Opinion
No. 3-844 / 02-2092
Filed February 11, 2004
Appeal from the Iowa District Court for Scott County, John A. Nahra, Judge.
The defendant appeals following his conviction and sentence for murder in the first degree. AFFIRMED.
Alfredo Parrish of Parrish, Kruidenier, Moss, Dunn, Boles, Gribble Cook, L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, William Davis, County Attorney, and Robert Cusack, Assistant County Attorney, for appellee.
Heard by Zimmer, P.J., and Miller and Vaitheswaran, JJ.
Shon Graves appeals following his conviction and sentence for murder in the first degree. We affirm his conviction, but preserve certain claims of ineffective assistance of counsel for possible postconviction proceedings.
I. Background Facts and Proceedings.
A reasonable juror could find the following facts from the record in this case. In August 2001 Shon Graves and his friend Shorty traveled from Chicago, Illinois to Davenport, Iowa to visit Graves's girlfriend, Lotonia Clayton. Clayton lived in one side of a duplex. The other side was occupied by Clayton's mother and step-father, Beverly and Joe Harrington. During the visit Shorty hid approximately $6000 of Graves's money in the Harringtons' side of the duplex. Darrell Williams, Beverly Harrington's nephew, and Williams's friend, Delmont Thomas, formed a plan to steal the money. The plan was successfully executed by Thomas and Darryl Murray.
Shorty and Graves discovered the money was missing the morning of August 14. Graves was clearly angry, and stated that if his money was not returned he was "going to fuck somebody up." Joe Harrington was afraid Graves was going to hurt someone. Graves learned that Williams, Murray, and Thomas had been in the house, and told Clayton that Williams was the only person who had seen Shorty hide the money. David Gamble, Clayton's neighbor and Murray's cousin, saw Graves in the backyard of the duplex late in the morning of August 14. According to Gamble, Graves appeared upset and nervous and was fidgeting with his waistband as if concealing a weapon. Graves told Gamble he was going to kill Williams because his money was missing.
Williams arrived at the duplex about forty-five minutes later, having received a ride from Demetrius Carr. Carr and Williams entered Clayton's residence and Graves followed them inside with a pistol in his hand Carr went into the kitchen and Williams went into the living room. Carr heard Graves say, "You'll never steal from me again," and heard Williams pleading for his life, saying something like, "It don't have to be like this." Carr heard gunshots and hid under the kitchen table.
Gamble was about to enter the house when he heard two to three shots. After a short pause, he heard another two to three shots. Gamble then saw Williams, who had been shot, run out of the house. Graves followed Williams out of he house carrying a .380 caliber handgun. Williams died in a nearby alley. Graves left his vehicle behind at the scene, and "peeled off" in another person's car. He never retrieved his vehicle, and was later arrested in Chicago.
Graves was charged with murder in the first degree for the death of Williams. Graves's first trial ended in a mistrial after a State's witnesses testified Graves had spent time in prison. At the close of the State's case in Graves's second trial, and again at the close of all the evidence, Graves made a motion for a directed verdict of acquittal, asserting the record did not contain sufficient evidence to convict him of the crime charged. In both instances the motion was denied by the court. The case was submitted to the jury which returned a guilty verdict. Graves appeals, contending the district court erred in denying certain hearsay objections and his directed verdict motions. He further asserts that his trial counsel was ineffective. II. Scope of Review.
Graves also contends the court erred in denying his new trial motions, specifically referring to three items of evidence that were introduced and/or allegedly untimely produced by the State. However, Graves fails to indicate anywhere in the record where he timely objected to the evidence, and in fact his ineffective assistance of counsel arguments demonstrate that he did not make the necessary objections. Accordingly, he failed to preserve error on this issue. See State v. Escobedo, 573 N.W.2d 271, 276-77 (Iowa Ct. App. 1997).
Challenges to hearsay rulings and the sufficiency of the evidence are reviewed for the correction of errors at law. Iowa R. App. P. 6.4. Ineffective assistance of counsel claims are reviewed de novo. State v. Watson, 620 N.W.2d 233, 235 (Iowa 2000).
III. Hearsay Statements.
Two of Clayton's children, S.J. and D.J., were outside of the duplex before, during and after the shooting. Clayton, Gamble, and Beverly Harrington testified that after the shooting the children were upset, crying, and variously stated Graves had shot or killed Williams. Graves contends the court erred in admitting these statements over his objections, and argues in the alternative that counsel was ineffective for failing to make proper objections.
From a review of the record it appears the statements, when objected to, were admitted under the excited utterance exception to the hearsay rule, which pertains to statements "relating to a startling event or condition made while under the stress of excitement caused by the event or condition." Iowa R. Evid. 5.803(2). Graves admits the children's statements would fall under the exception, but only to the extent the statements related to the excitement of the events the children actually witnessed. He contends, however, that there is no evidence either child witnessed the shooting itself, and thus their statements that Graves shot or killed Williams, while made under the stress of excitement, did not relate to the events that caused the excitement. He asserts the statements therefore lack the necessary indicia of reliability, and should have been excluded. See State v. Rawlings, 402 N.W.2d 406, 409 (Iowa 1987).
