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State v. Shivers

Court of Appeals of Iowa

February 21, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
LEON KURTIS SHIVERS, Defendant-Appellant.

         Appeal from the Iowa District Court for Webster County, Kurt L. Wilke, Judge.

         The defendant appeals from his conviction for vehicular homicide by operating while intoxicated.

          Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant Attorney General, for appellee.

          Considered by Vogel, P.J., and Potterfield and Mullins, JJ.

          POTTERFIELD, Judge.

         Leon Shivers appeals from his conviction for vehicular homicide by operating while intoxicated. He maintains the trial court erred when it denied his request to instruct the jury on spoliation. He also claims trial counsel provided ineffective assistance. Specifically, he maintains trial counsel (1) should have objected to certain jury instructions and proposed different, updated instructions based on the Restatement (Third) of Torts; (2) failed to object to inadmissible hearsay; and (3) failed to object to an expert's testimony about the ultimate fact at issue for the jury to determine-whether the car accident was the cause of the decedent's death. He argues he was prejudiced by each of counsel's alleged errors individually and cumulatively.

         I. Background Facts and Proceedings.

         The undisputed facts establish that John McCartney was driving to the grocery store on the evening of April 4, 2016, when his vehicle was struck in the intersection of a four-way stop by a Dodge Journey. At the time of impact, the Dodge Journey was traveling at a speed of fifty-two miles per hour. In the seconds leading up to impact, the Dodge Journey was traveling in excess of seventy-two miles per hour; the speed limit on the portion of road was twenty-five miles per hour. The Dodge Journey was owned by Shivers's girlfriend and her mother.

         McCartney suffered subdural brain bleeds on both the right and left side of his brain, and he was airlifted to a Des Moines hospital for brain surgery. In the days following surgery, McCartney regained consciousness one time to the extent that he was able to squeeze the hands of family members when prompted. McCartney was otherwise unconscious and, at some point, he stopped responding to pain. The family decided to place McCartney in hospice care, and he died on April 22.

         Shivers was apprehended at the scene after two witnesses stated they saw him exit the driver's side of the Dodge Journey. He denied being the driver. His blood alcohol content-taken approximately four hours after the crash-tested at .169. In May, the State charged Shivers with vehicular homicide by operating while intoxicated.

         At the November 2016 trial, Shivers disputed he was the driver of the Dodge Journey and that the crash was the ultimate cause of McCartney's death, as his death occurred approximately eighteen days after the incident and only after the family chose to forgo life-sustaining medical treatment.

         The jury convicted Shivers as charged, and he was sentenced to an indeterminate prison ...


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