from the Iowa District Court for Webster County, Kurt L.
defendant appeals from his conviction for vehicular homicide
by operating while intoxicated.
C. Smith, State Appellate Defender, and Martha J. Lucey,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Thomas J. Ogden, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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
Background Facts and Proceedings.
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.
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.
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.
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.
jury convicted Shivers as charged, and he was sentenced to an
indeterminate prison ...