State of Iowa v. Isaac Lee Kidd ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 12-1917
Filed July 30, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ISAAC LEE KIDD,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Andrea J.
Dryer (trial on underlying charge) and Bradley J. Harris (trial on habitual offender
enhancement), Judges.
Isaac Kidd appeals his judgment and sentence for possession of a firearm
as a felon, enhanced as a habitual offender. REVERSED AND REMANDED.
Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and Brook Jacobsen, Assistant
County Attorney, for appellee.
Considered by Danilson, C.J., and Vaitheswaran and Mullins, JJ.
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VAITHESWARAN, J.
Isaac Kidd appeals his judgment and sentence for possession of a firearm
as a felon, enhanced as a habitual offender. He raises several issues, one of
which we find dispositive: the admission of prior-bad-acts evidence.
I. Background Facts and Proceedings
Waterloo police officers received information from a crime suspect that the
suspect obtained a gun from Isaac Kidd. Officers executed a search warrant on
a home identified by the suspect. The home was leased by a woman with whom
Kidd once had a relationship. A search of one of two bedrooms uncovered a
semiautomatic handgun.
The State eventually charged Kidd with possession of a firearm as a felon,
“having previously been convicted of Carrying Weapons and Possession of a
Controlled Substance with Intent to Deliver, contrary to and in violation of Section
724.26 of the Iowa Criminal Code.” Kidd denied that he was in fact Kidd and
disrupted several pretrial proceedings, resulting in district court admonishments
to comport himself or risk exclusion. Kidd did not heed the warnings and was
excluded from the proceedings and, later, from the entire trial.1 Following trial,
the jury found Kidd guilty as charged.
On appeal, Kidd contends (1) the district court abused its discretion in
admitting evidence that, in his view, “went way beyond proving [his] prior felony
convictions”; (2) the record lacks substantial evidence to support the jury’s finding
that he possessed a firearm; (3) his trial attorney was ineffective in several
respects; (4) the district court abused its discretion in declining to instruct the jury
1
Kidd does not challenge his exclusion from trial.
3
to draw no inference from his silence; and (5) the district court erred in granting a
belated motion to amend the trial information to add the habitual offender
enhancement. Our disposition of the first issue obviates the need to address the
final three issues.
II. Admission of Prior Bad Acts Evidence on Status as a Felon
The jury was instructed that, to prove possession of a firearm as a felon,
the State, in part, would have to establish that, “The defendant was previously
convicted of Carrying Weapons or Possession of a Controlled Substance with
Intent to Deliver.”
Before trial, the prosecutor expressed an intent to prove the prior felonies
by introducing “certified copies of a number of documents from [] two separate
court files.” He identified the following documents: (1) the complaints, (2) face
sheets of the trial informations, (3) written pleas of guilty, (4) the judgments, and
(5) an application for appointment of counsel and financial affidavit in one of the
cases. Kidd’s attorney moved “to exclude all of those items other than the
judgment.” He reasoned as follows:
All the State is required to prove is that he has a prior conviction.
That’s the judgment. You don’t need the allegations, the State
doesn’t need the plea agreement, it doesn’t need the financial
affidavit . . . . [N]ow the State is attempting to have this jury
consider all the things in that prior case, not merely the fact of
conviction, but the facts and circumstance . . . . [I]t goes way
beyond what is necessary and now clearly is unfairly prejudicial to
the defendant.
The prosecutor responded by noting the absence of a stipulation concerning
Kidd’s prior felony. He said the documents were needed because “[t]his
defendant has identification information on all of those documents,” and “[w]ithout
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the defendant being present . . . the State is going to have to rely a little bit more
on identification information that’s contained in the file.” The prosecutor also
suggested he needed the facts contained in some of the documents because
“[n]ot all carrying weapons convictions disqualify one from possessing a firearm
. . . .” The district court preliminarily declined to exclude the documents,
reasoning that “identification would be an issue.”
