if it related to something arising from an
investigation or if it arose from him completing a report
when he was out on the beat and was dispatched somewhere and
he had to take information similar to what his role was here,
if that was the situation, I would agree that that would be
It may-and so now let's step back for a second and talk
about the internal investigation. On some level it may have
some minimal relevance, but the court doesn't think that
whatever relevance it could have, however tangential that
might be, I don't think it-it's relevant enough that
it qualifies to be delved into here. And I think as well that
offering that information could potentially be unfairly
So on that basis, I want to make sure the parties both
understand. And if you don't, now's the time to say
so. You can chat with Officer Hickey. You heard what he would
be prepared to say. You can ask him if he ever had any issues
regarding his assigned duties; in other words, when he was
out there performing whatever task he was assigned to perform
as a cop in whatever capacity he was performing that in,
because my understanding is that he has been an employee of
the Des Moines Police Department for a number of years. So
you're free to ask him, and whatever he says is what he
Mabrier, and Martin were among the witnesses who testified at
trial. Another of the witnesses, Frank Nucaro, acknowledged
that he had known Shawhan as a kid growing up and that they
both ended up in the Polk County Jail in late December 2014.
Nucaro stated Shawhan told him Shawhan had gotten into a
verbal altercation with Butts and that he showed Butts that
he "wasn't a tough guy" by hitting Butts with a
baseball bat. Nucaro also stated Shawhan asked him to make
sure the witnesses "didn't make it" and were
"taken care of" if Nucaro was successful in bonding
out. Nucaro was eventually transferred to the state prison at
Oakdale and contacted authorities with the information
Shawhan had shared with him. Nucaro stated he did so because
he was concerned for the welfare of Martin, who he knew was
State played a number of recorded phone conversations Shawhan
had while at the Polk County Jail. In some of the calls,
Shawhan refers to wanting "Mike J." to talk ...