Opinion
No. 3-275 / 02-0054
Filed June 13, 2003
Appeal from the Iowa District Court for Scott County, Mark D. Cleve and Gary D. Mckenrick, Judges.
Heath Woods appeals from his conviction, following jury trial, for attempt to commit murder, going armed with intent, two counts of simple misdemeanor assault, criminal gang participation, and willful injury causing bodily injury. REVERSED AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Tricia Johnston, Assistant Appellate Defender, for appellant.
Heath Woods, Fort Madison, appellant pro se.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, and William Davis, County Attorney, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
Heath Woods appeals from his conviction, following jury trial, for attempt to commit murder, going armed with intent, two counts of simple misdemeanor assault, criminal gang participation, and willful injury causing bodily injury. He contends the trial court erred in (1) failing to grant his motion to sever the criminal gang participation charge for separate trial, (2) overruling his objections to testimony regarding drug dealing and criminal gang participation, (3) denying his motion for mistrial, (4) failing to grant a motion for judgment of acquittal, and (5) failing to grant his motion for new trial and motion in arrest of judgment. He further asserts his counsel was ineffective for failing to object to improper expert testimony. We reverse and remand.
I. BACKGROUND FACTS AND PROCEEDINGS.
The record before us reveals the following facts. On the night of June 28, 2001 Jesus Ramirez, Ruben Peralez, and Michael Vela were together at the Thirsty Beaver bar. On the same night Nathan Jurski, Antonio Brown, Keith Gibson and the defendant, Heath Woods, were also together at or near the Thirsty Beaver. As the two groups were leaving the bar Vela and Woods began arguing and Brown broke them up. Approximately a block and a half from the Thirsty Beaver Brown and Vela began arguing and pushing each other. Vela fell during the altercation and Ramirez slapped Brown across the face. Brown did not have an opportunity to respond to Ramirez' slap because the security officers were approaching the scene and both groups fled.
After the altercation, Jurski, Woods, and Brown went to Jurski's apartment in the early morning hours of June 29, 2001 and picked up two guns. Both guns were semi-automatic rifles, one with an eight round clip and the other with a twenty-six round clip. Jurski testified that he, Brown and Woods then got into a red, two-door Beretta and went looking for Ramirez, Vela and Peralez. Jurski further testified Woods was driving with Brown in the front passenger seat and Jurski directly behind Brown. Jurski believed the car belonged to the defendant's brother, Danny Woods. They found Ramirez, Peralez and Vela at the home of Arturo Jiminez in Davenport, Iowa, where they were putting beer in the trunk of their car and getting in the car.
Jurski testified that Woods pulled into an alley and Brown got out of the vehicle and walked around the car toward Ramirez. Brown then allegedly fired half of this twenty-six round clip in the direction of Ramirez and Vela and whoever else was with them. Jurski then put his hand out the car window and also started shooting in the same general direction, firing eight times. Ramirez, Peralez, and Vela all crouched down by the car. Ramirez was shot in the shoulder and back. The car he was standing near was also shot during the incident.
After the shooting Jurski hid the guns, first in a garden and then under some garbage cans at his father's house. Jurski, Woods, and Brown then went to Kenny Stark's apartment where they washed up and discussed the situation. Eventually the three ended up back at Brown's house where they were arrested together in Woods's vehicle. Jurski entered into a plea agreement with the State to testify against Woods and Brown. He testified that Brown got rid of the red Beretta by burning it in a field and that Jurski's father got rid of the guns for them.
A few days later police found a burned out car in a cornfield in a rural area of town. The VIN and plate numbers established that the car was a red, two-door Beretta. As part of the plea agreement Jurski agreed to plead guilty to criminal gang participation and testify against Brown and Woods in order to get out of jail and so his father would not be charged for disposing of the guns.
Woods was charged by trial information with attempt to commit murder in violation of Iowa Code section 707.11 (2001) (Count VI), going armed with intent in violation of Iowa Code section 708.8 (Count VII), two counts of assault with intent to inflict serious injury in violation of sections 708.2(1) and 708.1 (Counts VIII and IX), and criminal gang participation in violation of Iowa Code section 723A.2 (Count X). Woods was charged in a joint trial information that contained similar charges against Brown and Jurski. The defendants were charged as aiders and abettors and under a theory of joint criminal conduct. An amended trial information later added a charge against Woods of willful injury in violation of Iowa Code section 708.4 (Count XVII). Woods and Brown were tried together.
Woods's co-defendant, Brown, filed a motion to sever the criminal gang participation charge for separate trial. Woods filed a combined motion in limine and motion for ruling on evidentiary issues, as well as a notice that he was joining Brown's motion to sever the criminal gang participation charge and a motion to sever the trials. The motion to sever the gang participation charge argued that the evidence relating to criminal gang participation was not relevant to the other counts against Woods and its prejudicial effect would unfairly influence the jury in its deliberation on the other five charges against him. The court denied the motion to sever the criminal gang participation charges and the motion to sever the trials.
