State v. Leon Kurtis Shivers ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 16-1989
Filed February 21, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
LEON KURTIS SHIVERS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Webster County, Kurt L. Wilke,
Judge.
The defendant appeals from his conviction for vehicular homicide by
operating while intoxicated. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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POTTERFIELD, Judge.
Leon Shivers appeals from his conviction for vehicular homicide by
operating while intoxicated. He maintains the trial court erred when it denied his
request to instruct the jury on spoliation. He also claims trial counsel provided
ineffective assistance. Specifically, he maintains trial counsel (1) should have
objected to certain jury instructions and proposed different, updated instructions
based on the Restatement (Third) of Torts; (2) failed to object to inadmissible
hearsay; and (3) failed to object to an expert’s testimony about the ultimate fact at
issue for the jury to determine—whether the car accident was the cause of the
decedent’s death. He argues he was prejudiced by each of counsel’s alleged
errors individually and cumulatively.
I. Background Facts and Proceedings.
The undisputed facts establish that John McCartney was driving to the
grocery store on the evening of April 4, 2016, when his vehicle was struck in the
intersection of a four-way stop by a Dodge Journey. At the time of impact, the
Dodge Journey was traveling at a speed of fifty-two miles per hour. In the seconds
leading up to impact, the Dodge Journey was traveling in excess of seventy-two
miles per hour; the speed limit on the portion of road was twenty-five miles per
hour. The Dodge Journey was owned by Shivers’s girlfriend and her mother.
McCartney suffered subdural brain bleeds on both the right and left side of
his brain, and he was airlifted to a Des Moines hospital for brain surgery. In the
days following surgery, McCartney regained consciousness one time to the extent
that he was able to squeeze the hands of family members when prompted.
McCartney was otherwise unconscious and, at some point, he stopped responding
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to pain. The family decided to place McCartney in hospice care, and he died on
April 22.
Shivers was apprehended at the scene after two witnesses stated they saw
him exit the driver’s side of the Dodge Journey. He denied being the driver. His
blood alcohol content—taken approximately four hours after the crash—tested at
.169. In May, the State charged Shivers with vehicular homicide by operating while
intoxicated.
At the November 2016 trial, Shivers disputed he was the driver of the Dodge
Journey and that the crash was the ultimate cause of McCartney’s death, as his
death occurred approximately eighteen days after the incident and only after the
family chose to forgo life-sustaining medical treatment.
The jury convicted Shivers as charged, and he was sentenced to an
indeterminate prison term not to exceed twenty-five years.
Shivers appeals.
II. Discussion.
A. Spoliation Instruction.
Standard of Review. The Iowa Supreme Court has now clarified that an
alleged instructional error for failure to give a spoliation instruction is reviewed for
correction of error at law. While the court previously applied an abuse of discretion
standard for denial of a spoliation instruction in the context of a discovery sanction,
see State v. Langlet, 283 N.W.2d 330, 335 (Iowa 1979), and for review of the form
of the instruction, see State v. Piper, 663 N.W.2d 894, 915 (Iowa 2003), overruled
on other grounds by State v. Hanes, 790 N.W.2d 545, 550 (Iowa 2010), the abuse-
of-discretion standard of review “does not extend to all refusals to give a requested
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jury instruction.” Alcala v. Marriott Intern., Inc., 880 N.W.2d 699, 707 (Iowa 2016).
Unless there is a discretionary component, the court now applies the typical review
of alleged instructional error for correction of error at law. Id. (“Thus, we clarify
today that absent the discretionary component present in [State v.] Langlet, [283
N.W.2d 330 (Iowa 1979),] we review refusals to give a requested jury instruction
for correction of errors at law”).
Merits. A spoliation instruction is “a direction to the jury that it could infer
from the State’s failure to preserve [evidence] that the evidence would have been
adverse to the State.” State v. Vincik, 398 N.W.2d 788, 795 (Iowa 1987). The jury
should be instructed on spoliation when substantial evidence supports the
following: “(1) the evidence was ‘in existence’; (2) the evidence was ‘in the
possession of or under control of the party’ charged with its destruction; (3) the
evidence ‘would have been admissible at trial’; and (4) ‘the party responsible for
its destruction did so intentionally.’” State v. Hartsfield, 681 N.W.2d 626, 630 (Iowa
2004) (quoting Langlet, 283 N.W.2d at 335).
[T]he defendant need only generate a jury question on four specific
factors in order to meet the requirements for a spoliation inference.
If substantial evidence has been introduced on each element, then,
as we said in State v. Ueding, 400 N.W.2d 550, 552 (Iowa 1987) a
spoliation instruction “should be given”. Our conclusion that
spoliation instructions should be given when supported by the record
is particularly appropriate given the potential for constitutional due
process implications arising from the State’s intentional destruction
of evidence.
Id.
There is substantial evidence that the Dodge Journey existed and that the
State was in control of the vehicle for a short time after the accident. The Iowa
State Trooper who performed the technical investigation of the crash testified he
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examined the vehicle on April 5, the day following the accident. He took
photographs and opened the driver’s door. Afterward, he released the vehicle to
its owners, who “usually let their insurance companies take care of it from there.”
The mother of Shivers’s girlfriend testified the vehicle was “released to the
insurance company” from the place to which it had been towed following the
accident. There was no further testimony about what happened to the vehicle after
April 5, when the insurance company took control.
