State of Iowa v. David Sean Hunter ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 21-1325
Filed October 19, 2022
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DAVID SEAN HUNTER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Story County, James C. Ellefson,
Judge.
David Sean Hunter appeals his conviction of first-degree murder.
AFFIRMED.
Tiffany Kragnes, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney
General, for appellee.
Heard by Tabor, P.J., and Schumacher and Chicchelly, JJ.
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CHICCHELLY, Judge.
David Sean Hunter appeals his conviction of first-degree murder after killing
his roommate. He challenges the sufficiency of the evidence supporting his
conviction, contending the State failed to prove beyond a reasonable doubt that he
did not act in self-defense. He also contends the trial court abused its discretion
by denying his motion for mistrial and admitting some of the evidence at trial.
Because substantial evidence supports the jury’s verdict and the district court
acted within its discretion in ruling on mistrial and evidence, we affirm Hunter’s
conviction.
I. Background Facts and Proceedings.
In November 2019, Hunter moved into a three-bedroom apartment after
responding to an online ad for a roommate. The apartment was rented by
Christopher Swalwell. Just five days later, Swalwell died from injuries inflicted by
Hunter.
The conflict between Hunter and Swalwell began over a videogame charge.
Hunter asked to use Swalwell’s Xbox. Swalwell agreed and told Hunter there was
a $1 monthly fee for setting up an Xbox account. But after setting up an account
and entering his debit card information to pay the fee, Hunter received an email
stating that he would be charged $15.99 per month instead. Hunter knocked on
Swalwell’s bedroom door to confront him about the discrepancy, but Swalwell
shouted that he was sleeping. Hunter told the police “that was not the answer he
wanted to hear.”
Hunter gave law enforcement officers the following account of what next
occurred: Swalwell attacked Hunter and knocked him to the ground before sitting
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on his chest. While atop Hunter, Swalwell pressed the base of an oscillating fan
against Hunter’s throat, choking him. Hunter claimed he escaped when he
“flipped” Swalwell off him. As he ran away, Swalwell threw something that struck
Hunter in the back of the head.
While Hunter retreated, Swalwell gave chase. But Hunter had a plan; he
ran to his bedroom and retrieved a kukri, a type of machete that Hunter described
as having “a thick curved blade kinda shaped like a banana but thicker.” Hunter
told law enforcement that he had been sleeping with the kukri at night. According
to Hunter, a kukri “is actually used for splitting coconuts,” which was “what [he]
tried to do to [Swalwell’s] fucking head.”
Once he retrieved the kukri, Hunter ran back to Swalwell and met him
halfway down the hall. Seeing that Hunter had a weapon, Swalwell ran from him
while pleading “please, please, please.” But Hunter showed no mercy, shoving
Swalwell down, swinging the machete, and hitting the right side of Swalwell’s skull.
Swalwell kept backing away as Hunter followed, still swinging the blade. When
Swalwell reached the bathroom and could go no further, Hunter struck Swalwell
“until he was done.” While he did, Hunter yelled, “You’re gonna die here tonight
for putting your fucking hands on my throat.”
Swalwell died from the injuries he sustained during the attack. The Polk
County Medical Examiner performed an autopsy and offered a “conservative
estimate” that Hunter struck Swalwell thirty times with the kukri. The blows left
over forty wounds to Swalwell’s torso, arms, neck, head, and face. One blow cut
down to the bone of Swalwell’s left arm, fracturing one of the bones of his forearm.
Another cut through the back of Swalwell’s neck to the spine, fracturing the second
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vertebrae.1 The medical examiner also identified “approximately five definitive
skull fractures” and described extensive injury to the brain. He determined that
Swalwell died from “multiple sharp force injuries” and estimated that, at best,
Swalwell “would have been able to survive [only] a matter of hours.”
As Hunter attacked Swalwell, another roommate, Todd Cleverly, was
watching television in his bedroom. Like Hunter, Cleverly had recently moved into
the apartment after responding to Swalwell’s online ad. Cleverly did not socialize
or interact much with either Swalwell or Hunter, explaining that he “basically kept
to [him]self in [his] room.” On the day Swalwell died, Cleverly heard shouting
followed by what sounded “[l]ike two guys getting in a scuffle, roughhousing, and
[he] heard furniture moving around and it sounded like somebody might have hit
the floor.” After a lull of “maybe thirty seconds to a minute,” Cleverly heard “more
incoherent” shouting “and then like a couple real sharp cracking noises” that
sounded like “something hitting the doorjamb or a piece of furniture” or “something
hitting against wood.”
