State of Iowa v. Justin Robert Derby

IN THE SUPREME COURT OF IOWA
No. 09–1711
Filed June 3, 2011
STATE OF IOWA,
Appellee,
vs.
JUSTIN ROBERT DERBY,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Plymouth County,
Edward A. Jacobson, Judge.
The defendant seeks further review of the court of appeals decision
affirming his criminal convictions. DECISION OF COURT OF APPEALS
AND JUDGMENT OF DISTRICT COURT AFFIRMED.
Mark C. Smith, State Appellate Defender, Nnawuihe Ukabiala,
Student Legal Intern, and David Arthur Adams, Assistant State Appellate
Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant
Attorney General, and Darin J. Raymond, County Attorney, for appellee.
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WATERMAN, Justice.
The threshold question in this case is whether a defendant who
declines to testify can obtain a reversal of his conviction by appealing a
pretrial order in limine that would have allowed the State to impeach him
with evidence of his prior convictions if he testified. In State v. Brown,
569 N.W.2d 113, 117–18 (Iowa 1997), we held the defendant must testify
in order to preserve error to challenge the use of his prior convictions as
impeachment. Defendant, Justin Derby, asks us to overrule Brown in
light of State v. Daly, 623 N.W.2d 799, 801 (Iowa 2001) (allowing
testifying defendant who preemptively discloses his own convictions on
direct examination to appeal pretrial in limine ruling) and cases from
other jurisdictions. We conclude there is no persuasive reason to depart
from stare decisis and decline to do so. We recognize the Brown
approach left Derby a Hobson’s choice between remaining silent or
testifying in his own defense at the price of opening the door to
impeachment evidence informing the jury of his prior crimes. As we
explain below, Brown is based on sound reasons and remains the rule
followed by a majority of states and the federal courts under the
unanimous decision in Luce v. United States, 469 U.S. 38, 105 S. Ct.
460, 83 L. Ed. 2d 443 (1984). Accordingly, we affirm the decision of the
court of appeals and the district court’s judgment.
I. Background Facts and Proceedings.
Derby was charged by trial information with third-degree burglary,
five counts of forgery, and escape from custody. The trial information
alleged Derby was a habitual offender and referenced two previous
felonies. Derby pleaded not guilty to all charges, and his case proceeded
to a jury trial. On the morning of trial, Derby presented the district court
with an oral motion in limine seeking to exclude the admission of Derby’s
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prior convictions. Derby had previously been convicted of theft and
burglary. The district court partially sustained Derby’s motion and
prevented the State from using Derby’s prior convictions in its case in
chief. The district court overruled Derby’s motion in limine “to the extent
that it s[ought] to bullet-proof . . . the defendant from being impeached
[with his prior felony convictions].” The district court then stated:
Obviously, I don’t know what answers the defendant
might give to what questions he might be asked. But at this
point in time, based upon anticipated testimony from him, if
he chooses to testify, his prior convictions, together with the
curative instruction, is the way the court will proceed.
Derby sought clarification that the district court was only permitting the
State to potentially impeach Derby with his prior theft and burglary
convictions referenced in the trial information and not Derby’s entire
criminal record. The district court responded, “Obviously impeachment
testimony . . . wouldn’t be limited to what’s in the trial information. . . .
It’s pretty hard to rule on an objection when you don’t know the question
. . . .”
After this colloquy, Derby elected not to testify. At the trial’s
conclusion, Derby stated he would have testified if the district court had
ruled favorably on his motion in limine. Derby was convicted by jury of
third-degree burglary, five counts of forgery, and escape from custody.
Derby stipulated to being a habitual offender. The district court
sentenced Derby to seven concurrent fifteen-year sentences, each subject
to a three-year mandatory minimum. Derby was also ordered to pay
restitution.
Derby filed a notice of appeal, asserting the district court
committed reversible error in overruling his motion in limine. We
transferred the case to the court of appeals. The court of appeals, citing
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Brown, 569 N.W.2d at 117–18, held Derby failed to preserve his claim
because he elected not to testify. We granted further review to examine
Brown’s viability in light of subsequent decisions.
