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State v. Shawhan

Court of Appeals of Iowa

December 20, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
RICHARD GENE SHAWHAN, Defendant-Appellant.

         Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.

         Richard Gene Shawhan appeals from his conviction for second-degree murder.

          Mark C. Smith, State Appellate Defender, and Theresa R. Wilson, Assistant Appellate Defender, for appellant.

          Thomas 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.

         Following 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.

         I. Background Facts.

         On 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.

         On 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.

         At 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 second-story window.

         Shawhan 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.

         Mabrier 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.

         Officer 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.

         Marbier 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."

         In the 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.

         Butts's 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.

         Both 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."

         Butts was taken off of life support and died on January 4, 2015. Shawhan was charged with first-degree murder.

         The 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 two.

         In a 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."

         The 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 fair game.
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 prejudicial.
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 says.

         Clark, 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 pregnant.

         The 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 ...


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