We are not convinced of the validity of Graves's position. See id. ("A declarant's personal knowledge of the facts, however, may be inferred from the utterance itself."). However, we need not decide the question, as we conclude the admission of the statements, even if in error, did not work to Graves's prejudice. Although admission of a hearsay statement does result in a presumption of prejudice to the non-offering party, that presumption can be rebutted. See State v. Rice, 543 N.W.2d 884, 887 (Iowa 1996). Admission of a hearsay statement will not warrant reversal if the State upholds its burden of proving the statements did not impact upon the jury's verdict. Id. We conclude, under the record in this case, that burden has been met. As will be discussed in the following section, even absent the statements, the record contained overwhelming evidence in support of Graves's conviction.
IV. Substantial Evidence.
A verdict is upheld if supported by substantial evidence. State v. Turner, 630 N.W.2d 601, 610 (Iowa 2001). Evidence is substantial if it is sufficient to convince a rational trier of fact, beyond a reasonable doubt, of the defendant's guilt. Id. We view the totality of the record in the light most favorable to the State, drawing any and all legitimate inferences that can be reasonably deduced from the evidence. State v. Williams, 574 N.W.2d 293, 296 (Iowa 1998). Doing so in this case, we conclude there was substantial evidence of Graves's guilt.
The State established motive and opportunity. It introduced evidence of both direct and indirect threats on Williams's life. Even though the State was unable to provide eyewitness testimony of the shooting, and even excluding the children's statements, the record contained extremely strong circumstantial evidence from which the jury was free to infer that Graves was the individual who shot Williams inside the duplex. See State v. Speicher, 625 N.W.2d 738, 741 (Iowa 2001) (noting direct and circumstantial evidence are equally probative). The evidence in the record raised not merely a suspicion, but a fair inference of guilt as to each essential element of the crime. See State v. LaPointe, 418 N.W.2d 49, 51 (Iowa 1988).
Graves asks us to look beyond the evidence of his guilt and consider evidence that impacts upon the credibility of several witnesses. While we consider exculpatory as well as inculpatory evidence, see State v. Buenaventura, 660 N.W.2d 38, 48 (Iowa 2003), the jury is in the best position to assess credibility. State v. Knox, 536 N.W.2d 735, 742 (Iowa 1995). It is the jury's duty to sort out the credibility of witnesses and to assign the evidence presented whatever weight it deems proper. State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993). The jury may believe or disbelieve the testimony of witnesses as it chooses. Id. It is only in rare cases where a witness's testimony is "so impossible, absurd, and self-contradictory that the court should deem it a nullity." State v. Mitchell, 568 N.W.2d 493, 503 (Iowa 1997). We have explored the record, and none of the identified testimony rises to this level. There was substantial evidence in support of Graves's conviction.
V. Ineffective Assistance of Counsel.
Graves forwards multiple claims of ineffective assistance by trial counsel. Typically, ineffective assistance claims are preserved for possible postconviction proceedings, to allow a full development of the record regarding counsel's actions. State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001). However, where the record is sufficient to reach the merits of the defendant's contentions, we will address ineffective assistance claims on direct appeal. State v. Miller, 622 N.W.2d 782, 785 (Iowa Ct. App. 2000).
In reviewing the record we determine four of Graves's claim should be preserved for possible postconviction proceedings: 1) counsel's failure to impeach Demetrius Carr by calling Detective Bowers to testify, 2) counsel's failure to object to the State's failure to notify the defense of or produce a police report regarding a September 3, 2002 interview with David Gamble, 3) counsel's failure to object to the late disclosure of the fact that drug charges against Clayton had been dismissed, and 4) counsel's failure to adequately explore the possibility that another individual was responsible for the shooting. We conclude the remainder of Graves's ineffective assistance of counsel claims can be disposed of on direct appeal.
To establish ineffective assistance of trial counsel, the defendant must overcome a strong presumption of his counsel's competence. State v. Nucaro, 614 N.W.2d 856, 859 (Iowa Ct. App. 2000). Graves has the burden of proving his attorney's performance fell below "an objective standard of reasonableness" and that "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). Prejudice is shown by a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings. State v. Carrillo, 597 N.W.2d 497, 500 (Iowa 1999).
A. Burden Shifting/Failure to Testify.
Detective Thomas testified he was unable to learn the identity of Shorty, and that, to his knowledge, the only person who knew Shorty's identity was Graves. Trial counsel unsuccessfully objected to this statement on the basis the witnesses "did not know what's in the mind" of Graves. Graves argues counsel should have further objected to this comment as impermissibly shifting the burden to Graves to prove Shorty's identity. We conclude this argument is without merit. The State's constitutional burden to prove its case requires the State to establish each element of the offense beyond a reasonable doubt. See State v. Savage, 288 N.W.2d 502, 507 (Iowa 1980). While Shorty's identity may have some relevance to the jury's consideration of this case, it is not an element of the crime that the State must prove. See id.
