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State v. Petties

Court of Appeals of Iowa

February 6, 2019

STATE OF IOWA, Plaintiff-Appellee,
KENDU RAY PETTIES, Defendant-Appellant.

          Appeal from the Iowa District Court for Linn County, Robert E. Sosalla, Judge.

         Kendu 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.

          Mark C. Smith, State Appellate Defender, and Bradley M. Bender, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney General, for appellee.

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

          DANILSON, Senior Judge.

         Kendu 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.

         We find 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 costs.

         I. Background Facts and Proceedings.

         On April 2, 2014, Quintrell Perkins[1] 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 called 911.

         Cedar 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.[2]

         Officer 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.

         Crime 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.

         After 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.'

         Division 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.

         On 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[3] the day before the shooting to the effect that he was going to kill Fudd and Little Joe.[4] 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.

         Pennington 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

         Pennington twice in 2014, but she was uncooperative.

         Though 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.

         Barnes 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[5] 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.

         In 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.

         In the 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 weapon.

         After 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.

          For 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."[6] 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.

         Police 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 first degree.

         At 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.

         Barnes 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 shooting.

         Barnes 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."

         Barnes 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 without objection.

         The 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.

         Barnes 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.

         On 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"[7] 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.

         Officers 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.

         Pennington 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 this."

         Pennington 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."[8] 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"

          and 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.

         Pennington 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.

         During 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.

         Criminalist 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 ...

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