STATE OF IOWA, Plaintiff - Appellee, vs. JARMAINE LEVAR ALLEN , Defendant - Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-550 / 06-1495
Filed December 17, 2008
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JARMAINE LEVAR ALLEN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Michael D. Huppert,
Judge.
Jarmaine Allen appeals his judgment and sentence for first-degree
murder, claiming multiple errors. REVERSED AND REMANDED.
Frank Burnette, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney
General, John P. Sarcone, County Attorney, and Daniel Voogt and Robert
DiBlassi, Assistant County Attorneys, for appellee.
Heard by Huitink, P.J., and Vaitheswaran and Potterfield, JJ.
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VAITHESWARAN, J.
Jarmaine Allen appeals his judgment and sentence for first degree
murder, claiming multiple errors. We reverse and remand for a new trial.
I. Background Proceedings
This is the latest appeal involving Allen’s alleged involvement in the 1995
killing of Jody Stokes. Allen’s first trial resulted in a hung jury. Allen’s second
trial resulted in a judgment and sentence for first-degree murder. This court
affirmed the judgment and sentence. See State v. Allen, No. 98-2012 (Iowa Ct.
App. Jun. 14, 2000). Allen subsequently filed an application for postconviction
relief raising a due process claim and several ineffective-assistance-of-counsel
claims. This court found merit to one of the claims and reversed and remanded
for a new trial. Allen v. State, No. 03-1288 (Iowa Ct. App. Apr. 28, 2005).
Following his most recent arraignment, Allen filed a notice of intent to take
depositions of individuals who had already testified in his previous trials. The
court found that these depositions would be unnecessary, duplicative, and unduly
expensive. Allen made further specific requests to depose certain witnesses;
these requests were also denied.
Allen next asked the court to compel the State to produce exculpatory
evidence. The district court ruled that the State had no duty to produce anything
that it had already produced.
Allen also filed a motion to exclude the prior testimony of witness Shyrome
Avant. The district court allowed the testimony based on Avant’s unavailability.
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Allen notified the court of his intent to call witnesses Christine Hogate and
Clifford Freeman, who were slated to testify about others’ involvement in the
Stokes murder. The district court excluded their testimony.
The jurors began deliberations on May 23, 2006, and found Allen guilty of
first-degree murder three days later. Allen filed a motion for new trial, claiming
that the court attendant did not properly supervise the jurors and that the jurors
were exposed to extraneous information related to the case. Allen also asked
the district court judge to recuse himself from ruling on the motion for new trial
because he was listed as a witness and because of his professional relationship
with the court attendant. The court denied the motion for recusal. The court also
denied Allen’s motion for new trial.
Allen was sentenced to life in prison. This appeal followed.
Allen raises several issues on appeal. He contends: (1) his rights under
the Confrontation Clause of the Sixth Amendment to the United States
Constitution were violated when he was not permitted to depose the State’s
witnesses prior to this trial, (2) the district court erred in overruling his request for
exculpatory evidence, (3) the district court erred in excluding the testimony of
Christine Hogate and Clifford Freeman, (4) the district court erred in allowing the
prior testimony of Shyrome Avant to be read into the record, (5) the district court
erred in failing to find prosecutorial misconduct, (6) the district court judge erred
in failing to recuse himself from ruling on the motion for new trial, and (7) the
district court abused its discretion in denying Allen’s motion for new trial based
upon a claim of jury misconduct. We find the final issue dispositive.
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II. Jury Misconduct
A new trial is authorized “[w]hen the jury has received any evidence, paper
or document out of court not authorized by the court.”
Iowa R. Crim. P.
2.24(2)(b)(2). Iowa Rule of Evidence 5.606(b) sets forth the parameters of the
court’s inquiry, stating in pertinent part that “a juror may testify on the question
whether extraneous prejudicial information was improperly brought to the jury’s
attention or whether any outside influence was improperly brought to bear upon
any juror.”
Allen contends that jurors were exposed to several types of extraneous
information during deliberations. We find it necessary to address only one: what
the jurors heard from another juror during deliberations.
Two jurors testified that one of their peers told them Allen was
incarcerated for another offense at the time of this trial.
One juror said,
“Somebody mentioned that [Allen] had already been convicted of one crime so
not to worry about convicting him of this one since he was already doing jail
time.” Another stated he heard a juror say that Allen “was incarcerated currently
for something else.”
In considering these statements, the district court found “the fact that the
defendant had previously been incarcerated was already made part of the
record.” Based on this finding, the court declined to order a new trial.