II. Preservation of Error.
Iowa Rule of Evidence 5.609 governs the admissibility of prior
convictions for impeachment purposes. Derby concedes he has not
preserved error under the standard articulated in Brown. Brown holds
that, if a defendant does not testify, the defendant does not preserve
error to appeal the district court’s in limine ruling with respect to rule
5.609 issues. Derby in a frontal attack asks us to overturn Brown.
Derby argues this court’s decision in Daly, 623 N.W.2d at 801, and
decisions of other jurisdictions, undermine our reasoning in Brown and
warrant its demise. We begin by examining Brown.
A. State v. Brown. In Brown, the defendant filed a motion
in limine to prevent the State from using his criminal record to impeach
his testimony. Brown, 569 N.W.2d at 117. The district court denied his
motion, and in response, Brown elected not to testify. Id. Brown was
convicted, and he appealed the district court’s in limine ruling. Id. at
115. Brown insisted he should not be required to testify to preserve his
challenge to the district court’s rule 5.609 in limine ruling. Id. at 118.
Brown argued such an error-preservation requirement forces the
defendant into an untenable predicament: either testify with fear the
State will use arguably improper prior conviction evidence to impeach
but preserve error on the evidence’s admissibility, or forgo the right to
testify and ability to appeal the district court’s in limine ruling while
avoiding arguably improper use of prior conviction evidence. Id.
We initially observed, “A clear rule . . . prevents Brown from
challenging the pretrial ruling in the abstract. Brown was required to
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testify at trial and face the challenged evidence before complaining of it.”
Id. We cited to State v. Davis, 328 N.W.2d 301, 306 (Iowa 1982), as
precedent for this rule. Id. In Davis, we held “a defendant must take the
stand and testify and the prosecutor must use the statement to impeach
before a defendant can raise a constitutional claim . . . that his prior
statement could not be used for impeachment.” Davis, 328 N.W.2d at
306. We articulated three reasons for our holding: (1) to hold otherwise
permits the accused to plant reversible error merely by not testifying, (2)
the defendant’s harm—the admission of the evidence—is entirely
speculative absent the defendant’s testimony, and (3) without the
defendant’s testimony there is not an adequate record to perform a
harmless-error analysis. See id. at 306–07. In Brown, we reiterated
these three reasons as grounds for our result. Brown, 569 N.W.2d at
118. In Brown, we also cited to Luce v. United States, in which a
unanimous Supreme Court held a defendant must testify in order to
preserve error to challenge the district court’s in limine ruling permitting
the government to use prior conviction evidence for impeachment
purposes. Luce, 469 U.S. at 39–40, 105 S. Ct. at 462–63, 83 L. Ed. 2d at
446.
Like Davis, Brown and Luce’s holdings are dictated by the practical
realities of appellate review. First, we only reverse a trial court’s
evidentiary ruling if “a substantial right of the party is affected.” Iowa R.
Evid. 5.103(a). “Were in limine rulings under Rule 609(a) reviewable on
appeal, almost any error would result in the windfall of automatic
reversal; the appellate court could not logically term ‘harmless’ an error
that presumptively kept the defendant from testifying.” Luce, 469 U.S. at
42, 105 S. Ct. at 463–64, 83 L. Ed. 2d at 448. In the event the trial court
did error, requiring the defendant to testify allows the appellate court to
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accurately determine prejudice based upon a complete record. Absent
such a rule, the defendant can attempt to “plant” reversible error simply
by not testifying anytime the trial court declines the defendant’s rule
5.609(a) motion in limine. Id. Luce and Brown avoid automatic retrials
based on erroneous in limine rulings.
Second, without the defendant’s testimony, his harm is entirely
speculative because the defendant’s prior convictions are never admitted
in trial. Id. at 41, 105 S. Ct. at 463, 83 L. Ed. 2d at 447; Brown, 569
N.W.2d at 118. The reviewing court is left to guess as to how the trial
would have developed. Maybe the State would impeach the defendant
with his prior convictions, or potentially the trial court could reverse its
in limine ruling due to trial developments, or maybe the State might find
it unnecessary to use the convictions to impeach. When the defendant
does not testify he effectively freezes review of the district court’s
in limine ruling to the limited information known pretrial. Brown, 569
N.W.2d at 118. Moreover, a defendant may elect to not testify for any
number of tactical reasons, and an appellate court cannot determine if
the defendant’s decision is predicated on the trial court’s prior conviction
ruling or some other strategic decision. Id. When the defendant does not
testify, the entire dispute is theoretical and speculative.
