from the Iowa District Court for Polk County, Karen A.
Barber appeals his convictions to one count of second-degree
murder and one count of assault with intent to inflict
Dunn and Gina Messamer of Parrish Kruidenier Dunn Boles
Gribble Gentry Brown & Bergmann L.L.P., Des Moines, for
J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Tabor, P.J., and Mullins and Bower, JJ.
convicted Dresean Barber of second-degree murder and assault
with intent to inflict serious injury in relation to the 2015
shooting death of Edmanuel Perez and wounding of Andrew
Hurley-Boyd. On appeal, Barber challenges the district
court's denial of his right to present a defense based
upon statutes that were amended after he was arrested and
charged. He also challenges the court's denial of his
motion for mistrial or alternatively its refusal to voir dire
the jury, after a mass shooting occurred in Las Vegas during
jury deliberations. Barber further contends the court abused
its discretion in failing to clear the jury's confusion
on malice aforethought. Barber also claims the
prosecutor's questions during cross-examination
constituted prosecutorial misconduct. Lastly, Barber contends
the jury's verdicts were not supported by substantial
Background Facts and Proceedings
the evidence presented at trial, a reasonable jury could make
the following factual findings. Prior to 2013, Barber was a
member of a group of friends, which included Perez,
Hurley-Boyd, and Perez's brother, Eddie. At some point in
2013, there was a physical altercation between members of the
group, including Perez and Barber, which resulted in a
falling out and Barber's exclusion from the group.
Between that time and November 29, 2015, tension continued
between Barber and the other members of the group, which
resulted in further altercations, including some that were
physical. There was no law enforcement intervention in any of
the late-night hours of November 28 and into the
early-morning hours of November 29, Perez, Hurley-Boyd, and
other members of the group met at Hurley-Boyd's apartment
to drink and socialize before heading downtown to the local
bar and club area. Some of the group also smoked marijuana
while at the apartment. Once downtown, the group ended up in
a building that houses multiple bars and clubs. A common
stairwell provided access to the various floors and
establishments. The group initially entered the same bar and
continued to drink but eventually split up to go to the other
bars in the building. Before closing time, several members of
the group decided it was time to leave and proceeded to
locate the others and inform them it was time to go. At some
point, members of the group encountered Barber.
parties differ as to the nature of this meeting and the
resulting shooting. Barber's version is that he went
outside to smoke with his cousin and a friend. Perez and
another group member approached him and exchanged words.
Barber called his brother to pick him up and waited for his
brother inside. Once his brother arrived, he left the
building and ran into Hurley-Boyd and another group member.
Words were again exchanged. Hurley-Boyd and the other group
member yelled at him and were ready to fight. Barber
explained that he was just trying to leave and flashed his
gun in hopes they would leave him alone. Barber backed up
toward a parking ramp but Perez, Eddie, and other group
members were in the street heading toward him, resulting in
Barber being pushed against a vehicle. Barber pulled his gun
and shot into the air, causing Hurley-Boyd to stop. However,
Perez continued to move toward Barber, so Barber shot Perez.
Hurley-Boyd then swung at Barber, so Barber shot Hurley-Boyd.
After shooting Hurley-Boyd, Barber fled the scene with his
brother and disposed of the gun. The next day, Barber learned
Perez had died.
version was that he and another member of the group were
attempting to gather the other members to meet outside in
order to leave. Hurley-Boyd exited the building, and when he
was about to reenter the building, he encountered Barber near
the entryway. Both became defensive and were ready for a
fight, at which point Barber displayed the gun he was
carrying in his waistband. After seeing the gun, Hurley-Boyd
testified he put his hands in the air, backed up out of the
entry way, and let everyone in the area know Barber had a
gun. Hurley-Boyd turned around and was hit in the face with a
gun by someone he believed was with Barber. Hurley-Boyd then
heard a shot and when he turned around he saw Barber pulling
his gun down from the air. Hurley-Boyd did not remember
anything else until he woke up from a coma.
version is that as he and Perez were gathering the other
group members, he ran into Barber, who was with a group of
about ten other people. Eddie left the building in order to
avoid being cornered and moved into the middle of the street.
