State v. Jefferson

• Decision Date: 24 December 1997
• Docket Number: Nos. 96-1603,96-1678,s. 96-1603
• Citation: 574 N.W.2d 268
• Parties: STATE of Iowa, Appellee, v. Deandre L. JEFFERSON, Appellant. STATE of Iowa, Appellee, v. David CARROLL, Appellant.
• Court: Iowa Supreme Court

Page 268

574 N.W.2d 268

STATE of Iowa, Appellee, v. Deandre L. JEFFERSON, Appellant.

STATE of Iowa, Appellee, v. David CARROLL, Appellant.

Nos. 96-1603, 96-1678.

Supreme Court of Iowa.

Dec. 24, 1997.

Linda Del Gallo, State Appellate Defender, John M. Priester and James G. Tomka, Assistant State Appellate Defenders, and Chris Kragnes, Student Legal Intern, for appellant Deandre L. Jefferson.

John P. Roehrick and Susan Stockdale of Roehrick, Hulting, Blumberg, Kirlin & Krull, P.C., Des Moines, for appellant David A. Carroll.

Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, John P. Sarcone, County Attorney, and Daniel Voogt, Assistant County Attorney, for appellee.

Considered by HARRIS, P.J., and NEUMAN, SNELL, ANDREASEN, and TERNUS, JJ.

NEUMAN, Justice.

These are separate appeals by defendants, Deandre Jefferson and David Carroll, from convictions entered following their joint trial for attempted murder and robbery. Because their convictions stem from the same incident and share the same procedural history, we deem it expedient to decide both appeals in a single opinion.

Jefferson was convicted as charged. The principal question on Jefferson's appeal is whether a Bruton ¹ violation occurred when the court permitted the introduction of Carroll's postarrest statements inculpating Jefferson in the crimes and, if so, whether the alleged constitutional error compels a new trial. Carroll--convicted of robbery and simple assault--challenges the sufficiency of evidence to convict, denial of his request for substitute counsel, error in instructing the jury on joint criminal conduct, and alleged ineffectiveness of counsel.

We conclude Jefferson's Sixth Amendment right of confrontation was violated and, because we cannot say with confidence that the error was not harmless beyond a reasonable doubt, we reverse and remand for new trial against him. We find no error warranting reversal of Carroll's convictions. Thus we affirm on Carroll's appeal, reserving questions of ineffective counsel for postconviction relief.

I. Background Facts and Proceedings.

A jury could have found the following facts. On March 10, 1996, Steven November was working as a clerk at a Kum & Go convenience store on Hubbell Avenue in Des Moines. At about 4 a.m. two African-American males entered the store. They moved quickly to the counter, immediately arousing November's suspicion. One of the men was armed. He grabbed November by the collar and took him to a back room. There he ordered November to remove the videotape from the surveillance system. November could not do so because he had no key. The armed bandit then demanded a code for the cash register. Before November could comply, a buzzer sounded indicating that someone had entered the store. November was ordered to his knees and the assailant fired a gun at him. After two misfires the gunman turned to his accomplice and said, "How do you work this thing?" November retreated and grabbed a trash can to shield himself. Three more shots rang out. One bullet pierced November's abdomen, a second his chest, and the third grazed his shoulder. The robbers then fled.

A customer who had entered the store heard the gunfire and froze when one of the robbers emerged from the back room and headed for the door. The fleeing man wore a dark, hooded winter coat with a high collar that obscured his facial features. He was followed shortly by a man, similarly clothed, who held a gun in his right hand. The gunman approached the customer, shoving him to the floor.

Meanwhile another customer entered the store. He testified that as he passed through the front door a black male in a dark coat walked out. He heard another customer yell, "Watch out. The guy has got a gun." As the gunman ran toward him, the customer dodged out of the way and dropped to the floor.

This last customer's friends were waiting in his car in front of the store. When they saw their friend drop to the floor, one ran to assist him. He reported that a "dark-complected" person wearing a dark jacket hurried past him at the doorway. The other friend ran to the side of the building where he heard car doors slamming. Returning to the front of the store, he relayed to those inside (who had dialed 911) that a two-tone Lincoln or Cadillac was speeding away.

A radio bulletin went out describing the fleeing vehicle. Police officer Chris Hardy heard the report and positioned himself at a highway exit near a plausible getaway route. At 4:20 a.m. he spotted a two-tone Cadillac carrying two black males. He approached the vehicle from behind and shined his spotlight on its interior. The car sped away. A chase on the outskirts of the city ensued, with speeds at times reaching 130 miles per hour. Dust billowing from the gravel roads made close tracking difficult. When the dust suddenly settled, the officer observed that the vehicle had left the road and come to a stop in a corn field. The car's passengers were nowhere in sight.