Shortly after the sounds from the altercation ended, Hunter entered
Cleverly’s bedroom looking “very angry” with a bloody machete raised in one hand.
Hunter asked Cleverly, “Am I going to have to kill you too?” When Cleverly asked
what was going on, Hunter explained that he had killed Swalwell. Hunter then took
Cleverly to the bathroom and showed him Swalwell lying face down on the floor
between the toilet and bathtub.
1 Although Swalwell’s spinal cord was not damaged, the medical examiner
explained that the injury “would have been extraordinarily painful.”
5
The two men returned to Cleverly’s bedroom where Hunter called Zola
Taylor, a longtime friend, and told her he had just killed Swalwell. Cleverly
confirmed to Taylor the attack occurred before finding an excuse to leave the
apartment. Cleverly told Hunter he was going to the convenience store down the
street to get something. As he left the building, Cleverly told a couple entering that
“[s]omething really, really bad just happened in Apartment 202” and asked them to
call the police and an ambulance.
Fifteen minutes later, Cleverly returned to the building but saw there were
no emergency vehicles outside. Rather than returning to his apartment, Cleverly
knocked on first-floor apartments to find help. When no one answered, Cleverly
went to the third floor and resumed knocking on doors until the occupants of one
apartment answered. Cleverly appeared “very visibly upset,” shaking and
sweating, and his voice was trembling. After Cleverly explained that one of his
roommates attacked the other, the residents gave him a phone to call 911.
Paramedics and law enforcement were dispatched to the apartment where
they found Swalwell alive but barely conscious. Swalwell was still trying to protect
himself and could not verbalize responses beyond groaning or moaning. One of
the responding paramedics, who had more than thirty years of experience,
described confusion on seeing Swalwell’s condition. Although dispatch had
reported the emergency as a stabbing, Swalwell had what looked like sudden
deceleration injuries—those that occur when someone is hit by a train, ejected
from a vehicle during a high-speed crash, or falls from a great height or a moving
vehicle. Swalwell was transported to a Des Moines hospital where he died from
his injuries.
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II. Sufficiency of the Evidence.
The trial court instructed the jury that to find Hunter guilty of first-degree
murder, the State had to prove the following beyond a reasonable doubt:
1. On or about November 7, 2019, [Hunter] struck [Swalwell]
with a kukri.
2. [Swalwell] died as a result of the actions of [Hunter].
3. [Hunter] acted with malice aforethought.
4. [Hunter] acted willfully, deliberately, premeditatedly and
with a specific intent to kill [Swalwell].
5. [Hunter] acted without justification.
Hunter contests the sufficiency of the evidence supporting his conviction. He does
not challenge the first four elements but contends the State failed to present
substantial evidence showing he acted without justification, claiming he acted in
self-defense.
In reviewing the sufficiency of the evidence showing self-defense, we view
the evidence in the light most favorable to the State. See State v. Fordyce, 940
N.W.2d 419, 425 (Iowa 2020). “This includes all legitimate inferences and
presumptions fairly drawn from the evidence in the record.” Id. We consider all
the evidence, not just the evidence that supports the verdict. See id. We uphold
the verdict if supported by substantial evidence, which means evidence that would
convince a rational trier of fact that the defendant is guilty beyond a reasonable
doubt. See id.“When self-defense is raised, the burden rests with the State to prove
beyond a reasonable doubt that the justification did not exist.” Id. at 426. The
State meets its burden if it proves any one of these elements:
1. The Defendant started or continued the incident which
resulted in death; or
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2. An alternative course of action was available to the
Defendant;[2] or
3. The Defendant did not believe he was in imminent danger
of death or injury and the use of force was not necessary to save
himself; or
4. The Defendant did not have reasonable grounds for the
belief; or
5. The force used by the Defendant was unreasonable.
Id. (citation omitted).