He saw one of Barber's friends hit Hurley-Boyd in the
head with a gun and another friend threw a bottle toward
Perez and himself. Eddie then saw a gun flash over
Barber's head, who was approximately ten to fifteen feet
away near the sidewalk. Perez told Eddie he had been shot so
Eddie attempted to give first aid. After the gun shots,
everyone in the vicinity scattered and Barber disappeared
into the crowd. Police secured the scene and medical
personnel tended to Perez and Hurley-Boyd.
shot Perez in the right chest area, tearing a hole in his
aorta. He died from the resulting blood loss. Barber shot
Hurley-Boyd in the side. Hurley-Boyd spent over a month in
the hospital, requiring several surgeries. He was also in a
coma for a period of time. The State charged Barber with one
count of first-degree murder and one count of attempt to
commit murder. The case proceeded to a jury trial. Prior to
trial, Barber provided notice that he would assert a
justification defense. He also filed a motion asking the
court to recognize and allow him to present his justification
defense based upon amendments to the Iowa Code enacted by
House File 517, commonly referred to as the "stand your
ground" defense. See generally 2017 Iowa Acts
ch. 69, §§ 37-44. House File 517 took effect
largely on July 1, 2017. The court denied his request, finding
the shooting occurred before the amendments to the code and
the amendments were prospective, not retrospective, in
nature. During arguments concerning proposed jury
instructions, the defense renewed its argument and asked the
court to provide instructions to the jury consistent with the
amended statutes. The court again denied Barber's
request. The court's instructions to the jury included
Barber's justification defense as defined in the code
prior to the July 1 amendments.
trial commenced on September 18, during which Barber
testified on his own behalf. The jury began deliberations on
Friday, September 29. By the end of the day, the jury had not
yet reached a verdict, so the court released the jury for the
weekend. Over the weekend break, a shooting in Las Vegas
occurred which lead to numerous deaths and injuries and had
prominent coverage in news media. Once court resumed on
Monday, October 2, the defense sought a mistrial, arguing the
shooting and subsequent news reports prejudiced the jury,
therefore Barber could no longer receive a fair trial.
Alternatively, the defense argued the court should poll the
jury to determine what, if any, prejudicial effect the
shooting may have had on the jurors. The court denied both
jury ultimately found Barber guilty of two lesser-included
offenses: second-degree murder and assault with intent to
inflict serious injury. Barber filed a motion for a new trial
or for judgment of acquittal, raising twenty-six different
claims. The court denied the motion and proceeded to
sentencing. The court sentenced Barber to an indeterminate
term of incarceration not to exceed fifty years with a
mandatory minimum of thirty-five years for the murder offense
and an indeterminate term of incarceration of two years for
the assault offense, to run consecutively. Barber appeals.
first claims the court erred in denying him the opportunity
to fully present a justification defense, consistent with the
revised "stand your ground" law. He argues the
changes to the code relating to the defenses of justification
and self-defense should apply retroactively, pursuant to the
general-saving provision found in Iowa Code section 4.13(2)
(2015). The court should then have instructed the jury
accordingly, including providing the revised definition of
"reasonable force" and instructing the jury that
Barber was under no duty to retreat before acting.
review questions of statutory interpretation for correction
of errors at law. State v. Coleman, 907 N.W.2d 124,
134 (Iowa 2018). We also review challenges to jury
instructions for correction of errors at law. State v.
Harrison, 914 N.W.2d 178, 188 (Iowa 2018). On April 13,
2017, the governor signed into law House File 517. See
generally 2017 Iowa Acts ch. 69. The act contains
numerous modifications to the Iowa Code relating to the
possession of weapons, including the modification of the
definition of reasonable force, codified in section
704.1.See id. § 37. Further, the
amendment added language to the definition of deadly
force. See id. § 38. The act also
added section 704.13, which provides immunity from
"criminal or civil liability incurred by the aggressor
pursuant to the application of reasonable force."
See id. § 43. The amendment also no longer
required an individual to retreat,  thus the "stand your
ground" moniker. See id. § 37(3). Several
provisions took effect immediately upon enactment, but the
bulk of the revisions and additions to the Code took effect
on July 1, 2017. See id. § 50; see
also Iowa Const. art. III, § 26.
"Statute[s] [are] presumed to be prospective . . .
unless expressly made retrospective." Iowa Code §
4.5. It is also "well-settled law that substantive
amendments to criminal statutes do not apply
retroactively." Harrison, 914 N.W.2d at 205.
The reenactment, revision, amendment, or repeal of a statute
does not affect . . . [t]he prior operation of the statute or
any prior action taken under the statute. . . . [or] [a]ny
violation of the statute or penalty, forfeiture, or
punishment incurred in respect to the statute, prior to the
amendment or repeal.
Iowa Code § 4.13(1)(a), (c). However, Iowa Code section
4.13(2) provides that "[i]f the penalty, forfeiture, or
punishment for any offense is reduced by a reenactment,
revision, or amendment of a statute, the penalty, forfeiture,
or punishment if not already imposed shall be imposed
according to the statute as amended." Barber argues that
the amendments to the justification defense have the
practical effect of reducing the penalty for his actions, as
his actions are no ...