State v. Johnson

• Decision Date: 30 May 1995
• Docket Number: No. 94-469,94-469
• Citation: 534 N.W.2d 118
• Parties: STATE of Iowa, Plaintiff-Appellee, v. Jerry JOHNSON, a/k/a Michael Eugene Cartwright, Jr., Defendant-Appellant.
• Court: Iowa Court of Appeals

Page 118

534 N.W.2d 118

STATE of Iowa, Plaintiff-Appellee, v. Jerry JOHNSON, a/k/a Michael Eugene Cartwright, Jr., Defendant-Appellant.

No. 94-469.

Court of Appeals of Iowa.

May 30, 1995.

Barbara J. Diment of Diment Law Office, West Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., Robert P. Ewald, Asst. Atty. Gen., John P. Sarcone, County Atty., and Daniel Vogt, Asst. County Atty., for appellee.

Heard by DONIELSON, C.J., and HAYDEN and CADY, JJ.

CADY, Judge.

Michael Cartwright appeals from his conviction of terrorism without intent to injure or provoke fear in violation of Iowa Code section 708.6 (Supp.1993). Upon our review of the evidence, we affirm his conviction.

In the early morning hours of May 25, 1993, Robert Hawthorne was driving his car on University Avenue when he noticed a Cadillac coming toward him. The Cadillac made a U-turn and started to follow him. After trying to lose the Cadillac, Hawthorne stopped his car and started to get out to see what the car wanted. As he opened his door a shot was fired from the Cadillac shattering his rear window. Hawthorne drove away and a second shot was fired. He called the police from his car phone and turned his car around to face the Cadillac. Hawthorne pursued the Cadillac and informed the police of his location.

The police spotted the Cadillac on Interstate 235 and followed it as it exited onto Keosauqua Avenue. Police Officer Kees shone his spotlight on the car and observed three black males inside. Kees also observed the Cadillac slow and the front passenger door open. The car then sped up again. The Cadillac finally stopped and the three occupants were arrested. Cartwright had been sitting in the front passenger seat and he was wearing a white baseball cap. Police found a .44 magnum on the street where the car had slowed and the passenger door had opened.

Cartwright was charged with terrorism with the intent to injure or provoke fear. At his jury trial Hawthorne testified that at least some of the shots had come from the passenger side of the Cadillac and he was sure that a person wearing a white hat fired the last two shots. Police Officer Seybert testified that he had observed gunpowder residue on a pillar of the Cadillac between the front passenger door and windshield. A criminologist with the Iowa Division of Criminal Investigation testified that he tested the Cadillac's three passengers' hands for gunshot residue. He was unable to determine whether any of the passengers had recently fired a gun.

The district court overruled Cartwright's motions for a directed verdict. The court submitted instructions to the jury on terrorism with intent to injure or provoke fear, terrorism without intent to injure or provoke fear, and assault. The court also gave the jury instructions on aiding and abetting and participation in a public offense. Cartwright requested the court to give the jury an instruction on its theory of defense--accessory after the fact. The court denied Cartwright's request finding it "brings into play a crime, a different crime, which has not been charged and is not part of this trial...."

The jury found Cartwright guilty of terrorism without intent to injure or provoke fear. It answered a special interrogatory that Cartwright or someone he aided and abetted had a firearm, displayed a firearm in a threatening manner, or was armed with a firearm.

Cartwright's motions in arrest of judgment and for new trial were denied. The court sentenced Cartwright to a minimum term of five years for his conviction of terrorism without intent. ¹

Cartwright appeals. He argues (1) the evidence was insufficient to support his conviction; (2) the court erred in instructing the jury on aiding and abetting in relation to the lesser offense of terrorism without intent and on participation in a public offense; (3) the court erred in refusing to give the jury an instruction on his theory of defense--accessory after the fact; (4) the court erred in finding the offense of terrorism without intent was a forcible felony and in submitting the special interrogatory regarding firearms on this offense; (5) he was prejudiced by prosecutorial misconduct; and (6) his trial counsel was ineffective for failing to request that the jury be admonished to disregard his appearance in jail clothing at trial, failing to object to certain instructions, failing to offer into evidence a stipulation on the co-defendant's plea of guilty, and offering a theory of defense that was actually adverse to Cartwright.

