Opinion
No. 1-524 / 00-1128.
Filed April 24, 2002.
Appeal from the Iowa District Court for Clarke County, PETER A. KELLER, Judge.
Martin Moon appeals from his conviction and sentence for first-degree murder in violation of Iowa Code sections 707.1 and 707.2 (1989). JUDGMENT AFFIRMED, SENTENCE AFFIRMED IN PART AND VACATED IN PART AND REMANDED WITH DIRECTIONS.
Linda Del Gallo, State Appellate Defender, and Dennis D. Hendrickson, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik and Thomas H. Miller, Assistant Attorney General and John D. Lloyd, County Attorney, for appellee-State.
Heard by HUITINK, P.J., and ZIMMER and VAITHESWARAN, JJ, but decided en banc.
Martin Moon appeals his conviction and sentence for first-degree murder. He contends the district court: (1)did not properly instruct the jury on accomplice testimony; (2) abused its discretion in admitting "other crimes" evidence concerning burglaries, drugs, and weapons; (3) erred in finding the evidence sufficient to support the verdict; (4) and erred in ordering restitution under a newly enacted statute. He also raises several ineffective assistance of counsel claims. We affirm all portions of the judgment and sentence except the restitution order, which we vacate. We preserve two ineffective assistance of counsel claims for postconviction relief.
I. Background Facts and Proceedings
In 1990, Kevin Dickson was shot and killed at an abandoned farmhouse near Winterset. Nine years later, the State charged his friends Martin Moon and Casey Brodsack with first-degree murder. Brodsack ultimately pled guilty to second-degree murder and agreed to testify at Moon's trial.
At trial, Brodsack testified that he, Moon, a friend named Scott Aukes, and the victim lived in the same building and regularly used drugs and alcohol together. One morning, Moon informed the other three that they would need to drive to an abandoned farmhouse to meet his drug dealer. When the four arrived at the farmhouse, Moon, Brodsack and Dickson went to the basement purportedly to look for drugs left by the dealer. While Brodsack was checking for drugs behind the water heater, he heard gunshots. He went around the heater and saw Dickson lying on the ground and Moon standing over him with a gun. According to Brodsack, Moon then demanded that Brodsack also shoot Dickson. To coerce compliance, Moon took another gun out and pointed it at Brodsack's head. He then handed Brodsack the original gun, which Brodsack fired at Dickson's supine body.
Aukes, who remained outside during this episode, testified that he heard ten gunshots. Then, Moon and Brodsack came out of the farmhouse and Moon advised the others they needed to dispose of Dickson's body. The three went home, retrieved a sledgehammer, returned to the farmhouse, and attempted to cover Dickson with bricks. When that effort failed, they dragged Dickson outside and dumped his body into a cistern.
To further support its case, the State introduced evidence from which a jury could have concluded the guns used in the murder were the same guns Moon and Brodsack stole from the farmstead of Madelyn Kerns several days earlier. In addition, the State introduced evidence that Brodsack and Moon had engaged in other burglaries, including burglaries of a gas station, a restaurant, and at least two churches. Moon objected to all this evidence on the ground that it was not relevant and, even if relevant, its probative value was substantially outweighed by its prejudicial effect. Moon also objected on this basis to some of the evidence of drug use and procurement and to testimony from Moon's former girlfriend that she briefly concealed a gun for him. The district court overruled these objections.
The jury found Moon guilty as charged, and the district court sentenced him to a mandatory life term in prison. Pursuant to Iowa Code section 910.3B(1), the court also ordered Moon to pay the victim's estate $150,000 in restitution. This appeal followed.
On appeal, Moon contends the district court: (1) should have instructed the jury that Brodsack was an accomplice as a matter of law and Aukes could be found an accomplice as a matter of fact; (2) should have excluded the "other crimes" evidence; and (3) should not have entered the $150,000 restitution order. Moon additionally argues there was insufficient evidence to support the jury's verdict and he raises several ineffective assistance of counsel claims.
