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State v. Heard

Court of Appeals of Iowa

January 9, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
KENNETH LEROY HEARD, Defendant-Appellant.

          Appeal from the Iowa District Court for Polk County, Robert Blink, Judge.

         A defendant appeals his conviction for first-degree murder.

          Gary Dickey of Dickey & Campbell Law Firm, PLC, Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.

          Heard by Potterfield, P.J., Doyle, J., and Danilson, S.J. [*]

          POTTERFIELD, PRESIDING JUDGE.

         Kenneth 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.

         I. Background Facts and Proceedings.

         The 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.

         Hutchinson, 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 second trial.

         On 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.

         Findley 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.

         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.

         Findley 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 ...


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