Other officers joined in a pursuit of the suspects on foot. They searched a nearby barn. One of the suspects was eventually found hidden beneath a pile of hay. As the officer approached and demanded he come out from under the hay, the suspect reportedly said, "I don't have the gun." The suspect, later identified as defendant Deandre Jefferson, was wearing an Orlando Magic jacket which did not fit the description of the coat worn by the gunman at the Kum & Go store. However a large size black coat was later found along the road taken during the chase.

Meanwhile a canine unit and an airplane with infrared equipment had been dispatched to the scene. Not far from the Cadillac, the dog discovered a black man passed out in the ditch. When he "came to" with the help of paramedics, he identified himself as David Carroll. Then, and later at police headquarters, he confessed to being at the scene of the crime. He explained that he had accepted a ride from a stranger. He claimed this "other guy" had a gun and unexpectedly robbed the convenience store; Carroll believed they were only stopping to ask directions.

The hospitalized store clerk, Steven November, was interviewed later in the day by police. He was asked to look at a photo array and immediately identified Jefferson as the gunman. He was unable to identify the man who accompanied Jefferson, noting that during the incident his concentration focused on the man with the firearm. None of the other witnesses at the Kum & Go could identify either perpetrator.

Jefferson and Carroll were charged jointly in a single trial information with attempted murder in violation of Iowa Code section 707.11 (1995), and first-degree robbery in violation of Iowa Code section 711.2. Both counts alleged violation of Iowa Code section 902.7, use of a firearm while participating in a felony. Jefferson unsuccessfully moved to sever their trials. See Iowa R.Crim. P. 6(4)(b) (jointly charged defendants may be tried jointly if trial "will not result in prejudice to one or more of the parties"). The court ruled that because Carroll's postarrest statements did not name Jefferson, no "Bruton problems" existed. At the close of the evidence it instructed the jury that Carroll's admissions were to be considered only on the question of Carroll's guilt or innocence.

The jury found Jefferson guilty as charged. As for Carroll, the jury found him guilty of first-degree robbery. On the attempted murder count, the jury returned a verdict against Carroll on the lesser-included offense of simple assault. See Iowa Code § 708.2(4). Both defendants have appealed.

II. Jefferson's Appeal.

Jefferson claims he was deprived of a fair trial by the district court's denial of his motion to sever. Generally a trial court's ruling on a motion to sever will not be disturbed unless an abuse of discretion is proven. State v. Thornton, 506 N.W.2d 777, 779 (Iowa 1993). Here, however, a constitutional defect is implicated. We review claimed violations of the confrontation clause de novo. State v. Liggins, 557 N.W.2d 263, 268 (Iowa 1996); State v. Hoeck, 547 N.W.2d 852, 856 (Iowa App.1996); State v. Puffinbarger, 540 N.W.2d 452, 455 (Iowa App.1995).

In seeking a separate trial, Jefferson anticipated a Bruton situation. Carroll's postarrest statements were allowed into evidence at the joint trial as admissions by a party opponent--against Carroll's interest. See Iowa R. Evid. 801(d)(2)(A); Hoeck, 547 N.W.2d at 856. Carroll chose not to testify, thus preventing Jefferson's counsel from cross-examining him. Carroll's hearsay statements, of course, would not have been admissible in a separate prosecution against Jefferson. Thus, Jefferson argues, his right of confrontation guaranteed by the Sixth Amendment to the United States Constitution was violated.

Jefferson relies on Bruton v. United States, 391 U.S. 123, 135-36, 88 S.Ct. 1620, 1628, 20 L.Ed.2d 476, 485 (1968), in which the United States Supreme Court held that a defendant is deprived of his constitutional right to confront witnesses when his nontestifying codefendant's confession, naming him as a participant in the crime, is placed before the jury at their joint trial. Bruton created an exception to the presumption that, in a joint trial, jurors will follow a limiting instruction. The question was whether jurors, when so instructed, could give due regard to permissible hearsay evidence against the codefendant but put out of their minds that same evidence, "powerfully incriminating" but inadmissible, against the defendant. Id. at 135, 88 S.Ct. at 1628, 20 L.Ed.2d at 485. The Court observed that

[d]espite the concededly clear instructions to the jury to disregard [codefendant's] inadmissible hearsay evidence inculpating petitioner, in the context of a joint trial we cannot accept limiting instructions as an adequate substitute for petitioner's constitutional right of cross-examination.

Id. at 137, 88 S.Ct. at 1628, 20 L.Ed.2d at 485.

Carroll's...