Opinion
No. 4-666 / 03-1944
Filed December 22, 2004
Appeal from the Iowa District Court for Black Hawk County, Jon C. Fister, Judge.
David Willock appeals the jury's verdict of guilty on six separate counts for kidnapping, robbery, and burglary, as well as certain district court rulings made during the course of proceedings. REVERSED AND REMANDED FOR NEW TRIAL.
John J. Bishop, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, Robert P. Ewald, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and D. Raymond Walton, Assistant County Attorney, for appellee.
Heard by Sackett, C.J., and Vogel, Zimmer, Hecht, and Eisenhauer, JJ.
This is an appeal by David Willock following judgment and sentence for first-degree kidnapping, second-degree kidnapping, two counts of first-degree robbery and two counts of first-degree burglary. Willock raises several issues on appeal. Because the issue of whether the charges against Willock should have been consolidated for trial is dispositive of this case, we only address it. In doing so, we find the district court erred in consolidating the charges and in the alternative abused its discretion in not severing the charges. We therefore reverse and remand for a new trial.
I. Background Facts and Proceedings.
On October 16, 2002, at about 12:30 a.m. Sami Stamatiades was awakened in her Waterloo home by a loud noise. Three male intruders in dark clothing, wearing ski masks and brandishing guns, appeared in her bedroom. The men duct-taped Stamatiades and her two children and began ransacking the house in an effort to locate something. Over the course of the next two hours the men threatened, beat, stole from, and sexually assaulted Stamatiades. They told her it was because "they sold us some bad drugs." The men were likely referring to Stamatiades' former boyfriend, who was a drug dealer. Stamatiades later testified that she thought one of the men was Willock.
The men kept asking "where is it?" but never revealed what "it" was. It is likely that "it" was drugs as the police found a large amount of cocaine the next day at Stamatiades' residence.
On October 26, 2002, in the early morning hours, Cassandra Jenkins was awakened by the sound of her Cedar Falls apartment door opening. A man wearing dark clothing, a ski mask, and holding a gun entered her room and ordered her out of bed. She was escorted into the living room where another man was standing over her boyfriend, Anthony Cole, who was laying face down. The men threatened Jenkins and demanded money and jewelry. The men took her back to her bedroom, duct-taped her, and began disrobing her until a third man entered and stated, "This isn't a rape, it's a robbery." Jenkins was then placed in the trunk of her own car, and driven away. She could hear Cole in the passenger compartment and later heard him escape and call for help. Eventually her car was abandoned by the assailants and Jenkins escaped from the trunk.
At 4:48 a.m. Officer Dan Brown responded to a call and found Cole, with blood on his face and shirt. Officer Brown testified that Cole told Officer Brown that he and Jenkins had been kidnapped and that he was "pretty sure" one of the kidnappers was "David, I just don't know his last name."
On February 6, 2003, Willock was charged in one trial information with the crimes of Kidnapping in the First Degree (Count I), Robbery in the First Degree (Count II), Burglary in the First Degree (Count III), Kidnapping in the Second Degree (Count IV), Robbery in the First Degree (Count V) and Burglary in the First Degree (Count VI). Counts I, II, and III all resulted from the events occurring in Waterloo on October 16, 2002. Counts IV, V, and VI all stem from the events occurring in Cedar Falls on October 26, 2002. Prior to trial, the district court denied Willock's motion to sever the first three counts from the last three counts.
II. Scope and Standard of Review
Our review is for errors at law. Iowa R. App. P. 6.4. "We review a trial court's refusal to sever multiple charges against a single defendant for abuse of discretion." State v. Query, 594 N.W.2d 438, 443 (Iowa Ct.App. 1999) (citing State v. Geier, 484 N.W.2d 167, 172 (Iowa 1992)). In so doing, we respect the superior vantage point of the district court and recognize that judicial decisions are rarely resolved within sharp confines. State v. Delaney, 526 N.W.2d 170, 174 (Iowa Ct.App. 1994).
III. Consolidation and Discretionary Severance
Iowa Rule of Criminal Procedure 2.6(1) provides in part:
Two or more indictable public offenses which arise from the same transaction or occurrence or from two or more transactions or occurrences constituting parts of a common scheme or plan, when alleged and prosecuted contemporaneously, shall be alleged and prosecuted as separate counts in a single complaint, information, or indictment, unless for good cause shown, the trial court determines otherwise .
