State v. Booth-Harris

• Decision Date: 24 April 2020
• Docket Number: No. 18-0002,18-0002
• Parties: STATE of Iowa, Appellee, v. Earl BOOTH-HARRIS , Appellant.
• Court: Iowa Supreme Court

942 N.W.2d 562

STATE of Iowa, Appellee,

v. Earl BOOTH-HARRIS , Appellant.

No. 18-0002

Supreme Court of Iowa.

Filed April 24, 2020

Mark C. Smith, State Appellate Defender (until withdrawal), and Nan Jennisch, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.

WATERMAN, Justice.

In this appeal, a defendant convicted of first-degree murder based in part on eyewitness testimony seeks a new trial on two grounds. First, he contends the police used unduly suggestive photographic identification procedures and the district court erred by failing to grant his motion to suppress the resulting identification. Second, he contends his trial counsel was ineffective for failing to request more robust jury instructions on eyewitness identifications that reflect modern scientific research. The district court, without objection, had given the Iowa State Bar Association (ISBA) Uniform Criminal Jury Instruction 200.45 on eyewitness identification. We transferred the case to the court of appeals, which affirmed his conviction while preserving his ineffective-assistance-of-counsel claims for possible postconviction proceedings. We granted the defendant’s application for further review.

On our review, we decline the defendant’s invitation to change our constitutional precedent to further limit the admissibility of eyewitness identifications following police photo arrays. We determine that the double-blind procedures used in this case, with an appropriate admonition given the witness, were not unduly suggestive. Unlike the court of appeals, we determine the record is adequate to decide the ineffective-assistance-of-counsel claim challenging ISBA Instruction 200.45, and we reject the claim on the merits. For the reasons explained below, we affirm the district court’s judgment of conviction.

I. Background Facts and Proceedings.

The trial testimony established the following facts. On February 16, 2015, in Burlington, Iowa, an argument broke out between Deonte Carter and Terrance Polk in the front yard of Rita Lewis’s home. Carter accused Polk of breaking into his home and stealing a pair of sneakers. Lewis told the men to take their fight elsewhere, and the disputants dispersed. Polk and Carter then communicated through Facebook and set a time and place to fight.

That afternoon, Carter, along with his cousin, Donnell Watson, and friend, Edward DeWitt, arrived at the park on 7th and Elm in Burlington. Polk showed up with several men who had accompanied him earlier at the Lewis house. All of the men were the same race. Carter and his group were approached by a shooter wearing a black stocking cap whom Watson later identified as Earl Booth-Harris. The shooter and Carter engaged in a brief exchange of words with Carter telling the shooter, "[D]o what you gotta do." The shooter opened fire, hitting Carter multiple times. Watson ran away when the shooting started. When it stopped, he returned and found Carter on the ground bleeding from bullet wounds

. DeWitt called 911. Watson found a .40 caliber gun on the ground next to Carter and took it to Lewis’s house. Police recovered that weapon later. Carter died due to gunshot wounds to his chest, abdomen, and back. Carter was shot by a .45 caliber gun.

The same day, Booth-Harris presented to a hospital in Monmouth, Illinois, for a gunshot wound

to his leg. Booth-Harris was shot with a .40 caliber gun. In an interview with the police at the hospital, Booth-Harris stated that he was in the area of the shooting and saw an argument involving several men. He told police he heard gunshots and ran and while running away was shot. Booth-Harris told the police that he went home, changed clothes, and contacted his father, who took him to the Illinois hospital. Booth-Harris feared going to the hospital in Burlington where he might be shot. Booth-Harris denied participating in the shooting.

On the day of the shooting, Watson gave a statement to police and was presented with a photo array. A photo of Polk was included because police suspected he was the shooter. This array did not include a photo of Booth-Harris. Watson did not identify anyone in these photos as the shooter. Watson was next presented with a single photo of Booth-Harris.¹ He denied knowing who Booth-Harris was.

