Opinion
No. 3-198 / 01-1835.
Filed June 25, 2003.
Appeal from the Iowa District Court for Clinton County, Bobbi M. Alpers Judge.
Robert Lee Jackson appeals from his convictions for murder in the first degree and robbery in the first degree. REVERSED AND REMANDED FOR NEW TRIAL.
Linda Del Gallo, State Appellate Defender, and Dennis Hendrickson, Assistant Appellate Defender, for appellant.
Robert Lee Jackson, Fort Madison, pro se.
Thomas J. Miller, Attorney General, Robert Ewald, Assistant Attorney General, Michael Wolf, County Attorney, and Gary Strausser and James Kivi, Assistant County Attorneys, for appellee.
Heard by Mahan, P.J., and Miller and Vaitheswaran, JJ.
Robert Lee Jackson appeals from his convictions for murder in the first degree and robbery in the first degree. He contends: (1) there was insufficient evidence to convict him of either crime; (2) the district court should have excluded certain expert opinion testimony; (3) the district court should have granted a mistrial when the State violated a motion in limine ruling; and (4) his trial counsel was ineffective. In addition to those claims raised by counsel, Jackson also raises several pro se claims. We reverse and remand for new trial.
Background Facts and Proceedings. On January 15, 2001, at approximately 5 p.m., Michelle Latimer and her friend, Terry Greve, went to the River City Brewing Company in Clinton, Iowa. They saw no one in the Brewing Company even though the lights and television were on. As they were sitting at the bar, they heard voices in the kitchen. Within a few minutes, an African American man walked out of the kitchen and left the Brewing Company. He said something to the effect of "[s]he'll be all right or she'll be out right." Latimer and Greve left the Brewing Company without being served and went to another bar. Approximately fifteen minutes later Greve returned to the Brewing Company with his friend Steve McDowell to see if something was wrong. When they arrived at the Brewing Company, the only person they saw was Don Benson. He was sitting at the bar waiting to be served. The three men decided to look around. Upon entering the kitchen, Benson found the dead body of the bar manager, Pamela Wiedner. An autopsy revealed that she died of multiple stab wounds.
When the police arrived at the scene they found the drawer of the cash register partially open, and it contained no bills. The bar ledger showed that the register had contained at least $200 in cash. Forensic evidence linked George Prentiss to the crime scene. His thumb print and DNA were found on one of two beer glasses sitting at the bar. Police searched the dumpsters around Prentiss's apartment and found a leather coat, tan boots, and a black shirt. All of those items contained blood which matched Wiedner's DNA. Also, the tread on the soles of Prentiss's boots matched footprints on the floor around Wiedner's body. However, there was a shoe impression in blood on the bare torso of Wiedner that did not match the tread on Prentiss's boots. Police came to the conclusion that Prentiss had not committed the crime alone.
A few hours before Wiedner's death, a security camera at a nearby Hop-n-Shop convenience store filmed Jackson with Prentiss. Jackson was wearing a coat with the Chicago Bulls logo. Officer Colin Reid presented a photographic lineup to Latimer, and after significant hesitation she identified Jackson as the man she saw leaving the kitchen at the Brewing Company. At trial Latimer testified the man she saw was wearing a long coat, possibly a Bulls coat. Greve testified that although he did not get a good look at the man he remembered seeing the word Bulls, not the Bulls logo, in two-inch letters on the man's coat.
A few days before Wiedner's death, Jackson tried to borrow money from a friend, and several hours after her death he was seen with a large wad of bills. He gave thirty dollars to Joseph Jackson, thirty dollars to Heather Esser, five dollars to Michael Peters, and two or three dollars to Derek Jones. Jones testified he saw Prentiss give Jackson fifty dollars and then demand some of the money back because they were not "evened out" yet. Then Prentiss and Jackson each gave fifty dollars to Jessica Mitchell.
Shortly after Wiedner's death, Jackson went to his brother's house. Jackson was not wearing a coat when he arrived at his brother's house, even though it was the middle of January. He exchanged his khaki pants for a pair of his brother's blue pants. His brother washed the khaki pants before police seized them. Police officers noted that the pants had bleach stains on the lower half of the legs.
