from the Iowa District Court for Linn County, Robert E.
Ray Petties appeals from convictions for two counts of murder
in the first degree and one count of conspiracy to commit a
forcible felony. AFFIRMED.
C. Smith, State Appellate Defender, and Bradley M. Bender,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Martha E. Trout, Assistant
Attorney General, for appellee.
by Potterfield, P.J., Doyle, J. and Danilson, S.J. [*]
DANILSON, Senior Judge.
Ray Petties appeals following a jury trial from convictions
for two counts of murder in the first degree and one count of
conspiracy to commit a forcible felony. Petties first
contends the trial court abused its discretion in admitting
transcripts of cell phone recordings and shoeprint evidence.
He also asserts his trial counsel was ineffective in a number
of respects. Next, Petties maintains the court erred in
denying his motions for judgment of acquittal and for new
trial because there is insufficient corroborating accomplice
testimony to support the jury's verdicts and the verdicts
are contrary to the weight of the evidence. Finally, he
argues the court failed to determine Petties had the
reasonable ability to pay court costs.
no abuse of discretion in the court admitting the transcripts
of the cell phone recordings where the recordings themselves
were also admitted. Nor did the court abuse its discretion in
allowing the shoeprint evidence because the shoe size of the
prints was the size of the defendant's shoe and
corroborated Petties's statements that he was in area for
quite some time before shooting into the house and
officers' testimony about the number of prints noted at
the scene. Petties's ineffective-assistance-of-counsel
claims fail for lack of prejudice. There was sufficient
evidence corroborating accomplice testimony and the verdicts
were supported by substantial evidence and were not contrary
to the weight of the evidence. Consequently, we affirm the
convictions. The record does not support Petties's claim
that the court failed to determine his ability to pay court
Background Facts and Proceedings.
April 2, 2014, Quintrell Perkins and Sierrah Simmons were
shot and killed by gunfire coming from outside the house as
they were sitting in the living room of Christopher
Perkins's home in Cedar Rapids, Iowa. Sarah Sirlona,
Perkins's girlfriend, and Teairra Hawkins were also in
the room, as was a child. Sirlona, who was sitting on a couch
with Perkins, saw a flash in the side window, heard a
"bunch of pops," and saw Simmons bleeding. Simmons
stood up, but fell down, blood dripping down her face.
Perkins slid off the couch, tried to crawl, and collapsed.
Sirlona grabbed the child, ran upstairs with Hawkins, and
Rapids police officer Michael Diercks received a dispatch at
10:09 p.m. regarding a shooting involving two victims.
Officer Diercks parked near the reported address and smelled
gunpowder as he approached the house and checked the
perimeter. When Officer Diercks walked in the home, he saw
Simmons face down in a pool of blood with a cell phone in her
hand; she did not move. Officer Diercks attempted to revive
Perkins who was bleeding from the chest. Both victims were
pronounced dead at the scene.
Gabriel Hepke also responded to the dispatch and took
photographs of the interior and exterior of the house. He
cordoned off the area looking for evidence and saw bullet
holes on the exterior of the house and shell casings on the
ground. Officer Hepke spoke to witnesses at the scene who
reported they did not see the shooter but heard the shots.
Scene Investigator John McDaniel walked around the scene. On
the east side of the house, Investigator McDaniel saw several
bullet holes in the window and siding. Investigator McDaniel
counted eleven bullet holes-one in the window frame, five in
the window, and five on the siding to the right of the
window. He found eleven shell casings. Four were Winchester
brand and seven were Remington Peter brand. Officers
determined the casings had been fired from the same weapon.
the officers obtained a search warrant for the home, they
photographed and video recorded the interior of the house and
conducted bullet trajectory analyses with rods and lasers.
Investigator McDaniel believed the shots were fired from a
grassy area to the east of the residence. Crime Scene
Investigator Ron Johnson video-recorded the scene and
documented the shell casings. Two of the shell casings and
two bullets were recovered from inside the residence.
Investigator Johnson saw shoe prints in the area where the
shell casings were found. The prints were in soft dirt
conducive to a casting, and he made two castings, only one of
which proved suitable for comparison. The distinctive shoe
patterns were from a Nike Air Force 1.'
of Criminal Investigation criminalist Vic Murillo conducted
the firearms examination. He determined the two bullets and
two casings recovered from inside the home were Winchester
.40 caliber ammunition fired from the same weapon-probably a
Glock .40 caliber semi-automatic pistol. A Glock would be the
only semiautomatic pistol that could fire both types of shell
casings the police recovered from the scene.
