State v. Love
| Decision Date | 01 February 2012 |
| Docket Number | No. 1-990 / 11-0359,1-990 / 11-0359 |
| Parties | STATE OF IOWA, Plaintiff-Appellee, v. TORAINO ADARYEL LOVE, Defendant-Appellant. |
| Court | Iowa Court of Appeals |
Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge.
Toraino Love appeals from his convictions of intimidation with a dangerous weapon, willful injury causing serious injury, going armed with intent, and possession of a firearm as a felon. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Joel Dalrymple, Assistant County Attorney, for appellee.
Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.
Appellant Toraino Love asks us to reverse his convictions because the district court admitted evidence of prior convictions of defense witnesses pursuant to Iowa Rules of Evidence 5.403 and 5.609. He also argues his trial counsel provided constitutionally ineffective representation in failing to preserve error on these evidentiary rulings. We reach the merits of the rulings and find the trial court did not abuse its discretion in permitting the evidence to be presented on the issue of the witnesses' credibility.
Around 1:00 a.m. on July 4, 2010, Love and Trice Scott were involved in a fight at a bar in Waterloo. During the fight, Love was knocked unconscious. Love and Scott had ties to rival gangs. Scott's cousin, Romeo Mabry, was present during the fight and had ties to the same gang as Scott. After the fight, Mabry and his friend Dontae Watson left the bar and headed to an area known as the Motorcycle Club, where people were known to gather after the bars closed.
Watson testified that around 3:00 a.m. a group of four men, including Love, arrived at the Motorcycle Club asking, "[W]here they at, who did it, who did it, who did it[?]" Watson stated he was annoyed these men would "bring a whole fight from the other bar to a whole another [sic] bar." Watson and Mabry testified they were then attacked by Love and his three friends. According to several witnesses, Watson and Mabry backpedaled, trying to avoid the confrontation.
Mabry testified that during the fight, he saw Love pull a gun from his waistband and fire in the direction of Mabry and Watson. Both Watson andMabry testified they ran away with Love chasing them and firing at them through the crowd. Love fired upwards of six shots, two of which hit Darrell Huggins, a bystander. The parties stipulated that Huggins suffered a serious injury. Mabry and Watson were not hit.
When the police arrived, Mabry identified Love by name as the shooter. Later that day, he identified Love as the shooter from a photographic array. Watson told the police at the scene of the crime that the same man who had been knocked out earlier in the night was the man he saw pull out a gun at the Motorcycle Club. Watson did not know the shooter's name, but he identified Love as the shooter from a photographic array. Both Watson and Mabry told police Love had been wearing a hooded sweatshirt when he arrived at the Motorcycle Club.
Orenthal Jones, an eyewitness, testified he was in the area of the Motorcycle Club and saw Love firing a silver handgun. He also testified Love was wearing a dark, hooded sweatshirt at the time of the shooting. Jones talked to police at the scene of the crime and identified Love by name as the shooter. He later identified Love as the shooter from a photographic array.
Two other witnesses testified that Love had been wearing a dark, hooded sweatshirt on the night in question. Neither of these witnesses, however, had seen the shooter. Another witness testified the shooter had been wearing a black, hooded sweatshirt.
In August, Mabry went to jail for two days and was in the same jail pod as Love. While he was there, Mabry wrote a signed statement dated August 19, 2010, retracting his earlier statement that Love had been the shooter during theincident on July 4. Mabry's written statement explained that because of the large crowd, he never saw the shooter and he felt the police had put words in his mouth. He stated he could not identify the shooter.
Once Mabry was released from jail, he told police about this handwritten statement and informed them it was not true. He testified he wrote the statement because he had felt threatened by Love and one of Love's friends. Mabry testified that Love's friend told Mabry to sit down at a table and then told Mabry that Mabry was not going to tell on his friend, Love, because that "was not allowed in their pod." Love's friend then had Love join the conversation. Love told Mabry he should "write something saying it was not him." Mabry testified he felt intimidated by Love and his friend. Mabry testified the handwritten statement was not true and Love was the shooter on July 4.