Police officers also searched Jackson's home and seized hiking boots, a t-shirt, socks, shoes, and an ace bandage. All of those items were examined, and none contained blood. Also, numerous items were taken from the home and car of Jackson's brother, including khaki pants, bathroom swabbings, a floor mat, and passenger-seat swabbings. All of those items were examined, and none contained blood. The police found no DNA evidence at the crime scene to link Jackson to the murder. However, the police did find a pair of gloves soaked with Wiedner's blood at the scene, and the videotape from the convenience store showed Jackson holding gloves in his left hand.
On July 3, 2001, Robert Jackson was charged by trial information with murder in the first degree in violation of Iowa Code sections 707.1, 707.2(1) and 707.2(3) (1999) (Count I) and robbery in the first degree in violation of sections 711.1 and 711.2 (Count II). On July 18, 2001, the district court granted the State's proposed amendment to the trial information to include an allegation of felony murder during the commission of willful injury. At trial the State's theory was that Jackson and Prentiss both committed the murder and robbery. Prentiss was tried separately. Following Jackson's trial, the jury returned guilty verdicts on both counts. Jackson was sentenced to life in prison on the murder conviction and twenty-five years on the robbery conviction. He appeals.
Sufficiency of the Evidence. We review challenges to the sufficiency of evidence for errors at law. State v. Button, 622 N.W.2d 480, 483 (Iowa 2001). A verdict of guilty is binding on appeal unless no substantial evidence exists to support it, or it is clearly against the weight of the evidence. State v. Shortridge, 589 N.W.2d 76, 80 (Iowa Ct.App. 1998). Substantial evidence means evidence that could convince a rational trier of fact the defendant is guilty beyond a reasonable doubt. Id.
In deciding whether there is substantial evidence, we view the record in a light most favorable to the State. Id. All evidence is considered, not merely the evidence supporting the verdict. State v. Jacobs, 607 N.W.2d 679, 682 (Iowa 2000). Direct and circumstantial evidence is equally probative. Shortridge, 589 N.W.2d at 80. A verdict can rest on circumstantial evidence alone. Id. However, "[t]he evidence must at least raise a fair inference of guilt as to each essential element of the crime. Evidence which merely raises suspicion, speculation, or conjecture is insufficient." State v. Casady, 491 N.W.2d 782, 787 (Iowa 1992) (citations omitted).
Jackson contends the State did not present sufficient evidence to support his convictions. On the other hand, the State argues the evidence was sufficient for several reasons. First of all, Latimer identified Jackson in a photographic lineup and again in court. Second, Latimer and Greve both testified Jackson was wearing a Bulls jacket. A surveillance camera filmed Jackson wearing a Bulls jacket several hours earlier that day. Jackson tries to discredit this evidence by arguing he was wearing a jacket with the Bulls logo not the word Bulls in print. At trial Dr. Gary Bell, psychologist, testified that it was not uncommon for someone to see a symbol and then later recall that they had seen the word written out. Third, the unusual comment that "she'll be all right" or "she'll be out right" indicated the person's knowledge of Wiedner's presence in the kitchen and that something was wrong. Fourth, there was strong evidence that another person assisted Prentiss. There were two beer glasses at the bar. Latimer and Greve both testified they heard more than one voice in the kitchen before and after they saw the individual leave the Brewing Company. There was also evidence that Wiedner's wounds had been inflicted by two different knives. Further, a footprint on Wiedner's bare torso was not made by Prentiss's boot. In addition, Jackson was caught on a security camera with Prentiss a few hours before Wiedner's death. Fifth, the money in Jackson's possession shortly after Wiedner's death implies that theft was a motive and supports the inference that he acquired the money from the cash register at the Brewing Company. Finally, Jackson's actions following Wiedner's death were suspicious. Even though it was the middle of January, he was not wearing the coat he had been seen wearing earlier in the day when he arrived at his brother's house. He exchanged his pants for a pair of his brother's pants. His brother washed his pants before police were able to seize them. See Schrier v. State, 347 N.W.2d 657, 665 (Iowa 1984) (stating a defendant's demeanor and activities immediately following an alleged offense provide a legitimate basis for inferring consciousness of guilt). There were also bloody gloves found at the scene, and the videotape from the convenience store reveals Jackson holding gloves in his left hand.
