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State v. Chew

Court of Appeals of Iowa

November 7, 2018

STATE OF IOWA, Plaintiff-Appellee,
TIMOTHY LETURE CHEW, Defendant-Appellant.

          Appeal from the Iowa District Court for Des Moines County, Mark E. Kruse (trial) and Mary Ann Brown (appeal bond review), Judges.

         A defendant appeals his convictions for assault with intent to inflict serious injury and going armed with intent.

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

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

          Considered by Danilson, C.J., and Vogel and Tabor, JJ.

          TABOR, JUDGE.

         A jury convicted Timothy Chew of assault with intent to inflict serious injury and going armed with intent. On appeal, Chew argues the jury did not receive proper instructions. He also contends his $750, 000 cash-only appeal bond is unreasonable. Because Chew cannot show prejudice resulting from the jury instructions, we affirm. As for his appeal bond, we conclude the district court abused its discretion in imposing an amount so high Chew was functionally denied bail in violation of legislative directives.

         I. Facts and Prior Proceedings

         A shoot-out in broad daylight drew Burlington police to a residential neighborhood on South Central Street the weekday morning of May, 10, 2017. When Officer Kenneth Zahner arrived just after 9 a.m., he spotted Chew walking down the street carrying an assault-style rifle. Officer Zahner drew his service revolver and ordered Chew to the ground. As the officer was handcuffing Chew, A.J. Smith charged from his friend's front porch and kicked Chew in the face.

         After securing the scene, officers found shell casings indicating Chew fired thirty-six rounds from his rifle and Smith fired eight rounds from a small-caliber pistol. Several witnesses testified they heard the higher-pitch sound of the pistol shooting first, followed by the deeper sound of the rifle firing in response.

         Allen Swayzer lived on South Central Street and often hosted Smith for coffee and marijuana cigarettes in the morning. On May 9, the morning before the shootout, Smith and Swayzer were following their usual routine on the front porch when Chew drove by yelling: "Come get it." Smith recalled Chew shouting: "Come out and play." Chew claimed Smith "flashed" a gun at him.

         The next morning, Swayzer saw Chew coming toward his house again. This time, Swayzer started "hearing gunshots." A passerby saw a man matching Chew's description crouched between parked cars, aiming an assault-style rifle at another man across the street. Chew admitted being in Swayzer's neighborhood that morning. Chew wore a bullet-proof vest and carried an assault-style rifle equipped with two thirty-round clips, bound together with black electrical tape to facilitate faster reloads.[1] Chew claimed Smith shot at him first, and when Chew returned fire, Smith ran away.

         In Smith's version of events, Chew fired first and Smith shot back with a pistol he commandeered from a friend at the scene. Smith did not remember how many shots he fired: "I can't tell you exactly because [Chew] was firing so many times, it was just like panic firing, trying to get him up off me." When Smith's gun jammed, he fled. As Smith ran away, one of Chew's bullets grazed his head and he fell. Smith returned to his feet and darted between the houses. He tossed the pistol to avoid being arrested as a felon in possession of a firearm. Surveillance video from neighborhood houses showed Smith running and Chew apparently pursuing him.

         The State charged Chew with going armed with intent and attempted murder. After a four-day trial, the jury returned guilty verdicts for going armed and the lesser-included offense of assault with intent to commit serious injury. The district court imposed indeterminate sentences of two and five years for the respective counts, running the terms consecutively. Chew seeks a new trial.

          II. Scope and Standards of Review

         Each issue raised in this appeal calls for a different standard of review. First, we review the district court's refusal to give a requested jury instruction for the correction of legal error. Shams v. Hassan, 905 N.W.2d 158, 162 (Iowa 2017). Second, we review a claim of ineffective assistance of counsel de novo. State v. Harrison, 914 N.W.2d 178, 188 (Iowa 2018). Third, we review the amount of an appeal bond for an abuse of discretion. State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002).

         III. Analysis

         A. Jury Instruction on Resisting a Forcible Felony

         A district court cannot refuse to instruct the jury on a defense theory when the evidence supports the theory and the instruction is a correct statement of the law. State v. Ross, 573 N.W.2d 906, 913 (Iowa 1998). If a defendant presents substantial evidence to support an affirmative defense, the district court must instruct the jury on that defense. State v. Broughton, 425 N.W.2d 48, 52 (Iowa 1988). Erroneously denying a jury instruction requires reversal unless the complaining party suffers no prejudice. State v. Hoyman, 863 N.W.2d 1, 7 (Iowa 2015). When the error does not implicate a constitutional right, we test for prejudice by assessing whether the rights of the complaining party have been "injuriously affected" or the party suffered a miscarriage of justice. State v. Plain, 898 N.W.2d 801, 817 (Iowa 2017) (quoting State v. Marin, 788 N.W.2d 833, 836 (Iowa 2010)).

         Before trial, Chew filed a notice of intent to rely on self-defense. See Iowa Code § 704.3 (2017). The district court gave the jury a series of eight uniform instructions to explain the law controlling Chew's justification defense.[2]

         In addition to those self-defense instructions, Chew asked the district court to instruct on the justification of resisting a forcible felony. On the date of the shooting, that defense provided: "A person who knows that a forcible felony is being perpetrated is justified in using, against the perpetrator, reasonable force to prevent the completion of that felony." Iowa Code § 704.7.[3] To communicate that defense to the jury, Chew urged the court to submit the following uniform instruction:

A person is justified in using reasonable force against someone committing a forcible felony to prevent completion of the felony if [he] [she] knows a (name of forcible felony) is being committed.
If the State has proved any one of the following elements, the defendant was not justified:
1. The defendant knew (name of forcible felony) was not being committed by (name of victim).
2. The defendant did not believe the force was necessary to prevent the (name of forcible felony).
3. The defendant did not have reasonable grounds for the belief.
4. The force used by the defendant was unreasonable.

Iowa Crim. Jury Instruction 400.6.

         Unlike the self-defense instruction, the uniform instruction on resisting a forcible felony omits the requirement the defendant have no other available course of action. State v. Newsom, No. 13-2078, 2015 WL 1046132, at *4 (Iowa Ct. App. Mar. 11, 2015) ...

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