STATE OF IOWA, Plaintiff-Appellee, vs. JOSEPH LEO JOHNSON, Defendant-Appellant.Annotate this Case
IN THE COURT OF APPEALS OF IOWA
No. 9-830 / 07-2074
Filed January 22, 2010
STATE OF IOWA,
JOSEPH LEO JOHNSON,
Appeal from the Iowa District Court for Black Hawk County, James C.
A defendant appeals his judgment and sentence for first-degree murder,
contending (1) there was insufficient evidence to submit the issue of his guilt to a
jury, (2) the verdict was contrary to the weight of the evidence, (3) the district
court erroneously admitted several hearsay statements, and (4) trial counsel was
ineffective in failing to request certain jury instructions. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Stephan Japuntich,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and Linda Fangman, Assistant
County Attorney, for appellee.
Heard by Sackett, C.J., and Vaitheswaran and Danilson, JJ.
Joseph Johnson appeals his judgment and sentence for first-degree
murder. He contends (1) there was insufficient evidence to submit the issue of
his guilt to a jury, (2) the verdict was contrary to the weight of the evidence, (3)
the district court erroneously admitted several hearsay statements, and (4) trial
counsel was ineffective in failing to request certain jury instructions.
Background Facts and Proceedings
Joseph Johnson and his friends attended a birthday party. As they were
leaving, Johnson heard someone shout a racially derogatory term.
confronted the individual, then left. A short time later, Johnson and his friends
returned to the party with knives. A fight broke out. Treye Blythe, who was
attending the party, but was not the person who used the racially-charged slur,
fell to the ground. He subsequently died of a stab wound to the chest.
Johnson left the scene. He gave a knife to a friend, who disposed of it in a
Several people observed a substantial amount of blood on
The State charged Johnson with first-degree murder and the case
proceeded to a jury trial. After the prosecution rested, Johnson moved for a
judgment of acquittal. The district court denied the motion.
Johnson testified in his own defense. He admitted he had a knife in his
possession. The jury found Johnson guilty as charged.
Johnson moved for new trial, contending in part that the verdict was
contrary to the weight of the evidence. The district court denied the motion and
imposed sentence. Johnson appealed.
Sufficiency of the Evidence
The jury was instructed that the State would have to prove the following
elements of first-degree murder:
1. On or about the 19th day of August, 2006, the defendant stabbed
2. Treye Blythe died as a result of being stabbed.
3. The defendant acted with malice aforethought.
4. The defendant acted willfully, deliberately, premeditatedly and with
the specific intent to kill Treye Blythe.
Johnson takes issue with the third and fourth elements, contending the
State “failed to prove malice, specific intent, and that defendant acted willfully,
deliberately or premeditatedly.”
As a preliminary matter, the State argues that error was not preserved.
We agree. Johnson‟s attorney did not challenge the specific elements he now
raises. He simply stated:
Viewed in the light most favorable to the State, looking at the
elements of the offense under which he is charged, there simply is
insufficient evidence to carry this matter any further, and we‟d ask
that the Court dismiss the charge as a matter of law.
This was insufficient to preserve error. See State v. Truesdell, 679 N.W.2d 611,
615 (Iowa 2004) (“To preserve error on a claim of insufficient evidence for
appellate review in a criminal case, the defendant must make a motion for
judgment of acquittal at trial that identifies the specific grounds raised on
appeal.”); State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996) (“The record reveals
Crone‟s attorney did not mention the „threat‟ or „anything of value‟ elements of the
extortion charge in his motion.
Accordingly, Crone‟s motion for judgment of
acquittal did not preserve the specific arguments he is now making for the first
time on appeal.”). Accordingly, we will review this issue under an ineffective-
assistance-of-counsel rubric. See Crone, 545 N.W.2d at 270. Johnson must
establish that counsel breached an essential duty in failing to challenge the third
and fourth elements of the crime and prejudice resulted.
See Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693
(1984). Our review is de novo. State v. Martin, 704 N.W.2d 665, 668 (Iowa
The record reveals that Johnson was “[v]ery upset” at the use of a racial
slur and confronted the person he thought had used the slur. He then left the
party. According to a friend, Johnson was still “pretty mad” and “he wanted to
confront them about [the racial slur] and possibly fight them.”
Johnson arrived at his friend‟s house, went in for a minute or two, and
returned to his friend‟s car with knives. He convinced his friends to return to the
party. They agreed, but, on discovering the knives, advised him to leave them in
the car. Johnson did so, but retained a pocket knife.
A reasonable juror could have found that this evidence evinced
premeditation and deliberation. See, e.g., State v. Buenaventura, 660 N.W.2d
38, 48 (Iowa 2003) (defining premeditate as “to think or ponder upon the matter
before acting”); State v. Wilkens, 346 N.W.2d 16, 20 (Iowa 1984) (noting
premeditation and deliberation could be shown by evidence of planning activity,
motive and nature of killing).
At this point, Johnson got into an argument with two individuals. Blythe,
who was in the vicinity, attempted to break up the confrontation. Johnson took a
step back from Blythe, reached into his pocket in an apparent attempt to retrieve
something, and made a punching motion towards Blythe‟s chest. Blythe fell to
the ground immediately.
A reasonable juror could have found that this evidence was sufficient to
establish “malice aforethought.” See State v. Reeves, 636 N.W.2d 22, 25 (Iowa
2001) (noting malice may be inferred from the use of a deadly weapon with an
opportunity to deliberate); see also Iowa Code § 702.7 (2007) (defining
dangerous weapon in part as “any instrument or device of any sort whatsoever
which is actually used in such a manner as to indicate that the defendant intends
to inflict death or serious injury upon the other, and which, when so used, is
capable of inflicting death upon a human being”). The same evidence supported
a finding of specific intent. See Wilkens, 346 N.W.2d at 20 (“When a person
intentionally uses a deadly weapon in killing a victim, the jury may infer that he
had formed the specific intent to kill.”).