After reviewing the evidence in the light most favorable to the State, we find the evidence to be sufficient. We acknowledge there is no direct evidence that Jackson committed the robbery and murder. However, in considering the surrounding circumstances, there is sufficient circumstantial evidence from which a reasonable jury could find Jackson participated in the robbery and murder. Accordingly, we affirm the district court on this issue.
Expert Testimony. Michelle Latimer was shown two photographic lineups each consisting of six pictures. This procedure was videotaped. The first photo lineup contained six pictures of men who looked similar to Jackson. The second photo lineup contained Jackson (photo no. 5) plus five pictures of other men. Officer Colin Reid conducted the photo lineup. Latimer appeared nervous and scared and asked Officer Reid several questions. One of those questions was whether other witnesses had seen anything that day. Officer Reid responded that there were other such witnesses. When Reid showed Latimer the first photo lineup she studied the pictures for a long time and hesitated on several occasions. She finally stated "nobody here really strikes me as the guy." She then looked at the first photo lineup a second time. She also made comments to the effect the individual was clean shaven, clean cut, and had a baby face.
Then Latimer was shown the second photo lineup. She hesitated for a significant period and then excluded photo nos. 1, 2, and 3 as being individuals she knew and who could not possibly have been involved in the crimes. She then studied the final three photos. Then she stated photo nos. 4 and 5 "stood out to her." Latimer compared the two pictures for a few minutes and stated the two men have "similar facial features." After that she again stated photo nos. 4 and 5 stood out to her but she did not know the reason why. The video showed she spent a long period of time comparing photo nos. 4 and 5 without identifying either. Next, Officer Reid set the photo lineup down on the table and pointed to photo no. 5 with his pen and stated "as the person that walked by you?" Latimer finally selected photo no. 5 and then wrote the following underneath the photo: "photo stands out to me as very similar to who I saw there."
There is no indication that this was an intentional act on the part of Officer Reid.
At trial, Officer Reid testified about the protocol he used in presenting the
photo lineup to Latimer. He also testified Latimer identified photo no. 5 as the man she saw leaving the kitchen of the Brewing Company. The State also played the videotape of the procedure. On cross-examination, Jackson's counsel played back the videotape, pausing frequently, in an attempt to show that Officer Reid, who knew which photo was Jackson, subtly encouraged Latimer to pick Jackson's photo out of the lineup by pointing to photo no. 5 with his pen. Later in the trial, the State called Dr. Gary Wells as a rebuttal witness. Wells is a professor of psychology at Iowa State University. His expertise lies in the area of the accuracy of eyewitness identification evidence. Wells was asked several questions about the manner in which Officer Reid conducted the two photo lineups as well as the possibility of their suggestive nature. While he was somewhat concerned with the elimination of three photos in the second lineup, he testified the significance of that occurrence was lessened by the fact there was also a first photo lineup. Wells was asked the following question:
Q: In your opinion, did the actions of the detective influence the selection made in this particular case? A: No, in my opinion, in this particular case-having, you know, reviewed the tape and examined the materials, I believe that the detective's actions did not influence the witness in this particular case.
However, he was also asked:
Q: Do you have an opinion as to whether Michelle Latimer's selection of Photo no. 5 was her own?
Mr. Bell: Wait a minute; I didn't hear the last words.
Mr. Strausser: Was her own.
Mr. Bell: Could I think a minute? I'm going to object; I don't believe this is the proper subject for opinion evidence.
The court: The State's response?
Mr. Strausser: Your Honor, the defendant has attempted to claim suggestibility of the person presenting the lineup; I think that's what my question asked.
The Court: The court notes the objection. It is overruled and the witness may answer.
The Witness: Yes, I do have such an opinion.
Q: (By Mr. Strausser) Would you tell us what your opinion is?
A: Well, my opinion would be that she-had a preference for no. 5 on her own, not one that was determined-by external factors in that identification setting.
Finally Wells testified during cross-examination:
Q: You talked about people-in fact, wasn't there a statistic you gave, of the first forty people who were exonerated by the use of DNA evidence, which proved that they were not there, and were released from jail after conviction-of the first forty, ninety percent had been misidentified by eyewitness identification, is that correct?
A: That's correct.
Q: Of the first one hundred who had previously been convicted, and then exonerated by DNA evidence, seventy-five percent had been misidentified by eyewitnesses?
A: That's correct.