II. Accomplice Instruction
A witness will be considered an accomplice where the evidence establishes that the witness's conduct was sufficient to allow the person "to be charged with and convicted of the specific offense for which the accused was on trial." State v. Harris, 589 N.W.2d 239, 241 (Iowa 1999). If the facts are not disputed and are not susceptible to different inferences, the question of whether a person is an accomplice may be determined as a matter of law. Id. If the facts are susceptible to different inferences, the question is one for the trier of fact. Id. Once a person is found to be an accomplice, Iowa Rule of Criminal Procedure 20(3) requires corroboration of the accomplice's testimony.
A. Brodsack . The district court left it up to the jury to decide whether Brodsack was an accomplice and, accordingly, whether his testimony required corroboration. Moon argues Brodsack's guilty plea to a crime arising from the same events mandated an instruction to the jury that Brodsack was an accomplice as a matter of law. He claims the court's failure to give such an instruction allowed the jury to credit Brodsack's testimony even though it was not corroborated.
As a preliminary matter, we note Moon did not ask the court to find Brodsack an accomplice as a matter law. Therefore, our review of this issue is as an ineffective assistance of counsel claim. In this context, Moon must show trial counsel breached an essential duty in failing to argue Brodsack was an accomplice as a matter of law and he was prejudiced by this omission. See State v. McDowell, 622 N.W.2d 305, 307 (Iowa 2001).
Our highest court appears not to have decided whether a person who pleads guilty to a crime arising from the same events as the events underlying the defendant's charge is an accomplice as a matter of law. See Harris, 589 N.W.2d at 241 (not deciding question in light of State's concession that a guilty plea rendered a witness an accomplice as a matter of law). Cf. Silver v. State, 705 So.2d 552, 555, 662 (Ala. 1984) (witnesses who participated in crime and entered pretrial guilty pleas were accomplices as a matter of law). Because this question has not been decided in Iowa, defense counsel did not breach an essential duty by failing to raise the issue. See State v. Scott, 619 N.W.2d 371, 376 (Iowa 2000) (noting it would be hypocritical to find trial counsel ineffective for failing to raise an issue rejected by majority of Iowa Supreme Court); contrast State v. Westeen, 591 N.W.2d 203, 210 (Iowa 1999) (finding counsel ineffective for failing to raise issue of first impression where statute would have supported argument, caselaw from other jurisdictions uniformly supported argument, and legislature instructed courts to construe statute as other states did). Accordingly, we reject this ineffective-assistance-of-counsel claim.
B. Aukes . Moon next contends the district court should have instructed the jury that it could find Aukes an accomplice whose testimony required corroboration. We disagree. There is no evidence Aukes knew of, or participated in, the shooting. He was outside the farmhouse when the crime occurred and only assisted in disposing of the body. This evidence is insufficient to have allowed Aukes to be charged with and convicted of first-degree murder. Therefore, the district court did not err in declining to give an accomplice instruction as to Aukes.
III. Admission of Prior Bad Acts Evidence
Iowa Rule of Evidence 5.404(b) states that "evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith" but may be admissible for other purposes such as "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Iowa R. Evid. 5.404(b). In deciding whether to admit bad acts evidence, a district court must determine whether the evidence is relevant for a legitimate purpose and, if relevant, whether its probative value is substantially outweighed by the danger of unfair prejudice. State v. Mitchell, 633 N.W.2d 295, 288-89 (Iowa 2001). Additionally, the court must determine whether there is clear proof the defendant committed the prior acts. State v. Rodriquez, 636 N.W.2d 234, 240 (Iowa 2001).
Moon contends the district court should have excluded evidence of: (1) the burglaries; (2) drug use and procurement; and (3) Moon's former girfriend's testimony about a concealed gun. We review this issue for an abuse of discretion. Mitchell, 633 N.W.2d at 299.
A. Burglaries . Over Moon's strenuous objection, the State introduced evidence of at least five burglaries in which Moon and Brodsack participated. We will examine each.