Kidd’s attorney later renewed his objection to the documents. He said he
had no intent to dispute the existence of a prior felony conviction notwithstanding
the absence of a formal stipulation and he questioned the prosecutor’s motive in
seeking “to not just establish the prior felony, but carrying weapons.” In his view,
the introduction of documents relating to the carrying weapons conviction would
impermissibly allow the jury to hear “that this defendant previously carried
weapons, therefore, he should be punished this time under propensity for
carrying weapons.” As for the State’s expressed need to identify Kidd, counsel
argued the identity issue was “a straw man being erected for the purpose of
hewing it down with the idea that the jury in a circumstantial case will make the
connection that such evidence of past behavior is evidence that he did it on this
occasion.” He noted the additional documents did nothing more than “la[y] out in
excruciating detail not just the fact of conviction, but the purported reasons,”
reasons that he argued were entirely irrelevant to establishing his status as a
felon. Finally, Kidd’s attorney reiterated that, “[a]s [Kidd’s] lawyer,” he “made no
defense that this is the wrong person” and he would not, through any of his
questions or argument, challenge Kidd’s identity or the existence of a prior felony
5
offense. He again moved to exclude “[a]nything that goes beyond a judgment
that shows he was convicted of a prior felony, a non-gun felony.”2
The district court found the documents “relevant to the issue of proving the
prior offenses, to proving the identity of the individual who’s convicted of the prior
offenses and “not unfairly prejudicial.” The court admitted all the documents
listed by the prosecutor.
On appeal, Kidd contends “the district court abused its discretion by
admitting the court documents other than the judgment entries from Kidd’s
previous cases for carrying weapons, theft in the 4th degree and possession with
intent to deliver.” According to Kidd, “[t]he State only needed to simply establish
Kidd had a felony on his record and that he possessed a firearm” and “[t]he
amount and type of evidence presented to the jury was prejudicial overkill.” Our
review of this issue is indeed for an abuse of discretion. See State v. Taylor, 689
N.W.2d 116, 124 (Iowa 2004).
The Iowa Supreme Court has had occasion to address the admissibility of
“prior bad acts” evidence on several occasions, more recently, in State v.
Putman, ___ N.W.2d ___, ___, 2014 WL 2619405 (Iowa 2014). In Putman, the
court summarized the rule as follows:
“Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show that the person
acted in conformity therewith.” Iowa R. Evid. 5.404(b). The
evidence “may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” Id. The rule
“exclude[s] evidence that serves no purpose except to show the
2
On appeal, the defense does not go so far as to seek redaction of the carrying
weapons judgment, apparently conceding that the single judgment entry for three
crimes, including carrying weapons, was admissible.
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defendant is a bad person, from which the jury is likely to infer he or
she committed the crime in question.” State v. Rodriquez, 636
N.W.2d 234, 239 (Iowa 2001).
2014 WL 2619405, at *5. The court reiterated the three-step analysis courts
must employ to decide whether to admit prior-bad-acts evidence: (1) whether
“the evidence is relevant to a legitimate, disputed factual issue,” (2) whether
there is “clear proof the individual against whom the evidence is offered
committed the bad act or crime,” and (3) whether the evidence’s “probative value
is substantially outweighed by the danger of unfair prejudice to the defendant.”
Id. at *5-6.
On the relevancy question, we need go no farther than the marshalling
instruction to conclude that some evidence of a prior felony conviction was
necessary to prove the State’s case. Because Kidd refused to concede anything,
including his name, the State was obligated to prove his status as a felon and
could legitimately offer certified copies of the judgments, as Kidd’s appellate
attorney concedes. See id. at *5.
With the judgments in evidence, the remaining documents proffered by the
State were only marginally relevant to a legitimate disputed fact issue. The
prosecutor’s purported reason for offering the documents was to confirm Kidd’s
identity. However, identifying information, including Kidd’s social security number
and birth date, was included in the judgments. The balance of the information
contained in the additional documents was largely irrelevant to Kidd’s status as a
felon.
The complaints and trial informations contained unproven charges that, as
Kidd’s attorney explained, did not “make the existence of any fact more or less
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true that’s of significance to any issue that’s in this trial.” See State v. Williams,
315 N.W.2d 45, 54 (Iowa 1982) (affirming the exclusion of evidence of
amendment and proposed amendment of trial information after concluding the
evidence was not “material to determining defendant’s guilt or innocence of the
charge”). Additionally, the “carrying weapons” complaint in the first case
revealed details about the gun, Kidd’s explanation of how he obtained it, and an
officer’s determination of its source—unproven allegations that had no bearing on
whether Kidd was a felon. Similarly, the complaint in the second case provided
details of a drug-related charge and identified a weapon that was found on the
premises. Notably, the weapons enhancement in the second case was
ultimately dismissed.
The application for appointment of counsel described Kidd as “fully
indigent” and revealed details about his support system that were immaterial to
Kidd’s status as a felon. As for the plea agreements, both revealed the State’s
agreement not to file additional charges which, again, was not material to his
status as a felon.
We conclude all the documents introduced to establish Kidd’s status as a
felon except the certified judgments were of limited probative value in
establishing Kidd’s identity.
