State v. White, No. 8-967/07-0664 (Iowa App. 3/26/2009), 8-967/07-0664
| Decision Date | 26 March 2009 |
| Docket Number | No. 8-967/07-0664,8-967/07-0664 |
| Parties | STATE OF IOWA, Plaintiff-Appellee, v. DON CHRISTOPHER WHITE JR., Defendant-Appellant. |
| Court | Iowa Court of Appeals |
Appeal from the Iowa District Court for Scott County, J. Hobart Darbyshire, Judge.
Defendant appeals following his convictions for first-degree murder and intimidation with a dangerous weapon.
REVERSED AND REMANDED.
Jack E. Dusthimer, Davenport, for appellant.
Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, William E. Davis, County Attorney, and Amy K. Devine, Assistant County Attorney, for appellee.
Heard by Mahan, P.J., and Miller and Doyle, JJ.
Don White Jr. appeals following his convictions for first-degree murder in violation of Iowa Code sections 707.1 and 707.2 (2005) and intimidation with a dangerous weapon in violation of section 708.6(1). He contends the district court erred in: (1) denying his motions for judgment of acquittal, (2) allowing admission, over objection, of evidence of another unrelated shooting, (3) failing to grant various challenges for cause during jury selection, and (4) failing to properly instruct the jury. Upon our review, we reverse the judgment of the district court and remand the case for a new trial.
At about 5:00 p.m. on August 19, 2006, Mark Helton observed White playing dice at the house of Ron Millbrook in Rock Island, Illinois. Helton was there to drop off his girlfriend's minivan, which Helton had agreed to loan to Millbrook. Eight or nine people were at the Millbrook house, including Millbrook and Rasheem Bogan.
Beginning at about 6:00 p.m., White participated in a "memorial walk," which was held on the nineteenth of each month to commemorate the April 19 murder of Andrell Hearn. The approximately ninety-minute walk was followed by a gathering and barbeque at the Rock Island residence of Hearn's grandmother. Several people saw White at the walk and later barbeque.
On that evening, a young woman in Davenport, Iowa named Vincelina Howard was at a gathering in the backyard of a house with several other people. A van drove by the Howard home and gunshots were fired; Vincelina was struck by a bullet. Phillip Potter was driving in the area and called 911. Emergency units were dispatched to the house at about 10:30 p.m. Vincelina was pronounced dead at a Davenport hospital a short time later.
Benjamin Tarnish lived near the Howard home and reported to law enforcement that the occupants of the van were four African-American males. The van was later found abandoned on a Davenport street. A surveillance videotape from a nearby business showed the minivan coming to a stop and four persons running from the van.
This van was later determined to belong to Virginia Schaeffer, Mark Helton's girlfriend. Bullet casings found outside and inside the van were linked to others found at the scene of Howard's shooting. Ron Millbrook's fingerprints were found on the front edge of the sliding door of the van; Don White's left palm print was found on the outside edge of the passenger side rear sliding door; Bogan's right thumb print was found on the window crank on the driver's side door of the van. Guns later found were tied to Millbrook and White.
On October 3, 2006, the State filed a trial information charging White and codefendants Ron Millbrook and Terrell Lobley with murder in the first degree, in violation of Iowa Code sections 707.1 and 707.2, and intimidation with a dangerous weapon, in violation of section 708.6(1). The court severed the trial of Ron Millbrook but ordered that White and Lobley be tried jointly. After the jury was unable to reach a verdict, the court declared a mistrial.
On retrial, the State moved to join White's case with that against Bogan. Both defendants contested the joinder. The State also filed notice of its intent to offer evidence of prior acts by Don White pursuant to Iowa Rule of Evidence 5.404(b). A hearing was held on the State's motions. The State's offer of proof concerning the rule 5.404(b) acts included three civilian witnesses who testified that on June 14, 2006, White—without apparent provocation—walked up to the car in which these witnesses were sitting, placed a gun to the ribcage of one of the occupants, and pulled the trigger. The gun jammed and did not fire. White went to the side of a building, hit the handgun against a wall to unjam it, and started shooting at one of the individuals, who was now out of the car and running away. At the hearing, three law enforcement officers testified that a live round and four bullet casings were found at this June 14, 2006 Rock Island shooting scene, which could be linked to casings left at the August 19, 2006 Davenport shooting scene, and that all these rounds were fired from the same weapon, a Colt .45 handgun recovered during an unrelated search. The State argued that the evidence of prior acts was necessary to connect defendant Don White with the weapon, and thus, the August 19, 2006 Davenport shooting. The district court ruled that the prior acts evidence would be allowed and that joinder would not result in prejudice to either defendant.
