State v. Heard

• Decision Date: 11 October 2019
• Docket Number: No. 17-1075,17-1075
• Parties: STATE of Iowa, Appellee, v. Kenneth Leroy HEARD, Appellant.
• Court: Iowa Supreme Court

934 N.W.2d 433

STATE of Iowa, Appellee,
v.
Kenneth Leroy HEARD, Appellant.

No. 17-1075

Supreme Court of Iowa.

Filed October 11, 2019

Gary Dickey of Dickey & Campbell Law Firm, PLC, Des Moines, for appellant.

Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant Attorney General, John P. Sarcone, County Attorney, and Thomas H. Miller and Olubunmi Salami, Assistant County Attorneys, for appellee.

WATERMAN, Justice.

In this appeal, we must decide whether the district court correctly refused to permit the defendant in his jury trial to call a witness who intended to invoke his Fifth Amendment privilege against self-incrimination on all questions. The defendant in his retrial for murder contends the witness fired the fatal shots and wanted the jury to hear him "take the Fifth" so that jurors would infer the witness’s guilt. The district court followed our decision in State v. Bedwell affirming such a refusal because "the jury is not entitled to draw any inferences from the decision of a witness to exercise his constitutional privilege whether those inferences be favorable to the prosecution or the defense. " 417 N.W.2d 66, 69 (Iowa 1987) (quoting Bowles v. United States , 439 F.2d 536, 541 (D.C. Cir. 1970) (en banc)). The defendant was convicted of first-degree murder, and we transferred his appeal to the court of appeals, which reversed and ordered a new trial, distinguishing Bedwell on grounds the witness had testified in the defendant’s prior trial and the district court failed to ascertain the scope of his privilege question by question. We granted the State’s application for further review.

We hold Bedwell is controlling and therefore vacate the decision of the court of appeals and affirm the district court’s ruling and judgment. The witness was entitled to assert a blanket Fifth Amendment privilege to refuse to answer any questions. Under these circumstances, Bedwell provides a categorical rule against compelling the witness to assert his Fifth Amendment privilege in front of the jury. Because the witness properly refused to testify, there was no violation of the defendant’s Sixth Amendment rights of confrontation

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or compulsory process. We also affirm the district court’s ruling denying a new trial on grounds the verdict was against the weight of the evidence, and we decline relief on the defendant’s untimely claim, raised for the first time on this appeal, that he cannot be sentenced to life without parole without a jury finding that he was an adult at the time of the offense.

I. Background Facts and Proceedings.

A jury could find these facts from the testimony at the second trial. On the morning of December 13, 2007, Joshua "J-Hood" Hutchinson was found dead in the snow by a Des Moines apartment complex on Center Street. Hutchinson died from multiple gunshot wounds to his head, groin, limbs, and chest. The shots had been fired at close range, two to three inches from his head. Hutchinson was a member of a group named "3 in 3 out," or "Third World," that sold drugs and committed multiple robberies together. Other members included Kenneth "KQ" Heard, Marco "Juice" Brown, and Deland "DB" Stanley. Heard, then age twenty-six, was viewed as the leader. Stanley was in jail at the time but was in regular phone contact with the group.

Stanley reportedly was angry with Hutchinson for propositioning "one of his females." On December 12, Stanley asked Jacquisha Majors,¹ a friend of the group, to pick up his clothes from Hutchinson. She did so and drove Hutchinson to join Heard, Brown, and Johnetta Daye (believed to be the mother of Heard’s child). They spent the day smoking marijuana and planning a robbery. At midnight, they went to Majors' house where Hutchinson fell asleep. Heard called Phillip "Self" Findley, telling him to come over because there was trouble. Heard took Findley and Brown into Majors' bathroom for privacy and told them Hutchinson was snitching to the police and planning to rob Heard.