District courts have broad discretion in ruling on these matters. State v.
Wells, 437 N.W.2d 575, 581 (Iowa 1989). In the exercise of that discretion trial
courts properly could “examine the claimed influence critically in light of all the
trial evidence, the demeanor of witnesses and the issues presented.” State v.
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Johnson, 445 N.W.2d 337, 342 (Iowa 1989) (quoting State v. Christianson, 337
N.W.2d 502, 506 (Iowa 1983)). Mindful of the district court’s discretion, we have
carefully considered the record to determine whether the jurors’ statements
concerning Allen’s present incarceration warrants a new trial.
We begin with the question of whether the jurors’ statements were simply
a repetition of evidence that legitimately came into the record. On this question,
we examine the testimony of two witnesses.
The first witness, Shyrome Avant, whose transcript from Allen’s second
trial was admitted over Allen’s objection, testified that he and Allen “were locked
up together at one time.” The prosecutor then asked him, “And particularly were
you locked up in the Oakdale facility here in Iowa between late January and early
February of 1997?” Avant responded, “Yes, I was.” Later, defense counsel
asked Avant, “You said you were with Jarmaine maybe three weeks or so?” He
answered, “Three to four weeks.” This testimony only disclosed that Allen was
incarcerated nine years before the present trial. Avant did not testify that Allen
was presently incarcerated.
John Harris III was the second witness who testified about Allen’s
incarceration. Defense counsel asked Harris, “At one time were you in Oakdale
with Shyrome Avant and Jarmaine Allen?” He answered, “Yes.” He was then
asked, “Can you tell me when that was?” He answered, “Approximately—I was
there with Shyrome in December, and I think Jarmaine got there probably
towards the end of December, a couple of weeks after I did, of 1996.” Again, this
testimony only disclosed that Allen was incarcerated ten years earlier. There
was no indication that Allen was in prison at the time of this trial.
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Notably, defense counsel filed a pre-trial motion to exclude evidence of
Allen’s prior arrests, convictions, or other bad acts. That motion was granted,
“subject to the State’s right to cross-examine the defendant on any of those
issues, should he testify, or if the door is opened on rebuttal . . . .” The door was
not opened. Based on this record, we conclude the jurors’ disclosure that Allen
was presently incarcerated was an out-of-court statement not authorized by the
district court. Iowa R. Crim. P. 2.24(2)(b)(2).
Our inquiry does not end here because, under our State’s case law, a
party seeking to overturn a verdict must show “the misconduct was calculated to
and, with reasonable probability did, influence the verdict.” State v. Henning, 545
N.W.2d 322, 325 (Iowa 1996) (quoting Doe v. Johnston, 476 N.W.2d 28, 35
(Iowa 1991)).1 The impact of the misconduct is judged objectively to determine
whether a typical juror would have been prejudiced by the extraneous
information. Id. The material must be “of a type more likely than not to implant
prejudice of an indelible nature upon the mind.” Id.
We conclude the extraneous information “was sufficiently prejudicial to
deny defendant a fair trial.” Id. The information was introduced into the jury
room some time during deliberations. The comment that the jurors should not
worry about convicting Allen because he was already serving time was, on its
face, a statement designed to influence the verdict.
1
This is part of a three-part test adopted by our courts to analyze questions of jury
misconduct. See Wells, 437 N.W.2d 580. The first part of that test was modified
through an interpretation of what is now Iowa R. Crim. P. 2.24(2)(b)(2). Id. The second
part of the test, whether the acts “exceed tolerable bounds of jury deliberation,” was
satisfied based on our conclusion that the jurors considered information that was not in
the record and was expressly excluded from the record. See Johnson, 445 N.W.2d at
342 (stating “introduction of additional, outside information is beyond permissible bounds
[of jury deliberation]”).
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We acknowledge there is no indication that any of the jurors knew exactly
what conviction formed the basis of Allen’s present imprisonment or the statutory
prison term to which he was previously sentenced.
However, there is a
reasonable probability that a typical juror would have surmised from such a
statement that his or her finding of guilt would have no effect on a defendant’s
liberty.
In reaching this conclusion, we have examined the remaining dulyadmitted testimony. See Johnson, 445 N.W.2d at 342. In our last appellate
opinion, we characterized this as “a very close case.” Allen v. State, No. 03-1288
(Iowa Ct. App. Apr. 28, 2005). The record from the present trial leads us to make
the same characterization, as the case was fraught with inconsistencies and
equivocal testimony concerning the identity of the shooter.