Finally, the prior conviction evidentiary analysis articulated in Iowa
Rule of Evidence 5.609(a) and its federal rule counterpart asks the court
to weigh the probative value of the defendant’s prior convictions against
its prejudicial effect. See Iowa R. Evid. 5.609(a)(1) (“[E]vidence that an
accused has been convicted of such a crime shall be admitted if the court
determines that the probative value of admitting this evidence outweighs
its prejudicial effect to the accused[.]”). The court is handicapped in
performing this fact-specific balancing when it does not have a complete
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trial record with the defendant’s testimony and impeachment. Luce, 469
U.S. at 41, 105 S. Ct. at 463, 83 L. Ed. 2d at 447. When the defendant
does not testify, the reviewing court, for example, will have difficulty
identifying how persuasive or important the defendant’s testimony is, the
credibility of the defendant, or the need to use the defendant’s prior
convictions for impeachment purposes—all circumstances that may
influence the probative value or prejudicial effect of prior conviction
evidence.
Brown and Luce recognize the quandary its error-preservation
rules create for the defendant. In the event the trial court makes an
erroneous evidentiary ruling with respect to prior conviction evidence,
Brown and Luce may force a defendant to be confronted by improper and
prejudicial prior conviction evidence at trial. This harm, however, is
mitigated to a great extent by the fact the testifying defendant can
challenge the propriety of the district court’s admission of the prior
conviction evidence and, if appropriate, receive a new trial on appeal.
Moreover, Brown and Luce suggest its error-preservation rule is
necessary to ensure effective review of in limine rulings concerning the
impeachment use of prior convictions.
The record in this appeal highlights the wisdom of Brown. First,
this potentially is the type of case in which strategic defense counsel
could attempt to “plant” reversible error. The State presented strong
evidence of Derby’s guilt. While the victim was out of town, witnesses
saw Derby on the victim’s front porch, as if Derby was leaving the
victim’s home. Subsequently, Derby cashed five checks belonging to the
victim. The cashiers who accepted the checks identified Derby as the
person cashing them. We are left only to speculate how Derby’s trial
testimony would have rebutted the State’s witnesses. Brown ensures
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this court can engage in a meaningful harmless-error analysis. Second,
the scant record inhibits appellate review of the rule 5.609(a) issue. The
record does not clearly identify Derby’s prior convictions or how many he
had. The record suggests Derby at least had either a forgery or burglary
conviction, and if burglary, it is unclear what type of burglary, which
could determine whether admissibility is subject to balancing under rule
5.609(a)(1) or is mandatory under rule 5.609(a)(2). The rule 5.609(a)
balancing requirement does not always apply, and we cannot discern
from the record if Derby’s convictions were subject to balancing. See
State v. Harrington, 800 N.W.2d 46, 49 (Iowa 2011). If the convictions
were to be balanced, then we cannot perform a scrupulous review of the
district court’s determination without a record clearly articulating
Derby’s prior convictions and the substance and persuasiveness of his
direct testimony and the effect of the cross-examination and
impeachment. This discussion reconfirms the merits of the Brown
approach.
B. Daly’s Effect on Brown. Derby argues Daly, decided four
years after Brown, undercuts Brown’s reasoning and warrants
overturning Brown. To understand our holding in Daly, and its interplay
with Brown, a brief discussion of the line of cases leading to Daly is
useful. Before 1975, this court held a defendant only preserved error to
challenge a trial court’s in limine ruling if the defendant testified at trial
and an objection was properly made to the evidence during the course of
the trial. See, e.g., State v. Langley, 265 N.W.2d 718, 720 (Iowa 1978)
(“Ordinarily the granting or rejecting of a motion in limine is not
reversible error; the error comes, if at all, when the matter is presented at
trial and the evidence is then admitted or refused . . . .”); State v. Garrett,
183 N.W.2d 652, 654 (Iowa 1971) (noting in limine rulings are not
9
subject to reversible error, only subsequent admission or denial of
evidence). This error-preservation rule reflected the belief that an
in limine ruling was merely a pretrial ruling that sought to alert the court
to potential evidentiary issues at trial and not a final ruling on the
admissibility of evidence. See Twyford v. Weber, 220 N.W.2d 919, 922–
24 (Iowa 1974).