The jury found Woods guilty of attempt to commit murder (Count VI), going armed with intent (Count VII), two counts of simple misdemeanor assault (Counts VIII and IX), criminal gang participation (Count X), and willful injury causing bodily injury (Count XVII). Woods filed a combined "Motion In Arrest Of Judgment/Judgment Of Acquittal Or Motion For New Trial/Motion To Dismiss". The court denied the motions and sentenced Woods to prison terms of twenty-five years on Count VI, five years on Count VII, thirty days each on Counts VIII and IX, five years on Count X, and five years on Count XVII. The court ordered all of the sentences to be served concurrently.
Woods appeals from his convictions alleging the trial court erred in (1) failing to grant his motion to sever the criminal gang participation charge for separate trial, (2) overruling his objections to testimony regarding drug dealing and criminal gang participation, (3) denying his motion for mistrial, (4) failing to grant a motion for judgment of acquittal, and (5) failing to grant his motion for new trial and motion in arrest of judgment. He further asserts his counsel was ineffective for failing to object to improper expert testimony. Woods also filed a pro se brief entitled "Defendant-Appellant's Pro-Se Response to the Appellee's Brief" on September 17, 2002.
II. MERITS. A. Motion for Mistrial.
A trial court has broad discretion in ruling on a motion for mistrial. State v. Brown, 397 N.W.2d 689, 699 (Iowa 1986); State v. Waters, 515 N.W.2d 562, 567 (Iowa Ct.App. 1994). We review the trial court's denial of a motion for mistrial on an abuse of discretion standard. State v. Delaney, 526 N.W.2d 170, 177 (Iowa Ct.App. 1994).
Jurski testified at trial that he and Woods were both members of the gang the Imperial Gangsters. He stated that the Imperial Gangsters were "a bunch of neighborhood friends that drink and party together and use drugs and sell drugs." The prosecutor asked, "What did that gang do besides party and do drugs and sell drugs?" Jurski answered "Crimes." After the prosecutor then asked "What kind of crimes?" Brown objected to the testimony. A discussion on the objection was held outside the presence of the jury and a motion for mistrial was subsequently made by Woods. The motion for mistrial argued, in part, that Jurski's testimony relating to the defendants' drug dealing was a " Liggins violation." The court overruled the motion for mistrial determining that "the evidence that has been presented thus far is relevant and admissible to the offense of criminal gang participation and criminal gang participation only."
Presumably the " Liggins violation" referred to in the motion for mistrial is based on State v. Liggins, 524 N.W.2d 181 (Iowa 1994). Ligginswas a first-degree murder case in which our supreme court found the trial court abused its discretion in admitting evidence of the defendant's cocaine delivery and distribution. Liggins, 524 N.W.2d at 188. The court in Ligginsheld that such evidence was not "an inseparable part of the whole deed" and was inherently prejudicial because it "appealed to the jury's instinct to punish drug dealers." Id. at 188-89.
As set forth above, prior to trial Woods had joined in Brown's motion to sever the criminal gang participation count for separate trial arguing the evidence of his membership in a gang would have an unfairly prejudicial effect on the jury's deliberations of the other five counts against him. The court denied the motion to sever, finding that any potential unfair prejudice from the gang participation evidence could be eliminated by proper admonishment of the jury in conjunction with the admission of such evidence.
Because of the inherently prejudicial nature of evidence relating to gang membership and activity, see State v. Nance, 533 N.W.2d 557, 562 (Iowa 1995) ("Like evidence of cocaine delivery and distribution, evidence of gang membership and activity is inherently prejudicial. It appeals to the jury's instinct to punish gang members."), we have substantial doubt concerning whether the district court was correct in denying the motion to sever. We also have doubt that the criminal gang participation charge "[a]rose from the same transaction or occurrence" as the other five charges, one of two alternative requirements for joinder of multiple offenses under Iowa Rule of Criminal Procedure 2.6(1). See State v. Smith, 576 N.W.2d 634, 636 (Iowa Ct.App. 1998) ( overruled on other grounds by State v. Owens, 635 N.W.2d 478, 484 (Iowa 2001)) ("If either crime can be proven without reference to the other, this test is not met. . . ."). Further, it can reasonably be argued that any criminal gang participation and the other offenses did not "constitut[e] parts of a common scheme or plan," the second alternative requirement for joinder under rule 2.6(1). See Smith, 576 N.W.2d at 636 ("The test applied in making this determination is the requirement that all offenses charged must be products of a single continuing motive.") (quoting State v. Lam, 391 N.W.2d 245, 249 (Iowa 1986)). However, we need not decide these issues because by the time the motion for mistrial was made the jury had not only been presented with the inherently prejudicial evidence of Woods's gang membership, it had also been presented with the inherently prejudicial evidence of the gang's, and by inference Woods's, participation in dealing drugs, wholly unconnected in time or place to any of the charges other than the criminal gang participation charge.