Hunter claims he believed he was in imminent danger of death or injury and
needed to use force to save himself. His argument rests on the premise that
Swalwell began the physical confrontation, knocking him to the ground before
sitting on his chest and pressing the base of a fan against his throat. But a
reasonable fact finder could reject his claim. First, Hunter claimed that he escaped
when he “flipped” Swalwell off him. But at six-feet-two-inches tall and weighing
over 300 pounds, Swalwell was significantly larger than Hunter, who was five-feet-
eight-inches tall and weighed 180 pounds. Swalwell, who was in his thirties, was
also considerably younger than Hunter, who was fifty-five years old. Additionally,
photographs of Hunter taken at the police station following his arrest do not depict
any significant marks or discoloration to Hunter’s chest or neck. Given the
2 Before Swalwell’s death, the legislature removed language on an alternative
course of action from the justification statute and added a stand-your-ground
provision. See 2017 Iowa Acts ch. 69, § 37. The law now states that “[a] person
who is not engaged in illegal activity has no duty to retreat from any place where
the person is lawfully present before using force as specified in this chapter.” Iowa
Code § 704.1(3) (2019). Fordyce does not address whether the stand-your-
ground provision eliminates the “alternative course of action” option for disproving
justification because the legislative amendment took effect after the crime
occurred. 940 N.W.2d at 427. In State v. Lorenzo Baltazar, 935 N.W.2d 862, 870
(Iowa 2019), the supreme court found the amendment “changed—but did not
eliminate—the implied duty to follow an alternative course of action.” Although a
person not engaged in illegal activity has no duty to retreat, the duty is implied for
those engaged in illegal activity. See Lorenzo Baltazar, 935 N.W.2d at 870.
8
discrepancies in size and age and the apparent lack of injury to Hunter’s neck or
chest, the jury could discredit Hunter’s account of Swalwell sitting on him and
attempting to choke him.
But even if the jury believed Hunter’s claim that Swalwell attacked him first,
substantial evidence shows that Hunter continued the altercation.3 By Hunter’s
own account,4 he fled from Swalwell and went to his room where he retrieved the
kukri. Hunter then ran back toward Swalwell and met him halfway down the
hallway. At that point, Swalwell began to back away as he begged “please, please,
please.” Hunter continued to advance and struck him thirty times with the weapon
while Swalwell tried to get away from him until he was backed into the bathroom
with nowhere to go.
3 As stated in footnote 2, the legislature amended section 704.1 to eliminate the
“alternative course of action” language and add a stand-your-ground provision to
Iowa law. Although the amendment did not apply in Fordyce, the supreme court
also noted that it was unnecessary to resolve the continued applicability of the
“alternative course of action” alternative because substantial evidence showed the
defendant also continued the incident that resulted in death. 940 N.W.2d at 427.
This court found that reasoning bolstered its conclusion that an instruction
containing the stand-your-ground language did not conflict with an instruction
stating the justification defense is unavailable if a defendant continues an incident
resulting in death. See State v. Heckethorn, No. 20-0243, 2021 WL 3392802, at
*5–6 (Iowa Ct. App. Aug. 4, 2021) (observing further that the legislature has not
amended section 704.6, which sets out the circumstances that render a
justification defense unavailable, and noting that “courts have continued to use
justification instructions containing the ‘or continued’ language after the stand-
your-ground amendments”).
4 We note that Hunter provided a different account of what occurred when he called
his friend, Zola Taylor, right after the attack. Taylor testified that Hunter told her
the following: Hunter knocked on Swalwell’s door to confront him about the charge,
and Swalwell yelled back that he was sleeping. Hunter then went to his room,
retrieved his kukri, and “put it down the back of his pants” before returning to
Swalwell’s bedroom. Swalwell attacked Hunter, who “was on the ground.
[Swalwell] was on top of him with a fan to his throat, and he looked down at [Hunter]
and said, ‘Are we done?’” Hunter replied, “Yes, until I get up from here.” Swalwell
got off Hunter, and Hunter got up and hit Swalwell with the kukri.