Graves further argues that counsel should have objected to the statement on the basis that it was an improper comment on Graves's failure to testify. However, when viewing the testimony in context, it does not appear the jury would "`naturally and necessarily' interpret the statement to be a reference to the defendant's silence." See State v. Bishop, 387 N.W.2d 554, 562 (Iowa 1986). A prosecutor may call attention to the defendant's failure to present exculpatory evidence, so long as he or she does not call attention to the defendant's own failure to testify. Id.
Finally, Graves cannot establish the failure to object was prejudicial to his case. The identity of Shorty is a fact of relative insignificance. In light of the overwhelming evidence of Graves's guilt, he has not established that exclusion of the testimony would have created a reasonable probability of a different outcome.
B.S.J.'s Testimony.
Clayton's nine-year-old daughter, S.J., was called as a State's witness. However, when S.J. would not respond after the court attempted to administer the oath, the State withdrew her testimony. During an in-chamber conference the following day, the court stated S.J. "was either unable or refused to take her oath." Trial counsel then stipulated that a transcript of S.J.'s testimony at Graves's first trial could be read into evidence as S.J. was unavailable as contemplated by Iowa Rule of Evidence 5.804( a)(2). The record indicates that, after some initial reluctance, Graves consented to the reading of the testimony. Graves now contends he did not want S.J.'s testimony read to the jury, and that trial counsel was ineffective by stipulating to S.J.'s unavailability.
Normally we would be inclined to preserve this issue to allow counsel to explain his decision to enter into the stipulation. However, we need not do so as, even if competent counsel would not have entered into the stipulation, Graves was not prejudiced by the testimony. See State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997) (noting that an ineffective assistance of counsel claim may be disposed of if the defendant fails to prove either prong).
Graves argues the testimony was prejudicial because it violated his rights under the confrontation clause. See U.S. Const. amend. VI. Graves does not appear to contend there was a violation of the primary purpose of the clause: the right to secure cross-examination. See Morgan v. State, 469 N.W.2d 419, 424 (Iowa 1991). Rather, he focuses on the secondary purpose of the clause: the jury's ability to observe S.J.'s demeanor during testimony. See id. However, this purpose is a dispensable one. Id. Moreover, even if we were to exclude S.J.'s testimony, the jury could have easily determined under the remaining record that the State had proved its case beyond a reasonable doubt. Thus error, if any, was harmless. See id. at 427-28.
S.J. was subject to cross-examination by Graves, both during her deposition, and at the first trial. Graves does not point to any inadequacy in that cross-examination, or prejudice resulting from his inability to conduct yet another cross-examination at his second trial.
C. Detective Thomas's Testimony.
Detective William Thomas testified that, when he arrested Graves in Chicago, Graves repeatedly told the detective to shoot him. Graves argues counsel was ineffective as he did not object to receiving inadequate notice of this testimony, and seek to impeach or rebut the testimony with the fact the alleged statements by Graves were not reflected in the police report of either Detective Thomas or another officer. Even if we assume that competent counsel would have taken the above steps, Graves fails to establish prejudice. While Detective Thomas's testimony could be interpreted by the jury as consciousness of guilt by Graves, excising the testimony still leaves a record replete with evidence from which the jury could have concluded that Graves killed Williams.
D. Prior Incarceration.
During its cross-examination of a defense witness, the State asked the witness, "When was the last time you visited [Graves] in jail." Graves argues competent counsel would have objected to this as prosecutorial misconduct, moved for a mistrial, and alternatively requested a curative instruction. However, unlike Graves's first trial, the witness in the second trial never testified that Graves had been incarcerated. Once the question was asked, trial counsel objected and requested a sidebar. The State then withdrew the question.
As a general matter, the question alone will not warrant reversal unless bad faith on the part of the prosecutor can be shown. See State v. Gilroy, 313 N.W.2d 513, 519 (Iowa 1981). There is no evidence of bad faith in this matter. Moreover, even if the question had not been asked, there is not a demonstrated reasonable probability of a different outcome in this matter.
E. Failure to Have Closing Arguments Reported.
Although Graves points to the fact that closing arguments were not reported in this case, he does not claim any specific error occurred during closing arguments, or indicate how the absence of a reported argument impairs the record upon review. This claim is without merit. See State v. Oetken, 613 N.W.2d 679, 689 (Iowa 2000).
VI. Conclusion.
The record contained overwhelming evidence of Graves's guilt. Admission of the hearsay statements by Clayton's children, S.J. and D.J., was not prejudicial to Graves, and the jury's verdict was supported by substantial evidence. Other than the four claims preserved for possible postconviction proceedings, we have considered all of Graves's ineffective assistance claims, and find them all to be without merit. AFFIRMED.
Graves also claims counsel was ineffective for failing to file a new trial motion specifically asserting the verdict was contrary to the law and the evidence. However, as we have already noted, the evidence in support of Graves's conviction was overwhelming. Even if such a motion had been made, it would not have succeeded. Graves's claim of cumulative error, arising out of his various assertions of ineffective assistance, is equally without merit.