from the Iowa District Court for Polk County, Robert J.
review from the Iowa Court of Appeals.
seeks further review of court of appeals decision ordering
new trial on ground the district court erred by denying
defendant's motion to compel witness to assert Fifth
Amendment privilege in presence of jury.
Dickey of Dickey & Campbell Law Firm, PLC, Des Moines,
J. Miller, Attorney General, Louis S. Sloven, Assistant
Attorney General, John P. Sarcone, County Attorney, and
Thomas H. Miller and Olubunmi Salami, Assistant County
Attorneys, for appellee.
appeal, we must decide whether the district court correctly
refused to permit the defendant in his jury trial to call a
witness who intended to invoke his Fifth Amendment privilege
against self-incrimination on all questions. The defendant in
his retrial for murder contends the witness fired the fatal
shots and wanted the jury to hear him "take the
Fifth" so that jurors would infer the witness's
guilt. The district court followed our decision in State
v. Bedwell affirming such a refusal because "the
jury is not entitled to draw any inferences from the decision
of a witness to exercise his constitutional privilege
whether those inferences be favorable to the prosecution
or the defense." 417 N.W.2d 66, 69 (Iowa 1987)
(quoting Bowles v. United States, 439 F.2d 536, 541
(D.C. Cir. 1970) (en banc)). The defendant was convicted of
first-degree murder, and we transferred his appeal to the
court of appeals, which reversed and ordered a new trial,
distinguishing Bedwell on grounds the witness had
testified in the defendant's prior trial and the district
court failed to ascertain the scope of his privilege question
by question. We granted the State's application for
Bedwell is controlling and therefore vacate the
decision of the court of appeals and affirm the district
court's ruling and judgment. The witness was entitled to
assert a blanket Fifth Amendment privilege to refuse to
answer any questions. Under these circumstances,
Bedwell provides a categorical rule against
compelling the witness to assert his Fifth Amendment
privilege in front of the jury. Because the witness properly
refused to testify, there was no violation of the
defendant's Sixth Amendment rights of confrontation or
compulsory process. We also affirm the district court's
ruling denying a new trial on grounds the verdict was against
the weight of the evidence, and we decline relief on the
defendant's untimely claim, raised for the first time on
this appeal, that he cannot be sentenced to life without
parole without a jury finding that he was an adult at the
time of the offense.
Background Facts and Proceedings.
could find these facts from the testimony at the second
trial. On the morning of December 13, 2007, Joshua
"J-Hood" Hutchinson was found dead in the snow by a
Des Moines apartment complex on Center Street. Hutchinson
died from multiple gunshot wounds to his head, groin, limbs,
and chest. The shots had been fired at close range, two to
three inches from his head. Hutchinson was a member of a
group named "3 in 3 out," or "Third
World," that sold drugs and committed multiple robberies
together. Other members included Kenneth "KQ"
Heard, Marco "Juice" Brown, and Deland
"DB" Stanley. Heard, then age twenty-six, was
viewed as the leader. Stanley was in jail at the time but was
in regular phone contact with the group.
reportedly was angry with Hutchinson for propositioning
"one of his females." On December 12, Stanley asked
Jacquisha Majors, a friend of the group, to pick up his
clothes from Hutchinson. She did so and drove Hutchinson to
join Heard, Brown, and Johnetta Daye (believed to be the
mother of Heard's child). They spent the day smoking
marijuana and planning a robbery. At midnight, they went to
Majors' house where Hutchinson fell asleep. Heard called
Phillip "Self" Findley, telling him to come over
because there was trouble. Heard took Findley and Brown into
Majors' bathroom for privacy and told them Hutchinson was
snitching to the police and planning to rob Heard.
Heard's direction, Majors awakened Hutchinson, and all
but Daye left in two cars to conduct the planned robbery.
Majors drove Heard and Hutchinson, with Heard giving her
turn-by-turn directions. Findley and Brown followed them.
When they arrived at the apartment complex on Center Street,
everyone but Majors walked to the backyard. The men gathered
by a picnic table by a wooded area next to the parking lot.
Hutchinson went to relieve himself. Gunshots rang out. Majors
heard the shots but did not see who fired them. Findley and
Brown ran to Findley's car and drove away. Heard jumped
into Majors' car without Hutchinson. As Majors drove away
and before asking what they did with the gun, Heard called
Findley and asked, "Are you cool"? Majors drove
Heard to a friend's house where she saw Heard remove a
rubber glove and change clothes.
then drove Heard back to her house. Findley had dropped Brown
off there, where Daye remained. Brown had left the scene with
the murder weapon, wiped the gun to remove fingerprints, and
hid it in a shirt near his father's residence. Concerned
about gunpowder residue, when Brown returned to Majors'
residence he disrobed and put his clothes in a bag. Brown was
quiet, and Majors saw him crying. Heard asked Majors to drive
him back to the scene to ensure Hutchinson was really dead,
which she refused to do. Heard told her in detail how he shot
Hutchinson. Heard stayed in hotels for a few days before
leaving Des Moines. Heard was arrested in Texas.