After the stabbing, Johnson had a friend dispose of this knife. This was
additional evidence supporting a finding that Johnson acted with premeditation.
See Buenaventura, 660 N.W.2d at 49 (stating that evidence of what defendant
does after a crime can show premeditation).
In the face of this evidence, Johnson‟s trial attorney was not ineffective in
failing to challenge the evidence supporting the third and fourth elements of the
charge. See Crone, 545 N.W.2d at 270.
Weight of the Evidence
Johnson next argues that the jury‟s finding of guilt was against the weight
of the evidence. See State v. Ellis, 578 N.W.2d 655, 658–59 (Iowa 1998). The
State again responds that Johnson did not preserve error on this argument. We
At the hearing on his new trial motion, counsel argued that the verdict was
contrary to the weight of the evidence and pointed to the absence of reliable
evidence such as DNA test results or fingerprints.
These statements were
sufficient to preserve error and, accordingly, we will not review this argument
under an ineffective-assistance-of-counsel rubric. Our review is for an abuse of
discretion. Id. at 659.
The district court filed a detailed written ruling in which the court cited the
appropriate standard for reviewing this type of issue, acknowledged that there
were differences in the witnesses‟ testimony, pointed to admissions made by the
defendant, and concluded “that the credible evidence presented in this case
supports the jury‟s verdict finding the defendant guilty of Murder in the First
Degree.” We discern no abuse of discretion in the court‟s ruling.
Johnson next argues that the district court erred in admitting certain outof-court statements at trial. The only objections to these statements Johnson
raised were hearsay objections. The district court‟s rulings on hearsay objections
are reviewed for errors at law. State v. Newell, 710 N.W.2d 6, 18 (Iowa 2006).
Hearsay is defined as “a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” Iowa R. Evid. 5.801(c). Hearsay is not admissible unless it
falls within one of a number of enumerated exceptions or exclusions. Newell,
710 N.W.2d at 18. Where hearsay evidence is improperly admitted, prejudice is
presumed unless established otherwise.
Id. at 19.
presumption of prejudice from the admission of such evidence, the erroneously
admitted hearsay will not be considered prejudicial if substantially the same
evidence is properly in the record.” Id.
Johnson takes issue with seven statements.
We will assume without
deciding that all the challenged statements were hearsay and were improperly
The first statement came from a witness who overheard the host of the
party say, “I don‟t want you to start a fight at my party.” The host testified to
essentially the same thing, stating he told Johnson and another person that
“nothing was going to happen at the party” and he “just wanted everybody to
leave.” Therefore the challenged statement was cumulative and non-prejudicial.
The second statement came from a witness who heard partygoer Josh
Randall deny he called Johnson the “N-word.”
Again, this statement was
essentially cumulative of Randall‟s testimony that it was another individual, Dylan
Buls, who “said the N-word.”
The third statement came from a witness who overheard Blythe tell
Johnson, “All right hit me,” in response to Johnson‟s assertion that he would hit
him. This statement was essentially cumulative of testimony from witness Aaron
Ungs that Johnson and another individual started pushing and yelling and Blythe
attempted to intervene and stop the other individual. It was also cumulative of
the testimony of witness Sean Adams who said he saw Blythe involved with
fighting Johnson and Johnson was the last person he saw fighting with Blythe.
The fourth challenged statement was that of an unidentified woman who
yelled out “Joe” as Johnson was leaving the party the first time. This statement
was cumulative of other evidence indicating that Johnson was a part of the group
that left the party.
The fifth challenged statement was testimony that a witness overheard
someone shout, “He got stabbed.” This statement was cumulative of Johnson‟s
own testimony that he heard “someone say somebody got stabbed.”
The sixth challenged statement was a police officer‟s testimony that
people were telling him the defendant stabbed Blythe. The challenged testimony
is as follows:
Q. From the people at the party, nobody told you that Josh
Shane stabbed Treye Blythe, did they?
MR. HOFFEY: Objection, Your Honor. Hearsay.
THE COURT: Overruled.
Q. (By Ms. Fangman) People weren‟t telling you it was Josh
Shane, were they? A. No, no one has told me that it was Josh
Q. People were telling you it was the defendant, weren’t
they? A. Yes.
(Emphasis added). This evidence was cumulative of the testimony of witness
David O‟Connell, who stated that Johnson retrieved something from his pocket
and made a punching motion toward Blythe‟s chest. It was also cumulative of
witness Brandon Kistner‟s testimony that Johnson told him he had stabbed a kid.
The seventh challenged statement was the following testimony attributed
to the host of the party and directed to Johnson: “If you want to stab somebody,
stab me.” The defense interposed an objection, which the court sustained, and
the court further instructed the jury to disregard the comment. Accordingly, we
find no error.
In summary, we conclude any error in admitting the first six statements
was harmless, as the challenged statements were cumulative of other evidence
in the record. We find no error with respect to the seventh statement.
Ineffective Assistance of Counsel
Johnson claims that trial counsel was ineffective in (1) failing to request a
corroboration instruction, and (2) failing to request a self-defense instruction.
postconviction relief proceedings for more complete development of the record.
State v. Bumpus, 459 N.W.2d 619, 627 (Iowa 1990). We preserve these claims
for postconviction relief proceedings.