Amended April 17, 2017 State of Iowa v. James Alon Shorter ( 2017 )

IN THE SUPREME COURT OF IOWA
No. 14–1239
Filed April 14, 2017
Amended April 17, 2017
STATE OF IOWA,
Appellee,
vs.
JAMES ALON SHORTER,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Douglas F.
Staskal, Judge.
The State seeks further review after the court of appeals reversed
the defendant’s conviction based on one of three alternative theories of
guilt lacking substantial evidence. DECISION OF COURT OF APPEALS
VACATED; DISTRICT COURT JUDGMENT AFFIRMED.
Jennifer J. Bonzer of Johnson & Bonzer, P.L.C., Fort Dodge, for
appellant.
Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant
Attorney General, John P. Sarcone, County Attorney, and Daniel Voogt
and Stephanie Cox, Assistant County Attorneys, for appellee.
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APPEL, Justice.
Richard Daughenbaugh died after he was assaulted by a group of
people on the banks of the Des Moines River in Des Moines. Four
people—Kent Tyler, James Shorter, Yarvon Russell, and Leprese
Williams—were originally charged with murder in connection with
Daughenbaugh’s death. Tyler was tried separately from the others and
was convicted of second-degree murder for his role in punching
Daughenbaugh in the face prior to the group assault which caused
Daughenbaugh’s death.
In State v. Tyler, we held the evidence in Tyler’s case did not
support the trial court’s instruction on joint criminal conduct. 873
N.W.2d 741, 753 (Iowa 2016). Because we could not determine whether
the jury convicted him under the tainted instruction or under the legally
supported theory that he acted as a principal or aider and abettor, we
reversed the conviction and remanded the case to the district court. Id.
at 753–54.
In this case, as in Tyler, a jury convicted Shorter of second-degree
murder. On appeal, Shorter claimed that there was insufficient evidence
to support the jury’s verdict under any of the State’s theories. Shorter
also claimed that if there was insufficient evidence on the joint criminal
conduct theory but sufficient evidence as a principal or aider and
abettor, the conviction should be reversed under Tyler, 873 N.W.2d 741.
Shorter additionally claimed that his counsel provided ineffective
assistance by failing to object to the testimony of a witness that identified
Shorter when the minutes of testimony did not state that she would
make such an identification. Shorter further asserted that once this
tainted evidence was admitted, his counsel should have moved for a
mistrial. Shorter also claimed that the district court erred when it and
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counsel discussed how to respond to questions posed by the jury when
Shorter was not present. Finally, Shorter claimed that his trial counsel
gave ineffective assistance for failure to request a stock jury instruction
on eyewitness identification.
The court of appeals reversed Shorter’s conviction. Relying on
Tyler, the court of appeals concluded that although there was sufficient
evidence to support the conviction on the ground that Shorter was a
principal in the murder or aided and abetted the murder, there was
insufficient evidence to support the joint criminal conduct instruction.
See 873 N.W.2d at 753.
We granted further review. For the reasons expressed below, we
vacate the judgment of the court of appeals and affirm Shorter’s
conviction.
I. Factual and Procedural Background.
A. Evidence at Trial. The State offered evidence at Shorter’s trial
which showed that on the evening of August 24, 2013, a group of
teenagers and young adults began drinking and partying in a parking lot
at the intersection of Second and Center Street near the Wells Fargo
Arena and the Des Moines River. Witnesses estimated the size of the
group was between thirty to fifty people.
Daughenbaugh arrived at the location and parked in the parking
lot. He appeared drunk when he arrived. He approached the group and
began participating in drinking and dancing.
A short time after Daughenbaugh arrived, Raymond Shorter, a
cousin of the defendant here, testified that Tyler struck Daughenbaugh,
declaring, “Don’t touch me” or “Don’t fucking touch me.” Daughenbaugh
fell to the ground. At the time of the assault, Monica Perkins was in a
parked car in the vicinity. Perkins testified that after Daughenbaugh fell
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to the ground, a group assembled around Daughenbaugh and jumped
and stomped on his face. Perkins exited her vehicle and attempted to
protect Daughenbaugh by lying across his body.
When the group appeared to be about to attack Perkins, her
boyfriend, Isaiah Berry, attempted to intervene. He was assaulted by the
group and suffered minor injuries. While the group was assaulting
Berry, Perkins was able to get off Daughenbaugh’s body and call 911.
Two young women wrestled the phone from Perkins and threw it toward
the river. About two or three minutes after Perkins’s 911 phone call,
Des Moines police arrived at the scene.
Perkins promptly took the police to Daughenbaugh. He moved
slightly but did not answer questions. Paramedics soon arrived and
Daughenbaugh was taken to a Des Moines hospital. Daughenbaugh
died on the morning of August 25. At trial, the medical examiner
testified that Daughenbaugh had multiple blunt force injuries to his head
and torso. The medical examiner testified the cause of death was tears
to the mesenteric artery—the artery that supplies blood to the large and
small intestines—which caused internal bleeding resulting in death.
At trial, the fighting issue was whether Shorter was involved in the
assault. The State sought to prove Shorter was one of the participants in
the assault that led to Daughenbaugh’s death, while the defense, in
addition to attacking the State’s proof, sought to establish Shorter was in
the vicinity but not among the people who gathered around
Daughenbaugh.
The State called Perkins to support its case. Perkins was
questioned at length about whether she could identify who was involved
in the assault on Daughenbaugh. Perkins testified that she remembered
identifying one person from an array of photos on the morning of
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August 25, but could not provide a description of the person she
identified. When asked by the prosecutor if she could now identify the
person she picked in the earlier photo lineup, she stated that she did not
remember. When pressed by the prosecutor, however, Perkins testified
that Shorter was one of the persons she saw stomp on Daughenbaugh.
On cross-examination, Perkins admitted that in an earlier deposition,
she was unable to identify any of the defendants as having been involved
in the assault on Daughenbaugh.
B.B., who was seventeen in 2013, testified she saw Shorter in the
crowd that formed around Daughenbaugh. B.B. testified that she left
when the crowd formed. B.B. further testified Shorter contacted her
shortly after the night of the murder and asked B.B. to tell the police that
Shorter had been with B.B. at a pedestrian bridge some distance away
from the site of the assault on Daughenbaugh. On cross-examination,
B.B. admitted that she had given inconsistent answers in an earlier
deposition and that she had been drinking vodka continuously for about
three or four hours prior to the murder.
L.S., who was fifteen at the time of the murder, testified she saw
Shorter kick Daughenbaugh. She testified that after the assault on
Daughenbaugh began, she left the scene. Like B.B., L.S. too had been
drinking on the evening of the assault and was impeached by the defense
regarding inconsistent statements she made to the police and in a prior
deposition.
T.T., another minor witness, claimed at trial to not remember
many of the events on the night of the murder. She did, however, testify
Shorter was not involved in the assault on Daughenbaugh.
Detective Timothy Peak testified as a rebuttal witness for the State.
Peak testified that after police arrived at the scene, Shorter told him that
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he had gone up to Daughenbaugh and kicked him while he was on the
ground to check to see if Daughenbaugh was okay.
The defense offered evidence that Shorter was not a participant in
the assault. Berry testified that he knew Shorter and that Shorter was
not in the crowd surrounding Daughenbaugh. Berry further testified
that he was positive that Shorter was not one of the people who
assaulted Berry after his girlfriend had tried to intervene on
Daughenbaugh’s behalf.
