State of Iowa v. D'Marithe Culbreath ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-0362
Filed July 1, 2020
STATE OF IOWA,
Plaintiff-Appellee,
vs.
D'MARITHE CULBREATH,
Defendant-Appellant.
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Appeal from the Iowa District Court for Scott County, Mary E. Howes,
Judge.
The defendant appeals from his convictions for first-degree murder, first-
degree robbery, and conspiracy to commit first-degree burglary. AFFIRMED.
G. Brian Weiler, Davenport, for appellant.
Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney
General, for appellee.
Considered by Tabor, P.J., and May and Greer, JJ.
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GREER, Judge.
After an eight-day trial, a jury convicted D’Marithe Culbreath of first-degree
murder, first-degree robbery, and conspiracy to commit first-degree burglary. On
appeal, Culbreath challenges the admission of one piece of evidence. He argues
the district court abused its discretion in admitting a multiple-hour video of police
interviewing him because, during the interview, a detective asked Culbreath if a
codefendant thought Culbreath had guns and Culbreath replied, “Could.” He
maintains this was prior-bad-acts evidence that should have been kept out of trial.
In his pretrial motion in limine, Culbreath asked that the video of the
interview not be played as it contained evidence of Culbreath’s criminal history. At
a hearing on the motion, the State agreed not to introduce the video through the
testimony of the detective who conducted the interview. In other words, the State
agreed not to introduce the video during its case-in-chief. No other ruling was
made regarding the admissibility of the video exhibit.
At trial, the State did not introduce the video during its case-in-chief. Then,
after the State rested its case, Culbreath chose to testify in his own defense.
During his testimony, Culbreath admitted he was with the group of individuals who
broke into the home of and killed Brady Tumlinson but claimed he became involved
and participated unknowingly. He also testified about when he was interviewed by
police approximately three weeks later. During direct examination, this exchange
took place:
Q. Now, when you were giving that interview that day, it was
pretty long. The detectives were encouraging you to tell your own
story so no one else would tell it; correct? A. Correct.
Q. Were you ever promised immunity, or if you just tell us,
you’re going to be okay, or anything like that? A. They said that if
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you tell us what you know, then things would be less—charges would
be less—light on you, or something like that.
On cross-examination, the State questioned Culbreath further:
Q. So, Mr. Culbreath, your testimony today is that the officers
told you during that interview with you that if you told them what
happened that your charges would be lighter? A. They said things
would not—something like that, but not necessarily that.
Q. What did they say? A. They said, like, “If you tell us what
happened, then you”—like, “charges would not be as heavy as they
is on you right now.”
The State sought to introduce the video of the police interview to disprove
Culbreath’s claim of leniency. Culbreath at first objected but then withdrew his
objection. After the video was admitted and played in part for the jury, Culbreath
moved for mistrial, arguing he was unable to get a fair trial now that the jury heard
the police ask Culbreath if others believed he had guns and Culbreath’s answer of
“Could.”1 The district court denied the motion for mistrial.2
To preserve his claim about improper prior-bad-acts evidence, Culbreath
needed to object to the evidence when the State sought to have it admitted. “When
a party who otherwise has a right to object to the admissibility of evidence consents
to the admission of the evidence, he gives up his right to object.” State v. Conner,
241 N.W.2d 447, 459 (Iowa 1976). While Culbreath objected to the evidence after
it was shown to the jury, his objection came too late. “A party to a criminal
proceeding . . . will not be permitted to allege an error in which he himself
acquiesced, or which was committed or invited by him, or was the natural
1 At the time, Culbreath’s counsel suggested they were unaware that version of
the video, which had been previously edited to comply with various court rulings,
included that question and answer.
2 Culbreath does not appeal that ruling.
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consequence of his own actions.” State v. Sage, 162 N.W.2d 502, 504 (Iowa 1968)
(citation omitted); see State v. Sharkey, 311 N.W.2d 68, 71 (Iowa 1981)
(“Objections to evidence must be raised at the earliest time the alleged ground
becomes apparent.”).
Because the claim Culbreath brings on appeal was not preserved for our
review, we affirm.
AFFIRMED.