Thus, under Rule 2.6(1) offenses can only be consolidated and tried together if the offenses charged are based on either (1) the same transaction or occurrence, or (2) a common scheme or plan. Query, 594 N.W.2d at 443; State v. Lam, 391 N.W.2d 245, 249 (Iowa 1986). The underlying theme of this rule is the achievement of judicial economy through the joinder of related offenses. Lam, 391 N.W.2d at 249.
However, even if one or both of the foregoing requirements for consolidation are satisfied, Rule 2.6(1) also provides a district court with discretion to sever charges upon a showing of good cause. State v. Smith, 576 N.W.2d 634, 636 (Iowa Ct.App. 1998) (overruled on other grounds); Delaney, 526 N.W.2d at 174 ("[o]ur law permits multiple charges . . . constituting parts of a `common scheme or plan' to be prosecuted in a singe trial unless the trial court determines otherwise for good cause") (emphasis added). In this circumstance, a defendant has the burden of demonstrating "his interest in receiving a fair trial uninfluenced by the prejudicial effects which could result from a joint trial outweighed the State's interest in judicial economy." Lam, 391 N.W.2d at 251.
A. Consolidation
As a preliminary matter we conclude that Counts I, II, and III and Counts IV, V, and VI did not arise out of the same transaction or occurrence as those terms are meant in Rule 2.6(1). See State v. Bair, 362 N.W.2d 509, 512 (indicating that "same transaction or occurrence" requires that "the facts of each charge can be explained adequately only by drawing upon the facts of the other charge"). Thus, the multiple charges against Willock arising from two separate occurrences could only be prosecuted in a single trial if the occurrences constituted part of a common scheme or plan. Geier, 484 N.W.2d at 172 ("[Rule 2.6(1)] prohibits joinder where the offenses are neither part of a common scheme nor part of the same transaction or occurrence").
"A common scheme or plan requires more than the commission of two similar transgressions by a single person." State v. Oetken, 613 N.W.2d 679, 688 (Iowa 2000) (citation omitted). "[T]he essential test in determining whether a common scheme or plan exists is the requirement that all offenses charged must be products of a single or continuing motive." Lam, 391 N.W.2d at 250 (adopting the test developed by the Missouri Court of Appeals in State v. Garrette, 669 S.W.2d 468, 493 (Mo.Ct.App. 1985)). In making this determination it is helpful to consider factors such as intent, modus operandi, and the temporal and geographic proximity of the crimes. Oetken, 613 N.W.2d at 688.
On October 16, 2002, the intruders at Stamatiades' town home clearly stated the motive for their crimes as evidenced by the following testimony of Stamatiades regarding a conversation she had with the intruders: "`Do you know why we're doing this to you?' And I said, `No.' And they said, `Because they sold us bad drugs.'" Moreover, the actions of the intruders in asking Stamatiades to summon her drug dealing ex-boyfriend to her town home and then by brutally sexually assaulting her, believing she was the girlfriend of this drug dealer, evidence a motive to enact revenge for being sold bad drugs. Further evidencing the perpetrators' revenge motive is their indifference towards an opportunity to further the other likely motive for their break-in, i.e. financial gain, by rejecting Stamatiades' offer to withdraw cash from her bank account. Clearly, the words of the perpetrators expressed a desire for revenge and their actions evidence a purposeful and awful vengeance.
The statements and actions of the intruders on October 26, 2002, evidence a different motive. On October 26th, two intruders pulled Jenkin's pajama pants and underwear down, until another stated, "This is not a rape, this is a robbery." The men did not sexually assault her, nor did they ask about drugs, as their primary concern was whether she had any money or jewelry. On this night, the intruders expressed no desire for revenge and their actions evidence a clear desire for financial gain. Thus, the apparent motive of the October 26th intruders was robbery.
We acknowledge the district court's findings and the State's position on appeal that there were some factors common to both the October 16th and October 26th crimes including: invading the homes of two women during the nighttime, duct-taping the victims, and both incidents involving three African-American men, wearing ski masks, gloves and brandishing guns. Nonetheless the motive of the intruders on October 16th was revenge for being sold bad drugs. The motive of the October 26th intruders was robbery. Therefore, the offenses charged, separated by both time and location, were not the product of a single or continuing motive such that they should have been prosecuted in one trial. Consequently, the district court erred in consolidating Counts I, II, and III with Counts IV, V, and VI. See Geier, 484 N.W.2d 167 (stating Rule 2.6(1) "prohibits joinder where the offenses are neither part of a common scheme nor part of the same transaction or occurrence").