Raymond Shorter also testified at trial. He stated Shorter was near
the pedestrian bridge at the time the assault began and was not involved
in it. Similarly, Jontay Williams testified that Shorter was not involved
and that when the assault broke out, he was talking to a girl down the
hill near the water. Williams testified that when the fight broke out, he
called for Shorter and Russell and they immediately left in his car.
Finally, Nakeba Blair—a friend of Shorter and Russell—testified they
were not involved in the fight.
B. Jury Instructions and Verdict. The district court instructed
the jury on first- and second-degree murder. On second-degree murder,
the jury was instructed that the defendant could be found guilty if the
jury found “the defendant, individually or through joint criminal conduct
or through aiding and abetting another, assaulted Richard
Daughenbaugh,” Daughenbaugh died as a result of the assault, and
“[t]he defendant, individually or through joint criminal conduct or
someone he aided and abetted, acted with malice aforethought.”
On joint criminal conduct, the jury was instructed that “[w]hen two
or more persons act together and knowingly commit a crime, each is
responsible for the other’s acts done in furtherance of the commission of
the crime.” Among the elements that the State had to prove in the case
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to show joint criminal conduct, the State had to show that “[w]hile
furthering the crime of assault, the other person or persons committed
the different crime of murder.”
The jury returned a general verdict finding Shorter guilty of
second-degree murder. The district court denied Shorter’s motion for a
new trial and entered judgment. Shorter appealed.
C. Issues Presented. On appeal, Shorter claims the evidence at
trial was insufficient to support his conviction as a principal, an aider
and abettor, or under a joint criminal conduct theory and the submission
of these theories to the jury was erroneous. Shorter also claims trial
counsel provided ineffective assistance for failing to object and request a
mistrial when Perkins testified that she saw Shorter stomping on
Daughenbaugh when the minutes of testimony did not state that Perkins
would make an identification. Shorter further claims he is entitled to a
new trial because the district court and counsel discussed how to
respond to questions posed by the jury when Shorter was not present.
Finally, Shorter asserts his trial counsel gave ineffective assistance by
failing to request a stock jury instruction on eyewitness identification.
II. Challenge to Verdict Based on Sufficiency of the Evidence.
A. Standard of Review. Challenges to sufficiency of the evidence
are reviewed for correction of errors at law. State v. Hearn, 797 N.W.2d
577, 579 (Iowa 2011). We will affirm a trial court’s denial of a motion for
judgment of acquittal if the record contains substantial evidence
supporting the defendant’s conviction. State v. McCullah, 787 N.W.2d
90, 93 (Iowa 2010).
On a motion for a new trial, the district court uses a weight-of-the-
evidence test. State v. Nitcher, 720 N.W.2d 547, 559 (Iowa 2006); State v.
Reeves, 670 N.W.2d 199, 202 (Iowa 2003). This test is more searching
8
than the sufficiency-of-the-evidence test, involves questions of credibility,
and requires the district court to determine whether more credible
evidence supports one side or the other. State v. Ary, 877 N.W.2d 686,
706 (Iowa 2016); Nitcher, 720 N.W.2d at 559. We have cautioned trial
courts, however, “to exercise this discretion carefully and sparingly”
because of the deference owed to the jury’s credibility determinations.
State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). We review the trial
court’s ruling on a motion for a new trial for abuse of discretion. Nitcher,
720 N.W.2d at 559; Reeves, 670 N.W.2d at 202.
B. Positions of the Parties.
1. Sufficiency of the evidence as principal. Shorter first challenges
the sufficiency of the evidence as a principal. Shorter begins by
attacking the eyewitness testimony of Perkins and L.S. He directs our
attention to State v. Henderson, 27 A.3d 872 (N.J. 2011). In Henderson,
the New Jersey Supreme Court canvassed the evolving scientific
literature related to eyewitness testimony that raised questions about its
reliability. Id. at 896–910. Because of the reliability issues, the New
Jersey Supreme Court imposed limitations on the admission of
eyewitness testimony in New Jersey courts under the due process clause
of the New Jersey Constitution. Id. at 928.
Turning to the facts of this case, Shorter notes that Perkins was
unable to identify Shorter as one of the attackers at her pretrial
deposition. With respect to L.S., Shorter emphasizes that she admitted
she had been drinking vodka for three or four hours and was very
intoxicated at the time of the attack. In contrast, Shorter notes that
Berry, Raymond Shorter, Blair, and T.T. all testified that Shorter was not
involved in the assault on Daughenbaugh.
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Further, Shorter asserts there is no evidence that he directly
contributed to the death of Daughenbaugh. Shorter notes that the
coroner testified that Daughenbaugh died as a result of internal bleeding
to the abdominal cavity caused by tears to the mesentery. Shorter,
however, points out that Perkins testified Shorter stomped on
Daughenbaugh’s head. The coroner testified that Daughenbaugh
suffered head injuries before the abdominal injuries and that the injuries
to the head did not directly contribute to Daughenbaugh’s death. There
is no evidence, according to Shorter, that he kicked Daughenbaugh in
the abdomen. After Daughenbaugh fell to the ground, about fifteen
people started to kick and stomp him. There was no evidence, however,
that Shorter’s kick incapacitated him or led to his death.
The State counters that under Iowa Code section 703.1 (2013), “All
persons concerned in the commission of a public offense, whether they
directly commit the act constituting the offense or aid and abet its
commission, shall be charged, tried and punished as principals.” Thus,
according to the State, there is no difference between liability as a
principal and liability as an aider or abettor. See State v. Black, 282
N.W.2d 733, 735 (Iowa 1979).
On the question of causation, the State asserts the convictions
may be sustained on a theory of aggregate causation. In support of its
argument, the State cites Paroline v. United States, 572 U.S. ___, 134
S. Ct. 1710 (2014). In Paroline, the Supreme Court noted “it would be
anomalous to turn away a person harmed by the combined acts of many
wrongdoers simply because none of those wrongdoers alone caused the
harm.” Id. at ___, 134 S. Ct. at 1724. Thus, according to the State, if the
evidence is sufficient to show that Shorter took part in the assault, the
State does not have to prove which kick delivered the fatal blow.
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With respect to identity, the State agrees that it has the burden of
establishing that Shorter participated in the assault. The State notes
that Perkins identified Shorter as an assailant in a pretrial photo lineup
as well as at trial. Further, Shorter’s attempt to persuade B.B. to
concoct a story establishing an alibi and his admission to Detective Peak
that he kicked Daughenbaugh, if only to see if he was okay, provided
substantial evidence that Shorter was a participant in the assault. The
fact that Shorter admitted to Detective Peak that he was in the assault
area contradicted the testimony of other witnesses who claimed that
Shorter was not in the area.
2. Sufficiency of the evidence on aiding and abetting. On the
alternative theory of aiding and abetting, Shorter emphasizes that mere
nearness to, or presence, at the scene of the crime, without more, is not
aiding and abetting. See State v. Allen, 633 N.W.2d 752, 754–55 (Iowa
2001). Shorter argues that there is simply no evidence that he advised
or encouraged anyone to assault Daughenbaugh or cheered the attackers
on. Shorter claims he was merely present at the scene and that is
insufficient to support a second-degree murder conviction on an aiding
and abetting theory.
The State responds that the evidence goes well beyond establishing
Shorter’s mere presence at the crime scene. Perkins and L.S. testified
that Shorter participated in kicking Daughenbaugh. A reasonable jury
could believe that Shorter’s telling police that he kicked Daughenbaugh
“to see if he was okay” was simply an effort to deflect culpability for the
crime and was absurd on its face. Once the State established that
Shorter participated in the assault, the elements of aiding and abetting
were established.
