from the Iowa District Court for Polk County, Robert Blink,
defendant appeals his conviction for first-degree murder.
Dickey of Dickey & Campbell Law Firm, PLC, Des Moines,
J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
by Potterfield, P.J., Doyle, J., and Danilson, S.J. [*]
POTTERFIELD, PRESIDING JUDGE.
Leroy Heard appeals his conviction for first-degree murder in
violation of Iowa Code sections 707.1, 707.2(1)(a), and 902.1
(2007) following his second trial on the charges. On appeal,
Heard argues the district court erred in denying his motion
to compel a witness to take the Fifth Amendment in response
to questions in the presence of the jury, his sentence is
illegal because the jury did not specifically find him to be
over eighteen at the time of the offense, and the district
court erred in denying his motion for a new trial because the
jury verdict went against the weight of the evidence.
Background Facts and Proceedings.
body of Joshua Hutchinson was found lying in the snow near an
apartment complex in Des Moines on the morning of December
13, 2007. Hutchinson had suffered multiple gunshot wounds.
along with Heard, Marco "Juice" Brown, and Deland
"DB" Stanley formed a group called "3 in 3
out" or "third world." The group committed
robberies together. Heard was viewed as the leader of the
group. During the time of the murder, Stanley was in jail but
had regular phone contact with the members of the group.
Jacquisha "Keisha" Harris, nee Majors, often
associated herself with members of the group, drove them in
her car, and allowed them to stay at her house. Majors and a
fifth man, Phillip "Self" Findley, were present at
the time of the murder and testified against Heard at trial.
Brown testified for the State at the first trial, but he
asserted his Fifth Amendment privilege at the time of his
deposition before the second trial, when he was to be called
as a witness for Heard. The jury could have found the
following facts based on the testimony presented at the
December 12, Majors went to Hutchinson's residence to
pick up any items there belonging to Stanley since Stanley
was going to be released from jail soon. Stanley was
reportedly angry with Hutchinson because Hutchinson had
written a letter to Stanley's girlfriend propositioning
her. Majors drove Hutchinson to a restaurant where the rest
of the group was located. Majors testified Hutchinson
attempted to leave but Heard stopped him, telling him the
group had something planned for later that night. The group
left the restaurant and went to a friend's house. Around
midnight, the group relocated to Majors's residence.
Hutchinson lay down on Majors's bed.
testified Heard called him on the night of December 12, told
him there was trouble, and told him to come over to
Majors's house. Once Findley arrived, Heard took him into
the bathroom for privacy and told Findley that Hutchinson was
talking to the police and planning to rob Heard.
directed Majors to drive to a location unknown to her, giving
her turn by turn directions; Heard and Hutchinson were
passengers. Heard directed Findley to follow Majors's
car; Brown was a passenger in Findley's car. Once the
group arrived at an apartment complex, the four men went to
the back of the apartment complex to a secluded area by a
picnic table. It was dark. Findley testified he stood by
Brown and did not see Brown with a gun. He testified
Hutchinson walked up to a tree to go to the bathroom and
shortly thereafter he heard gunshots. Forensic experts
testified Hutchinson was shot at close range, two to three
inches away from his head.
and Brown ran to Findley's car and left the scene;
Findley testified Brown ran with him. Majors had remained in
her car because the snowy conditions hindered her progress
when she tried to leave. She testified she heard gunshots and
then saw Brown and Findley running to their car. Shortly
thereafter, Heard arrived at her car and told her to drive
him. After Findley and Brown left the scene, Heard called
Findley to ask: "Are you cool?" Heard directed