We conclude the trial court abused its discretion in denying Woods's motion for mistrial based on the unfairly and inherently prejudicial effect of the combined evidence of his alleged gang membership and participation in drug dealing activities. Such evidence appealed to the jury's instinct to punish Woods as a gang member, Nance, 533 N.W.2d at 562, and drug dealer, Liggins, 524 N.W.2d at 188-89. Any probative value that evidence of gang membership or drug dealing might have on the other five charges was substantially outweighed by the danger of unfair prejudice. See Nance, 533 N.W.2d at 562; see also Smith, 576 N.W.2d at 637 (stating unfair prejudice can mean an undue tendency to suggest decision on an improper basis, commonly an emotional one). The danger of an unfair and inherently prejudicial effect on the jury's deliberations could not be undone by an admonishment by the trial court.
We therefore reverse Woods's convictions and remand the case for new trial. In order to avoid unfair prejudice from recurring at retrial the criminal gang participation charge should be severed from the other five charges.
B. Motion for Judgment of Acquittal.
Woods contends the trial court erred in denying the motion for judgment of acquittal because there was insufficient evidence to support either a finding he was present at the scene of the shooting or a finding of criminal gang participation. More specifically, he first contends the only evidence placing him at the scene of the shooting was Jurski's accomplice testimony and such testimony was not sufficiently corroborated. It is undisputed that Jurski was an accomplice.
Our scope of review and many of the standards of review that apply in sufficiency-of-the-evidence challenges are set forth in State v. Kirchner, 600 N.W.2d 330, 333-34 (Iowa Ct.App. 1999) and need not be repeated here. The following additional standards are applicable as well. We give consideration to all of the evidence, not just that supporting the verdict. State v. Schmidt, 588 N.W.2d 416, 418 (Iowa 1998). Inherent in our standard of review of jury verdicts in criminal cases is the recognition that the jury was free to reject certain evidence, and credit other evidence. State v. Anderson, 517 N.W.2d 208, 211 (Iowa 1994). The credibility of witnesses, in particular, is for the jury. A jury is free to believe or disbelieve any testimony as it chooses and to give as much weight to the evidence as, in its judgment, such evidence should receive. State v. Liggins, 557 N.W.2d 263, 269 (Iowa 1996); State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993). The very function of the jury is to sort out the evidence and place credibility where it belongs. Thornton, 498 N.W.2d at 673.
As Woods apparently concedes in his brief, the evidence presented at trial clearly shows that Woods was drinking with Brown and Jurski at various bars in Rock Island on the night in question about two hours prior to the shooting, and they got into an altercation with Ramirez, Peralez, and Vela while at one of the bars. At approximately 3:00 a.m. the same night a red or maroon colored vehicle pulled into an alley and shots were fired at Ramirez, Peralez, and Vela. Both Ramirez and Peralez testified they saw Brown get out of the car and fire shots at them. It is also undisputed that Woods, Brown and Jurski were all arrested together in Woods's vehicle approximately two hours after the shooting.
As set forth in more detail above, Jurski testified he was in the vehicle with Brown at the time of the shooting and that he fired shots out the window at Ramirez and the others with him. He further stated that Woods was driving the red Berretta they were in at the time of the shooting and that the car belonged to Woods's brother, Danny Woods. Latisha Dipple testified for the State that she grew up in the same neighborhood as Woods and lived in the house next to Woods's grandmother, so she was familiar with what Woods and his brothers looked like. She stated that she had seen a red Beretta, or a red car very similar to a Beretta, at Woods's grandmother's on four or five occasions and once saw Danny Woods getting out of such car.
Iowa Rule of Criminal Procedure 2.21(3) provides
A conviction cannot be had upon the testimony of an accomplice or a solicited person, unless corroborated by other evidence which shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.
Iowa R.Crim.P. 2.21(3). The standard for corroboration of accomplice testimony is well established.
Corroborative evidence need not be strong and need not be entirely inconsistent with innocence. The existence of corroborative evidence is a legal issue, but its sufficiency is ordinarily a question of fact for the jury. The requirement of corroborative evidence is met if it can fairly be said the accomplice is corroborated in some material fact tending to connect the defendant with the commission of the crime.