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3. Sufficiency of the evidence on joint criminal conduct. On the
theory of joint criminal conduct, Shorter asserts there was no showing
that he was acting in concert with others to cause the death of
Daughenbaugh. Further, Shorter asserts there were not two crimes—
instead, everyone was assaulting Daughenbaugh at the same time. As a
result, Shorter argues the submission of the joint criminal conduct
instruction was erroneous.
Shorter asserts the case is similar to State v. Smith, 739 N.W.2d
289 (Iowa 2007). In Smith, we emphasized the need for two separate
crimes to support a joint criminal conduct instruction. Id. at 294. The
defendant must act in concert with another for the first crime, and a
different crime must then be committed by another participant in
furtherance of the original offense. Id.
The State asserts that joint criminal conduct does not require an
explicit agreement, but only that the participants acted together.
Further, the State suggests each kick or stomp inflicted on
Daughenbaugh constitutes a separate assault. See State v. Hohle, 510
N.W.2d 847, 849 (Iowa 1994). The State argues that there were, in fact,
two crimes—the crime of assault and the crime of murder. According to
the State, the fact that Daughenbaugh’s death was reasonably
foreseeable from the group assault is sufficient to satisfy the legal
requirement that the murder be “in furtherance” of the conspiracy. See
State v. Satern, 516 N.W.2d 839, 844 (Iowa 1994).
4. Impact of unsupported instruction on general verdict. Shorter
asserts that if any one of the theories of conduct fail, the remedy is a
remand of the case for a new trial. See State v. Hogrefe, 557 N.W.2d 871,
881 (Iowa 1996). Shorter points out that when a general verdict is
returned, it is impossible to tell whether the jury based its verdict on a
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legally supported theory or upon a flawed theory. State v. Heemstra, 721
N.W.2d 549, 558–59 (Iowa 2006).
The State responds by noting that to the extent the evidence did
not support a joint criminal conduct instruction, there is no reversible
error. The State recognizes the defendant’s argument that “if any one of
the theories of conduct fail, the remedy is to remand the case for a new
trial.” But, the State suggests, the argument is only partially correct.
According to the State, reversal for an erroneous submission of a joint
criminal conduct instruction is not required unless there is an
opportunity for the jury to find the defendant guilty based on anything
other than the defendant’s own conduct as a principal or aider and
abettor of the crime charged. State v. Jackson, 587 N.W.2d 764, 766
(Iowa 1998). In other words, if the verdict must have been based upon a
finding that Shorter was either acting as a principal or aider and abettor,
then the erroneous submission of the joint criminal conduct instruction
does not require reversal. See id.
C. Discussion.
1. Sufficiency of the evidence as a principal. With respect to
Shorter’s attack on the sufficiency of the evidence for principal liability
based on causation, we begin by noting that B.B. testified Shorter was
part of the group forming around Daughenbaugh at the beginning of the
assault. The evidence showed that once Daughenbaugh fell to the
ground, the assembled group, yelling and jeering, proceeded to stomp on
Daughenbaugh. L.S. testified that she saw Shorter kicking
Daughenbaugh as part of the assault and that she left the scene
thereafter. Perkins also testified she saw Shorter kick Daughenbaugh as
part of the group assault. Shorter himself admitted to Detective Peak
that he kicked Daughenbaugh “to see if he was okay,” thus establishing
13
that he was at the scene of the crime and not elsewhere as testified by
defense witnesses. And, Shorter asked B.B. to concoct an alibi for him
shortly after the murder, implying guilt.
There is thus substantial evidence in the record that Shorter was
present and that he did more than simply kick Daughenbaugh after his
death. There is substantial evidence that Shorter was one of
Daughenbaugh’s attackers prior to his death as part of a group assault.
In Tyler, we considered whether the evidence in that case
supported liability on a principal theory. 873 N.W.2d at 747. We noted
while there was substantial evidence that Tyler punched Daughenbaugh
in the face, knocking him to the ground, the autopsy revealed
Daughenbaugh’s death was not caused by blows to the head, but by
tears to the mesentery caused by blows to the abdomen. Id. at 745, 747.
The state maintained that the jury was entitled to infer that Tyler
remained at the scene and participated in the subsequent kicking and
stomping. Id. at 747.
Although we accepted the state’s alternative causation argument,
we rejected the state’s argument based upon the state’s assertion that
Tyler participated in the kicking and stomping. Id. We emphasized in
Tyler that “[n]o witness testified that Tyler . . . was one of the persons
kicking or stomping on Daughenbaugh’s abdomen.” Id. (emphasis
added). We noted that the evidence showed there were a significant
number of persons in the group surrounding Daughenbaugh and “to
draw the inference that Tyler delivered one of the fatal blows requires
guesswork and speculation.” Id. It could be argued that under Tyler,
allowing a jury to draw the inference that Shorter delivered one of the
fatal blows to the abdomen requires guesswork and speculation.
14
Unlike in Tyler, however, in this case there is substantial evidence
that Shorter participated in the kicking and stomping when
Daughenbaugh was on the ground. It would be a misreading of Tyler to
require the State to present direct evidence that Shorter delivered a kick
to the abdomen which caused Daughenbaugh’s death in order to support
a second-degree murder conviction as a principal. Although not all
blows delivered to Daughenbaugh were a cause of his death, this case
involves an aggregate group assault in which the State showing who
delivered which blow to a specific body part is not required. See People v.
Bailey, 549 N.W.2d 325, 334 (Mich. 1996) (stating in group assault
context that “it is not necessary that the party convicted of a crime be the
sole cause of that harm, only that he be a contributory cause that was a
substantial factor in producing the harm”); Umoja v. State, 965 S.W.2d 3,
9 (Tex. Ct. App. 1997) (per curiam) (holding, in context of a group assault
resulting in death of a homeless man, defendant’s conduct combined
with others together may be sufficient unless conduct of defendant
clearly insufficient), aff’d on reh’g; accord State v. Texieira, 944 A.2d 132,
142 (R.I. 2008).
In Tyler, we concluded that there was sufficient causation ground
on an alternate theory of liability, namely, that Tyler’s actions were
sufficient to support liability as a principal because it was a factual
cause of foreseeable subsequent harm. 873 N.W.2d at 748. Under a
similar theory, it is sufficient to show that Shorter participated in a
vicious group assault of a victim on the ground. A foreseeable result of
participating in the group kicking and stomping of a helpless person is
that the victim may receive blows to the body that cause death. See id.
at 749. Such causation is not so attenuated as to prevent imposition of
criminal liability. See State v. Garcia, 616 N.W.2d 594, 597 (Iowa 2000).
15
Shorter also challenges the strength of the State’s identity
evidence. While Shorter cites the New Jersey case of Henderson, no state
constitutional challenge is raised here regarding the evidence offered in
this case. See 27 A.3d at 915–18. The sole issue on appeal is whether
the State offered substantial evidence to support the identification of
Shorter as a participant in the crime.
On the record before us, we conclude that the State has met its
burden of producing substantial evidence that Shorter participated in the
assault. While Shorter was able to impeach Perkins, B.B., and L.S., the
strength of the identity evidence of these witnesses is a question for the
jury. See State v. Jordan, 409 N.W.2d 184, 186 (Iowa 1987) (“[Q]uestions
of witness credibility[] are of course matters reserved for jury
determination.”). While it is true that Shorter offered testimony from
several witnesses that he was not at the scene, a jury was free to credit
the testimony of Detective Peak, who testified that Shorter told him that
he had kicked Daughenbaugh while he lay prostrate, thereby
demonstrating his presence at the scene of the crime.