April 15, 2014, Bruce ("BJ") Williams contacted one
of the lead investigators in the double homicide,
Investigator Chip Joecken. Williams told Investigator Joecken
that some time before the April 2 shooting, Kendan
("Fudd") Fonville and Joseph ("Little
Joe") Perkins assaulted Williams outside a beauty store
while he waited for Ashley Pennington. Williams denied any
involvement in the shooting. However, his cell phone records
indicated he sent a text message to Jade Hasson the day before
the shooting to the effect that he was going to kill Fudd and
Little Joe. Williams's phone records also placed
his cell phone on the southeast side of Cedar Rapids on April
2-not in Marion, where Williams claimed to be.
was in a relationship with Williams at the time of the
shooting. The officers believed Pennington drove Williams to
the area of the crime in a white Impala and suspected
Williams had been the shooter. Police interviewed
twice in 2014, but she was uncooperative.
investigators believed Pennington drove Williams to the scene
of the killings and that it was Williams who was the shooter,
the investigation stalled. Then, in April 2015, Davonte
Barnes contacted Iowa police stating he had information about
the April 2014 Cedar Rapids murders and had three video
recordings on his cell phone related to the shooting. Barnes
stated that on the night of April 2, 2014, Petties (who he
knew as "K-9") contacted him. Petties told Barnes
that Fudd and Little Joe were at the home of CP,
Perkins's father. Petties and Barnes both had histories
with Fudd and Little Joe, and Petties asked Barnes to go with
him to kill them. Barnes declined. Barnes said he saw Petties
the next morning when he picked Petties up at an apartment in
Marion, Iowa, near the post office. Petties told Barnes that
Williams and Pennington had picked him up the night before
and drove to CP's house. Petties said he waited outside
the Perkins house for thirty to forty-five minutes, heard
talking, saw "dreads," and started shooting through
the window. Petties believed he saw and shot at Little Joe.
According to Barnes, Petties shot a .40 Glock given to him by
a common acquaintance, Dion Clayborn. The gun had a red beam
and an opening on the top. Petties claimed to have emptied
the magazine and thought he killed Fudd.
told police he came in contact with Petties again on a bus to
Chicago in February 2015. At that time, Barnes was "on
the run" from a halfway house in Minnesota. Barnes
stated he had known Petties for several years. He knew
Petties was enemies with Fudd and Little Joe and that Petties
had wanted to kill Fudd and Little Joe because they jumped
his "baby mama's" brother, "BJ"
Williams. Barnes and Petties spent the next week together in
Chicago. While there, Barnes recorded Petties talking about
the April 2014 shooting. In one recording, Petties referenced
Pennington taking and passing a lie detector test.
Petties also stated that he "coulda smoked the
bitch" when he was at the Hy-Vee on Mount Vernon Road.
another recording, Petties talked about the shooting and said
he waited in the back yard for thirty to forty-five minutes
before the police arrived on the scene. He admitted to Barnes
he had shot the wrong person.
final recording, Petties said that a person does not shoot
and run because it looks too obvious. He described a
"black bitch" with a hole in it, which Barnes
interpreted to mean the gun Petties used. Petties made
several shooting noises heard on the recording and said he
"pulled that bitch out for real . . . that light came
on." Petties described a "red dot" on the
speaking with Barnes, police then interviewed Pennington and
Williams again. In an August 2015 statement, Pennington said
she did not know the shooter's name but that he was the
"baby daddy" of Williams's sister. She also
said that she drove the shooter and Williams to the 1700
block of Bever Avenue South East in Cedar Rapids. Petties
then directed her to an alley nearby. Pennington parked the
car in an alley between Bever and 4th Avenue. When she pulled
in, a black Chrysler pulled in behind her and blocked the
alley. After she parked, Petties got out of the car, walked
over to the Chrysler, and then walked down the alley. She
heard "close" gunfire and tried to leave but
Williams told her to stay. She waited until Petties walked
"nonchalantly" and got back in the car. At that
point, she realized Petties had a gun. Petties handed the gun
to Williams and Pennington noticed that the top of the gun
was open. She thought she dropped Petties off where she
picked him up. Williams told her to keep quiet about the
incident and Pennington agreed. Pennington expressed concern
for her safety and that of her family members.