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Even assuming the jury found Swalwell was the aggressor and Hunter did
not continue the altercation, substantial evidence supports a finding that Hunter
used unreasonable force to defend himself. As part of the instruction on Hunter’s
justification defense, the trial court defined reasonable force:
Reasonable force is only the amount of force a reasonable
person would find necessary to use under the circumstances to
prevent injury. If in the defendant’s mind the danger was actual, real,
imminent, or unavoidable, even if the defendant was wrong in
estimating it or the force necessary to repel it, the force was justified
if the defendant had a reasonable basis for his belief and responded
reasonably to that belief. It is not necessary that there was actual
danger, but the defendant must have acted in an honest and sincere
belief that the danger actually existed. Apparent danger with the
defendant’s knowledge that no real danger existed is no excuse for
using force.
Reasonable force can include deadly force if it is reasonable
to believe that such force is necessary to resist a like force or threat,
or avoid injury or risk to one’s life or safety. The State must prove
beyond a reasonable doubt that the defendant’s use of force was
not justified.
A reasonable person could conclude that using a kukri against an unarmed person
was unreasonable force to defend oneself. The number of times that Hunter struck
Swalwell with the kukri—about thirty times as estimated by the medical examiner—
adds to the unreasonableness of Hunter’s actions. Hunter’s position during the
attack relative to Swalwell further suggests unreasonable force, as an expert in
bloodstain pattern analysis who reviewed the crime scene evidence testified that
the attack occurred in the bathroom and “Swalwell was either on or very close to
the ground” as Hunter struck him. The nature of Swalwell’s injuries—including cuts
to the back of his neck and forearm that sliced down to the bone and at least five
fractures of his skull—bolsters this conclusion. Finally, along with the things
Hunter admitted saying to Swalwell during the attack, he made statements to
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others before5 and after6 that could lead a reasonable person to find that Hunter
went beyond the need to defend himself and attacked Swalwell with malice or as
retaliation.
III. Discretionary Rulings.
Hunter complains the district court abused its discretion in denying his
motion for mistrial and in admitting certain evidence at trial. See State v. Thoren,
970 N.W.2d 611, 620 (Iowa 2022) (stating the appellate court reviews the trial
court’s evidentiary rulings for an abuse of discretion); State v. Plain, 898 N.W.2d
801, 811 (Iowa 2017) (“We review denials of a mistrial . . . for an abuse of
discretion.”). The district court abuses its discretion when it acts for reasons that
are not supported by substantial evidence or when it erroneously applies the law.
See State v. Gomez Garcia, 904 N.W.2d 172, 177 (Iowa 2017).
A. Mistrial.
Hunter claims the district court erred by denying his request for a mistrial
following two incidents he argues prejudiced the jury. The first incident occurred
before the start of trial. One juror was seated in the courtroom when Hunter
entered the courtroom with a deputy. Although Hunter was “dressed in street
5 The day before the attack, Hunter said disparaging things about Swalwell to
residents of the apartment above Swalwell’s and remarked that he wanted to kill
Swalwell.
6 During the phone call after the attack, Taylor testified that Hunter returned to the
bathroom while they talked and she listened to Hunter scream at Swalwell, “Yes,
you son of a bitch, that’s your brains you see on the floor. I split your skull.” Taylor
also testified she heard thudding that sounded like Hunter was kicking Swalwell
while Hunter screamed, “You son of a bitch, I took the back of your skull off. They
will find you laying here on the floor.” Before their conversation ended, Hunter told
Taylor that “they would find [Swalwell] in the bathtub” and that he “was going to
collect [Swalwell’s] head.” Hunter used similar language when talking about
Swalwell to law enforcement.
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attire” and had no visible restraints, his attorney argued the juror “could get the
impression that [Hunter]’s in custody as a result of that.” Though he characterized
the incident as “unfortunate,” he also conceded that he did not believe Hunter was
unfairly prejudiced:
We did have a conversation about how the vast majority of jurors in
this type of case have an understanding that the defendant is
probably in custody anyway, and so not a huge deal; but I just wanted
to be able to put on the record that, one, we’re bringing it to the
Court’s attention; two, we have had an opportunity to discuss this
with Mr. Hunter and he is okay with not requesting that juror to be
removed at this time . . . .