In 1975, we decided State v. Miller, 229 N.W.2d 762 (Iowa 1975).
In Miller, the trial court made a definitive ruling on a motion in limine
that permitted the State to use the defendant’s prior convictions for
impeachment purposes. Miller, 229 N.W.2d at 768. The defendant
subsequently elected to testify, and he disclosed his prior convictions on
direct examination to lessen the blow of the State’s cross-examination.
Id. The defendant was convicted, and he appealed the district court’s
in limine ruling. Id. at 766–68. The State claimed the defendant failed to
preserve error because the defendant made no objections at trial to the
admissibility of the prior convictions. We reasoned that requiring the
defendant to object at trial to the admissibility of prior convictions, after
the district court conclusively ruled on this issue pretrial, would be “a
useless gesture.” Id. at 768. We then stated that,
where a motion in limine is resolved in such a way it is
beyond question whether or not the challenged evidence will
be admitted during trial, there is no reason to voice objection
at such time during trial. In such a situation, the decision on
the motion has the effect of a ruling.
Id. (emphasis added). Miller merely held that, if the district court makes
a definite ruling as to the admissibility of evidence, the party, to preserve
error, need not renew that objection when the evidence is admitted. Id.
Miller does not purport to address the situation in which the evidence in
10
question is never actually admitted into trial—the situation presented in
this case and in Brown.
Miller has been reaffirmed on several occasions albeit in a slightly
different light. In Miller, the primary issue was whether the defendant
had to reobject to the admission of his prior convictions at trial. In State
v. Jones, as in Miller, the defendant disclosed his prior convictions on
direct examination in response to the trial court’s adverse in limine
ruling. State v. Jones, 271 N.W.2d 761, 765 (Iowa 1978). The State,
however, argued the defendant waived his claim of error by affirmatively
admitting his prior convictions. Id. We rejected the State’s arguments
and held the defendant preserved error. Id. at 766. We reasoned that,
when the district court makes a conclusive ruling as to the admissibility
of prior convictions, the defendant need not “abandon all trial tactics to
preserve error.” Id. This decision was reaffirmed in State v. Griffin, 323
N.W.2d 198, 202 (Iowa 1982).
It had thus been well established in this state that, if a trial court
conclusively ruled in limine to admit a defendant’s prior convictions, the
defendant need not reobject to the admission of his convictions at trial to
preserve error. Rather, the defendant could affirmatively introduce his
convictions at trial and still preserve error. In 2000, the Supreme Court,
pursuant to its federal court advisory powers, held in a 5–4 decision that
a defendant waives his right to appeal a trial court’s in limine Federal
Rule 609(a) ruling when the defendant affirmatively discloses his prior
conviction on direct examination. Ohler v. United States, 529 U.S. 753,
760, 120 S. Ct. 1851, 1855, 146 L. Ed. 2d 826, 832 (2000). While Ohler
was not binding on this court, in light of Ohler, we reconsidered Miller
and its progeny in Daly. Daly, 623 N.W.2d at 801.
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In Daly, we rejected Ohler and adhered to our precedent in Miller
and Jones, which held a defendant may appeal the district court’s
in limine ruling, even if the defendant affirmatively discloses his prior
convictions on direct examination. Id. Thus, Daly and the cases before
it govern error preservation when the trial court permits the State to
impeach the defendant with prior convictions and the defendant then
testifies at trial. In those circumstances, the defendant preserves error
to appeal the trial court’s in limine ruling, assuming the defendant
confronts the prior conviction evidence at trial, on either direct or cross-
examination.