1. Kerns burglary . Defense counsel filed a pretrial motion in limine seeking to exclude all evidence of the burglary at the Kerns property, including evidence of the firearms taken from the property and of subsequent firearm testing. The district court rejected the motion. We find no abuse of discretion in this ruling.
The evidence relating to the Kerns burglary came from a number of witnesses. Brodsack testified that he, Moon, and Dickson stole the guns from the Kerns property ten days before the murder and Moon had them in his possession at the apartment the night before the murder. Madelyn Kerns and her son confirmed that a building on their property was burglarized during this time frame and several of Mr. Kerns' guns were among the items stolen. Mrs. Kerns further stated that Moon had visited their property at some point in time before the burglary and had been shown the weapons Mr. Kerns collected. Department of Criminal Investigation Agent Victor Murillo testified that shell casings recovered from the crime scene were fired from the same gun as casings retrieved from the Kerns property.
We conclude this evidence is relevant. The evidence establishes how, when and where Moon obtained the murder weapons and thereby completes the story of the crime. See State v. Veal, 564 N.W.2d 797, 812 (Iowa 1997); State v. Shortridge, 589 N.W.2d 76, 83 (Iowa Ct.App. 1998). The evidence is also relevant to establish premeditation, an element of the crime of first-degree murder. See Iowa Code § 707.2, 707.1.
We next balance this highly probative evidence against the potential for unfair prejudice. See State v. Uthe, 542 N.W.2d 810, 814-15 (Iowa 1996); State v. Knox, 464 N.W.2d 445, 449 (Iowa 1990). While the evidence does implicate Moon in another crime, we cannot say that it is so prejudicial as to arouse the jury's sense of horror, particularly when compared with the gruesome circumstances surrounding the charged crime. See State v. Castaneda, 621 N.W.2d 435, 440 (Iowa 2001); State v. Larson, 512 N.W.2d 803, 807 (Iowa Ct.App. 1993). Finally, examining the clear proof requirement, we do agree with Moon that some of the evidence tying him to the Kerns burglary is not strong. However, our highest court has not required that the bad acts be proven beyond a reasonable doubt, stating that the purpose of the clear proof rule is only to "prevent the jury from engaging in speculation or drawing inferences based on mere suspicion." State v. Brown, 569 N.W.2d 113, 117 (Iowa 1997) (quoting State v. Spargo, 364 N.W.2d 203, 209 (Iowa 1989)). We conclude the evidence tying Moon to the Kerns burglary was not speculative. Although Mrs. Kerns could not remember when Moon visited her farmstead, the fact of the visit was undisputed, as was the fact that her deceased husband's guns were stolen shortly before the murder. The district court did not abuse its discretion in admitting evidence relating to this burglary.
Mrs. Kerns admitted that Moon's visit to her farmstead and viewing of the guns could have taken place five years before the burglary.
2. Gas Station Burglary . Over defense counsel's objection, the State elicited testimony from Brodsack that he and Moon burglarized a gas station near their apartment building. The pertinent testimony is as follows:
Q. Was that gas station a subject of one of your burglaries?
A. Yes.
[Defense counsel interposed objection which was overruled]
Q. Who participated in that burglary, to your recollection?
A. Me, myself, Marty, sometimes Scott.
The State argues that this burglary was relevant to establish the nature of the relationship between Moon and the others and also furnished clear proof of the Kerns robbery. We disagree. The relationship between the young men involved in the crime had long since been established. Additionally, the gas station burglary added little if anything to the testimony of Brodsack, Mrs. Kerns, her son, and Agent Murillo concerning the Kerns robbery. Accordingly, it was not relevant to establishing Moon's identity or complicity in the Kerns burglary.
For these reasons, we conclude the evidence of the gas station burglary should not have been admitted. However, we believe the court's error in admitting this evidence was harmless. See State v. Liggins, 524 N.W.2d 181, 188-9 (Iowa 1994) (holding irrelevant evidence subject to harmless error standard).