State v. Astello, 602 N.W.2d 190, 198 (Iowa Ct.App. 1999) (emphasis added) (quoting State v. Ware, 338 N.W.2d 707, 710 (Iowa 1983)); see also State v. Palmer, 569 N.W.2d 614, 616 (Iowa Ct.App. 1997) ("It is firmly grounded in Iowa case law that a small amount of corroborative evidence is all that is required."); State v. Jones, 511 N.W.2d 400, 404 (Iowa Ct.App. 1993) ("Any evidence tending to connect the defendant with the commission of a crime supports the credibility of accomplice testimony and is sufficient.") Furthermore, corroborative evidence need not confirm every material fact testified to by the accomplice, nor need it confirm all the elements of the crimes charged. Jones, 511 N.W.2d at 404. Corroborative evidence can be either direct or circumstantial. State v. Willman, 244 N.W.2d 314, 315 (Iowa 1976). "There may be a combination of circumstances, singularly unpersuasive but in totality sufficient, to entitle a jury to conclude the accomplice's testimony has been corroborated." Id.
Several people testified at trial to the fact Woods was with Brown and Jurski approximately two hours before the shooting at a bar in Rock Island and Woods does not challenge the truth of this fact. "Independent evidence that a defendant was seen in the company of other perpetrators shortly before a crime corroborates accomplice testimony." State v. Hollins, 397 N.W.2d 701, 703-04 (Iowa 1986); Palmer, 569 N.W.2d at 616. Furthermore, it is undisputed that Woods was with Brown and Jurski in Woods's vehicle when they were arrested together approximately two hours after the shooting. Events after a crime may also corroborate accomplice testimony. State v. Dickerson, 313 N.W.2d 526, 529 (Iowa 1981); Palmer, 569 N.W.2d at 616.
In addition, the State did offer Dipple's testimony to support Jurski's testimony regarding the fact that the red car identified as being present at the shooting may have in fact belonged to the defendant's brother, Danny Woods. Therefore, we conclude that all of the circumstances developed in the record, when taken together, sufficiently tend to connect Woods with the commission of the crimes charged and lend the required support to the accomplice testimony from Jurski. Accordingly, a reasonable juror could have concluded Jurski's testimony was sufficiently corroborated and, in turn, that Woods was in fact present at the scene of the shooting. The court did not err in denying Woods's motion for judgment of acquittal on the ground there was insufficient evidence to find he was present at the scene of the shooting.
Woods next contends there was insufficient evidence to support a finding of criminal gang participation and thus the court erred in denying his motion for judgment of acquittal as to the criminal gang participation charge. Woods argued to the trial court that there was not sufficient evidence of the underlying crimes necessary to prove criminal gang participation and he could not be found guilty of gang participation without the required underlying crimes. The trial court denied the motion based on its previous determination there was sufficient evidence of the predicate crimes of attempted murder and going armed with intent. To the extent Woods is attempting to argue any grounds for judgment of acquittal on the criminal gang participation charge other than insufficient evidence as to the requisite predicate crimes we determine error has not been preserved.
We have already determined there was sufficient evidence to support a finding that Woods was present and driving at the scene of the shooting. There thus was sufficient evidence of his participation to support a guilty verdict on both of the requisite predicate crimes, attempted murder and going armed with intent. Accordingly, we conclude the trial court did not err in denying Woods's motion for judgment of acquittal on the ground there was insufficient evidence on the criminal gang participation charge.
As noted above, Woods was charged under a theory of aiding and abetting as well joint criminal conduct.
III. PRO SE BRIEF
As we have noted above, Woods filed a pro se brief on September 17, 2002. On September 20, 2002 the State filed a motion to strike the pro se brief arguing Woods did not comply with Iowa Rule of Appellate Procedure 6.13(2). Our supreme court summarily denied the State's motion to strike on February 25, 2003. We find the two issues raised in the pro se brief are identical to issues raised and argued in appellate counsel's brief. We have already addressed one of those issues. We find it unnecessary to reach the other as it has become moot by reason of the reversal and remand for new trial.
IV. CONCLUSION.
For all of the reasons set forth above, we conclude the district court abused its discretion in denying Woods's motion for mistrial. The evidence of Woods's gang membership and participation in drug dealing had an unfairly prejudicial effect on the jury's deliberations of the other charges against him. We therefore must reverse and remand for new trial. To avoid such unfair prejudice on retrial the criminal gang participation charge should be severed for a trial separate from the other counts against Woods. We further conclude there was sufficient evidence for the jury to find that Woods was present and participated at the scene of the shooting and thus that there was sufficient evidence of the predicate crimes required to prove criminal gang participation. The district court did not err in denying Woods's motion for judgment of acquittal. Because we have reversed and remanded for a new trial we need not address Woods's claim the district court erred in overruling his objections to testimony regarding drug dealing and criminal gang participation, his claim the district court erred in overruling his motion for new trial and motion in arrest of judgment, or his claim of ineffective assistance of counsel.