2. Substantial evidence as aider and abettor. We considered the
sufficiency of the evidence on a theory of aiding and abetting in Tyler,
873 N.W.2d at 750. In Tyler, we held there was sufficient evidence to
support the aiding and abetting theory. Id. at 751–52. We noted that
Tyler’s striking Daughenbaugh while a crowd formed was sufficient to
support a finding of encouragement of subsequent acts. Id. at 750–51.
We further noted that a jury could conclude that Tyler did not walk away
but remained with the crowd while Daughenbaugh was brutally beaten.
Id. at 751.
To sustain a conviction on the theory of aiding and abetting,
the record must contain substantial evidence the accused
assented to or lent countenance and approval to the criminal
16
act either by active participation or by some manner
encouraging it prior to or at the time of its commission.
State v. Spates, 779 N.W.2d 770, 780 (Iowa 2010) (quoting State v.
Tangie, 616 N.W.2d 564, 574 (Iowa 2000)).
Here, the evidence of aiding and abetting is even stronger than in
Tyler. The State’s evidence was that Shorter was present at the
beginning of the beating and participated in the subsequent kicking and
stomping of Daughenbaugh. Such evidence is plainly sufficient to
support an aiding and abetting theory. See Spates, 779 N.W.2d at 780,
Tangie, 616 N.W.2d at 574.
3. Substantial evidence to support joint criminal conduct instruction.
In Tyler, we considered the question of whether the evidence supported a
joint criminal conduct instruction. 873 N.W.2d at 752. In Tyler, unlike
here, the evidence only showed that the defendant had initially punched
Daughenbaugh in the face, causing him to fall to the ground, but did not
establish Tyler acted in concert with others or participated in the
subsequent group assault. Id. On the facts of Tyler, we concluded that
there was insufficient evidence to support an instruction based upon
joint criminal conduct. Id. at 753. We further concluded that the error
required reversal of Tyler’s conviction. Id. at 754.
Although the fact pattern is different in this case, we conclude that
the teaching of Tyler with respect to the sufficiency of the evidence to
support a joint criminal conduct instruction is fully applicable here. In
Tyler, we emphasized that joint criminal conduct requires two acts—
namely, a crime in which the joint actor knowingly participated and a
subsequent crime that is unplanned but reasonably foreseeable in
furtherance of the first crime. Id. at 752; see also State v. Rodriguez, 804
N.W.2d 844, 852 (Iowa 2011); Satern, 516 N.W.2d at 843. The first or
17
predicate crime in joint criminal conduct must be conducted in concert
with another. Tyler, 873 N.W.2d at 752. The second crime under joint
criminal conduct must then be in furtherance of the first crime. Id.
Here, it might be arguable that Tyler’s initial assault was a
separate crime from the group assault. But there is no substantial
evidence that Shorter acted in concert with Tyler when Tyler first struck
Daughenbaugh. Shorter contends that the subsequent group beating,
although it involved multiple assailants, cannot be regarded as multiple
crimes under our unit of prosecution cases. See, e.g., State v. Love, 858
N.W.2d 721, 724 (Iowa 2015); State v. Ross, 845 N.W.2d 692, 704–05
(Iowa 2014); State v. Velez, 829 N.W.2d 572, 579–84 (Iowa 2013). We
need not decide the issue, however, because, as explained below, even if
the joint criminal conduct instruction was erroneously given, reversal is
not required under the facts of this case.
We begin our analysis of the impact of the joint criminal conduct
instruction with discussion of Tyler. In Tyler, we held that in the context
of that case, the submission of the faulty instruction required reversal.
873 N.W.2d at 754. We noted that the general rule in Iowa—contrary to
that announced by the United States Supreme Court in Griffin v. United
States, 502 U.S. 46, 60, 112 S. Ct. 466, 474 (1991)—has been where one
theory of liability is flawed because of insubstantial evidence to support it
in a multitheory case because of insubstantial evidence, a general verdict
must be reversed because we have no way of determining which theory
the jury accepted. Tyler, 873 N.W.2d at 754; see, e.g., State v. Lathrop,
781 N.W.2d 288, 297 (Iowa 2010); Heemstra, 721 N.W.2d at 558–59;
State v. Tejeda, 677 N.W.2d 744, 754–55 (Iowa 2004); Hogrefe, 557
N.W.2d at 881; State v. Pilcher, 242 N.W.2d 348, 354–56 (Iowa 1976);
State v. Mays, 204 N.W.2d 862, 865 (Iowa 1973).
18
In these cases, we have emphasized that reversal is required
because there was no way in which we could determine whether the
jury’s verdict was based upon the flawed jury instruction. See State v.
Thorndike, 860 N.W.2d 316, 321 (Iowa 2015). In Tyler, we reaffirmed our
well-established approach and required a retrial when a flawed
submission of a joint criminal conduct instruction may have tainted the
jury verdict. 873 N.W.2d at 754. We again reject the State’s invitation to
disturb our long line of cases generally refusing to adopt the Griffin
approach.
Yet, this case is in a different posture than in Tyler. In Tyler, there
were arguably two crimes—namely, Tyler’s initial hitting Daughenbaugh
in the face and then the subsequent group beating. Id. at 752. Thus, it
was possible that the jury convicted Tyler based on a belief that the first
assault was the predicate crime and that the subsequent group beating
was in furtherance of the original crime. Id. at 754. Thus, it was
possible in Tyler that the jury did not believe that Tyler was guilty of
second-degree murder as a principal or as an aider and abettor, but
instead concluded that liability for murder arose only out of joint
criminal conduct. Id.
The State suggests that this case is different from Tyler because in
this case there was only one crime, namely, the joint group assault of
Daughenbaugh. The key case is Jackson, 587 N.W.2d 764. In Jackson,
the evidence showed that the defendant was hired by a woman to kill the
woman’s ex-boyfriend. Id. at 765. Jackson and the woman stopped the
ex-boyfriend’s vehicle and then Jackson shot and killed the ex-boyfriend.
Id. The jury was instructed on theories of liability as a principal and on
joint criminal conduct, but not aiding and abetting. Id. at 766. We
concluded that Jackson must have been found guilty either on his own
19
conduct or as an aider and abettor, and thus it was not a reversible error
for the district court to have instructed the jury on joint criminal conduct
instead of aiding and abetting. Id.
In Smith, we repeated the principle that a flawed joint criminal
conduct instruction does not require reversal “as long as there is no
opportunity for the defendant to be found guilty based on anything other
than the defendant’s own conduct as a principal or aider and abettor of
the crime charged.” 739 N.W.2d at 294. In Smith, however, there were
other collateral crimes—stolen guns, first-degree theft, and possession of
methamphetamines—that could have supported a conviction on joint
criminal conduct. Id. at 291, 294–95.
Here, however, for Shorter there are no predicate nonhomicide
crimes that could have served as a basis for vicarious liability for
subsequent crimes in furtherance of the original crime. The only crime
of Shorter’s that could possibly support a joint criminal conduct theory
for second-degree murder is participation in the group assault on
Daughenbaugh prior to his death. If the jury found Shorter participated
in the group assault on Daughenbaugh, however, he would also
necessarily be guilty of second-degree murder based on liability as a
principal or under an aiding and abetting theory. As a result, in this
limited situation, Jackson applies and a retrial is not required. See 587
N.W.2d at 766.