Jackson contends the district court erred when it allowed Wells to testify regarding the trustworthiness and credibility of Latimer's identification as it trumped the jury's role in weighing the credibility of the procedure.
Iowa Rule of Evidence 5.702 governs the admissibility of expert testimony. It provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
On the issue of impermissibly suggestive lineups, our supreme court has stated:
Defendant contends both of the photographic arrays and the lineup were impermissibly suggestive. To succeed on this claim, defendant must establish that the procedures were suggestive and the irregularities gave rise to a substantial likelihood of irreparable misidentification in the totality of the circumstances. . . . Short of this, the identification evidence and its shortcomings or credibility are for the jury to weigh.
State v. Neal, 353 N.W.2d 83, 86-87 (Iowa 1984) (citations omitted; emphasis added).
We fall short of concluding the photo lineup procedure in this case was impermissibly suggestive. We do, however, conclude the selection of Jackson's photo by Latimer was certainly less than ideal. This is true especially in light of the statistics concerning this identification testified to by Wells. What we do conclude is that the district court erred in allowing Wells to give his opinion as to "whether Michelle Latimer's selection of Photo no. 5 was her own?" Our court has previously stated:
The line between expert opinions which are helpful to the jury and those which express conclusions concerning the defendant's guilt or the credibility of a witness is fine, but essential. . . . It is within the court's discretion to determine on which side of the line the proffered opinion falls. When the trial court has exercised its discretion, we will reverse only if we find an abuse of discretion and prejudice . . . .
In evaluating the record before use, we conclude the trial court did not abuse its discretion by refusing to admit the expert opinion of Detective Rowley. The court correctly determined the opinion went directly to the credibility of witnesses and essentially passed on the guilt or innocence of the defendant.
State v. Taylor, 516 N.W.2d 38, 40 (Iowa Ct.App. 1994) (citations omitted; emphasis added), overruled on other grounds by State v. Reeves, 636 N.W.2d 22 (Iowa 2001). In addition, our supreme court has stated: "the ultimate determination of the credibility or truthfulness of a witness is not `a fact in issue,' but a matter to be generally determined solely by the jury." State v. Myers, 382 N.W.2d 91, 97 (Iowa 1986). Expert psychological evidence may not be used to merely bolster a witness's credibility. Id. When a district court has exercised its discretion to admit expert testimony, we will reverse only if we find an abuse of that discretion and prejudice. State v. Morrison, 323 N.W.2d 254, 256 (Iowa 1982). An abuse of discretion occurs when the trial court's ruling is based on untenable grounds. Id.
In evaluating the record before us, we conclude the district court abused its discretion when it admitted the objected-to opinion testimony of Wells that Latimer's preference for photo no. 5 was her own. The effect of his testimony was the same as expressing a conclusion on the trustworthiness and credibility of Latimer's identification and consequently that Jackson was guilty. Therefore, we believe Wells's opinion testimony "crossed that `fine but essential' line between an `opinion which would be truly helpful to the jury and that which merely conveys a conclusion concerning defendant's legal guilt."' See Myers, 382 N.W.2d at 97 (quoting State v. Horton, 231 N.W.2d 36, 38 (Iowa 1975)). The evidence in this case was certainly not overwhelming. We have previously noted the photo line-up procedure was certainly less than ideal. In addition, we are concerned about the length of time it took Latimer to select photo no. 5. She hesitated for extended periods of time on both the first and second line-up. She knew three of the individuals in the second line-up, thereby reducing the number of possibilities from six to three. Her final selection of Jackson's photo is far from positive. Finally, Wells was allowed to testify, in his opinion, her selection of photo no. 5 was her own. Although we earlier found the evidence to be sufficient, we have noted it was not overwhelming. The identification of Jackson by Latimer was certainly an important part of this evidence. The jury should have been allowed to weigh the "identification evidence and its shortcomings" and should have been allowed to weigh Latimer's credibility without the inclusion of the expert's opinion on this matter. This objected-to testimony certainly bolstered Latimer's credibility. We therefore conclude Jackson was prejudiced by the admission of this opinion testimony.
We hold the district court abused its discretion and committed reversible error by admitting opinion testimony prejudicial to Jackson. Accordingly, the case is reversed and remanded for a new trial. Because we find this issue dispositive, we need not address any of Jackson's other arguments.