STATE OF IOWA, Plaintiff - Appellee, vs. RASHEEM DAMONTE BOGAN , Defendant - Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-653 / 07-0660
Filed December 17, 2008
STATE OF IOWA,
Plaintiff-Appellee,
vs.
RASHEEM DAMONTE BOGAN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, J. Hobart Darbyshire,
Judge.
Defendant appeals from judgment entered upon his conviction of firstdegree murder. REVERSED AND REMANDED.
Brian Farrell, Cedar Rapids, 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 Vogel, P.J., and Mahan and Miller, JJ.
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MAHAN, J.
Rasheem Bogan appeals from judgment entered upon his conviction of
first-degree murder. He contends, among other things, the trial court erred in
allowing his trial to be joined with that of a codefendant. We agree.
I. Background Facts and Proceedings.
In August 2006 Rasheem Bogan was fourteen years old, a special
education student at Thurgood Marshall Learning Center, and living with his
father.
At about 5 p.m. on August 19, 2006, Mark Helton observed Bogan
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 Donald White.
Beginning at about 6 p.m. on August 19, Bogan 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 ninetyminute walk was followed by a gathering and barbeque at the Rock Island
residence of Hearn‟s grandmother. Several people saw Bogan at the walk and
later barbeque.
At about 11 p.m. or 12 a.m. that night, Bogan was picked up outside of
Millbrook‟s house and given a ride to a Rock Island motel by Timothy Smith.
Smith rented a room for Bogan, using Bogan‟s money.
On the evening of August 19, 2006, in Davenport, Iowa, a young woman
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;
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Howard 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.
Howard 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. Fingerprints of Ron Millbrook
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, but not to
Bogan.
On August 23, 2006, Davenport police officer Mark Dinneweth interviewed
Bogan at Thurgood Marshall Learning Center.
Detective Dinneweth asked
Bogan if he was aware of the Howard shooting. Bogan denied knowing any
specifics, but stated that Stevie West called Bogan‟s brother, Terrell Lobley, and
accused Lobley and Bogan of being the shooters.
When asked about his
whereabouts on the evening of August 19, Bogan stated he went on the Ahearn
memorial walk and then to the barbeque. Bogan then said he and his brother
Lobley went to Ron Millbrook‟s house where they stayed from about 9:30 p.m. to
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12:30 a.m.
He stated he then got a ride from his uncle, Tim Smith, to the
American Motor Inn.
On August 31, 2006, a delinquency proceeding was commenced against
Bogan alleging he had committed the offenses of murder in the first degree and
willful injury. On December 4, 2006, the juvenile court waived jurisdiction over
Bogan. Bogan was charged with murder in the first degree and intimidation with
a dangerous weapon.
The State moved to join Bogan‟s case with that against Don White. 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. White went to the side of a
building, hit the handgun against a wall and again started shooting at one of the
individuals, who was now out of the car and running away. Law enforcement
then 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
associate defendant Don White with the August 19, 2006 shooting and the
weapon.
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Bogan resisted joinder, arguing that the prior acts evidence related to
White would be unfairly prejudicial. 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, Bogan 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 Howard 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, then presented testimony connecting the shell casings to those
involved in the Howard shooting and to Don White. In this appeal, Bogan asserts
the trial court abused its discretion in joining his trial with that of White.
II. Applicable Law and Standard of Review.
At issue here is Iowa Rule of Criminal Procedure 2.71, which provides:
Two or more defendants who are alleged to have participated in the
same transaction or occurrence or series of transactions or
occurrences from which the offense or offenses charged arose may
be tried jointly whether the defendants are charged in one or more
complaints. . . . Complaints or defendants shall not be jointly tried
as to a party if the court finds, in its discretion, that prejudice would
result to the party.
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(Emphasis added.)