Five witnesses testified on behalf of Love. Two of these witnesses, Quinteze Latiker and Sammy Landfair, testified they were present in jail when Mabry wrote his statement and he had not been coerced into making this written retraction. Latiker testified that he was at the table when Mabry wrote his statement and that Mabry stated his statement to the police that Love was the shooter was untrue. Landfair testified he was in the area at the time Latiker and Love spoke to Mabry, and Mabry was never threatened. The State impeached the credibility of both of these witnesses with evidence that each had been convicted of crimes.
Love's other three witnesses testified they were present at the Motorcycle Club on the night in question and had seen Love at the time shots were being fired. All three testified Love was not the shooter. One of the three testified Lovewas not wearing a hooded sweatshirt on the night in question. All three were friends of Love and waited several months to make any statement regarding Love's involvement. The State impeached the credibility of two of these witnesses with evidence that each had been convicted of crimes.
The court instructed the jury to use evidence of the witnesses' prior convictions only to determine the witnesses' credibility. The jury found Love guilty of intimidation with a dangerous weapon, willful injury causing serious injury, going armed with intent, and possession of a firearm as a felon. Judgment was entered on all four counts. Love appeals, asserting: (1) the district court erred in allowing into evidence the attempted murder conviction of one of the defense witnesses; (2) his trial counsel was ineffective for failing to object to evidence of prior convictions of three other defense witnesses and for not requesting the court perform the balancing test required by the Iowa Rules of Evidence in deciding whether to admit these prior convictions; and (3) the district court erred in failing to merge his conviction for going armed with intent with his conviction for intimidation with a dangerous weapon.
Iowa Rule of Evidence 5.609 provides, "Evidence that a witness other than the accused has been convicted of a crime shall be admitted, subject to rule 5.403, if the crime was punishable by death or imprisonment in excess of one year . . . ." Rule 5.403 provides, "[E]vidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . ." "Rule 5.609(a)(1) therefore operates as a rule of admission as to an ordinary witness's prior felony convictions." State v. Redmond, 803 N.W.2d 112, 121 (Iowa 2011).
We review rulings on the admission of prior crimes evidence for an abuse of discretion. Id. at 117. "Because the weighing of probative value against probable prejudice is not an exact science, we give a great deal of leeway to the trial judge who must make this judgment call." State v. Newell, 710 N.W.2d 6, 20-21 (Iowa 2006). We measure a prior conviction's probative value by how greatly it undermines the witness's credibility. Redmond, 803 N.W.2d at 122. We gauge prejudicial effect by anticipating the extent to which a jury may misuse a witness's prior conviction thereby deciding the case on an improper basis. Id. at 124.
In this case, the impeachments by prior conviction were permitted as to witnesses other than the accused. Love, therefore, had the burden to prove the unfair prejudice from admission of the prior convictions substantially outweighed the probative value. See Iowa R. Evid. 5.609(a) ().
Love asserts the district court erred in allowing the State to impeach Latiker with evidence of an attempted-murder conviction. At trial, Love's counsel argued the conviction was "far more prejudicial than probative," especially given that Love's case involved a shooting. Over Love's objection, the district court determined that because Latiker had no other conviction the State could use for impeachment purposes, the probative value was not outweighed by the prejudice and the State could use the attempted-murder conviction for impeachment purposes. After this ruling, the defense presented evidence of Latiker'sconviction on direct examination to show they were "not trying to hide anything." The State later mentioned the conviction on cross-examination.
Love asserts that because Latiker's prior offense was a crime of violence, like the crime with which Love was charged, danger of unfair prejudice outweighed the probative value of the evidence of his prior conviction. The State asserts that because Love himself first elicited Latiker's testimony regarding his prior conviction for attempted murder, Love did not preserve error on this issue. The State further asserts the district court did not abuse its discretion in admitting evidence of Latiker's prior conviction. Finally, the State contends that even had the court abused its discretion,...
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