III. Testimony of Perkins Outside the Scope of the Minutes of
Testimony.
A. Introduction. Iowa Rule of Criminal Procedure 2.5(3) states,
Witness names and minutes. The prosecuting attorney shall,
at the time of filing such information, also file the minutes of
evidence of the witnesses which shall consist of a notice in
writing stating the name and occupation of each witness
upon whose expected testimony the information is based,
20
and a full and fair statement of the witness’ expected
testimony.
In this case, the minutes of testimony did not state that Perkins
would identify Shorter as one of the assailants. The minutes simply
stated that Perkins witnessed the assault and saw “ten to fifteen
individuals hit, kick and stomp on Mr. Daughenbaugh.” The minutes
stated that Perkins “would testify to all of these matters in detail.”
A pretrial deposition was taken of Perkins. Perkins testified at her
deposition that she was too busy trying to save Daughenbaugh’s life and
not paying attention to who was doing the beating or stomping to make
an identification.
At trial, however, Perkins, after repeated questioning by the
prosecution, identified Shorter as a person who jumped on
Daughenbaugh’s face:
Q: So you identified someone for the police from a
photograph; is that right? A: Yes, ma’am.
Q: That was involved in stomping on Richard
Daughenbaugh? A. Yes.
Q: And today you can’t recall who that person is?
A: I just—I don’t know if because I want to block it out of my
mind. I don’t know. I have a lot of things on my mind right
now. So I am just kind of —
Q: All right. And you’re also required to answer
truthfully. So I need you to tell the truth, if you remember
who this person is that you identified or not. A: Yeah. I
remember that one over there in the checkered shirt.
....
Q: If you’re telling me that you recognize one of the
people in the court room today as being involved in stomping
on Richard Daughenbaugh, yes, I would like for you to
describe for me where he’s sitting and what he’s wearing.
At this point, Perkins identified James Shorter.
21
Perkins also identified Yarvon Russell as “stomping” on
Daughenbaugh. She conceded that she could not identify all of the
people assaulting Daughenbaugh because “they were taking turns
jumping up in the air and stomping on him.”
On cross-examination, Shorter confronted Perkins with her
deposition testimony:
Q: Ma’am, I’ve shown you a deposition transcript. Do
you recall saying this? A: Yeah, I do.
Q: What did you say at the time? A: That I was too
busy trying to save that man to remember if it was him.
Q: And that you weren’t paying attention to who was
actually doing the beating or stomping? A: Yes.
Q: And at that time you weren’t able to say who that
person was or make any identification; is that right? A: No,
I wasn’t.
Shorter did not object to Perkins’s identification testimony at trial.
Shorter filed a motion for a new trial, however, based on newly
discovered evidence related to Perkins’s eyewitness testimony. In the
posttrial hearing on the motion for a new trial, Shorter called DeMarco
Turner as a witness. Turner testified that sometime in May, apparently
during Shorter’s trial, he ran into Perkins at the courthouse. According
to Turner, Perkins told him she was testifying in a murder case “trying to
get probation” or “to get probation.” Turner thought the charges against
Perkins involved drug charges and driving while barred.
The day of the conversation with Perkins, Turner himself received a
sentence and was incarcerated in the same cell pod as Shorter in the
Polk County jail. Turner testified he told Shorter about the conversation
he had had with Perkins at that time.
In response, the State emphasized that Perkins did not have a deal
to testify and that Turner did not testify that she did. The State further
22
argued that there was no suggestion that Perkins did not testify
truthfully at trial.
The district court denied the motion for a new trial based upon
Turner’s testimony. The district court noted that Turner conversed with
Shorter on the very same day as the conversation with Perkins and thus
the defense should have discovered the information with due diligence.
The district court also stated that it did not believe the testimony would
have changed the result of the trial.
B. Standard of Review. The claim that Shorter’s counsel should
have objected to Perkins’s identification testimony comes to us in the
context of ineffective assistance of counsel. The parties agree that in
ineffective-assistance-of-counsel cases, the defendant must show both
that counsel breached a duty to the defendant and the defendant was
prejudiced. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984).
C. Positions of Parties. Shorter claims that Perkins’s testimony
was a complete surprise to the defense. According to Shorter, the
defense expected Perkins to testify about the context of the fight, not that
Shorter participated in the crime. According to Shorter, the pretrial
deposition of Perkins was not harmful to Shorter. Instead, according to
Shorter, Perkins became “a star witness” at trial.
Shorter asserts that his trial counsel provided ineffective
assistance of counsel by failing to object to Perkins’s identification
testimony as outside the scope of the minutes in violation of Iowa Rule of
Criminal Procedure 2.5(3). He further asserts that counsel was
ineffective for failing to seek a mistrial as a result of the unexpected
testimony.
23
Shorter claims prejudice because he could have cross-examined
Perkins more effectively if he had notice of her testimony. Shorter claims
that even a cursory review of her criminal record would have reflected
that at the time of her testimony, she had pending charges for driving
while barred.
Shorter further cites the posttrial testimony of Turner. Shorter
points out that Perkins’s pending charges were dismissed two weeks
after the trial. Even if there was no deal with Perkins related to her trial
testimony, Shorter argues that he could have argued that the reason she
changed her testimony was “to save her own skin.”
Shorter further asserts that with more notice, Shorter could have
successfully challenged the reliability of Perkins’s testimony and
prevented admission. According to Shorter, Perkins’s identification was
unreliable and was simply based on her repeatedly seeing Shorter in the
criminal proceedings.
The State responds that the minutes provided Shorter with
adequate notice. According to the State, Shorter knew that Perkins
would testify about what she observed during the attack and her in-court
identification was “consistent with the overall nature of the minutes.”
State v. Ellis, 350 N.W.2d 178, 182 (Iowa 1984).
The State further claims that Shorter failed to demonstrate
prejudice. The State claims that the minutes put Shorter on notice of the
necessity of further investigation of the witness’s probable testimony.
See State v. Musso, 398 N.W.2d 866, 868 (Iowa 1987). Further, the State
argues that Perkins’s in-court identification was cumulative of the
testimony of Detective Garcia that Perkins had circled a photo of Shorter
and identified him as one of Daughenbaugh’s assailants, the testimony of
L.S. that she saw Shorter kick Daughenbaugh, and the testimony of B.B.
24
that Shorter was part of the crowd that surrounded Daughenbaugh when
he was being beaten.
D. Iowa Caselaw Regarding Pretrial Disclosure in Criminal
Cases. In Iowa, the question of the degree to which the prosecution is
required to disclose to the defendant the facts underlying a prosecution
has been controversial in our courts since the beginning of statehood.
For example, in State v. Bowers, the court considered whether a witness
could testify in a criminal trial beyond the scope of the minutes of the
witness’s testimony before the grand jury. 17 Iowa 46, 50 (1864). Chief
Justice Wright noted that he was “instructed” to announce the majority
view that the requirement that a defendant be presented with minutes of
testimony of a witness before the grand jury did not require the
prosecution to “exclude anything else he may know or recollect on the
subject” in a subsequent prosecution. Id. Chief Justice Wright, however,
indicated that the very object of providing minutes testimony to be
returned with an indictment would be practically defeated by the
majority’s approach. Id. at 51.