April 4, 2008, Heard was charged with first-degree murder. He
pled not guilty and proceeded to trial. Brown testified that
Heard shot Hutchinson. The jury convicted Heard of
first-degree murder, and he was sentenced to life in prison
without parole. Heard appealed his conviction, arguing it was
against the weight of the evidence because the State's
witnesses were not credible. He also alleged ineffective
assistance of counsel for failing to request an instruction
that accomplice testimony must be corroborated. The court of
appeals affirmed his conviction on his direct appeal.
State v. Heard, No. 09-0102, 2010 WL 2090851, at *1
(Iowa Ct. App. May 26, 2010).
filed an application for postconviction relief, claiming that
his trial counsel was ineffective in failing to investigate
and present evidence that Brown murdered Hutchinson and in
failing to present expert testimony that blood splatter would
have been found on Heard's clothing had he fired the
fatal shots. The district court determined that Heard's
trial counsel breached an essential duty by failing to
effectively cross-examine Brown and ordered a new trial.
was retried for first-degree murder in 2017. Heard's
theory of defense at the second trial was that Brown murdered
Hutchinson at Stanley's direction. Brown left the scene
of the murder with the firearm, wiped it clean, and hid it.
The murder weapon belonged to Stanley, who was upset with
Hutchinson for propositioning Stanley's female friend.
Stanley and Brown were described as close friends who had
been living together, whereas Heard and Hutchinson had been
"like brothers." A witness testified Stanley told
her that he could tell Brown to kill someone and he would get
away with it because of Brown's mental illness. A
cellmate testified he overheard Brown tell Heard that Brown
knew Heard did not murder Hutchinson and should "just
let [Brown] play the crazy role."
Brown had testified in the first trial, this time Brown
asserted his Fifth Amendment privilege in a pretrial
deposition and made clear he would assert the privilege and
refuse to answer any questions if called to testify in front
of the jury. Heard filed a motion to compel Brown's
testimony at the second trial and asserted numerous aspects
of the potential testimony that would support his defense
theory that Brown committed the murder. The court allowed
Brown to assert a blanket privilege of his Fifth Amendment
rights to any question. Heard nevertheless wanted Brown to
"take the Fifth" in front of the jury so that
jurors would infer Brown was guilty.
hearing on Heard's motion to compel, the judge noted the
parties assumed the court had discretion whether to compel a
witness to take the Fifth in front of the jury.
I did note that you were careful to make the observation the
Court is not obligated to force a witness to take the Fifth
Amendment in front of a jury. And in my practice of over 40
years in the criminal area, I think that type of discretion
is wisely exercised. I don't think it's a good idea
for a Court to force a witness to take the Fifth Amendment at
district court denied Heard's motion and refused to
compel Brown to testify. The court relied on
Bedwell's holding that "a Defendant may not
call a witness who has indicated an intent to assert his or
her right against self-incrimination before a jury,"
noting that the jury cannot draw any inferences favorable to
either side from a witness's invocation of that
privilege. The district court foresaw problems with
compelling a witness to take the Fifth in the presence of the
Using the exercise of constitutional rights as a weapon,
rather than a shield, is troubling. This approach is an
invitation for jurisprudential mischief in the criminal
Were the procedure sanctioned, any defendant could subpoena
any known person of disrepute and force him or her to take
the Fifth. There would be no way for the Court, or the jury,
to assess the relevance of such an act. It would be evidence
by innuendo, untested by the adversarial process.
court observed that "[t]he 'Perry Mason moment'
of a witness 'taking the Fifth' before the jury is a
misuse of that right that cannot be assuaged by a cautionary
or curative instruction."
result, Brown never testified or asserted his constitutional
privilege in front of the jury. The second jury found Heard
guilty of first-degree murder, and he was again sentenced to
life in prison without parole. Heard appealed, and we
transferred the case to the court of appeals, which reversed
Heard's conviction and found that "[t]he district
court's failure to determine the extent and validity of
Brown's reported assertion of his Fifth Amendment
privilege on his second round of testimony resulted in a
violation of Heard's right to compulsory process."
The court of appeals distinguished Bedwell based on
the "unique context of [Heard's] case" in which
the witness now asserting his Fifth Amendment privilege had
testified in the first trial. We granted the State's
application for further review.
Standard of Review.
review decisions to admit or exclude evidence for an abuse of
discretion. State v. Russell, 893 N.W.2d 307, 314
(Iowa 2017). "Reversal is warranted only upon showing
the 'court exercise[d] its discretion on grounds or for
reasons clearly untenable or to an extent clearly
unreasonable.'" State v. Alberts, 722
N.W.2d 402, 408 (Iowa ...