He also conceded there was no need for a curative jury instruction, and the court
ensured with the deputy that the events would not reoccur.
The second incident happened shortly after the first witness began
testifying. The witness, one of the first officers to respond to the apartment, was
describing the kukri when the court called for a recess, noting that one of the jurors
“may be in distress.” Outside the jury’s presence, the court described that one of
the jurors appeared to have fainted, noting that same juror “expressed some
concern about exposure to blood during voir dire.” The juror was treated by
medical personnel and did not want to go to the hospital but was “a little concerned
about continuing.” The court agreed the juror should be excused from further
service, but Hunter’s attorney expressed concern that the incident could have a
prejudicial effect on the other jurors and requested a mistrial. He noted that it was
early into the trial and that, coupled with the deputy accompanying Hunter into the
courtroom in the presence of another juror, “the snowball starts to roll a little bit.”
The court denied a mistrial, stating its belief that the remaining jurors would
not be affected by seeing a peer faint. The court noted that “pretty graphic” photos
12
of the crime scene and autopsy would be offered into evidence during trial and
expressed more concern about the prejudicial effect they could have on the jurors.
But ultimately, the court found that witnessing a juror fainting during a brief
description of the scene would not cause prejudice to either Hunter or the State.
On appeal, Hunter claims the court was too focused on the two-year
anniversary of the crime approaching and bringing resolution than to ensuring his
right to a fair trial. Though the court noted the need to bring resolution, it
emphasized that resolution was not just for the State and the public, but it was
necessary to ensure Hunter received a fair and speedy trial. “The public interest
that a result be reached which promotes a well-ordered society is foremost in every
criminal proceeding.” Young v. United States, 315 U.S. 257, 259 (1942). The
court did not abuse its discretion by considering this factor in denying mistrial.
“Although a defendant is entitled to a fair trial, he is not necessarily entitled
to a perfect one.” State v. Gansz, 376 N.W.2d 887, 891 (Iowa 1985). The court
abuses its discretion in denying a mistrial “only when defendant shows prejudice
which prevents him from having a fair trial.” State v. Callender, 444 N.W.2d 768,
770 (Iowa Ct. App. 1989). The brief observation of Hunter in the custody of the
deputy when entering the courtroom by a single juror was not enough for Hunter
to request a mistrial. State v. Wilson, 406 N.W.2d 442, 448 (Iowa 1987)
(distinguishing cases in which a defendant is restrained or in prison clothing while
in the courtroom during trial from those involving jurors’ brief and inadvertent
observation of a defendant being moved to or from the courtroom during recess);
State v. Buchanan, No. 03-0230, 2004 WL 1071896, at *5 (Iowa Ct. App. May 14,
2004) (noting that “the concern regarding prejudice is from having the defendant
13
in the presence of the jury for an extended period of time in prison attire, restraints,
or both,” but that “both our supreme court and the United States Supreme Court
have distinguished between this type of continual and unavoidable reminder of the
accused’s condition, and a brief observation of the accused in prison attire or
restraints”). Hunter also failed to show the remaining jurors were prejudiced by
witnessing one juror faint early in the proceedings. Neither event was prejudicial
separately, nor did they combine to reach the level of prejudice where mistrial was
required. The court did not misapply the law or misconstrue the facts before it in
denying a mistrial. Because it properly exercised its discretion, we affirm.
B. Evidentiary Rulings.
Hunter challenges several of the district court’s evidentiary rulings. He
contends the court abused its discretion by (1) excluding evidence of Swalwell’s
character, (2) admitting an excessive number of autopsy photos into evidence, and
(3) limiting his cross-examination of witnesses after re-direct.
1. Evidence of victim’s character.
Hunter complains that the trial court disallowed evidence that Swalwell
served time in prison and used methadone. Hunter sought to introduce evidence
that Swalwell served time in prison to explain statements Hunter made about not
wanting to be Swalwell’s “prison bitch.” He wanted to introduce evidence of
Swalwell’s methadone use to show Swalwell was withdrawing from heroin or
morphine, which can affect sleep and cause confusion, fear, anger, and
hallucinations. Hunter contends the evidence provides context for why he reacted
as he did when Swalwell assaulted him.