Our highest court has recently stated that error is harmless in this context unless "there is a reasonable probability that but for the error the outcome of the trial would have been different." Rodriquez, 636 N.W.2d at 244. This is the same as the prejudice standard applicable in ineffective assistance of counsel cases. See State v. Crone, 545 N.W.2d 267, 273 (Iowa 1996). Faced with a rule 5.404 (b) challenge to the district court's admission of other acts evidence, the court in Rodriquez concluded "that even without the subsequent bad acts evidence, there was overwhelming evidence of the defendant's guilt." Rodriquez, 636 N.W.2d at 244. The court further stated "[W]e simply cannot conclude that but for the admission of the subsequent bad acts evidence, the outcome of the trial would have been different." Id. Applying this standard, we believe the same can be said here. Without the gas station burglary, there is still corroborated evidence Moon directed the others to the abandoned farmhouse, led Dickson to the basement, shot Dickson and disposed of his body. For this reason, admission of the gas station burglary does not require reversal.
3. Restaurant burglary . Brodsack testified that he and Moon took a change machine from the Gold Buffet restaurant. This burglary occurred after Dickson's death. Both Moon and Brodsack implicated Dickson in this burglary but ultimately admitted their involvement. When asked if they knew the whereabouts of Dickson, both claimed he had since moved to Colorado.
An accused's participation in a crime may be inferred from conduct before or after the offense. State v. Jefferson, 589 N.W.2d 268, 277 (Iowa 1997). We conclude the Gold Buffet burglary, and specifically, Moon's subsequent statements concerning the whereabouts of Dickson are relevant to establish Moon's complicity in the murder of Dickson. We further conclude the evidence is not unfairly prejudicial when compared with the evidence of the murder. As for the clear proof requirement, we note that Brodsack's testimony was corroborated by an officer investigating this burglary. For these reasons, the district court did not abuse its discretion in admitting this evidence.
4. Church burglaries . The State introduced evidence that Moon and Brodsack were involved in at least two church burglaries, one before the Kerns burglary and one after, but both before Dickson was killed. We conclude these church burglaries shed no light on any issue in the case and, therefore, should have been excluded as irrelevant. However, as with the gas station burglary, we conclude the court's admission of this evidence was harmless error in light of the overwhelming evidence supporting the guilty verdict. See Liggins, 524 N.W.2d at 188-89.
B. Drug Usage and Procurement . As a preliminary matter, the State argues that defense counsel did not object to admission of this evidence and, therefore, did not preserve error. The record suggests that, although Moon's attorneys did not object to each question concerning drug use, they did voice concern intermittently during the trial. We believe the evidence of drug use to which defense counsel objected was relevant because it was "an inseparable part of the whole deed." See Liggins, 524 N.W.2d at 188 (quoting State v. Walters, 426 N.W.2d 136, 141 (Iowa 1988)); accordState v. Crawley, 633 N.W.2d 802, 806 (Iowa 2001). Additionally, the prejudicial effect of this evidence pales when compared with the evidence of the shooting and its aftermath. Finally, Moon's drug use was well established, leaving no doubt that the "clear proof" requirement was satisfied. For these reasons, we conclude the district court did not abuse its discretion in admitting this evidence.
C. Testimony of Moon's Girlfriend . Finally, Moon objects to testimony from his former fifteen-year-old girlfriend that Moon concealed a gun in her sweatpants during a police stop of his vehicle. We find this evidence irrelevant, as the girlfriend could not identify the make or model of the gun. However, we conclude its admission was harmless error. See Liggins, 524 N.W.2d at 188-89.
IV. Sufficiency of the Evidence .
Moon contends the evidence was insufficient to support the verdict. Wereview this issue on error, upholding the verdict if it is supported by substantial evidence. State v. Turner, 630 N.W.2d 601, 610 (Iowa 2001).