The divergence of approach to disclosure obligations of the
prosecution in Bowers resurfaced in State v. Miller, 259 Iowa 188, 142
N.W.2d 394 (1966). In Miller, the court considered disclosure under
section 780.10 of the Iowa Code which required that notice be given of
“the substance of what he [the prosecutor] expects to prove by him [the
witness] on the trial.” Miller, 259 Iowa at 195–96, 142 N.W.2d at 399
(quoting Iowa Code § 780.10 (1962)). The minutes of testimony indicated
that a Detective Petersen was to testify regarding admissions made by
the defendant. Miller, 259 Iowa at 195, 142 N.W.2d at 399. Petersen’s
testimony, however, was suppressed by the trial court. Id. At trial, the
state offered testimony from Detective Iversen. Id.
25
A five-member majority of the court held that the minutes were
adequate. Id. at 196, 142 N.W.2d at 399. The majority emphasized that
the defense knew the admissions were made to two police officers and
also knew the general nature of the claimed admissions. Id. at 196, 142
N.W.2d at 399. The majority emphasized that although the minutes
were brief, mere brevity does not prevent a witness from testifying. Id.
The majority further noted that the state is not limited to the minutes or
notice in its examination of witnesses. Id.; see also State v. Thom, 236
Iowa 129, 131, 17 N.W.2d 96, 97 (1945); State v. Harding, 204 Iowa
1135, 1150, 216 N.W. 642, 649 (1927).
Justice Becker, for himself and three other justices, dissented.
Miller, 259 Iowa at 199, 142 N.W.2d at 401 (Becker, J., dissenting). The
dissent emphasized that Detective Iverson testified with respect to two
separate sets of admissions by the defendant. Id. at 200, 142 N.W.2d at
402. According to the dissent, one set of admissions was fully disclosed
in the minutes, but the other set was not disclosed. Id. The dissent
noted that the prosecution “strongly relied” upon the fact that the
defendant gave two versions of the story in urging the sufficiency of the
evidence to sustain the conviction. Id. The dissent emphasized that
“[n]o hint of this deviation” in the defendant’s admissions was contained
in the minutes. Id. at 200–01, 142 N.W.2d at 402. The dissent regarded
the court’s casual approach to the statutes as amounting to “judicial
repeal of a legislative enactment.” Id. at 204, 142 N.W.2d at 404.
We next considered a challenge to testimony as outside the
minutes in State v. Salter, 162 N.W.2d 427 (Iowa 1968). In Salter, the
original minutes indicated that the victim would testify that the
defendant had assaulted her with intent to commit rape, but at trial, the
victim testified that the “rape had been accomplished.” Id. at 431. The
26
state, however, filed a notice of additional testimony indicating that the
defendant “did commit rape.” Id.
Over the dissent of Justice Becker and one other justice, the Salter
majority found no infirmity. Id. at 431–32. The majority emphasized
that a witness is not limited to the minutes in his actual testimony. Id.
at 431. The court noted, however, that by filing the minutes of additional
testimony, the state followed “the safer, better, and fairer practice” since
the court had been far from unanimous in its prior cases on the subject.
Id.
Although Justice Becker had been a dissenter in Miller and Salter,
he relented in State v. Cunha, 193 N.W.2d 106, 108 (Iowa 1971). In
Cunha, a defendant charged with murder and aggravated robbery
challenged the testimony of a witness who identified the defendant as
one of four men who committed one of the robberies in question. Id. at
110. The minutes revealed that the witness would “describe the subjects
she saw involved in the robbery” and would testify that “after the robbery
she was able to identify the defendant Thomas Hinsey from a group of
photographs of possible suspects.” Id. At trial, the witness also
identified Cunha as one of the robbers. Id. The defendant claimed
surprise. Id. The Cunha court rejected the defense challenge to the
testimony with the brief observation that a witness identified in the
minutes was not limited to the minutes in subsequent testimony. Id. at
111.
If our law was frozen in place in 1971, Cunha would be substantial
authority supporting the position of the State in this case. But the law
has evolved. That evolution is reflected in State v. Walker, 281 N.W.2d
612 (1979).
27
In Walker, the minutes of testimony indicated that a witness would
testify regarding seeing the defendant in the rear of a motor supply
company with another person looking at tires which were later stolen
from the building. Id. at 614. At trial, however, the witness testified
regarding business records and the lack of a receipt for the sale of tires.
Id. We held that the testimony of the witness was beyond the scope of
the minutes and reversed the defendant’s conviction for third-degree
theft. Id. at 615.
We began our opinion in Walker by considering whether the
adoption of Iowa Rules of Criminal Procedure in 1978, in particular rules
4(6)(a) and 5(3)—the predecessor to rule 2.5(3)—worked a substantive
change from the previous statutory requirement of Iowa law related to
disclosure of minutes of testimony. Id. at 613. We concluded there was
a substantial change in law. Id. We noted that the question of the scope
of disclosure in minutes had been “hotly contested” throughout the years
by defense counsel and “frequently the subject of criticism by members
of this court.” Id. We cited the holding in Cunha that a witness is “not
limited to those minutes in his actual testimony.” Id. (quoting Cunha,
193 N.W.2d at 111). We noted that “[t]his rule has been severely
criticized, both from within and without the court.” Id.; see Miller, 259
Iowa at 199, 142 N.W.2d at 401.
We noted it was in this setting that the language of rule 5(3) was
adopted. Walker, 281 N.W.2d at 613. We concluded that the purpose of
the changes was “to assure minutes which would eliminate most claims
of foul play and would provide meaningful minutes from which a defense
could be prepared.” Id.
We then considered whether the witness’s testimony regarding
business records was sufficiently noticed in the minutes. Id. at 614. We
28
explained that minutes need not detail “each circumstance of the
testimony,” but must be sufficient to fully and fairly “alert defendant
generally to the source and nature of the evidence against him.” Id. We
noted that even the state conceded that it did not know about the
business records until trial was underway. Id. The minutes did little
more than identify the witness and state the conclusion that the tires in
question were stolen. Id. We stated, “Under the new rules defendant is
entitled to more.” Id. We held that the new evidence should have been
excluded on the ground that it was outside the scope of the minutes. Id.
at 615.
Since Walker, we have considered a number of cases involving rule
5(3) with mixed results. In State v. Olsen, we reversed a conviction where
the minutes revealed that a peace officer would testify regarding evidence
obtained from a vehicle, tagged packages, and receipt of a BCI criminalist
report, but did not disclose that the police officer was a DCI agent with
training and expertise in drug investigations. 293 N.W.2d 216, 220–21
(Iowa 1980). In Musso, 398 N.W.2d at 868, and State v. Waterbury, 307
N.W.2d 45, 51 (Iowa 1981), we found that testimony exceeded the scope
of the minutes but held that there was no reversible error because the
defendant was not surprised by the testimony. In several other cases, we
found that the minutes of testimony were sufficient to provide notice of
testimony offered at trial. Ellis, 350 N.W.2d at 182; State v. Lord, 341
N.W.2d 741, 743 (Iowa 1983); State v. Ristau, 340 N.W.2d 273, 275 (Iowa
1983).
In sum, the question of the scope of proper disclosure by the
prosecution of minutes of evidence prior to trial has been hotly
contested. As indicated in Walker, caselaw prior to 1978 is undermined
by the advent of Iowa Rule of Criminal Procedure 5(3), now rule 2.5(3),
29
which amounted to a substantive change in law designed to promote
greater disclosure. 281 N.W.2d at 613. Notwithstanding the more
stringent requirements of Iowa Rule of Criminal Procedure 2.5(3), there is
no requirement that the minutes of testimony provide a complete
catalogue of witness testimony at trial, but only that the defense be
placed on fair notice and not subject to surprise testimony.
