STATE OF IOWA, Plaintiff-Appellee, vs. LISA KAYE HEAIVILIN, Defendant-Appellant.

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IN THE COURT OF APPEALS OF IOWA No. 1-417 / 99-2005 Filed January 9, 2002 STATE OF IOWA, Plaintiff-Appellee, vs. LISA KAYE HEAIVILIN, Defendant-Appellant. Appeal from the Iowa District Court for Clinton County, David H. Sivright, Judge. The defendant appeals from her convictions for first-degree murder and first-degree robbery. AFFIRMED. Mark R. Lawson of Mark R. Lawson, P.C., Maquoketa, for appellant. Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Michael E. Wolf, County Attorney, and Gary P. Strausser, Assistant County Attorney, for appellee. Considered by Huitink, P.J. and Zimmer, J. and Habhab, S.J. Senior judge assigned by order pursuant to Iowa Code 602.9206 (2000). HABHAB, S.J. Defendant-appellant Lisa Kaye Heaivilin appeals her conviction in a jury trial of first-degree murder, in violation of Iowa Code sections 703.1, 703.2, 707.1 707.2(1) and 707.2(2) (1997), and first-degree robbery, in violation of sections 703.1, 703.2, 711.1, 711.2 (1997). Defendant claims on appeal that the trial court erred in several respects and that she received ineffective assistance of trial counsel. We affirm but preserve defendant's claims of ineffective assistance of counsel for postconviction proceedings. I. On November 25, 1998, Leila Heaivilin, defendant's seventy-eight- year-old grandmother, was found dead in her home in a pool of blood. An autopsy revealed her death was a result of strangulation, multiple stab wounds, and blunt force trauma to the head. Two days after the murder, defendant and her boyfriend, Jamey Lee Mills,[1] were interviewed by the Clinton police department. Testimony at trial showed that during the interview and in her written statement defendant confessed that she had suggested the day before the murder, while on a walk with Mills and their friend Tim Walker,[2] that it was her grandmother who lived in the house they were passing, and that they should "rob" her. Testimony by Walker at trial revealed that defendant had stated they should "rob and murder" her grandmother. Testimony by another witness, Larry Lathrop, established that defendant had stated, when discussing a plan to rob and "snap" her grandmother's neck, that she did not want to watch. According to defendant's statement, Mills asked her the day of the murder, as well as the night before, several questions including whether her grandmother lived alone, whether she had a dog, and whether she had an ATM Card. The next evening, after more questions from Mills and a suggestion that they should go to the grandmother's house, defendant replied, "okay," and the two went. During the walk there, defendant was aware Mills had a table leg. After the two had spoken to the grandmother, Mills asked defendant if she needed to use the bathroom, an indication to defendant, as she testified at trial, that Mills may have spotted something he wished to steal and was encouraging her to stall for time. Defendant cooperated with Mills, and while in the bathroom heard her grandmother yell out. She walked out of the bathroom to find Mills choking her grandmother. He told her to turn around. After he told her to turn around again, she complied. While turned, she heard a "snapping or popping" noise. Mills then told defendant to get him a knife. She opened a kitchen drawer for him, and he grabbed one. Defendant then watched him "sawing" her grandmother's neck with the knife. After it was clear that the grandmother was dead, the two looked for money and items of value. Then while exchanging "I love you's," the two left the house with what Mills had found: a checkbook, a coin purse, a wallet, thirty-one dollars, four rings, a necklace, a watchband, and an earring. II. Defendant contends on appeal that the district court erred in rejecting her attempt to impeach State witness Lathrop with a prior felony conviction; that there was insufficient evidence to convict her of first- degree murder or robbery; that the district court erred in not allowing defendant's expert witness to observe defendant's testimony; and that she received ineffective assistance of counsel. III. Defendant first argues the trial court's refusal to allow the defense to impeach witness Larry Lathrop with a prior felony conviction of sexual abuse in the third degree[3] was a violation of her constitutional right to confront and cross-examine a witness. Lathrop testified at trial that, in a conversation between defendant, Lathrop and Mills in which robbing the grandmother and "snapping her neck" was discussed, defendant had said, "If you guys are going to do that, I do not want to see it." Restrictions on cross-examination run afoul of the Confrontation Clause of the Sixth Amendment of the United States Constitution if the prohibited questioning would have given a reasonable jury a significantly different impression of the witness's credibility. State v. Veal, 564 N.W.2d 797, 807 (Iowa 1997). Given the cross-examination of Lathrop at trial, we find that a reasonable jury would not