I. Sufficiency of the Evidence

Our review is for errors at law. Iowa R.App. 4. We are bound by the jury's verdict unless there was not substantial evidence to support it. State v. Lewis, 514 N.W.2d 63, 66 (Iowa 1994). In determining whether there was substantial evidence, we review the record in the light most favorable to the state. Id. Substantial evidence means such evidence as could convince a rational trier of fact that the defendant is guilty beyond a reasonable doubt. State v. Taft, 506 N.W.2d 757, 762 (Iowa 1993). Direct and circumstantial evidence are equally probative. Iowa R.App.P. 14(f)(16). "However, whether the evidence is direct or circumstantial, it must raise a fair inference of guilt and do more than create speculation, suspicion, or conjecture." State v. Hamilton, 309 N.W.2d 471, 479 (Iowa 1981) (citing State v. Schrier, 300 N.W.2d 305, 306 (Iowa 1981)).

Iowa Code section 708.6 defines terrorism without intent to "injure or provoke fear or anger" as follows:

A person commits a class "D" felony when the person shoots, throws, launches, or discharges a dangerous weapon at, into, or in a building, vehicle, airplane, railroad engine, railroad car, or boat, occupied by another person, or within an assembly of people, and thereby places the occupants or people in reasonable apprehension of serious injury or threatens to commit such an act under circumstances raising a reasonable expectation that the threat will be carried out.

The State relied on the theory of aiding and abetting to prove the terrorism count against Cartwright. To convict an individual of a crime on an aiding and abetting theory, the State must produce substantial evidence that the individual "assented to or lent countenance and approval to the criminal act either by active participation in it or by some manner encouraging it prior to or at the time of its commission." State v. Lott, 255 N.W.2d 105, 107 (Iowa 1977). Knowledge of the criminal act at or before its commission is essential. State v. Buttolph, 204 N.W.2d 824, 825 (Iowa 1972). This knowledge may be inferred from circumstances surrounding the act. Id.

Cartwright asserts there is insufficient evidence to convict him as an aider and abettor. In support of his contention, he argues the scientific evidence was inconclusive, Hawthorne's testimony was not credible, and the principal was not clearly identified. Cartwright is correct that the gun residue tests performed on the three occupants of the car were inconclusive. It is also true, that Hawthorne's testimony regarding the side of the car from which the shots were fired was somewhat inconsistent.

We, nevertheless, conclude there was substantial evidence from which the jury could conclude Cartwright aided and abetted the shooting. It is undisputed shots were fired from the Cadillac in which Cartwright was riding into Hawthorne's car. There was also a smudge of gunpowder residue on the structural pillar between the front passenger door and the windshield of the Cadillac. Hawthorne testified that a person wearing a white hat was leaning out of the passenger side of the car and shooting. Additionally, while the police were following the Cadillac, it slowed down and the passenger door opened. When the police returned to the location where the Cadillac had slowed down, they found a .44 magnum revolver. Finally, when the police stopped the Cadillac, shortly after it had slowed down, Cartwright was sitting in the front passenger seat and was the only occupant of the car wearing a white hat.

Knowledge and proximity to the scene combined with circumstantial evidence such as companionship, and conduct before and after the offense is committed may be sufficient to infer a defendant's participation in the crime. Lewis, 514 N.W.2d at 63. The district court did not err in denying Cartwright's motions for judgment of acquittal.

II. Jury Instructions

Cartwright asserts several errors in the jury instructions. First, he claims the trial court erred in instructing the jury on aiding and abetting in relation to the terrorism without intent charge. Next, he claims under the facts of this case, the court should not have submitted a uniform instruction on participation in a public offense. Finally, he asserts the court erred in excluding Cartwright's requested instruction on accessory after the fact.

After reviewing Cartwright's first two assertions of error, we conclude he failed to preserve them for appellate review. We will, however, consider them under his ineffective assistance of counsel claim.

Cartwright properly preserved error as to the accessory after the fact instruction. He argues the court erred in failing to grant his requested instruction on accessory after the fact as a theory of defense. His proposed jury instruction is as follows:

Evidence has been received alleging that the defendant attempted to dispose of the revolver while being pursued by law enforcement. A person who has knowledge that a public offense has been committed by another person and who aids the person who committed the offense with intent to prevent apprehension is an accessory after the fact.

If the state has failed to prove beyond a reasonable doubt that the defendant discharged the revolver or aided and abetted its discharge but that the defendant acted as an accessory after the fact, then you shall find the defendant not guilty.

The trial court has a duty to instruct the jury on all material...