The State’s lead witness, Kelly Scott, testified on direct examination that
he heard approximately six shots and saw someone running through his yard.
When police showed him a photo array, he identified the running person as
Jarmaine Allen. On cross-examination, however, he acknowledged previously
testifying that he did not know who ran across the yard and denying that Allen
was the person running across the yard. He also admitted that the person who
ran across his yard had a hood over his head and was trying to cover his face as
he was running.
A police officer testified that he showed Kelly Scott and others a photo
array. He testified that no one other than Scott picked Allen as the shooter.
The prosecution also introduced the prior testimony of Shyrome Avant,
who was unavailable at the time of this trial. He testified that he, John Harris III,
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and Allen were at a correctional facility together when Allen confessed to the
Stokes shooting. The defense at the prior trial, however, impeached Avant by
pointing out that criminal charges were pending against him, those charges had
yet to be resolved, and he could be looking at additional prison time.
The
defense also used Avant to diminish the value of another State witness,
Marquetta Slater. Slater had been engaged to Stokes at the time of the shooting.
Avant admitted that Slater was his girlfriend at the time of his testimony against
Allen, that he had spoken to her, and that he knew the State was having trouble
putting together a case against Allen.
Marquetta Slater, in turn, admitted she dated Avant. She implied there
may have been bad blood between Allen and Stokes. She also testified that
Allen, armed with a gun, told Stokes to come out of a community center one or
two days before the shooting.
However, she acknowledged she saw no
confrontation between the two on that night.
Slater also acknowledged she
spoke to assistant county attorneys about information Avant might have on the
Stokes shooting.
Returning to Avant’s testimony concerning Allen’s prison confession, the
defense called the purported third participant in the conversation, John Harris III.
Harris admitted that he was in prison with Avant and Allen, but stated that he was
not present during a confession by Allen, as Avant claimed.
Another witness, Robert Hawthorne, also identified Allen as the shooter,
but his testimony was severely impeached. He ran the bar outside of which
Stokes was shot. He testified he saw “an arm and a silhouette” step out from
behind the lounge and shoot Stokes. That arm and silhouette, he said, belonged
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to the man in the courtroom, Jarmaine Allen. Hawthorne conceded he only saw
the side profile of the shooter. He also conceded he entered a plea to federal
crimes and had his sentence reduced by half in exchange for information
concerning any crime he was aware of.
Other witnesses at the scene were of even less assistance in identifying
Allen as the shooter.
Passerby Jerry Hall testified he pulled up to stoplights near the shooting
and saw a man step out from behind a lounge and shoot another man who had
just come out of the lounge. He stated, “I know the man shot the other man, I
just don’t know what he looked like.”
Nicholas Jones recanted prior testimony identifying Allen as the shooter.
He testified that he did not see who shot Stokes and that he did not see a gun.
Although the State presented evidence of his prior inconsistent statements, the
defense pointed out that those statements were acquired when Jones was a
minor, his parents were not present during questioning, and he spoke to the
prosecutors with Stokes’s mother at his side.
William Holder testified he saw Stokes standing outside the lounge, heard
shots, and saw Allen and another man walking toward the lounge. He admitted
he did not testify truthfully on three prior occasions. He also admitted he thought
his girlfriend had been having sex with Allen. Finally, he admitted he had bad
eyesight.
Johnny Thibodeaux testified he heard five to seven shots but never saw
the shooter. He testified the shots may have been fired by someone inside the
car that was parked next to Stokes. No testimony placed Allen inside the car.
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Randy McCauley testified he heard gunshots.
He stated he was
suspicious of the way the car next to Stokes pulled away.
Pecola Fugate testified she heard gunshots. She said she saw Chuck
Holder running from something. She said she also saw another man running
away from the vicinity of the shooting. She testified that person was not Allen.
There was also no physical evidence tying Allen to the crime. An officer
found shell casings at the scene but an identification technician with the Des
Moines Police Department testified he was never requested to fingerprint the
casings. Another officer testified no gun was found at the scene. A criminalist
with the Iowa Division of Criminal Investigation testified that at least four different
firearms could have been used in the crime.
In sum, using the trial court standard which requires examination of “the
claimed influence critically in light of all the trial evidence,” we conclude the
evidence was not strong enough relative to the jury misconduct to warrant the
denial of Allen’s new trial motion.
See Johnson, 445 N.W.2d at 342.
We
conclude the portion of the new trial motion alleging jury misconduct should have
been granted.
We find it unnecessary to address the remaining issues raised by Allen.
We reverse and remand for a new trial.
REVERSED AND REMANDED.
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