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State v. Barber

Court of Appeals of Iowa

February 20, 2019

STATE OF IOWA, Plaintiff-Appellee,
DRESEAN MAURICE BARBER, Defendant-Appellant.

          Appeal from the Iowa District Court for Polk County, Karen A. Romano, Judge.

         Dresean Barber appeals his convictions to one count of second-degree murder and one count of assault with intent to inflict serious injury.

          Andrew Dunn and Gina Messamer of Parrish Kruidenier Dunn Boles Gribble Gentry Brown & Bergmann L.L.P., Des Moines, for appellant.

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

          Considered by Tabor, P.J., and Mullins and Bower, JJ.

          MULLINS, JUDGE.

         A jury 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 evidence.

         I. Background Facts and Proceedings

         Upon 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 these occurrences.

         During 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.

         The 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.

         Hurley-Boyd's 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.

         Eddie's 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.

         Barber 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.[1] 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.

         The 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 requests.

         The 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.

         II. Analysis

         A. Justification Defense

         Barber 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.

         We 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.[2]See id. § 37. Further, the amendment added language to the definition of deadly force.[3] 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, [4] 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. Further,
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 ยง 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 ...

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