have had a significantly different impression of Lathrop's credibility had the sex offense impeachment been allowed. On cross-examination defense counsel confronted Lathrop with his own testimony in a deposition, as well as his own testimony from the first- degree murder trial of Jamey Mills, establishing that in both instances, contrary to what he was currently testifying, he had testified that defendant had not made the comment that she would rather not watch Lathrop and Mills rob her grandmother and "snap her neck." We do not believe that the general impeachment effect on Lathrop's testimony of a sex abuse conviction would significantly damage his credibility beyond the damage already inflicted by confronting him, as defense did, with his own earlier statements, made under oath, which contradicted his trial testimony. Given that there is no constitutional violation at issue here, we afford the trial court considerable discretion in most evidentiary rulings. State v. Daly, 623 N.W.2d 799, 802 (Iowa 2001). We review for an abuse of discretion. Id. at 803. In evaluating admissibility of previous convictions by weighing probative value against prejudicial effect, abuse of discretion may include errors of law in failing to engage in the weighing process at all. Id. at 802. Defendant claims on appeal that in denying defendant's attempt to impeach Lathrop with his sex abuse felony, the trial court did not conduct the balancing test required by Iowa Rules of Evidence 609(a)(1) and 403. The State claims that the trial court did engage in such a balancing test and merely concluded, as we see in the record, that impeachment by a sex abuse conviction was "unfairly prejudicial." Case law suggests that the balancing test, as conducted by the trial court in this case, may have been too cursory. The supreme court suggested in Daly that the balancing test used to determine whether impeachment by a prior conviction would be more prejudicial than probative should be a "process." Id. at 802. The trial court has participated in this "process" if it supports its conclusion with specific facts and circumstances. See State v. Hackney, 397 N.W.2d 723, 727 (Iowa 1986). An error at law exists if the trial court fails to engage in the weighing process. Daly, 623 N.W.2d at 802. In failing to consider specific facts and circumstances in its weighing process, we find the trial court committed an error at law in not making a detailed finding that Lathrop's sex abuse conviction was more prejudicial than probative in impeaching him. We do not find, however, that this ruling was of sufficient prejudice in defendant's case to be of consequence. When an alleged error is not of constitutional magnitude, the test of prejudice is whether it sufficiently appears that the rights of the complaining party have been injuriously affected or that the party has suffered a miscarriage of justice. State v. Traywick, 468 N.W.2d 452, 454-55 (Iowa 1991). We have previously stated that defendant was able to impeach Lathrop effectively with his own prior inconsistent statements. Further, even if Lathrop's testimony was wholly stricken from the record, there was still other clear evidence overwhelmingly establishing defendant's guilt. See State v. Brodene, 493 N.W.2d 793 (Iowa 1992). Defendant argues that Lathrop's comments prejudiced her in that they tended to show she did have advance knowledge of the plan to harm her grandmother. Given the overwhelming evidence that defendant had advance knowledge of the crime, we see nothing in the record that indicates the inclusion of Lathrop's testimony, which was impeached by his prior inconsistent statements, was sufficiently prejudicial to the guilty verdict. Defendant confessed to suggesting the robbery; she answered questions regarding her grandmother's vulnerability; she knew Mills had a weapon; she tricked her grandmother into being alone with Mills, whom she knew was armed and violent; she helped Mills procure a knife after he had broken her grandmother's neck; and she proceeded to help seek out her grandmother's money and valuables after the murder. Given these facts, we find any error in excluding evidence to impeach Lathrop was not prejudicial. IV. We next address defendant's claims of insufficient evidence of willfulness, deliberation, and premeditation in killing her grandmother, or in aiding and abetting the killing, to convict her of first-degree murder. Under Iowa Code section 707.2(1), murder is first-degree murder when committed willfully, deliberately, and with premeditation. Claims of insufficient evidence are reviewed for errors at law. Iowa R. App. P. 4. We will uphold a guilty verdict if substantial evidence supports the verdict. State v. Schmidt, 588 N.W.2d 416, 418 (Iowa 1998). "Substantial evidence" is that upon which a rational trier of fact could find defendant guilty beyond a reasonable doubt. State v. Pace, 602 N.W. 2d 764, 768 (Iowa 1999) (citations omitted); see also, State v. Conroy, 604 N.W. 2d 636, 638 (Iowa 2000). In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State. Id. We give consideration to all