Two days later, Watson was again interviewed and shown photo arrays prepared by Detective Josh Tripp. Detective Tripp "pick[ed] photographs of subjects that look[ed] similar to the suspect that [they] ha[d] at the time." Detective Tripp personally picked six photographs out of ten to twelve that he believed looked the most similar. Sergeant Chad McCune, who was not involved in the investigation and did not know who was a suspect, presented the photo array in a double-blind protocol. Sergeant McCune read to Watson a photographic admonition, which Watson signed before looking at the photos. The admonition states,

You are about to view a photographic line-up. The person who committed the crime may or may not be included in it. While looking at the photographs, keep an open mind that the individuals may not appear exactly as they did on the date of the crime. Their hairstyles, facial hair, clothing, etc. may have changed. Also, photographs may not always depict the true complexion of a person, who may be lighter or darker than shown in the photo. The officer showing you the photographs has no knowledge of the incident. In the line-up process, the photographs will be shown to you one at a time and are not in any specific order. Take as much time as you need to look at each photograph. Even if you identify an individual, the officer will continue to show you all of the photographs. The officer is not allowed to tell you whether your choice, if you make one, is a suspect in the investigation. Do not tell other witnesses that you have or have not identified anyone.

A photo of Booth-Harris was included in this second array, and Watson identified him as likely being the shooter after quickly dismissing the other five photographs. Watson commented that he wanted to say Booth-Harris was the shooter, but he stated his eyes were smaller in the photo than they were the day of the shooting; however, Watson noted favorably the "strong jaw structure" of Booth-Harris and indicated that was the "only thing he could kind of see." Watson also called attention to Booth-Harris’s eyebrows, stating that the eyebrows of the shooter were thicker. At this point, Watson said he had a fifty percent certainty and initialed the picture. Watson told the officer, "[Y]’all can like take another picture and show me."

The officers informed Watson that they were going to try to find more recent photos. While Watson was still at the station, Detective Tripp prepared another array. Sergeant McCune again administered the array and again read the admonition to Watson, which he signed. Watson again quickly dismissed the other photographs, and he identified Booth-Harris as the shooter. When asked about his level of certainty, Watson this time said he was seventy percent certain. Watson commented about "feelin’ like" it was him. After an exchange between Watson and Sergeant McCune, in which Sergeant McCune stated that "feelin’ like it" means more than seventy percent, Watson ended by stating he had one hundred percent certainty.

A search of Booth-Harris’s home yielded evidence used at trial. Blood drops outside led into the home. A black stocking cap and bloody t-shirt were found inside the home. A .45 caliber shell casing was located on the ground outside the back door. The casing matched the .45 caliber casings at the scene of the shooting, indicating they were fired from the same gun. Additionally, live .45 caliber rounds were recovered from Booth-Harris’s home. An expert identified the live rounds as the same brand of casings as those at the shooting and opined the casings at the scene of the shooting and those at the Booth-Harris house were likely manufactured around the same time.

Booth-Harris was charged with murder in the first degree, in violation of Iowa Code section 707.2 (2015), a class "A" felony. Booth-Harris filed a motion to suppress the identification, arguing the procedure was impermissibly suggestive and a violation of his due process rights. The district court denied the motion to suppress. Watson testified at trial and identified Booth-Harris as the shooter. Booth-Harris was found guilty of first-degree murder and was sentenced to life in prison without the possibility of parole. Booth-Harris appealed, raising two issues. First, Booth-Harris claimed the district court erred in denying his motion to suppress Watson’s in-court identification because the out-of-court identification was impermissibly suggestive and unreliable. Second, Booth-Harris claimed his trial counsel was ineffective for failing to request jury instructions similar to those adopted in State v. Henderson , 208 N.J. 208, 27 A.3d 872 (2011).²

We transferred the case to the court of appeals, which affirmed Booth-Harris’s conviction while preserving for possible postconviction relief action his "due process claim raised under the Iowa Constitution and his claim defense counsel should have requested a different eyewitness identification instruction." We granted Booth-Harris’s application for further review.

II. Standard of Review.

We review constitutional challenges to eyewitness testimony de novo. State v. Taft , 506 N.W.2d 757, 762 (Iowa 1993). As we recently reiterated,

"When a defendant challenges a district court’s denial of a motion to suppress based upon the deprivation of a state or federal constitutional right, our standard of review is de novo." We examine the whole record and "make ‘an independent evaluation of the totality of the circumstances.’ " "Each case must be evaluated in light of its unique circumstances."

State v. Fogg , 936 N.W.2d 664, 667 (Iowa 2019) (quoting State v. Coffman , 914...