Rule 2.71 vests discretion with the district court to determine whether
defendants should be tried jointly or separately. State v. Belieu, 288 N.W.2d
895, 900 (Iowa 1980). We review a district court‟s decision to consolidate or
sever trials for an abuse of discretion. Id. To establish an abuse of discretion, a
defendant must show sufficient prejudice to constitute denial of a fair trial. Id. To
the extent Bogan claims a constitutional violation, our review of the evidence is
de novo. State v. Jefferson, 574 N.W.2d 268, 271 (Iowa 1997).
III. Discussion.
The trials of codefendants should be severed in two circumstances:
(1) the trial is so complex and the evidence so voluminous the jury will be
confused and cannot compartmentalize the evidence; or (2) the evidence
admitted by or against one defendant is so prejudicial to a codefendant, the factfinder is likely to improperly use it against the codefendant. State v. Williams,
574 N.W.2d 293, 300 (Iowa 1998).
Bogan raises the second ground here,
claiming evidence of White‟s prior bad acts was so prejudicial the jury likely
improperly used it against him.
In Belieu, the court noted that “[p]rejudice can also be avoided if the other
crimes evidence would have been admissible in the State‟s case against the
defendant.” Belieu, 288 N.W.2d at 900. Bogan asserts the evidence of White‟s
prior bad acts was not relevant to the charges against Bogan and would not have
been admissible at trial had the defendants been tried separately. The State
argues that the evidence would have been relevant and probative on the issue of
identity even if the defendants had been tried separately. We find the offered
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testimony has no relevance with respect to Bogan‟s identity. Moreover, even if
we assume that some evidence tying the bullet casings found at the Howard
shooting scene to the gun used by White in another shooting would be minimally
relevant, the extensive testimony about the June 16 shooting would most
certainly have been declared unduly prejudicial and cumulative in a case against
Bogan tried alone.
“The rule excluding evidence of other crimes of a defendant is based on
the fundamental principle that „[a] defendant must be convicted only if it is proved
he committed the offense charged and not because he is a bad man.‟” Id. at 901
(quoting State v. Wright, 203 N.W.2d 247, 250 (Iowa 1972)). As was the case in
Belieu, the evidence of White‟s prior bad acts when applied to Bogan “tended
only to establish defendant‟s bad character”—that Bogan kept company with
persons who cavalierly used weapons. Id.
The State argues that the prejudice was minimized by limiting instructions
offered at trial.
Ladies and gentlemen, starting with this witness, evidence is
going to be presented concerning other wrongful acts alleged to
have been committed by Defendant Don White, Jr. Defendant
White is not on trial today for those other acts. Evidence of other
crimes, wrongs or acts is not admissible to show the character of
the person in order to show that he acted in conformity therewith. It
may, however, be admissible for other purposes, such as proof of
identity. You are cautioned that you may not use evidence
Defendant White may have committed the other wrongful acts as
proof he committed the acts that he is charged with in this trial.
We first note that nothing in the instruction cautions the jury about how it could
use the evidence with respect to Bogan. More importantly, however, we “do not
believe this is the kind of prejudice which can be erased by a limiting instruction.”
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Id.
“It did not involve a brief, inadvertent reference to prior criminal activity,
promptly stricken from the record.”
Id.
Rather, it involved extensive and
repeated references to other acts which remained part of the record because of
purported relevancy to the codefendant‟s identity and involvement. See id. We
find that the evidence as presented, especially in light of the absence of a strong
limiting instruction, was such “that its prejudicial effect against this defendant
could not reasonably be cured by a limiting instruction.” Id.
In some cases, the prejudicial effect might be mitigated by the
overwhelming nature of the State‟s evidence against the defendant. See, e.g.,
State v. Leutfaimany, 585 N.W.2d 200, 206 (Iowa 1998) (noting the evidence
incriminating defendant “came close to being conclusive”).
Here, the State‟s
evidence against Bogan is certainly not overwhelming. Bogan was entitled to
jury consideration “free from the spill-over effect of the other crimes evidence.”
Belieu, 288 N.W.2d at 902.
We conclude Bogan was entitled to a separate trial.
In light of this
conclusion, we need not address the remainder of Bogan‟s claims. We therefore
reverse and remand for a new trial.
REVERSED AND REMANDED.
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