of the evidence, not just that which supports the verdict, including reasonable inferences which could be derived from all the evidence. Id. Defendant claims that the State presented no evidence that she was responsible for physically bringing about her grandmother's death. Defendant concedes that all persons involved in the commission of an offense may be charged, tried, and punished as principals. State v. Baker, 560 N.W.2d 10, 15 (Iowa 1997). See Iowa Code 703.1. Defendant claims, however, that she cannot be held responsible as aider and abettor to Mills' acts because although she fully intended to steal from her grandmother, her criminal intent ended there, and she did not encourage or even anticipate the murder of her grandmother. We find there was sufficient evidence to convict defendant of first- degree murder. Defendant may be held liable as a principal if she actively participated in or encouraged the murder of her grandmother. See State v. Wedebrand, 602 N.W.2d 186, 189 (Iowa Ct. App. 1999). A person may be convicted on a theory of aiding and abetting if she participates either with the requisite intent herself or with knowledge that the principal possesses the required intent. State v. Lockheart, 410 N.W.2d 688, 693 (Iowa Ct. App. 1987). Evidence implicating defendant in the premeditated murder of her grandmother, whether as a principal or as an aider and abettor, included testimony that defendant proposed the idea of killing and robbing her grandmother a day before the act; that she followed up this proposal with specific information detailing just how vulnerable her grandmother would be; that by asking to use the bathroom at Mills' suggestion she actively participated in a ruse to give Mills, who she knew was carrying a weapon, time alone with the grandmother; that she made no protest as Mills choked and twisted her grandmother's neck; that she then aided Mills in finding a knife to slit her grandmother's throat; that together with Mills she looked for valuables and money after her grandmother's death; that she left the house exchanging "I love you's" with Mills; that she helped dispose of clothes and weapons following the murder; and that she later stated in letters to Mills, "It was all me," and, "I'm sorry for involving you in this and using your love for me to make you go rob her house with me." We find this evidence sufficiently demonstrates, at the very least, encouragement by defendant adequate to uphold a finding of first-degree murder upon the theory that she aided and abetted Mills. In the alternative, defendant argues there was insufficient evidence to find her guilty of first-degree murder in the form of felony-murder. First-degree murder includes murder committed while participating in a forcible felony. Iowa Code 707.2(2). Among those felonies listed as "forcible" is robbery. Felony-murder may be established by a showing that one of the persons involved in an underlying felony killed another person with malice aforethought. Conner v. State, 362 N.W. 2d 449, 455 (Iowa 1985). Under the felony-murder theory the State need not prove defendant had malice aforethought, so long as it shows the principal Mills did. Id. Citing Lockheart, defendant argues that although the State need not make a showing of malice aforethought in establishing its felony-murder case against her, it must nevertheless demonstrate that she knew of Mills' intent to murder. Although sufficient evidence of a defendant's guilt may come from her knowledge during the felony of the principal's murderous intent, such knowledge is not required. It is immaterial whether the killing was in the comtemplation or intention of the defendant. Id. It is only necessary that the principal had the necessary mens rea, and the act was a consequence of carrying out the unlawful common design. Id. In this case there is an abundance of evidence that Mills as principal had the necessary mens rea of malice aforethought. Malice may be inferred by the use of a deadly weapon. State v. Reeves, ___N.W. 2d ___ (Iowa 2001). There is also abundant evidence Mills had the opportunity to deliberate. Mills walked to Leila's house with one of the murder weapons in hand, asked whether she lived alone, urged Leila to use the restroom so he could have time alone with the victim, beat and choked the victim, and sought out a knife to slit her throat. There is also sufficient evidence that both Mills and defendant intended to commit the unlawful common design of the felony of first-degree robbery, that their intent was not merely theft, as defendant contends. A person commits a robbery when, having the intent to commit a theft, the person commits an assault upon another. See Iowa Code 711.1. A person commits robbery in the first degree when, while perpetrating a robbery, the person purposely inflicts or attempts to inflict serious injury, or is armed with a dangerous weapon. See Iowa Code 711.2. Both defendant and Mills discussed the possibility of robbing Leila at length, including discussing whether she had a dog, an ATM card, and lived alone. Defendant knew that Mills carried a