Against this backdrop, we are not persuaded by Derby’s contention
Daly “call[s] the continuing validity of Brown into question.” Daly and
Brown involve two different factual situations. In Daly, the defendant
testifies and confronts his prior conviction evidence. By contrast, in
Brown, the defendant does not testify, and his evidence of prior
convictions is never admitted at trial. These differences lead to different
outcomes for error preservation. Our reasoning in Brown is based upon
the practical appellate difficulties of reviewing the trial court’s rule 5.609
in limine ruling when the defendant does not testify and never confronts
the prior-conviction evidence. The challenges the incomplete record pose
for appellate review are obviated when the defendant testifies and the
prior convictions are put in play. See Ohler, 529 U.S. at 761, 120 S. Ct.
at 1856, 146 L. Ed. 2d at 833 (Souter, J., dissenting) (noting Ohler raises
none of the “practical difficulties” implicated in Luce); Warren v. State,
124 P.3d 522, 527 (Nev. 2005) (noting defendant’s affirmative testimony
on prior convictions raises different issues than defendant’s decision not
to testify). Moreover, Daly is not new law in this state. Daly was a mere
12
affirmation of settled law that predated Brown. Daly is not inconsistent
with Brown, nor does Daly’s reasoning necessitate we overturn Brown.
C. Case Law from Other Jurisdictions. Derby also argues that
cases from other jurisdictions call into question Brown’s continuing
vitality. Notably, however, Derby has not cited cases of first impression
decided after Brown. Nonetheless, we will review decisions reached in
other jurisdictions. The preservation-of-error issue present here has
been considered in nearly every jurisdiction in this country. Courts have
reached one of three conclusions.
A strong majority of courts have reached the same conclusion we
reached in Brown and the United States Supreme Court reached in Luce
that, for practical reasons of appellate review, the defendant must testify
and be confronted with his prior convictions before complaining of the
district court’s evidentiary ruling. 1 As a general matter, all courts
adopting the Brown and Luce results appear to agree that, without the
defendant’s testimony, appellate review of the district court’s in limine
ruling is impractical.
The states that have declined to adopt Luce are split in their
resolution of this issue. Some states seek to alleviate the appellate
review concerns by requiring the defendant to make an offer of proof.
1State v. Wickham, 796 P.2d 1354, 1358 (Alaska 1990); State v. Allie, 710 P.2d
430, 437 (Ariz. 1985); Smith v. State, 778 S.W.2d 947, 950 (Ark. 1989); People v. Collins,
722 P.2d 173, 176–78 (Cal. 1986); People v. Brewer, 720 P.2d 596, 597 (Colo. App.
1985); State v. Harrell, 506 A.2d 1041, 1046 (Conn. 1986); Fennell v. State, 691 A.2d
624, 625–26 (Del. 1997); State v. Garza, 704 P.2d 944, 949 (Idaho Ct. App.1985); People
v. Whitehead, 508 N.E.2d 687, 694 (Ill. 1987); People v. Finley, 431 N.W.2d 19, 25
(Mich. 1988); State v. Hunt, 475 S.E.2d 722, 727 (N.C. Ct. App. 1996); State v. Silvia,
898 A.2d 707, 720 (R.I. 2006); State v. Glenn, 330 S.E.2d 285, 286 (S.C. 1985); State v.
Means, 363 N.W.2d 565, 569 (S.D. 1985); Benavides v. State, 763 S.W.2d 587, 590
(Tex. Ct. App. 1988); State v. Gentry, 747 P.2d 1032, 1036 (Utah 1987); Reed v.
Commonwealth, 366 S.E.2d 274, 277 (Va. Ct. App. 1988); State v. Brown, 782 P.2d
1013, 1022–25 (Wash. 1989); Vaupel v. State, 708 P.2d 1248, 1249–50 (Wyo. 1985).
13
See Saucier v. State, 562 So. 2d 1238, 1245 (Miss. 1990), overruled on
other grounds by White v. State, 785 So. 2d 1059, 1061 (Miss. 2001);
Warren, 124 P.3d at 527–28; State v. McClure, 692 P.2d 579, 583–84 (Or.
1984). The remaining courts declining to adopt Luce permit a defendant
to appeal the trial court’s prior conviction in limine ruling per se.
Commonwealth v. Crouse, 855 N.E.2d 391, 397 (Mass. 2006); State v.