After jury selection, White again objected to the prior acts evidence. Both defendants offered to stipulate that on June 14, 2006, White did possess the Colt.45 handgun that matched casings found at the scene of the Davenport shooting. The State would not join the stipulation, and the district court refused to reconsider its earlier rulings.
At trial, Jennifer Estrada, Carrie Hamilton, Teneshia Horne, and Carlton Nixon all testified in detail about Don White's placing a gun to Nixon's side and pulling the trigger, the gun jamming, and his shooting at them on June 14, 2006. Sergeant Matthew Edwards testified about collecting numerous shell casings on June 14, 2006, from the area surrounding the shooting scene. Linda Yborra, a forensic scientist with the Illinois State Police Morton Forensic Science Laboratory, testified the shell casings recovered from the Howard house shooting scene and the shell casings recovered from the Rock Island shooting scene were fired from the same gun, a Colt Commander semi-automatic pistol. In this appeal, White asserts the trial court abused its discretion in admitting the prior bad acts evidence.
We review district court rulings admitting evidence of other bad acts for an abuse of discretion. State v. Brown, 569 N.W.2d 113, 116 (Iowa 1997). Generally evidence of one crime cannot be used to prove another crime occurred; however, if the evidence of crimes, wrongs, or bad acts is relevant to issues other than the defendant's propensity to commit a crime, it may be admissible. State v. White, 668 N.W.2d 850, 853-54 (Iowa 2003); see also Iowa R. Evid. 5.404(b). The evidence may be admissible as proof of motive, opportunity, or identity. White, 668 N.W.2d at 854. "Courts employ a two-step analysis to determine whether the bad-acts evidence is admissible." State v. Sullivan, 679 N.W.2d 19, 25 (Iowa 2004). First, the court must determine if the evidence is relevant to a legitimate factual issue in dispute. Id. If it is, then the court must decide if its probative value is substantially outweighed by the danger of unfair prejudice to the defendant. Id. If it does, the court must exclude the evidence. Id.
As set forth above, the evidence in question consisted of testimony that during the course of another crime, White pulled out a gun and placed it to the ribcage of an individual. When the gun would not fire, he ran off, hit the gun on the side of a building to unjam it, and then fired several rounds at several individuals. No one was hit. Ballistics testing of the cartridges recovered at the scene of that Rock Island shooting showed that the cartridges had been fired from the same Colt .45 that fired several rounds at the Howard shooting in Davenport. The gun was found at a Rock Island residence on October 18, 2006, almost two months after the Howard shooting. The State argues the evidence, taken with other evidence that White, Bogan, Millbrook, and Lobley were together on the night Howard was shot, strongly linked White to the shooting, and was thus probative on the issue of identity and opportunity.
On appeal, White does not argue the evidence was not relevant, only that it was unfairly prejudicial. We must then employ the second step of the analysis to determine whether the trial court abused its discretion in deciding that the probative value of the evidence was not substantially outweighed by its inherently prejudicial effect. Id. at 25. Evidence is unfairly prejudicial if it,
[a]ppeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish, or triggers other mainsprings of human action that may cause the jury to base its decision on something other than the established propositions in the case.
White, 668 N.W.2d at 854 (citations omitted).
We first examine "`the actual need for the . . . evidence in . . . light of the issues and the other evidence available.'" State v. Taylor, 689 N.W.2d 116, 129 (Iowa 2004) (quoting State v. Wade, 467 N.W.2d 283, 284 (Iowa 1991)). The State argues that the need for the evidence was very high in light of the fact that no eyewitness to the shooting could identify the shooters. The State's case against White rested on placing him in the van used at the drive-by shooting. The State attempted to do so by showing White was with Millbrook, Bogan, and Lobley shortly before the shooting, that ballistics evidence tied White's codefendants to shell casings and bullets found at the scene and tied them to the van used, and by evidence that White's palm print was found on the outside of the van used in the shooting. The State points out that the only other evidence available to tie White to the shooting was the evidence that White had previously fired one of the guns which had been fired at the...
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