At Heard’s direction, Majors awakened Hutchinson, and all but Daye left in two cars to conduct the planned robbery. Majors drove Heard and Hutchinson, with Heard giving her turn-by-turn directions. Findley and Brown followed them. When they arrived at the apartment complex on Center Street, everyone but Majors walked to the backyard. The men gathered by a picnic table by a wooded area next to the parking lot. Hutchinson went to relieve himself. Gunshots rang out. Majors heard the shots but did not see who fired them. Findley and Brown ran to Findley’s car and drove away. Heard jumped into Majors' car without Hutchinson. As Majors drove away and before asking what they did with the gun, Heard called Findley and asked, "Are you cool?" Majors drove Heard to a friend’s house where she saw Heard remove a rubber glove and change clothes.

Majors then drove Heard back to her house. Findley had dropped Brown off there, where Daye remained. Brown had left the scene with the murder weapon, wiped the gun to remove fingerprints, and hid it in a shirt near his father’s residence. Concerned about gunpowder residue, when Brown returned to Majors' residence he disrobed and put his clothes in a bag. Brown was quiet, and Majors saw him crying. Heard asked Majors to drive him back to the scene to ensure Hutchinson was really dead, which she refused to do. Heard told her in detail how he shot Hutchinson. Heard stayed in hotels for a few days before leaving Des Moines. Heard was arrested in Texas.

934 N.W.2d 438

On April 4, 2008, Heard was charged with first-degree murder. He pled not guilty and proceeded to trial. Brown testified that Heard shot Hutchinson. The jury convicted Heard of first-degree murder, and he was sentenced to life in prison without parole. Heard appealed his conviction, arguing it was against the weight of the evidence because the State’s witnesses were not credible. He also alleged ineffective assistance of counsel for failing to request an instruction that accomplice testimony must be corroborated. The court of appeals affirmed his conviction on his direct appeal. State v. Heard , No. 09-0102, 2010 WL 2090851, at *1 (Iowa Ct. App. May 26, 2010).

Heard filed an application for postconviction relief, claiming that his trial counsel was ineffective in failing to investigate and present evidence that Brown murdered Hutchinson and in failing to present expert testimony that blood splatter would have been found on Heard’s clothing had he fired the fatal shots. The district court determined that Heard’s trial counsel breached an essential duty by failing to effectively cross-examine Brown and ordered a new trial.

Heard was retried for first-degree murder in 2017. Heard’s theory of defense at the second trial was that Brown murdered Hutchinson at Stanley’s direction. Brown left the scene of the murder with the firearm, wiped it clean, and hid it. The murder weapon belonged to Stanley, who was upset with Hutchinson for propositioning Stanley’s female friend. Stanley and Brown were described as close friends who had been living together, whereas Heard and Hutchinson had been "like brothers." A witness testified Stanley told her that he could tell Brown to kill someone and he would get away with it because of Brown’s mental illness. A cellmate testified he overheard Brown tell Heard that Brown knew Heard did not murder Hutchinson and should "just let [Brown] play the crazy role."

Although Brown had testified in the first trial, this time Brown asserted his Fifth Amendment privilege in a pretrial deposition and made clear he would assert the privilege and refuse to answer any questions if called to testify in front of the jury.² Heard filed a motion to compel Brown’s testimony at the second trial and asserted numerous aspects of the potential testimony that would support his defense theory that Brown committed the murder. The court allowed Brown to assert a blanket privilege of his Fifth Amendment rights to any question. Heard nevertheless wanted Brown to "take the Fifth" in front of the jury so that jurors would infer Brown was guilty.

At the hearing on Heard’s motion to compel, the judge noted the parties assumed the court had discretion whether to compel a witness to take the Fifth in front of the jury.

I did note that you were careful to make the observation the Court is not obligated to force a witness to take the Fifth Amendment in front of a jury. And in my practice of over 40 years in the criminal area, I think that type of discretion is wisely exercised. I don't think it’s a good idea for a Court to force a witness to take the Fifth Amendment at trial.

The district court denied Heard’s motion and refused to compel Brown to testify. The court relied on Bedwell ’s holding that "a Defendant may not call a witness who

934 N.W.2d 439

has indicated an intent to assert his or her right against self-incrimination before a jury," noting that the jury cannot draw any inferences favorable to either side from a witness’s invocation of that privilege. The district court foresaw problems with compelling a witness to take the Fifth in the presence of the jury.

Using the exercise of constitutional rights as a weapon, rather than a shield, is troubling. This approach is an invitation for jurisprudential mischief

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