Whitehead, 517 A.2d 373, 376–77 (N.J. 1986); People v. Moore, 548
N.Y.S.2d 344, 346 (N.Y. App. Div. 1989); Commonwealth v. Richardson,
500 A.2d 1200, 1203 (Pa. Super. Ct. 1985); State v. Galmore, 994 S.W.2d
120, 123–24 (Tenn. 1999).
Prior to Luce, most federal appellate courts adhered to the per se
approach. See Whitehead, 517 A.2d at 374 (collecting circuit court
cases). Derby asserts we should adopt the per se approach and place no
requirements on the defendant’s right to appeal the district court’s in
limine ruling under rule 5.609(a). Alternatively, Derby asks us to adopt
the offer-of-proof method. Derby, however, never made an offer of proof,
nor does the record contain any indication of his expected testimony.
Without commenting on the efficacy of the offer-of-proof method, we
deem that issue not before us.
Of the states rejecting Luce, the New Jersey Supreme Court has
most thoroughly articulated its reasoning. Id. at 374–76. The Whitehead
court found the appellate review concerns articulated in Luce to be
overstated, and thus, it concluded there was no need to force the
defendant to testify and face potentially improper prior conviction
impeachment to preserve error. Id. at 376. First, the court noted that
trial courts routinely perform the prior-conviction evidentiary-balancing
test before trial, without knowing the defendant’s specific testimony. Id.
Second, with respect to harmless-error concerns, the court noted that
14
New Jersey law had long permitted defendants to appeal prior conviction
in limine rulings without testifying, and the court did not believe its
error-preservation rule imposed an undue burden on its judicial system.
Id. The court concluded, “In sum, our present practice is working well,
and we are disinclined to change it.” Id.
D. Brown’s Precedential Value. Derby asks us to overrule
Brown. We reiterate that we “do not overturn our precedents lightly and
will not do so absent a showing the prior decision was clearly erroneous.”
McElroy v. State, 703 N.W.2d 385, 394 (Iowa 2005) (collecting cases on
stare decisis). Stare decisis does not prevent the court from correcting
past judicial announcements that were plainly wrong. Id. at 395; see
also State v. Harrington, 800 N.W.2d at 49 (overruling in part State v.
Axiotis, 569 N.W.2d 813, 816 (Iowa 1997)).
We conclude the reasons Derby advances for overruling Brown do
not justify a departure from stare decisis. Brown was decided in 1997
and affirmed Davis, which was decided in 1982. It has long been settled
law that a criminal defendant must testify and confront the impeachment
evidence before seeking an appellate determination of admissibility.
Derby cites no Iowa case that holds otherwise. In Brown, we were asked
to decide the issue before us today. We articulated reasons for our
decision, and a majority of courts have also deemed those reasons
persuasive. By the time Brown was decided, several jurisdictions had
adopted the offer-of-proof requirement and several others had repudiated
Brown’s error-preservation rule in its entirety. Brown considered and
rejected the same arguments Derby presents in his appeal. Accordingly,
we apply Brown to hold Derby has failed to preserve error on his claim
that the district court abused its discretion in denying his motion in
limine under rule 5.609(a).
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E. Other Claims. Derby also asserts the district court’s
evidentiary ruling denied Derby his constitutional right to testify and his
constitutional right to a fair trial. “ ‘Issues not raised before the district
court, including constitutional issues, cannot be raised for the first time
on appeal.’ ” State v. Mitchell, 757 N.W.2d 431, 435 (Iowa 2008) (quoting
State v. McCright, 569 N.W.2d 605, 607 (Iowa 1997)). Derby did not file a
motion before or during trial raising his constitutional issues. Nor did
Derby raise his constitutional issues in his motion in limine. Derby
simply alluded to these claims in one sentence in a motion for new trial.
This fails to preserve error. State v. Wells, 629 N.W.2d 346, 356 (Iowa
2001).
III. Disposition.
Derby has not presented us with any developments since our
decision in Brown that call into question Brown’s vitality, nor have we
found any. Derby has not shown Brown was the product of clearly
erroneous decision making. Derby also failed to preserve his
constitutional claims. Accordingly, we affirm his convictions, sentences,
and judgment.
DECISION OF COURT OF APPEALS AND JUDGMENT OF
DISTRICT COURT AFFIRMED.
All justices concur except Mansfield, J., who takes no part.