E. Development in the Law of Eyewitness Identification. This
case, of course, involves the lack of disclosure in minutes that Perkins
would identify Shorter as one of Daughenbaugh’s attackers. The
reliability of eyewitness testimony has been the subject of intense
commentary in academia and in the courts. According to one article,
“eyewitness misidentification is by far the most frequent cause of
erroneous convictions.” Samuel R. Gross, Loss of Innocence: Eyewitness
Identification and Proof of Guilt, 16 J. Legal Stud. 395, 396 (1987). Yet,
juries often attach great weight to eyewitness identification without
consideration of reliability. See State v. Hunt, 69 P.3d 571, 576–77 (Kan.
2003) (noting that juries “usually attach great weight to eyewitness
identification, while others involved in a trial know and other disciplines
have documented that such identification is often unreliable”).
Preparing for eyewitness identification is an essential responsibility
of defense counsel. Eyewitness testimony may have a dramatic influence
on overall defense strategy or theory of the case. Defense counsel must
consider a pretrial motion to suppress. Voir dire may be used to educate
the jury about honestly mistaken witnesses. Defense counsel must be
prepared to explore the potential for error in the identification process
through effective cross-examination. Cross-examination, however, is not
likely to be effective when a person is genuinely mistaken about past
events. Consideration should be given to obtaining expert witness
30
testimony of the problems with eyewitness identification. See State v.
Schutz, 579 N.W.2d 317, 319 (Iowa 1998) (holding admission of expert
witness on eyewitness identification within sound discretion of the
court); see also People v. McDonald, 690 P.2d 709, 725–26 (Cal. 1984) (en
banc) (holding exclusion of expert on reliability of eyewitness testimony
was an abuse of discretion), overruled on other grounds by People v.
Mendoza, 4 P.3d 265, 286 (Cal. 2000). Special instructions for the jury
may need to be considered. Summations must be designed to deal with
the eyewitness identification.
Many of the most troublesome cases involve identification of
strangers. Careful consideration by counsel of eyewitness identifications
extends to identifications of persons known to the witness and not
simply to identification of strangers. James E. Coleman Jr., et al., Don’t I
Know You? The Effect of Prior Acquaintance/Familiarity on Witness
Identification, 36-Apr. Champion 52, 53–54 (April 2012). Without timely
disclosure of eyewitness identification, defense counsel’s ability to mount
an effective defense may be substantially impaired.
F. Discussion. In light of the developments in our caselaw and
the importance of eyewitness identification in a criminal trial, we
conclude that under Iowa Rule of Criminal Procedure 2.5(3), the minutes
of testimony must disclose eyewitness testimony. Eyewitness testimony
is a central part of trial and cannot be confronted by defense counsel on
the fly. Although the prerule 2.5(3) case of Cunha is to the contrary, we
think it clear that under the more demanding approach adopted by
Walker, eyewitness identification must be disclosed by the prosecution.
Yet, this general rule does not necessarily entitle Shorter to relief.
This case has its peculiarities. While there is nothing in the minutes to
indicate that Perkins would identify Shorter as one of the persons kicking
31
Daughenbaugh during the assault, the defense was on notice that
Perkins was at the scene and would testify about the events leading to
Daughenbaugh’s death. As a result, the defendants took the deposition
of Perkins and defense counsel asked Perkins point-blank if she could
identify Shorter. She did not make the identification at her deposition.
Ordinarily, we think it incumbent upon the State to disclose in the
minutes of testimony if a witness will identify a defendant as engaging in
criminal conduct. The record here, however, does not establish that the
State knew, in advance of trial, that Perkins would identify Shorter when
she took the stand. While at trial the prosecution pressed Perkins and
successfully got her to identify Shorter, Shorter has not established that
the prosecution had prior knowledge that such testimony would be
forthcoming.
In addition, it is not entirely clear what Shorter’s trial counsel
knew. Counsel for both Shorter and Russell were able to cross-examine
Perkins by confronting her with her testimony in her deposition
indicating that she could not specifically identify the perpetrators. It is
possible that although the minutes of testimony did not specifically
mention that Perkins would identify Shorter, they were nonetheless
prepared for the eventuality that she would make an in-court
identification and made appropriate strategic decisions. Under our
caselaw, a defendant is not entitled to relief due to defective minutes
under rule 2.5(3) when the defense is not surprised by the subsequent
testimony. Further, Shorter’s counsel may have made the strategic
decision that the trial was going well enough to take a pass on a motion
for a mistrial.
Additionally, we do not have a clear picture regarding prejudice to
the defendant. While this case is on direct appeal, the failure to object to
32
the eyewitness testimony and the failure to seek a mistrial is presented
to us as an ineffective-assistance-of-counsel claim. Even if a breach of
counsel’s duty is present, Shorter acknowledges that he must show
prejudice under Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. The
record concerning potential prejudice has not been fully developed.
Because of the factual uncertainties surrounding the claimed
ineffective assistance of counsel arising out of the deficient minutes, we
conclude that this claim cannot be resolved on direct appeal and should
be addressed in an action for postconviction relief.
IV. Discussion of a Jury Question Outside the Presence of
Defendant.
A. Introduction. A criminal defendant has the right to be
personally present at every stage of the trial. State v. Wise, 472 N.W.2d
278, 279 (Iowa 1991) (per curiam). Further, under Iowa Rule of Criminal
Procedure 2.19(5), if the jury desires to be informed on any point of law
arising from the case after it has retired, the court must conduct
proceedings “in the presence of defendant and counsel for the defense
and prosecution, unless such presence is waived.” Iowa R. Crim. P.
2.19(5)(g).
Under our caselaw, there is no discretion regarding the presence of
defendant and counsel. State v. Griffin, 323 N.W.2d 198, 201 (Iowa
1982). When the rule is violated, a presumption of prejudice is
presumed unless the record shows to the contrary. Id.
In this case, after the case was submitted to the jury, the jury
asked a question. Specifically, the jury asked, “Judge Staskal, if we
determine a level of guilt, example second degree murder, does it have to
include all lesser charges to be convicted of that charge?”
33
Judge Staskal and the lawyers all agreed to respond to the jury by
simply asking it to “reread the instructions. They contain all of the
applicable law in the case.” Shorter was not present when the jury’s
question was discussed.
B. Standard of Review. This question is presented in the context
of ineffective assistance of counsel and the parties thus agree that the
two-pronged approach in Strickland is applicable. 466 U.S. at 687, 104
S. Ct. at 2064.
C. Positions of the Parties. Shorter maintains that the
defendant’s presence at such proceedings is “of greatest importance[] as
he may be able to suggest to the court or counsel some information” and
might be able to “except” to the ruling of the court. See Griffin, 323
N.W.2d at 201 (quoting State v. Snyder, 223 N.W.2d 217, 221 (Iowa
1974)). According to Shorter, the question posed by the jury “raised
serious questions” concerning the effect of the jury’s confusion over the
meaning of crucial terms in the instructions. Id. Shorter argues that
prejudice is inherent as it is difficult to know what exactly the jury was
even talking about in the question.
The State responds that it would have been a “logistical nightmare”
to get three codefendants to court on short notice as the jury question
came in at 3:40 p.m., and shifts were changing, and people would be
getting off work at 4:30 p.m.
The State further argues that even if there was a breach, there was
no prejudice. The State notes the presumption of prejudice arises only
when both the defendant and counsel are absent. Id. at 199–201.
Further, the State contends there cannot possibly be prejudice when the
judge’s response to the question was “reread the instructions.”