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“Evidence of a homicide victim’s prior violent or turbulent character is
ordinarily immaterial and not admissible at trial.” State v. Webster, 865 N.W.2d
223, 243 (Iowa 2015) (citation omitted). There is an exception when a defendant
claims self-defense and introduces “the slightest supporting evidence.” Id. (citation
omitted). But this evidence can be introduced to show the defendant’s state of
mind—“the degree and nature of his or her apprehension of danger which might
reasonably justify resort to more prompt and violent measures of self-
preservation”—only if these character traits were known to the defendant. State
v. Jacoby, 260 N.W.2d 828, 837 (Iowa 1977).
Before trial, the district court said that if Hunter “has any observations about
[Swalwell] that really do relate to [his] propensity for violence, I would probably let
that in.” But the court was uncertain that evidence of Swalwell’s prison time,
without knowing the nature of his conviction, or an addiction to heroin met that
standard. The court cautioned that Hunter needed to show “how those relate
specifically to propensity for violence” before it would admit the evidence.
Hunter failed to show a correlation between the evidence of prison time and
methadone use and a propensity for violence. When the question of Swalwell’s
prison time arose during trial, the court noted that the reason Swalwell had been
imprisoned “was over some bad checks, including some stolen from his parents.”
It rejected the premise that “having been in prison in and of itself, regardless of the
reason, makes an individual potentially more violent” or justified Hunter’s reaction.
And during an offer of proof outside the presence of the jury, the medical examiner
testified about the possible effects of methadone use on a person but could only
speculate on how methadone affected Swalwell. Because Hunter failed to show
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how the evidence of Swalwell’s character was more probative than prejudicial, the
court properly exercised its discretion in excluding it.
2. Autopsy photos.
The medical examiner took 251 photos depicting Swalwell’s injuries. The
State offered forty of those photos into evidence at trial. Hunter objected to all but
two of the photos, arguing that evidence of the nature of Swalwell’s injuries could
be admitted through the medical examiner’s description and the graphic nature of
the photos was unfairly prejudicial and the evidence was cumulative:
Multiple photographs of the same wounds, close-up
photographs of the same wounds, are certainly just unfairly
prejudicial and are clearly for the inflaming the passion of the jury
and utilizing—quite honestly, in a situation where there is no dispute
as related to the actual death, there’s no dispute as to the individual
that caused the death, it just seems excessive and unfairly
prejudicial, Your Honor.
After reviewing the photos, the court admitted twenty-five into evidence. It
explained that in determining how many photos to admit, “it’s a question of the
State being able to show the individual injuries that led to [Swalwell]’s death.” After
weighing the relevance of the photos against the danger of unfair prejudice and
the cumulative nature of the evidence, the court found that “the nature of the acts
that resulted in [Swalwell]’s death . . . do justify the larger number of photographs
. . . considering the nature and the number of individual injuries.”
The question is whether the probative value of the photographs was
outweighed by the danger of unfair prejudice. Hunter argues the trial court abused
its discretion in admitting twenty-four of the twenty-five photos into evidence,
claiming “[t]he only reason for the massive amounts of grisly and gruesome
autopsy photographs was to impassion and inflame the jury.” We disagree. “That
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the autopsy photographs were themselves somewhat gruesome does not render
them inadmissible. Murder is often a gruesome affair giving rise to equally
gruesome evidence. That alone is not sufficient reason to exclude that evidence.”
State v. Brown, 397 N.W.2d 689, 700 (Iowa 1986) (internal citation omitted). Nor
is the fact that the nature of Swalwell’s injuries and his cause of death are
uncontested. See State v. Fryer, 243 N.W.2d 1, 7 (Iowa 1976) (“That facts
depicted by photographs are not contested does not necessarily render them
inadmissible.”). That the photos are cumulative is also not sufficient reason,
standing alone, to require their exclusion. See State v. Munz, 355 N.W.2d 576,
580 (Iowa 1984).