Shivers maintains his “defense centers on the functionality of the driver’s
door,” comparing his contention he was a passenger in the vehicle with that of two
of the State’s witnesses who testified they saw Shivers exit the front, driver’s side
door after the crash. Evidence about the functionality of the car door would have
been admissible at trial with proper foundation.
The fighting issue is whether the State’s action of releasing the car to a third
party before Shivers was charged is substantial evidence of intentional destruction
of the evidence. The district court made the threshold ruling that the facts were
insufficient to generate a jury question on the fourth factor, the State’s intentional
destruction of evidence. Because the car was released to the insurance company
so quickly, Shivers did not request access to the car or give the State notice his
defense included analysis of the car door before the car was released. See
Langlet, 283 N.W.2d at 332–33 (affirming the trial court’s decision not to instruct
the jury on spoliation where the recording of the defendant’s phone call was erased
pursuant to a policy of erasing all tapes after thirty days, even though the defendant
had requested the tape two days prior because “[o]nly intentional destruction
supports the rationale of the rule that destruction amounts to an admission by
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conduct of the weakness of one’s case.” (citation omitted)); see also Vincik, 398
N.W.2d at 795 (relying on officer’s testimony the latent fingerprints on handgun
were “basically smudged” and not “usable” as the reason for discarding the partial
print and affirming district court’s decision not to give defendant the requested
spoliation instruction); compare Hartsfield, 681 N.W.2d at 632 (holding spoliation
instruction should have been given where the defendant requested a video from
an officer, the officer informed his supervisor a request for the tape had been made,
and the defendant’s attorney had been told no tape existed before the tape was
erased).
There is no evidence the State knew Shivers wanted to examine the Dodge
Journey, nor any evidence its release was conducted to prevent further
examination or analysis of the car. There is not substantial evidence to conclude
the State intentionally destroyed the Dodge Journey.
Moreover, even if the State should have maintained control of the Dodge
Journey until Shivers was able to examine it, the record affirmatively establishes
that Shivers was not prejudiced by his inability to examine the vehicle. See State
v. Hanes, 790 N.W.2d 545, 550–51 (Iowa 2010) (“[T]he proper harmless-error
analysis for errors in jury instructions that are not of constitutional dimension . . .
begins with the question, ‘Does it sufficiently appear that the rights of the
complaining party have been injuriously affected by the error or that he has
suffered a miscarriage of justice?’” (citation omitted)). Shivers, when asking the
court for the spoliation instruction, stated that he “questioned” the testimony of the
trooper who performed the crash investigation and testified the front, driver’s side
door opened. Shivers pointed out that while there were several photos of the
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vehicle, none showed the driver door open. But two lay witnesses testified they
saw Shivers exit the front, driver’s door after the crash.
For the foregoing reasons, we cannot say the district court’s denial of
Shivers’s request for an instruction of spoliation was error.
B. Ineffective Assistance.
Shivers maintains trial counsel provided ineffective assistance. He claims
counsel (1) should have objected to certain jury instructions and proposed
different, updated instructions based on the Restatement (Third) of Torts; (2) failed
to object to inadmissible hearsay; and (3) failed to object to an expert’s testimony
about the ultimate fact at issue for the jury to determine—whether the car accident
was the cause of McCartney’s death.1
The State responds, in part, claiming Shivers is not entitled to relief because
of the conclusory nature of his statements regarding how he was prejudiced by
these alleged failures. But we cannot penalize Shivers for an incomplete claim of
ineffective assistance on direct appeal. See State v. Johnson, 784 N.W.2d 192,
198 (Iowa 2010) (“[D]efendants are no longer required to raise ineffective-
assistance claims on direct appeal, and when they choose to do so, they are not
required to make any particular record in order to preserve the claim for
postconviction relief”). Because of this, and because we believe the record before
1 To prove his claims of ineffective assistance of counsel, Shivers must prove by a
preponderance of the evidence that (1) counsel failed to perform an essential duty and (2)
he suffered prejudice as a result. See State v. Morgan, 877 N.W.2d 133, 136 (Iowa Ct.
App. 2016). The claim fails if either prong is not proved. See id. When analyzing the
prejudicial effect of multiple allegations of ineffective assistance of counsel, we “look to
the cumulative effect of counsel’s errors to determine whether the defendant satisfied the
prejudice prong of the Strickland test.” State v. Clay, 824 N.W.2d 488, 500 (Iowa 2012)
(emphasis added) (referencing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
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us is inadequate to decide Shivers’s three claims, we preserve each of them for
possible later proceedings. See id. (“If . . . the court determines the claim cannot
be addressed on direct appeal, the court must preserve it for a postconviction-relief
proceeding, regardless of the court’s view of the potential viability of the claim.”);
see also State v. Tate, 710 N.W.2d 237, 240 (Iowa 2006) (“Ordinarily, we do not
decide ineffective-assistance-of-counsel-claims on direct appeal. We prefer to
reserve such questions for postconviction proceedings so the defendant’s trial
counsel can defend against the charge.” (citation omitted)); State v. Keys, No. 15-
1991, 2017 WL 1735617, at *9 (Iowa Ct. App. May 3, 2017) (citing Clay, 824
N.W.2d at 494) (preserving defendant’s multiple claims of ineffective assistance
where the lack of record prevented the court from resolving a number of claims on
direct appeal in order to properly evaluate the cumulative prejudicial effect).
We affirm.
AFFIRMED.