This brings us to the “clear proof requirement.” There is no question that
the certified judgments of the prior convictions constituted “clear proof” that Kidd
was a felon. As noted, those judgments, entered in a single order, identified Kidd
by his birth date and social security number. The social security number
matched the number found in Kidd’s wallet in the bedroom that was searched.
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The remaining documents contained the same identifying information and, to that
extent, amounted to clear proof of his identity although, they were duplicative of
the information in the judgments.
We are left with the question of whether the contested evidence’s
“probative value is substantially outweighed by the danger of unfair prejudice to
the defendant.” Putman, 2014 WL 2619405, at *6. Kidd’s trial attorney
eloquently articulated the concerns with the non-judgment evidence the State
proffered to establish Kidd’s status as a felon. First, he pointed out that the
complaints, trial informations, guilty pleas, and financial affidavit were not needed
to establish Kidd was a felon. See id. (noting the “need for the evidence” is a
consideration in evaluating this factor). Second, he explained that, contrary to
the State’s assertion, the judgments did not contain gaps the State was required
to fill with other documents. But, even if there were gaps, counsel made a
professional statement that he had no intention of disputing Kidd’s status as a
felon notwithstanding the absence of a formal stipulation.3 See Williams, 315
N.W.2d at 52-53 (“The term ‘professional statement’ . . . means a statement of
fact presented to the court by an attorney in connection with a matter then before
such court, verified in effect by the oath of such attorney, and designed or
calculated to aid or influence the court in the determination of a given cause or
3
In State v. Cole, No. 04-0811, 2006 WL 623216, at *4 (Iowa Ct. App. Mar. 15, 2005),
this court held that the district court should not have admitted evidence relating to a
defendant’s prior convictions after his attorney made an on-the-record offer to stipulate
to the convictions. In this case, counsel did not formally offer to stipulate, given his
client’s unwillingness to even acknowledge his name. However, counsel offered a
reasonable equivalent, which was his representation that he would not contest the
element. We see no material distinction. See Old Chief v. United States, 519 U.S. 172,
174, 190 (1997) (holding court abused its discretion in admitting the full record of a prior
judgment in the face of an offer to stipulate to the prior conviction and stating “the fact of
the qualifying conviction is alone what matters”).
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issue.”). Finally, he explained the additional documents would prompt the jury to
reach a decision on an improper basis. See Putman, 2014 WL 2619405, at *11
(“Evidence is unfairly prejudicial if it has an undue tendency to suggest decisions
on an improper basis commonly, though not necessarily an emotional one.”
(internal quotation marks omitted)).
We agree with defense counsel’s characterization of the challenged
evidence. As noted, the complaints and trial informations contained details about
past crimes similar to the crime with which Kidd was presently charged.
Needless to say, the details placed Kidd in a bad light. See id. at *8 (stating rule
that “generally similar prior-bad-acts evidence” is inadmissible); State v. Liggins,
524 N.W.2d 181, 188 (Iowa 1994) (finding evidence that Liggins was a supplier
of cocaine appealed to the jury’s instinct to punish drug dealers). The application
for appointment of counsel and the reference to Kidd as being “fully indigent”
could only be viewed as pejorative in this context. See State v. Wilson, 599
N.W.2d 481, 487 (Iowa 1999) (“Evidence a defendant is indigent and
represented by court-appointed counsel may be more prejudicial than probative if
used merely to portray the defendant as an indigent.”); State v. Sallis, 574
N.W.2d 15, 17 (Iowa 1998) (stating in a proper case a defendant’s affidavit of
financial condition might prove crucial to establishing elements of offense
charged but the prosecutor’s use to prove drug-dealing was too attenuated and
cautioning prosecutors to “refrain from abusing the strategy lest it prejudicially
impact defendants’ exercise of their Sixth Amendment right to counsel”); State v.
Roghair, 353 N.W.2d 433, 435 (Iowa Ct. App. 1984) (noting a financial affidavit
“prejudices the jury against the defendant because he used public funds for his
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defense”). As for the plea agreements, they were prejudicial on their face to the
extent they implied Kidd committed other uncharged crimes.
We conclude any probative value these documents might have had was
substantially outweighed by the danger of unfair prejudice.