The jury was instructed that the State would need to prove the following elements of first-degree murder:
1. On or about the 1st day of August, 1990, the Defendant shot Kevin David Dickson.
2. Kevin David Dickson died as a result of being shot.
3. The Defendant acted with malice aforethought.
4. The Defendant acted willfully, deliberately, premeditatedly, and with specific intent to kill Kevin David Dickson.
We find substantial evidence to support each of these elements. With respect to the first element, Brodsack testified Moon shot Dickson. His testimony was corroborated by DCI agent Murillo's testimony that the same gun was used to fire bullets found at the Kerns property and bullets found at the crime scene. Additionally, the State introduced a T-shirt riddled with holes that draped what was left of Dickson's body. Aukes also corroborated essential aspects of Brodsack's testimony, including the fact that multiple shots were fired at Dickson. An acquaintance of Moon's named Duane McPhillips testified that Moon told him of Dickson's shooting. On the second element, the record is undisputed that Dickson died as a result of the shots. With respect to the third element, proof of malice aforethought, it is established that use of a deadly weapon supports an inference of malice. State v. Reeves, 636 N.W.2d 22, 25 (Iowa 2001). Brodsack testified guns were used to kill Dickson. Law enforcement officers found bullet casings at the crime scene. Aukes stated he saw Brodsack exit the house with a gun. There is also substantial evidence supporting the fourth element, that Moon acted willfully, deliberately, and with premeditation and the specific intent to kill Dickson. Brodsack testified he, Moon and Dickson stole the guns days before the shooting. His testimony of the gun theft was corroborated by Mrs. Kerns and police. Brodsack and Aukes testified that Moon told them he wished to go to the farmhouse, drove them there, led them to the basement, and then shot Dickson. We conclude this evidence was sufficient to support the jury verdict.
V. Restitution
The district court ordered Moon to pay $150,000 in restitution pursuant to Iowa Code section 910.3B. The State concedes the court's application of a 1997 law to a crime that was committed in 1990 violates the constitutional prohibition against ex post facto laws and must be vacated.
Moon also challenges Iowa Code section 910.3B on other grounds. In light of our disposition, we need not address these remaining arguments. We vacate that portion of the sentencing order requiring Moon to pay $150,000 in restitution, and remand to the district court for entry of an order consistent with this opinion.
VI. Ineffective Assistance of Counsel
Moon contends trial counsel was ineffective in failing to: (1) obtain an independent analysis of the ballistics tests and (2) properly investigate evidence that McPhillips was the murderer. The record is insufficient to address these issues on direct appeal. Therefore, we preserve them for postconviction relief. See State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001).
JUDGMENT AFFIRMED, SENTENCE AFFIRMED IN PART AND VACATED IN PART AND REMANDED WITH DIRECTIONS.
VAITHESWARAN, VOGEL, MAHAN, ZIMMER, and EISENHAUER, JJ. concur. HUITINK, J., SACKETT, C.J., MILLER, and HECHT, JJ. dissent.
I respectfully dissent. With the exception of the Kerns burglary, the admission of the prior bad acts evidence implicating Moon in other burglaries and drug dealing is exactly the kind of evidence that should be excluded pursuant to Iowa Rule of Evidence 5.404(b) (formerly rule 404(b)). See State v. Castaneda, 621 N.W.2d 435, 439-40 (Iowa 2001) (rule 5.404(b) excludes prior bad acts evidence that has no relevancy except to show that the defendant is a bad person and thus likely committed the crime in question); State v. Liggins, 524 N.W.2d 181, 188-89 (Iowa 1994) (evidence of narcotics distribution excluded because only relevance was as an appeal to jury's instinct to punish drug dealers).
Unlike the majority, I am not overwhelmed by the State's case against Moon. The majority's harmless error analysis is flawed because it is entirely premised on considerations of the quantity of the State's evidence rather than its quality. See State v. Hinsley, 534 N.W.2d 379, 383-84 (Iowa 1995) (harmless error analysis includes considerations of both quantity and quality of the State's evidence). While the State's case against Moon was substantial, I reject the notion that it was overwhelming.
I would accordingly reverse and remand for a new trial.
SACKETT, C.J., and MILLER and HECHT, JJ., join this dissent.