The district court and the State also argue the sexual assault of the victim with a broomstick in the October 16th incident and the threatening of the victim in the October 26thincident with the same, constitutes a commonality. We however find the fact that no such sexual assault occurred on October 26th to be a key distinction regarding the respective motives of the assailants during the course of the two incidents.
B. Severance
Moreover, even if the charges were rightly consolidated, we conclude the district court abused its discretion in not severing them. In determining whether good cause exists for the district court to exercise its discretion to sever charges, we balance any unfair prejudice which could result from a joint trial against the state's interest in judicial economy. Delaney, 526 N.W.2d at 175. Judicial economy is advanced by avoiding duplicative proceedings when the proof underlying several offenses is the same. Smith, 576 N.W.2d at 637 (citing State v. Dicks, 473 N.W.2d 210, 214 (Iowa Ct.App. 1991)). The prejudice discretionary severance seeks to avoid includes that which inherently attends evidence of defendant's other crimes, which includes the tendency to suggest decisions on an improper basis, often an emotional one. See id.
After reviewing the record, we fail to see how the State's interest in judicial economy was advanced by consolidating the charges. At the time the district court decided not to sever the trial of Counts I, II, and III from Counts IV, V, and VI, the court knew that charges stemming from the events on October 26th had two defendants, and that the State planned a separate trial for the second defendant. Had the district court severed the charges, Willock could have been tried with the second defendant for the events occurring on October 26th. Thus, regardless of whether the district court severed or refused to sever the charges, there would be a total of two trials.
Ultimately, the State dismissed all charges against the second defendant.
Further, even if judicial economy would have been served by refusing to sever the charges the unfair prejudice to Willock in not doing so outweighed this interest in judicial economy. In making this determination we first note that the evidence resulting from the events taking place on October 16th and 26th may well have been difficult for the jury to compartmentalize. See Geier, 484 N.W.2d at 173 (noting that the district court in a bench trial is better able to compartmentalize evidence regarding various charges and thereby guard against the prejudice a severance seeks to prevent). The difficulty in compartmentalizing the evidence is particularly troubling in this case because DNA evidence linked Willock to the October 16th incident but not the events of October 26th, whereas identification testimony and phone record evidence linked Willock to the October 26th occurrences but not those on October 16th.
This conclusion is best illustrated by the intermingled manner in which the State presented its witnesses from the October 16th and October 26th incidents. For instance, the first five witnesses testified regarding the October 16th occurrences, the next three testified to both incidents, the next to October 16th, the next two to the events of October 26th, the next to both incidents, the next three testified regarding October 16th, the next to October 26th, the next to both, and State's final witness testified only to the October 26th incident.
In addition, because of the district court's decision not to sever the charges, the jury was presented with excess emotionally-charged evidence which may have encouraged it to decide Willock's guilt improperly. See State v. Plaster, 424 N.W.2d 226, 231 (Iowa 1988). For instance, the jury heard of the vicious sexual assault occurring on October 16th which may have improperly involved the jurors' emotions when they determined Willock's guilt regarding the October 26th charges. The jury was also presented with evidence of drug use and distribution regarding the October 16th incident which may have affected the jury's determinations regarding the October 26th charges by appealing to the jurors' instinct to punish drug users or dealers. See State v. Liggins, 524 N.W.2d 181, 188 (Iowa 1994) (noting that admission of cocaine delivery and distribution evidence is inherently prejudicial). Finally, a police officer testified to a conversation he had with Anthony Cole, the victim of the October 26th events, during which Cole stated that he was afraid to testify because of what the defendant might do to Cole's three-year-old daughter. This highly-charged testimony may have improperly affected the jury's decision regarding the October 16th events. Therefore, under these circumstances we conclude that any nominal benefit present in not severing the charges for trial was substantially outweighed by the prejudice attendant in trying Counts I, II, and III with Counts IV, V, and VI. Consequently, we conclude the district court abused its discretion in not severing the charges stemming from the events of October 16th from the charges stemming from the October 26th incident.
IV. Conclusion
Because the charges stemming from October 16th and October 26th were not part of a common scheme or plan, the district court erred in consolidating them. Furthermore, even were this not error, the district court abused its discretion in not severing these charges because the danger to Willock of unfair prejudicial effects resulting from a joint trial outweighed the State's interest in judicial economy. Accordingly, we reverse the decision of the district court.