34
D. Discussion. At the outset, we reject the State’s argument that
the practical considerations raised provide a defense to Iowa Rule of
Criminal Procedure 2.19(5)(g). Our rules of criminal procedure are not
applicable only when convenient to the State. We decline to approach
our rules as only suggestions, guidelines, or best practices.
The leading case in the area is Griffin, 323 N.W.2d 198. As Shorter
points out, Griffin held—under a precursor to our current rule—that the
district court has no discretion regarding the presence of counsel and the
parties when the jury raises a point of law. Id. at 201. In Griffin, the
jury was struggling over the definition of “physical injury” and “assault.”
Id. at 199. Without consulting with counsel or the parties, the district
court instructed the jury, “You will have to define the terms from the
language given in the instructions and reconcile any definitions as best
you can by reading the instructions.” Id. We concluded that violation of
the court rule gave rise to a presumption of prejudice and that the
response to the jury’s serious question over crucial terms could have
influenced the result. Id. at 201.
Griffin, however, is distinguishable. In Griffin, neither the party
nor counsel was present. See id. at 199. Thus, the defendant was
unrepresented when the court responded to the important question
raised by the jury. Id. Here, counsel was present. Thus, it cannot be
said that the defendant was unrepresented. It can be said, however, that
the defendant was entitled to be present.
The record reveals that convenience may have played a role in the
decision to proceed without the defendant. What we do not know,
however, is whether the defendant waived his right to be present. The
record does not provide us with a factual basis to determine this
35
question, and if it were important, it would need to be raised on a more
developed record in a postconviction-relief proceeding.
Nonetheless, we agree with the State’s position on the prejudice
issue. The question posed by the jury may have been confusing, but
Shorter does not offer any suggestion as to how his participation in the
proceedings would have changed matters. Although the district court’s
instruction to the jury to “reread the instructions” was similar to that
provided in Griffin, the key difference is that Shorter’s counsel was
present and agreed to the instruction.
Shorter concedes that the proper test in this case when counsel is
present for the proceedings but fails to insist on the presence of the
defendant, is provided under Strickland, 466 U.S. at 687, 104 S. Ct. at
2064. Based on our review of the record, there is certainly no reasonable
probability that the outcome of trial would have been different if the
defendant had been present when the district court and the attorneys
agreed to simply instruct the jury to “reread the instructions.” Shorter
has not suggested to us how the proceedings would have been different
had he been present. We therefore hold that Shorter has failed to show
prejudice and thus has not demonstrated ineffective assistance of
counsel.
V. Failure of Counsel to Request Eyewitness Identification
Instruction.
A. Introduction. At trial, the State offered eyewitness testimony
from Perkins and L.S. identifying Shorter as a person who participated in
the assault on Daughenbaugh. The trial court, however, did not use the
Iowa State Bar Association (ISBA) instruction on eyewitness testimony or
any similar instruction. The ISBA Model Criminal Jury Instruction
200.45 on eyewitness identification instruction tells the jury that in
36
evaluating an eyewitness identification, the jury may consider “[i]f the
witness had an adequate opportunity to see the person at the time of the
crime,” and “[i]f an identification was made after the crime . . . [to]
consider whether it was the result of the witness’s own recollection.”
Iowa State Bar Ass’n, Iowa Criminal Jury Instruction 200.45 (2012). The
instruction further provides that “[a]n identification made by picking the
defendant out of a group of similar individuals is generally more reliable
than one which results from the presentation of the defendant alone to
the witness.” Id. Finally, the instruction provides that the jury should
consider “[a]ny occasion in which the witness failed to identify the
defendant or made an inconsistent identification.” Id.
B. Standard of Review. The parties agree that in order to
support a claim of ineffective assistance based upon failure to provide an
instruction related to the evidence, the defendant must show both that
counsel breached the standard of care and that the defendant was
prejudiced by counsel’s breach. See Strickland, 466 U.S. at 687, 104
S. Ct. at 2064.
C. Positions of the Parties. Shorter claims that in light of the
importance of the eyewitness testimony in this case, his trial lawyer
should have requested the instruction. Shorter notes that several
features of the instruction might have helped him. He notes that counsel
could have argued based upon the language in the instruction involving
the witness’s opportunity to observe the crime, that Perkins’s
identification was questionable in light of darkness and the exigencies of
the situation.
Shorter further argues that the instruction related to subsequent
eyewitness identification would have assisted counsel in arguing that the
identifications of Perkins and L.S. were based upon their presence at trial
37
proceedings rather than upon true recollection. Finally, Shorter argues
that the instruction would have assisted Shorter in arguing that the jury
should consider the accuracy of the Perkins and L.S. identifications in
light of inconsistencies when they were asked to identify persons
participating in the assault.
The State responds by noting that most of the ISBA Model
Instruction on eyewitness identification would not have assisted Shorter.
The State argues that Perkins testified that she observed the defendant
from point-blank range, declared that the visibility was good because the
area was well-lit, and identified Shorter in a photo lineup less than
twenty-four hours after the crime as participating in the assault. Thus,
the State argues the instruction would have helped the prosecution on
these points. The State argues that although Perkins stated she
identified the defendants because she “kept looking” at them, Perkins
also clarified, “I keep seeing their face[s]. I’m going to remember who
stomped. I know I circled his face. . . . I know these people did it, and I
don’t care what nobody says.”
In sum, because the instruction would have hurt as much as it
helped, it was not a breach of duty for Shorter’s counsel not to request it.
The State further suggests that the repeated and consistent eyewitness
identification by L.S., coupled with Shorter’s statement to Officer Peak
that he did kick Daughenbaugh—if only to see if he was okay—placed
Shorter at the crime scene. See State v. Tobin, 338 N.W.2d 879, 881
(Iowa 1983) (citing corroborating evidence as proportionately lessening
the need for an eyewitness instruction).
In the alternative, the State argues that Shorter has failed to show
prejudice. The State points out that the jury was generally instructed in
determining credibility of witnesses to consider whether a witness had
38
made inconsistent statements. Id. (citing jury instruction regarding
credibility of witnesses as mitigating factor in case involving failure to
instruct on eyewitness identification). In addition, the State suggests
that absence of any specific eyewitness instruction did not prevent
Shorter from making his arguments regarding the reliability of
identification in closing arguments to the jury.
D. Discussion. There is no question that Shorter would have
been entitled to the eyewitness instruction if counsel had requested it.
But that is not the question before us. The question is whether Shorter’s
counsel breached a duty to him by failing to ask for the instruction and
whether as a result of this omission, Shorter has shown that it is
reasonably probable that the result in this case would have been
different.
On the record before us, we conclude that Shorter simply cannot
show a reasonable probability that the result at trial would have been
different if the trial court has provided the jury with the ISBA Model
Instruction on eyewitness identification. As the State suggests, it is
debatable which party would have benefitted the most from the
instruction. Further, the general instructions given to the jury gave
Shorter’s counsel a clear avenue to attack the inconsistencies in
Perkins’s eyewitness identification testimony. See id. And, much of the
eyewitness identification instruction embraces commonsense notions
that would not likely have escaped a conscientious jury unaided by the
ISBA instruction. As a result, although we certainly do not discourage
the use of the ISBA eyewitness identification instruction, we conclude
that Shorter is not entitled to a new trial based on the failure of his
counsel to request the eyewitness instruction. See id.
39
VI. Conclusion.
For the above reasons, we vacate the opinion of the court of
appeals and affirm the judgment of the district court.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT AFFIRMED.