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State v. Toney

Court of Appeals of Iowa

June 6, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
REVELL NAVAS'JA TONEY, Defendant-Appellant.

          Appeal from the Iowa District Court for Cerro Gordo County, Colleen D. Weiland, Judge.

         Revell Toney appeals his convictions of attempt to commit murder and possession of a firearm by a felon.

          Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney General, for appellee.

          Considered by Vogel, P.J., and Doyle and Bower, JJ.

          VOGEL, PRESIDING JUDGE

         Revell Toney appeals his convictions of attempt to commit murder and possession of a firearm by a felon. He asserts the district court abused its discretion in excluding his witness and his trial counsel was ineffective for failing to object to the prosecutor's improper statements. Because Toney did not file the notice of an additional witness until after the State had rested and the proffered testimony lacked relevance, the district court did not abuse its discretion in excluding the witness, and Toney has not shown the prosecutor committed misconduct resulting in prejudice. Therefore, we affirm.

         I. Background Facts and Proceedings

         Around 11:00 p.m. on the evening of October 22, 2016, Revell Toney went to a party at an acquaintance's home. He brought a drink to the party called "dirty Sprite, " which he testified he made by dissolving Jolly Ranchers candies and eight to ten Xanax pills[1]-totaling eight to ten milligrams-in a two-liter bottle of Sprite. He drank the dirty Sprite from a paper coffee cup that he refilled throughout the night. He also drank a couple of shots of alcohol at the party. Shortly before 2:00 a.m. on October 23, Toney and a friend decided to leave the party and go to a bar located in Mason City. Toney testified the Xanax took effect around the time he arrived at the bar, and he does not remember much about the next few hours.

         Also on the evening of October 22, Stephen Williams was celebrating his birthday. He and his friends went to the same bar as Toney around 9:00 or 10:00 p.m. that night. They spent the next few hours socializing and drinking a pitcher of beer.

         Around 2:00 a.m. on October 23, Toney and Williams encountered each other outside the bar. They did not know each other well, and they had no disagreement before the encounter. They soon began an argument, which escalated into a fistfight. After throwing a few punches, the pair separated and backed up. Williams asked if they were done and called Toney a "bitch." Witnesses testified Toney replied with "I'm going to blow your ass down, " or "This is what I'm going to do about it, bitch." Toney then drew a gun and fired at least three times, hitting Williams in his arm and abdomen and again in his buttocks as he tried to flee.

         Williams was transported to a hospital unresponsive and in critical condition. He underwent emergency surgery. He stayed in the hospital until about November 10, when he was transferred to a rehabilitation facility where he remained for another week or so. He testified as to the long-term effect of one bullet hitting a nerve in his left leg, which caused drop foot-an inability to fully lift his left foot- inability to run, and difficultly walking.

         Immediately after the shooting, Toney fled the scene. He testified his next memory is waking in a hotel room later that morning, wearing different clothing and having a shaved head. He went to his mother's house and talked to his family and close friends. Later that afternoon, he came to the decision to turn himself in to the police. He testified he "was in and out" during police questioning that day and had difficulty staying awake to cooperate with the police.

         The State charged Toney with attempt to commit murder and possession of a firearm by a felon. His trial began on May 2, 2017. He generally defended by claiming he could not form the specific intent needed to commit murder due to his health issues and consumption of Xanax and alcohol, or, alternatively, he merely intended to scare Williams when he fired the shots. The State rested on May 4. Later that day, at 4:14 p.m., Toney filed a notice of an additional witness, which first notified the State that he may call as a witness his sister Mya Handy. The next afternoon, he attempted to do so. The State objected, and Toney made an offer of proof. During the offer of proof, Handy testified she saw Williams go "live on Facebook when he got out of the hospital, " and he was moving around, walking, and dancing as he left the hospital. She also claimed to have provided substantial care to Williams for about two weeks after he left the rehabilitation facility, which contradicted a State's witness who testified she cared for Williams during this time. The State objected to having Handy testify on several grounds, including the lateness of the notification. The district court agreed with the State that Toney did not provide fair notice about Handy, and it found her testimony lacked relevance. Therefore, the district court excluded her as a witness. As noted above, the jury convicted Toney of attempt to commit murder and possession of a firearm by a felon under Iowa Code sections 707.11 and 724.26(1) (2016).

         Toney appeals from his convictions. He claims the district court abused its discretion in excluding Handy as a witness. He also claims his trial counsel was ineffective for failing to object to the prosecutor's statements during closing arguments.

         II. ...


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