In reaching this conclusion, we have considered the fact that the district
court gave the jury a cautionary instruction, at least with respect to the exhibits in
one of the cases.4 The court advised the jurors they were only to consider the
exhibits “for the purpose of establishing whether or not there was a prior
conviction and whether or not this was the individual who had that prior
conviction.” In our view, that instruction did not “alleviate the danger of unfair
prejudice.” See State v. Elliott, 806 N.W.2d 660, 674 n.4 (Iowa 2011). As Kidd’s
attorney stated, “I think we are overly optimistic in thinking that a jury can just
disregard these prior bad acts and compartmentalize and only use them for a
limited purpose even with a limiting instruction.” That was particularly true where
some of the additional exhibits referred to details of similar crimes.
We acknowledge the Putman court’s reaffirmation of the principle that
cautionary instructions are only deemed insufficient in extreme cases. 2014 WL
2619405, at *12. We view the proffer of voluminous documents to prove the
simple fact of Kidd’s identity and felon status as falling within this “extreme case”
exception. The documents did not make “brief, inadvertent reference to prior
criminal activity.” State v. Belieu, 288 N.W.2d 895, 901 (Iowa 1980). The
documents contained “numerous references to other alleged crimes which
4
Defense counsel requested a cautionary instruction not be given following the offer of
the second round of exhibits.
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remained part of the record.” Id. Given the extensive non-probative content of
the documents, the cautionary instruction did not suffice to remove the prejudice
to Kidd.
Because the probative value of the evidence was substantially outweighed
by the danger of unfair prejudice, all documents admitted to establish Kidd’s
status as a felon except the certified copies of the judgments should have been
excluded. See State v. Sullivan, 679 N.W.2d 19, 25 (Iowa 2004). We reverse
and remand for a new trial. Id. at 31.
III. Sufficiency of the Evidence
Kidd contends there was insufficient evidence to support a finding he
possessed a firearm. We must address this claim to determine whether retrial is
permissible or whether jeopardy attached, requiring entry of a judgment of
acquittal. See State v. Dullard, 668 N.W.2d 585, 597 (Iowa 2003). The jury’s
verdict is binding on appeal if there is substantial evidence in the record to
sustain it. State v. Hennings, 791 N.W.2d 828, 832-33 (Iowa 2010).
The jury was instructed, in part, that the State would have to prove the
following element: “On or about July 31, 2009, through August 3, 2009, the
defendant knowingly possessed or had under his dominion and control a
firearm.” See Iowa Code § 724.26(1) (2009). The jury was further instructed:
The law recognizes several kinds of possession. A person
may have actual possession or constructive possession. A person
may have sole or joint possession.
A person who has direct physical control over a thing on his
person is in actual possession of it.
A person who, although not in actual possession, has both
the power and the intention at a given time to exercise dominion or
control over a thing, either directly or through another person or
persons, is in constructive possession of it. . . .
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Whenever the word “possession” has been used in these
instructions, it includes actual as well as constructive possession
and sole as well as joint possession.
It is undisputed that Kidd had possession, if at all, on a constructive rather
than actual basis. See State v. Thomas, 847 N.W.2d 438, 442 (Iowa 2014) (“The
State may show the defendant had either ‘actual possession’ or ‘constructive
possession’”). Because he was not the only person who lived in the home that
was searched, we must determine whether there are any circumstances linking
him to the firearm. See id. at 443.
A reasonable juror could have found the following facts connecting Kidd to
the firearm. The gun was discovered on the floor between a nightstand and a
bed. On the second shelf of the nightstand were documents bearing Kidd’s
name. On the same nightstand was a Bible also bearing Kidd’s name, as well as
a baseball cap. A DNA sample taken from the cap was consistent with the
known DNA profile of Kidd. On a crate in the bedroom was a wallet containing
an Iowa ID and social security card belonging to Kidd. The ID card listed the
searched home as Kidd’s address. The closet in the bedroom contained men’s
clothing and no women’s clothing.
These facts amount to substantial evidence in support of a finding that
Kidd constructively possessed the gun found between the bed and nightstand.
Accordingly, Kidd was not entitled to judgment of acquittal on the possession
charge.
IV. Ineffective Assistance
Kidd contends his trial attorney was ineffective in failing to (a) file a motion
to suppress evidence obtained during the search of the home, (b) object to
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evidence concerning a filed-off serial number on the gun, and (c) object to
statements that he was in custody. We find it unnecessary to address these
issues in light of our remand for a new trial.
V. Disposition
There is substantial evidence to support the jury’s finding of guilt.
Accordingly, judgment of acquittal is not warranted. We find an abuse of
discretion in the admission of prior-bad-acts evidence, which requires reversal
and a remand for a new trial. We find it unnecessary to address the remaining
issues raised on appeal.
REVERSED AND REMANDED.