The evidence at issue is like that in Munz: “The photographs were, to put it
mildly, explicit. Considered outside the factual context of this case, they could
even be characterized as shocking. But the crimes charged were shocking, and
the photographs . . . merely embellished the verbal picture of the events already
provided by the testimony . . . .” Id. The supreme court determined that under
such circumstances, “we are reluctant to find prejudice sufficient to override the
probative value” and affirmed the ruling admitting the evidence. Id. The photos
depicting the extent and nature of Swalwell’s injuries are relevant to whether
Hunter was acting in self-defense. Although graphic, the danger of unfair prejudice
does not outweigh their probative value. Having balanced the State’s need to
refute Hunter’s justification defense against the sensational nature of the photos,
the court exercised its discretion in determining which to admit into evidence.
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3. Limiting cross-examination after re-direct.
Hunter contends the trial court violated his constitutional right to
confrontation by limiting his ability to cross-examine witnesses following re-direct.
He complains that doing so severely limited his trial tactics and strategy, and
prejudiced his ability to mount a defense.
Restrictions on cross-examination can violate a defendant’s right to
confrontation. See State v. Veal, 564 N.W.2d 797, 807 (Iowa 1997), overruled on
other grounds by State v. Hallum, 585 N.W.2d 249, 253 (Iowa 1998). For this
reason, “cross-examination of the State’s witnesses should be liberally extended.”
State v. Cuevas, 288 N.W.2d 525, 530 (Iowa 1980). But the right to cross-
examination is not unlimited; the trial court can limit the scope of cross-examination
“to (1) matters inquired into on direct examination or (2) matters which pertain to
the witness’s credibility, bias, ill will, hostility or interest in the case.” Id.Likewise, “[t]he right to, and scope of, recross-examination is within the
discretion of the trial court.” 98 C.J.S. Witnesses § 582; accord State v. Deshaw,
404 N.W.2d 156, 158 (Iowa 1987) (“The scope of redirect [and
recross-]examination rests largely in the discretion of the trial court.”). As with
cross-examination, the trial court ordinarily limits recross-examination to matters
explored on redirect examination. See 98 C.J.S. Witnesses § 582; McCormick on
Evidence § 32 at 47 (5th ed. 1999) (“Like redirect, recross-examination follows the
norm of first opportunity. Consequently, the scope of recross as of right is normally
confined to questions directed to explaining or avoiding new matter brought out on
redirect.”). The court
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may properly refuse recross-examination as to matters which were
not opened up, or brought out, on redirect examination; matters
already fully covered; matters discussed at length on cross-
examination; matters with respect to which there was an opportunity
to cross-examine the witness; or where there is no claim of oversight;
and no reason stated why the matter was not inquired into in the
cross-examination.
98 C.J.S. Witnesses § 582 (footnotes omitted).
Hunter concedes that “the trial court did allow the defense to ask questions
on re-cross-examination with permission.” Because the court may limit the scope
of cross- and recross-examination, we cannot find the court abused its discretion.7
C. Cumulative Error.
Finally, Hunter claims that even if each of the discretionary rulings he
complains of on appeal did not rise to the level of prejudice individually, the
cumulative effect of those rulings prejudiced his ability to have a fair trial.
When there is merit to multiple assigned errors, the court may find the
cumulative effect of those errors deprived the defendant of a fair trial. See State
v. Carey, 165 N.W.2d 27, 36 (Iowa 1969). In those limited cases, the defendant is
entitled to a new trial. See id. But if a defendant fails to show any assigned error
was prejudicial, no cumulative prejudice exists. See State v. Pierce, 287 N.W.2d
570, 575 (Iowa 1980). Because Hunter has not established prejudice in any of his
assignments of error, his claim of cumulative error likewise fails.
7 Hunter also fails to cite specific times when he wanted to recross-examine a
witness but was disallowed. We will not speculate about the error Hunter
complains of or what impact, if any, it had on the outcome of trial. See Goode v.
State, 920 N.W.2d 520, 524 (Iowa 2018) (“Our appellate rules of procedure and
judicial restraint expect claims raised on appeal be specific. A party who fails to
satisfy this standard risks waiving the issue.” (internal citations omitted)).
19
IV. Conclusion.
Because substantial evidence shows Hunter was not justified in killing
Swalwell and the district court properly exercised its discretion in ruling on the
motion for mistrial and the admissibility of evidence, we affirm Hunter’s conviction
of first-degree murder.
AFFIRMED.