his part, Williams eventually told police he and Pennington
were driving around Cedar Rapids and met up with Petties at a
gas station on 1st Avenue for the purpose of finding Fudd and
Little Joe. Williams stated Petties had been dropped off at
the gas station by a black car. Petties got into the white
Impala and told Pennington to drive past a house on the 4th
Avenue SE block of Bever. Petties told them Fudd was at the
house and he was going to retaliate against him. Pennington
parked the car in an alley. Petties asked Williams to go with
him, but Williams said "no." Petties got out
of the car and walked down an alley. He was gone for twenty
to thirty minutes. Williams heard multiple gunshots and saw
Petties come out of the alley. Petties told Williams he
"fired it up" and "emptied this mother
fucker." Williams stated Petties held an automatic
pistol in his hand that had a red beam/light under the barrel
and the ammunition clip was empty. Petties called Williams a
"pussy" for not shooting. He also told Williams and
Pennington to be quiet and not talk to anyone, reminding
Williams that they were family. Like Pennington, Williams
expressed concern for his safety after the interview.
found Petties in the Phoenix area and Detective Greg Aboud
and Investigator Joecken went to Phoenix to interview him.
Petties waived extradition and was charged with conspiracy to
commit a forcible felony and two counts of murder in the
trial, Sirlona testified that on April 2, 2014, she and
Perkins (she called him "Terrell") were at the
house on Fourth Street to baby-sit "[C]P's
wife's two younger children." Fudd and Little Joe
had come to the house earlier in the day to talk with
Perkins, but they were told they could not be in the house
while CP was gone so they waited outside for a ride. About
two hours after Fudd and Little Joe left, Sirlona and Perkins
left for a time. It was dark when they returned. Sirlona
stated the shooting occurred about fifteen minutes after
their return as she, Perkins, Simmons, Hawkins, and one of
the two children they were baby-sitting were in the living
room. Sirlona and Perkins were sitting on one couch, which
was facing a second couch on which Hawkins and Simmons were
sitting. Perkins and Simmons were nearest the window through
which the shots were fired.
testified he and Petties had "the same enemies,"
being Fudd and Little Joe. On April 2, 2014, Petties had
contacted Barnes while Barnes was at a restaurant with his
girlfriend. Petties told Barnes that Fudd and Little Joe were
at CP's "crib" and asked Barnes to ride along
to "retaliate against them." Barnes testified,
"You know shoot with intention to killing them."
Barnes testified the reason Petties wanted to retaliate was
that Fudd had "jumped" Williams. Barnes also stated
Fudd had shot at Barnes "several" times in the
past, and Barnes and Petties had previously discussed killing
Fudd and Little Joe. Barnes stated he "wasn't
feeling it that night" and learned of the double
homicide the next morning when Petties called him. Barnes
testified he drove to Petties's apartment and picked him
up. Barnes stated Petties then
[t]old me he was waiting on-that BJ [Williams] and Ashley
picked him up, took him over there. Said he was waiting on
the outside of the house probably thirty, forty-five minutes.
Could hear them talking. Looking through the window he seen
some dreads, thought it was Little Joe, and he started
stated Petties told him he used a .40 caliber Glock he got
from Clayborn and that he had "emptied the
magazine"; "[h]e said he upped the gun, seen a
light-seen a light come on and got to shooting, and just go
to go rapidly." Barnes had seen Clayborn with the pistol
previously, which had a laser-type beam on the bottom of the
barrel and the top of the barrel was open. Petties also told
Barnes that Clayborn and his girlfriend were present at the
scene in Clayborn's black Chrysler. Barnes testified
Petties told him he walked away from the shooting because
"when people run away, it's too obvious." When
asked if Barnes remembered what pants or footwear Petties was
wearing, Barnes testified, "Probably some Air Force Ones
that we usually wear."
also testified about meeting Petties on the bus to Chicago,
spending time with him in Chicago, and secretly recording
parts of conversations as Petties talked about the Cedar
Rapids shootings. The recordings were admitted into evidence
State then offered transcripts of the recordings, which
Barnes agreed were "fair and accurate depiction[s] of
the content of [his] conversation[s] between [him] and Mr.