table leg over to Leila's house. That table leg was one of the murder weapons. Defendant opened the kitchen drawer at Mills' request to "grab a knife," after he had finished breaking the victim's neck. Mills grabbed a knife from that drawer and used it to slit Leila's throat prior to his and defendant's joint search through the house for valuables. We find there was sufficient evidence defendant aided and abetted a first-degree robbery. The Iowa courts have long held, and it is the general law of this nation, that an accessory is responsible for everything done by the principal that is incidental to carrying out the illegal act - even though the injury was greater than planned. Connor, 362 N.W.2d at 456. The foreseeable result of robbery is that someone may be killed. Id. Because of the sufficiency of the evidence to convict defendant of first-degree robbery, we find there was sufficient evidence in this case to convict defendant of first-degree murder on a felony-murder theory. Our analysis in finding that there was sufficient evidence to find defendant guilty of felony-murder also applies to deny defendant's contention that there was insufficient evidence to find her guilty of first- degree robbery. Since we find sufficient evidence to convict defendant of robbery, and because murder is a foreseeable result of robbery, we find defendant could also be found guilty of first-degree murder under a theory of joint criminal conduct. See Conner, 362 N.W.2d 449, 455 (Iowa 1985).[4] V. Defendant further contends that the trial court erred in not allowing her expert witness to be present to observe defendant during her testimony. Defendant argues that the exclusion of her expert witness from the courtroom was a violation of her constitutional right to a public trial. Defendant has no authority indicating that the discretionary exclusion of a witness from the courtroom even implicates, let alone violates, the constitutional right to a public trial. See State v. Worthen, 124 Iowa 408, 410, 100 N.W. 330, 332 (1904). We do not consider the exclusion of the witness in this case to be a constitutional issue. In either event the constitutional issue is raised for the first time on appeal. The defendant agrees that constitutional issues cannot be raised in this appeal. The decision to exclude witnesses from the courtroom rests within the sound discretion of the trial court. State v. Sharkey, 311 N.W.2d 68, 70 (Iowa 1981). Our review is for abuse of discretion. State v. Roby, 495 N.W.2d 773, 775 (Iowa Ct. App. 1992). In denying defendant's request that her expert be in the courtroom when the defendant testified, the trial court determined that it would be unfair to allow defendant's expert to observe her testimony without the State's expert also being allowed to observe the testimony. Apparently the State's expert was unavailable at that time, and due to the district court's conclusion that this issue should have been discussed ahead of the time defendant was set to testify, the district court refused the defendant's request. We fail to find an abuse of discretion on this issue. VI. Defendant further claims that she was rendered ineffective assistance of counsel for several reasons, among them: 1) that defense counsel should have objected to and requested limiting instructions regarding testimony by Mark Hagen, defendant's ex-husband; 2) that defense counsel should have objected to testimony by Dr. Juan Aquino as an inadmissible opinion of the guilt of the defendant; and 3) that defense counsel should have filed a motion to suppress defendant's confession as involuntary. No record has yet been made before the trial court on these issues. We pass these issues in this direct appeal and preserve them for postconviction proceedings. See State v. Bass, 385 N.W.2d 243, 245 (Iowa 1986). AFFIRMED. ----------------------- [1] Jamey Lee Mills was later convicted of first-degree murder for his part in this crime. [2] Walker initially thought defendant and Mills were joking, but he discovered they were serious when he heard them discuss the details of the planned crime. [3] There is some evidence that at trial the defendant claimed that Lathrop's conviction was relevant because he was motivated to testify for the State with the hope of receiving leniency in his sentence. At the time of trial Lathrop was already incarcerated for the commission of the crime of sexual abuse in the third degree. The trial court found, and the record confirms, that there was no evidence that the State offered Lathrop leniency in exchange for his testimony. The trial court further found that evidence of his conviction of sexual abuse would be highly prejudicial. [4] In addition, we recognize, as the defense argues, that the State relies on alternative means to prove the commission of a crime. Contrary to the defendant's argument, we find sufficient evidence to support the alternative of premeditated murder as either principal or aider and abettor, felony murder as either principal or aider and abettor, or joint criminal conduct. Gavin v. State, 425 N.W.2d 673, 678 (Iowa Ct. App. 1988).