Petties." The defense objected as "not the best
evidence of what was actually said on the video." The
court overruled the objection stating, "I think
sufficient foundation is laid as to that." Barnes
identified his and Petties's voices on the recordings and
testified as to the conversations. Investigator Joecken
testified he transcribed the videos.
explained that after he and Petties left Chicago, they stayed
in Indiana for "couple of months" and then Barnes
was arrested at a hotel. Barnes testified he had his cell
phone with the recordings when he was arrested and later
transferred to Linn County, Iowa. Barnes gave his cell phone
to his attorney to provide the video recordings to the police
department "to help" himself.
cross-examination, Barnes acknowledged he had been arrested
in June 2014 and, upon arriving at the jail, he had drafted a
request form to speak with officers telling them he had
information about a double homicide. Barnes admitted he told
an officer he knew who the shooter was but would not pass
along the identity until he "had a deal." The
officer "blew [him] off." Barnes also acknowledged
he spoke with federal drug enforcement investigators later in
2014 and entered into a "proffer
agreement" before leaving the Minnesota halfway house
and that he made the cell phone video recordings of Petties
"hoping to use [the recordings] to better [his] position
to get a good deal on the federal charges that could possibly
be filed." Barnes also acknowledged Petties owed him
$3000 at the time of Barnes's arrest in Indiana. Barnes
called Petties when he was extradited to Iowa and asked for
that money but Petties did not pay him. Barnes also
acknowledged that after providing the videos to police, his
report of a probation violation had been dismissed, he had
been allowed to return to the halfway house, and he received
a deferred judgment on a felony possession charge.
Dierks and Daniel Kent testified about arriving at the scene
and attempting to resuscitate Simmons and Williams. After
transporting Hawkins to the police station, Officer Dierks
was assigned to guard a portion of the crime scene and
Officer Kent was assigned to keep the entry and exit log.
Officer Kent testified that two citizens approached the scene
on April 3, caused a disturbance, and one person was
arrested. The person arrested was "well-known by law
enforcement" and familiar to Officer Kent-Kendan
Fonville or Fudd.
testified she knew Petties because Petties was the father of
Williams's sister's child. Pennington testified that
Little Joe, in Fudd's presence, had beaten Williams a
week or two before the shooting on April 2, 2014. Williams
was angry and talked to Petties, who told him "I'm
going to take care of this or we're going to take care of
testified further that on April 2, she was driving a white
Chevy Impala with Williams in the car when they picked up
Petties (whom she knew as K-9) from an apartment behind a
Hardees on 32nd Street. They then drove to an alley near
Bever Avenue and 4th Avenue SE where a black car pulled in
behind them, blocking the alley. Pennington testified Petties
walked back to the black car and then walked down the alley.
After some minutes, she heard gunfire "really
close" and she tried to put the car in reverse and
leave. She testified Williams then "got mad at me and
smacked me and told me to get my foot off the brake, put the
car back in drive or-put the car back in park and wait. That
I wasn't leaving until [Petties] got back in the
car." She stated Petties came back to the car
walking "nonchalantly like nothing happened, and he got
back in the car, and said 'Okay, we can go.'" As
she drove away, she heard Petties say "it jammed"
or "it's empty"
then he handed a semi-automatic, open-topped pistol to
Williams. She testified:
I was scared. I mean anybody could have figured it out after
you hear shots and somebody gets back in your car with a gun
that obviously they're the one that just shot. So as I
said, I didn't want to ask no questions. I didn't
want to say anything out of place. I just wanted to get me,
myself away from the scene, away from the whole situation.
Really, I just wanted both of them out of my car and to just
pretend like I knew nothing.
testified she acted as if she did not know anything "for
the first two years." Pennington stated she did not know
Petties's given name until three days before trial,
knowing him only as K-9, nor did she know Barnes.
Pennington's testimony, the following exchange occurred:
Q. So all these things that-that [Williams] did to you: the
physical abuse, the lying, the cheating. We've talked
about some threats being made here. Up to this point
you're still feeling this way. You're right here in
court. You're under oath. Why don't you just tell us
right now that [Williams] did this? A. Because he didn't.
Murillo testified that a ported barrel, a gun that is open at
the top, would cause a significant muzzle flash like the
light flash Sirlona described at the time of the shooting. He
also described the slide on a Glock .40 ...